The Indian Penal Code (PB), 36th ed
 
Ratanlal & Dhirajlal: Indian Penal Code (PB) / THE INDIAN PENAL CODE
 
Currency Date: 28 April 2020
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THE INDIAN PENAL CODE
(ACT XLV OF 1860)
[Received the assent of the Governor-General on October 6, 1860.]

CHAPTER I INTRODUCTION
The Indian Penal Code was drafted by the First Indian Law Commission presided over
by Lord Thomas Babington Macaulay. The draft underwent further revision at the hands
of well-known jurists, like Sir Barnes Peacock, and was completed in 1850. The Indian
Penal Code was passed by the then Legislature on 6 October 1860 and was enacted as
Act No. XLV of 1860.
Preamble. WHEREAS it is expedient to provide a general
Penal Code for India; It is enacted as follows:—
COMMENT.—The Indian Penal Code, 1860 (IPC, 1860) exhaustively codiﬁes the law
relating to offences with which it deals and the rules of the common law cannot be
resorted to for inventing exemptions which are not expressly enacted.1. It is not
necessary and indeed not permissible to construe the IPC, 1860 at the present day in
accordance with the notions of criminal jurisdiction prevailing at the time when the
Code was enacted. The notions relating to this matter have very considerably changed

between then and now during nearly a century that has elapsed. It is legitimate to
construe the Code with reference to the modern needs, wherever this is permissible,
unless there is anything in the Code or in any particular section to indicate the
contrary.2.
[s 1] Title and extent of operation of the Code.
This Act shall be called the Indian Penal Code, and shall 3.[extend to the whole of
India 4.[except the State of Jammu and Kashmir].]
COMMENT—
Before 1860, the English criminal law, as modiﬁed by several Acts,5. was administered
in the Presidency towns of Bombay, Calcutta and Madras. But in the mofussil, the
Courts were principally guided by the Mohammedan criminal law, the glaring defects of
which were partly removed by Regulations of the local Governments. In 1827, the

judicial system of Bombay was thoroughly revised and from that time the law which the
criminal Courts administered was set forth in a Regulation6. deﬁning offences and
specifying punishments. But in the Bengal and Madras Presidencies the Mohammedan
criminal law was in force till the Indian Penal Code came into operation.
[s 1.1] Trial of offences under IPC, 1860.—
All offences under IPC, 1860 shall be investigated, inquired into, tried and otherwise
dealt with according to the provisions of the Code of Criminal Procedure, 1973 (Cr PC,
1973).7.
[s 1.2] Overlapping Offences.—

1.  MC Verghese v Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : (1969) 1 SCC 37 [LNIND
1968 SC 339] : 1970 Cr LJ 1651 .
2.  Mobarik Ali v State of Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC).
3.  The original words have successively been amended by Act 12 of 1891, section 2 and Sch I,
the A.O. 1937, the A.O. 1948 and the A.O. 1950 to read as above.
4.  Subs. by Act 3 of 1951, section 3 and Sch, for "except Part B States" (w.e.f. 1-4-1951).
5.  9 Geo. IV, section 74; Acts VII and XIX of 1837; Act XXXI of 1838; Acts XXII and XXXI of 1839;
Acts VII and X of 1844; Act XVI of 1852. See Pramod Kumar, Perspectives of the New Bill on
Indian Penal Code and Reﬂections on the Joint Select Committee Report—Some Comments,
(1980) 22 JILI 307.
6.  XIV of 1827.
7.  Section 4(1) Code of Criminal Procedure, 1973. Also see commentary under section 3 of IPC
infra.
8.  Sangeetaben Mahendrabhai Patel v State of Gujarat, AIR 2012 SC 2844 [LNIND 2012 SC 1473]
: (2012) 7 SCC 621 [LNIND 2012 SC 1473] .

infra.
9.  Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND
2012 SC 1215] : AIR 2012 (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 [relied on State (NCT of
Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] : (2005) 11 SCC
600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715]
10.  Natarajan v State, (2008) 8 SCC 413 [LNIND 2008 SC 1093] : (2008) 3 SCC (Cr) 507.
Where there is some overlapping between offences contained in IPC, 1860 and other
enactments, the Supreme Court has held that it would not mean that the offender could
not be tried under IPC, 1860. The Court concerned can pronounce on such issues on
the basis of evidence produced before it. There may be some overlapping of facts in

the cases under section 420 IPC, 1860 and section 138 of the Negotiable Instruments
Act, 1881 but ingredients of offences are entirely different. Thus, the subsequent case
is not barred.8. A "terrorist act" and an act of "waging war against the Government of
India" may have some overlapping features, but a terrorist act may not always be an act
of waging war against the Government of India, and vice versa. The provisions of
Chapter IV of the Unlawful Activities (Prevention) Act, 1967 and those of Chapter VI of
the IPC, 1860 including section 121, basically cover different areas.9. The mere fact
that the offence in question was covered by the Customs Act, 1962 did not mean that it
could not be tried under IPC, 1860 if it also falls under it.10.

[s 2] Punishment of offences committed within India.
Every person 1 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 11.[India] 12.[***]. 2
COMMENT—
This section deals with the intraterritorial operation of the Code. It makes the Code
universal in its application to every person in any part of India for every act or omission
contrary to the provisions of the Code.
Section 2 read with section 4 of the IPC, 1860 makes the provisions of the Code

applicable to the offences committed "in any place without and beyond" the territory of
India; (1) by a citizen of India or (2) on any ship or aircraft registered in India,
irrespective of its location, by any person not necessarily a citizen. Such a declaration
was made as long back as in 1898. By an amendment in 2009 to the said section, the
Code is extended to any person in any place "without and beyond the territory of India",
committing an offence targeting a computer resource located in India.13.
1. 'Every person'.—Every person is made liable to punishment, without distinction of
nation, rank, caste or creed, provided the offence with which he is charged has been
committed in some part of India. A foreigner who enters the Indian territories and thus,
accepts the protection of Indian laws virtually gives an assurance of his ﬁdelity and

obedience to them and submits himself to their operation. It is no defence on behalf of
a foreigner that he did not know he was doing wrong, the act not being an offence in
his own country. A foreigner who commits an offence within India is guilty and can be

punished as such without any limitation as to his corporal presence in India at the
time.14. Indian Courts have jurisdiction against foreigners residing in foreign countries
but their acts connected with transaction or part of transaction arising in India.15.
[s 2.1] Corporate Criminal Liability
A company is liable to be prosecuted and punished for criminal offences. Although
there are earlier authorities to the fact that the corporation cannot commit a crime, the
generally accepted modern rule is that a corporation may be subject to indictment and
other criminal process although the criminal act may be committed through its agent.
The majority in the Constitution bench held that there is no immunity to the companies
from prosecution merely because the prosecution is in respect of offences for which
the punishment is mandatory imprisonment and ﬁne.16. When imprisonment and ﬁne is
prescribed as punishment the Court can impose the punishment of ﬁne which could be
enforced against the company.17.

In CBI v Blue Sky Tie-up Pvt Ltd,18. the question again came up for consideration before
the Supreme Court and it was held that since the majority of the Constitution Bench
ruled in Standard Chartered Bank v Directorate of Enforcement [supra] that the company
can be prosecuted even in a case where the Court can impose substantive sentence as
also ﬁne, and in such case only ﬁne can be imposed on the corporate body, the contrary
view taken by the learned single Judge cannot be approved.
[s 2.2] Vicarious Liability.—
Indian Penal Code, save and except some matters does not contemplate any vicarious
liability on the part of a person. Commission of an offence by raising a legal ﬁction or
by creating a vicarious liability in terms of the provisions of a statute must be expressly

stated. The Managing Director or the Directors of the Company, thus, cannot be said to
have committed an offence only because they are holders of oﬃces.19. Vicarious
liability of the Managing Director and Director would arise provided any provision exists
in that behalf in the statute. Statutes indisputably must contain provision ﬁxing such
vicarious liabilities. Even for the said purpose, it is obligatory on the part of the
complainant to make requisite allegations which would attract the provisions
constituting vicarious liability.20. The provisions of the Essential Commodities Act,
1955, Negotiable Instruments Act, 1881, Employees' Provident Fund (Miscellaneous
Provision) Act, 1952, etc., have created such vicarious liability. It is interesting to note

that section 14A of the 1952 Act speciﬁcally creates an offence of criminal breach of
trust in respect of the amount deducted from the employees by the company. In terms
of the explanations appended to section 405 of the IPC, 1860 a legal ﬁction has been
created to the effect that the employer shall be deemed to have committed an offence
of criminal breach of trust. Whereas a person in charge of the affairs of the company
and in control thereof has been made vicariously liable for the offence committed by
the company along with the company but even in a case falling under section 406 of
the IPC, 1860 vicarious liability has been held to be not extendable to the Directors or
oﬃcers of the company.21.
There is no exception in favour of anyone in the Penal Code, but the following persons

are exempted from the jurisdiction of criminal Courts of every country:—
(a) Foreign Sovereigns.—The real principle on which the exemption, of every sovereign
from the jurisdiction of every Court, has been deduced is that the exercise of such
jurisdiction would be incompatible with his regal dignity—that is to say, with his
absolute independence of every superior authority.22.

(b) Diplomats.—United Nations Privileges and Immunities Act, 1947, and the Diplomatic
Relations (Vienna Convention) Act, 1972, gave certain diplomats, missions and their
member's diplomatic immunity even from criminal jurisdiction. The Diplomatic
Relations (Vienna Convention) Act had been enacted to give effect to the Vienna
Convention on Diplomatic Relations, 1961. The effect of section 2 of the Act is to give
the force of law in India to certain provisions set out in the Schedule to the Act.
A diplomatic agent shall enjoy immunity from the criminal jurisdiction of the receiving
State. He shall also enjoy immunity from its civil and administrative jurisdiction except
in the case of:
(i) A real action relating to private immovable property situated in the territory of the
receiving State, unless he holds it on behalf of the sending State for the
purposes of the mission;
(ii) An action relating to succession in which the diplomatic agent is involved as

executor, administrator, heir or legatee as a private person and not on behalf of
the sending State;
(iii) An action relating to any professional or commercial activity exercised by the
diplomatic agent in the receiving State outside his oﬃcial functions.23. A
diplomatic agent is not obliged to give evidence as a witness.24. Privileges and
immunities are conferred on United Nations and its Representatives as well as
on other international organisations and their representatives by the United
Nations (Privileges and Immunities) Act, 1947.25.
(c) Alien enemies.—In respect of acts of war alien enemies cannot be tried by criminal
Courts. If an alien enemy commits a crime unconnected with war, e.g., theft, he would
be triable by ordinary criminal Courts.

(d) Foreign army.—When armies of one State are by consent on the soil of a foreign
State they are exempted from the jurisdiction of the State on whose soil they are.
(e) Warships.—Men-of-war of a State in foreign waters are exempt from the jurisdiction
of the State within whose territorial jurisdiction they are. The domestic Courts, in
accordance with principles of international law, will accord to the ship and its crew and
its contents certain immunities. The immunities can, in any case, be waived by the
nation to which the public ship belongs.26.
(f) President and Governors.—Under Article 361 of the Indian Constitution, the
President and Governors are exempt from the jurisdiction of Courts.
2. 'Within India'.—If the offence is committed outside India it is not punishable under
the Penal Code, unless it has been made so by means of special provisions such as

sections 3, 4, 108A, etc., of the Code. Under section179 of the Cr PC, 1973 even the
place(s) wherein the consequence (of the criminal act) "ensues" would be relevant to
determine the Court of competent jurisdiction. Therefore, even the Courts within whose
local jurisdiction, the repercussion/effect of the criminal act occurs, would have
jurisdiction in the matter. When the consequence of an act committed by a foreigner
outside India if ensued in India, he can be tried in India.27. Normally crime carries the
person. The commission of a crime gives the Court of the place where it is committed
jurisdiction over the person of the offender.28.
[s 2.3] Territorial jurisdiction.—

The territory of India is deﬁned under Article 1 of the Constitution of India. Article 1 of
the Constitution of India deals only with the geographical territory while Article 297
deals with 'maritime territory'.
Article 297(3) authorises the Parliament to specify from time to time the limits of
various maritime zones such as, territorial waters, continental shelf, etc. Clauses (1)
and (2) of the said Article make a declaration that all lands, minerals and other things
of value and all other resources shall vest in the Union of India.29. Section 18 of the IPC,
1860 deﬁnes India as the territory of India excluding the state of Jammu and Kashmir.
These territorial limits would include the territorial waters of India.30. Under the General
Clauses Act, 1897, India is deﬁned to mean all territories for the time being comprised
in the territory of India as deﬁned in the Constitution of India. Under the provisions of
Article 297 of the Constitution of India, all lands, minerals and other things of value

underlying the ocean within the territorial waters or the continental shelf or the
exclusive economic zone of India vest in the Union. The Constitution of India does not
itself deﬁne the terms territorial waters, continental shelf, and exclusive economic
zone. Clause (3) of Article 297 states that their limits shall be such as may be speciﬁed
by Parliament. In 1976, Parliament implemented the amendments to the Constitution
of India by passing the Maritime Zones Act, 1976.31. Insofar the Republic of India is
concerned, the limit of the territorial waters was initially understood to be three nautical
miles. It had been extended subsequently; up to six nautical miles by a Presidential
proclamation dated 22 March 1952 and to 12 nautical miles by another proclamation

dated 30 September 1967. By The Territorial Waters, Continental Shelf, Exclusive
Economic Zone and Other Maritime Zones Act, 80 of 1976, it was statutorily ﬁxed at 12
nautical miles. Section 3 of the Act stipulates that the sovereignty of India extends to
the territorial waters, the limit of which is 12 nautical miles. Section 5 of the Territorial
Waters Act, 1976 deﬁnes the contiguous zone of India as an area beyond and adjacent
to territorial waters to a distance of 24 nautical miles from the nearest point of the
baseline. Section 7 of the Act deﬁnes the Exclusive economic zone of India as an area
beyond and adjacent to territorial waters up to a limit of 200 nautical miles.32.
[s 2.4] Jurisdiction beyond Territorial Waters
In the case of British India Steam Navigation Co Ltd v Shanmughavilas Cashew

Industries,33. the Supreme Court examined the effective operation of the statutes of a
country in relation to foreigners and foreign ships.
In general, a statute extends territorially, unless the contrary is stated, throughout the
country and will extend to the territorial waters, and such places as intention to that effect is
shown. A statute extends to all persons within the country if that intention is shown. The
Indian Parliament, therefore, has no authority to legislate for foreign vessels or foreigners in
them on the high seas. Thus a foreign ship on the high seas, or her foreign owners or their
agents in a foreign country, are not deprived of rights by our statutory enactment expressed
in general terms unless it provides that a foreign ship entering an Indian port or territorial
waters and thus coming within the territorial jurisdiction is to be covered. Without anything

more Indian statutes are ineffective against foreign property and foreigners outside the
jurisdiction.
It is this principle which is reﬂected in section 2(2) of the Merchant Shipping Act,
1958.34.
Earlier in Aban Loyd Chiles Offshore Ltd v UOI,35. it was held that India has been given
only certain limited sovereign rights and such limited sovereign rights conferred on
India in respect of continental shelf and exclusive economic zone cannot be equated to
extending the sovereignty of India over the continental shelf and exclusive economic
zone as in the case of territorial waters.

11.  The original words "the said territories" have successively been amended by the A.O. 1937,
the A.O. 1948, the A.O. 1950 and Act 3 of 1951, section 3 and Sch (w.e.f. 3-4-1951), to read as
above.
12.  The words and ﬁgures "on or after the said ﬁrst day of May, 1861" rep. by Act 12 of 1891,
section 2 and Sch I.
13.  Republic of Italy through Ambassador v UOI, (2013) 4 SCC 721 : 2013 (1) Scale 462
[LNINDORD 2013 SC 9114] .
14.  Mobarik Ali v State of Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC).
See also State of Maharashtra v Mayer Hans George, 1965 (1) SCR 123 [LNIND 1964 SC 415] :
AIR 1965 SC 722 [LNIND 1964 SC 208] : 1965 (1) Cr LJ 641 .
15.  Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007
[LNINDORD 2012 SC 443] : 2012 Cr LJ 1551 .

16.  Standard Chartered Bank v Directorate of Enforcement, (2005) 4 SCC 530 [LNIND 2005 SC
476] : AIR 2005 SC 2622 [LNIND 2005 SC 476] : 2005 SCC (Cr) 961; Asstt Commr v Velliappa
Textiles Ltd, 2003 (11) SCC 405 [LNIND 2003 SC 794] : 2004 SCC (Cr) 1214) Overruled.
17.  Standard Chartered Bank v Directorate of Enforcement, AIR 2006 SC 1301 [LNIND 2006 SC
145] : (2006) 4 SCC 278 [LNIND 2006 SC 145] : (2006) 2 SCC (Cr) 221. See also CBI v Blue Sky
Tie-up Pvt Ltd, (2011) 6 Scale 436 : AIR 2012 (SCW) 1098 : 2012 Cr LJ 1216 . Also see Aneeta
Hada v Godfather Travels & Tours, (2012) 5 SCC 66 : 2012 Cr LJ 2525 : AIR 2012 SC 2795 [LNIND
2012 SC 260] .
18.  CBI v Blue Sky Tie-up Pvt Ltd, (2011) 6 Scale 436 : AIR 2012 (SCW) 1098 : 2012 Cr LJ 1216 .

Also see Aneeta Hada v Godfather Travels & Tours, (2012) 5 SCC 66 : 2012 Cr LJ 2525 : AIR 2012
SC 2795 [LNIND 2012 SC 260] in which it is held that directors cannot be prosecuted without the
Company being arraigned as an accused–138 NI Act.
19.  Keki Hormusji Gharda v Mehervan Rustom Irani, (2009) 6 SCC 475 [LNIND 2009 SC 1276] :
2009 Cr LJ 3733 : AIR 2009 SC 2594 [LNIND 2009 SC 1276] .
20.  Maksud Saiyed v State of Gujarat, (2008) 5 SCC 668 [LNIND 2007 SC 1090] : JT 2007 (11) SC
276 [LNIND 2007 SC 1090] : (2008) 2 SCC (Cr) 692.
21.  SK Alagh v State of UP, AIR 2008 SC 1731 [LNIND 2008 SC 368] : (2008) 5 SCC 662 [LNIND
2008 SC 368] : 2008 Cr LJ 2256 : (2008) 2 SCC (Cr) 686.
22.  Per Brett, LJ in The Parlement Belge, (1880) 5 PD 197 , 207.
23.  Article 31 (1) of Diplomatic Relations (Vienna Convention) Act, 1972.
24.  Article 31 (1) of Diplomatic Relations (Vienna Convention) Act, 1972.

25.  United Nations (Privileges and Immunities) Act, Act No. XLV of 1947.
26.  Chung Chi Cheung, (1939) AC 160 .
27.  Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007
[LNINDORD 2012 SC 443] : 2012 Cr LJ 1551 ; Mobarik Ali v State of Bombay, AIR 1957 SC 857
[LNIND 1957 SC 81] : 1957 Cr LJ 1346 (SC) : 1958 SCR 328 [LNIND 1957 SC 81] .

28.  Kubic Dariusz v UOI, AIR 1990 SC 605 [LNIND 1990 SC 25] : (1990) 1 SCC 568 [LNIND 1990
SC 25] : 1990 Cr LJ 796 .
29.  Republic of Italy through Ambassador v UOI, (2013) 4 SCC 721 : 2013 (1) Scale 462
30.  BK Wadeyar v Daulatram Rameshwarlal, AIR 1961 SC 311 [LNIND 1960 SC 493] : 1961 (1)
SCR 924 [LNIND 1960 SC 493] .
31.  Aban Loyd Chiles Offshore Ltd v UOI, JT 2008 (5) SC 256 [LNIND 2008 SC 897] : 2008 (6)
Scale 128 [LNIND 2008 SC 897] : (2008) 11 SCC 439 [LNIND 2008 SC 897] .
32.  UOI Republic of Italy through Ambassador v UOI, (2013) 4 SCC 721 : 2013 (1) Scale 462
33.  British India Steam Navigation Co Ltd v Shanmughavilas Cashew Industries, 1990 (3) SCC
481 [LNIND 1990 SC 150] : JT 1990 (1) SC 528 [LNIND 1990 SC 150] : 1990 (1) SCR 884 .
34.  World Tanker Carrier Corp v SNP Shipping Services Pvt Ltd, AIR 1998 SC 2330 [LNIND 1998
SC 461] : 1998 (5) SCC 310 [LNIND 1998 SC 461] .

35.  Aban Loyd Chiles Offshore Ltd v UOI, (2008) 11 SCC 439 [LNIND 2008 SC 897] : JT 2008 (5)
SC 256 [LNIND 2008 SC 897] : 2008 (6) Scale 128 [LNIND 2008 SC 897] .

[s 3] Punishment of offences committed beyond, but which by law may be tried
within India.
Any person liable, by any 36.[Indian law], to be tried for an offence committed beyond
37.[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 38.[India].
COMMENT—
This section and section 4 relate to the extraterritorial operation of the Code. The
words of this section postulate the existence of a law that an act constituting an

COMMENT—
offence in India shall also be an offence when committed outside India. Thus, taking
part in a marriage which is prohibited by the Child Marriage Restraint Act, 1929 by a
citizen of India beyond India is not an offence which can be punished in India.39. This
section only applies to the case of a person who at the time of committing the offence
charged was amenable to an Indian Court.40. Thus, an Indian citizen who committed an
offence outside India which was not an offence according to the laws of that country
would still be liable to be tried in India if it was an offence under the Indian law.41. An
Indian citizen was murdered by another Indian citizen in a foreign country and the
police refused to register an FIR on the ground that the offence was committed outside

India. The Court held that the refusal was illegal and directed the police to register the
crime and proceed with investigation in accordance with the law. The Court observed
that section 3 of the IPC, 1860 helps the authorities in India to proceed by treating the
offence as one committed within India. No doubt it is by a ﬁction that such an
assumption is made. But such an assumption was necessary for practical purposes.42.

36.  Subs. by the A.O. 1937 for "law passed by the Governor General of India in Council".
37.  The original words "the limits of the said territories" have successively been amended by
the A.O. 1937, the A.O. 1948, the A.O. 1950 and Act 3 of 1951, section 3 and Sch (w.e.f. 3 April
1951), to read as above.
38.  The original words "the said territories" have successively been amended by the A.O. 1937,
the A.O. 1948, the A.O. 1950 and Act 3 of 1951, section 3 and Sch, (w.e.f. 3-4-951) to read as
above.
39.  Sheikh Haidar v Syed Issa, (1939) Ngp 241.
40.  Pirtai, (1873) 10 BHC (Cr C) 356.
41.  Pheroze v State of Maharashtra, 1964 (2) Cr LJ 533 (Bom).
42.  Remia v Sub-Inspector of Police, Tanur, 1993 Cr LJ 1098 (Ker). The court referred to State of

WB v Jugal Kishore, AIR 1969 SC 1171 [LNIND 1969 SC 8] : 1969 Cr LJ 1559 .
43.  Souda Beevi v Sub Inspector of Police, 2012 Cr LJ 58 (NOC) : 2011 (4) Ker LT 52 ;
Muhammad Raﬁ v State of Kerala, 2010 Cr LJ 592 : 2009 (1) Ker LT 943 ; Vijaya Saradhi Vajja v
Devi Sriroopa Madapati, 2007 Cr LJ 636 (AP); Samarudeen v Asst. Director of Enforcement, (1999
(2) Ker LT 794 [FB]); S Clara v State of TN, 2008 Cr LJ 2477 (Mad).
44.  Harihar Narasimha Iyer v State of TN, 2013 Cr LJ 378 ; Rajesh Gupta v State of AP, 2011 Cr LJ
3506 : 2011 (3) Crimes 236 .
In a series of cases43. it was also held that an offence committed outside India by a
citizen of India can be investigated by the local police even without prior sanction of
the Central Government. Where both husband and wife are Indians residing at USA, a

complaint against the husband alleging cruelty is maintainable.44.
The operation of the section is restricted to the cases speciﬁed in the Extradition Act,
1962 and the Cr PC, 1973, sections 188 and 189.

45.[s 4] Extension of Code to extraterritorial offences.
The provisions of this Code apply also to any offence committed by—
46.[(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;]
47.[(3) any person in any place without and beyond India committing offence
targeting a computer resource located in India.]
48.[Explanation.—In this section—
(a ) the word "offence" includes every act committed outside India which,
if committed in India, would be punishable under this Code;

(b ) the expression "computer resource" shall have the meaning assigned
to it in clause ( k ) of sub-section (1) of section 2 of the Information
Technology Act, 2000 (21 of 2000).]
49.[ILLUSTRATION]
50.[***] A, 51.[who is a 52.[citizen of India]], commits a murder in Uganda. He
can be tried and convicted of murder in any place in 53.[India] in which he
may be found.
54.[***]

COMMENT—
This section shows the extent to which the Code applies to offences committed
outside India. The Code applies to any offence committed by—
(1) any citizen of India in any place, wherever he may be;
(2) any person on any ship or aircraft registered in India wherever it may be; and
(3) any person, whether or not a citizen of India, who commits any offence, from
anywhere in the world, targeting a computer resource located in India.
Hence, except for the case of an offence committed against a computer resource
located in India, to extend the scope of operation of IPC, 1860 against persons, either
the offender must be a citizen of India or he must have committed the offence on any
ship or aircraft registered in India.
[s 4.1] Crimes committed outside India.—
Where an offence is committed beyond the limits of India but the offender is found
within its limits, then
(I) he may be given up for trial in the country where the offence was committed
(extradition) or

(II) he may be tried in India (extraterritorial jurisdiction).
Where an offence was committed by an Indian citizen outside India, it was held that the
offence was punishable under the IPC, 1860. An investigation of such an offence would
not require sanction of the Central Government under the proviso to section 188, Cr PC,
1973. But an enquiry as contemplated by section 202, Cr PC, 1973 could only be with
the sanction of the Central Government.55.
(I) Extradition.—Extradition is the surrender by one State to another of a person desired
to be dealt with for crimes of which he has been accused or convicted and which are
justiciable in the Courts of the other State. Surrender of a person within the State to
another State—whether a citizen or an alien—is a political act done in pursuance of a
treaty or an arrangement ad hoc.56. Though extradition is granted in implementation of

the international commitment of the State, the procedure to be followed by the Courts
in deciding, whether extradition should be granted and on what terms, is determined by
the municipal law of the land. Extradition is founded on the broad principle that it is in
the interest of civilised communities that criminals should not go unpunished and on
that account, it is recognised as a part of the comity of nations that one State should
ordinarily afford to another State assistance towards bringing offenders to justice.57.
The procedure for securing the extradition from India is laid down in the Extradition Act,
1962.
(II) Extraterritorial jurisdiction.—Indian Courts are empowered to try offences
committed out of India on (A) land, (B) high seas or (C) aircraft.

1962.
(A) Land.—By virtue of sections 3 and 4 of the Penal Code, and section 188 of the Cr
PC, 1973 local Courts can take cognizance of offences committed beyond the
territories of India. Where the Court is dealing with an act committed outside India by a
citizen of India which would be an offence punishable under the Penal Code if it had
been committed in India, section 4 constitutes the act an offence and it can be dealt
with under section 188 of the Cr PC, 1973.58. If, however, at the time of commission of

the offence the accused person is not a citizen of India, the provisions of section 4 of
the Penal Code and section 188 of the Cr PC, 1973 have no application.59.
Section 188 of the Cr PC, 1973, provides that when an offence is committed outside
India—
(a) by a citizen of India, whether on high seas or elsewhere; or
(b) by any person not being such citizen on any ship or aircraft registered in India,
he may be dealt with in respect of such offence as if it had been committed at
any place within India at which he may be found.
The word 'found' in section 188, Cr PC, 1973 means not where a person is discovered
but where he is actually present.60. A man brought to a place against his will can be
said to be found there.61. When a man is in the country and is charged before a
Magistrate with an offence under the Penal Code, it will not avail him to say that he was
brought there illegally from a foreign country. The Bombay High Court has laid down

this principle, following English precedents, in Savarkar's case.62. The accused Savarkar
had escaped at Mareseilles from the custody of police oﬃcers charged with the duty of
bringing him from London to Bombay, but was re-arrested there and brought to Bombay
and committed for trial by the Special Magistrate at Nasik. The High Court held that the
trial and committal were valid.63. The provisions of the IPC, 1860 have been extended
to offences committed by any citizen of India in any place within and beyond India by
virtue of section 4 thereof. Accordingly, offences committed in Botswana by an Indian
citizen would also be amenable to the provisions of the IPC, 1860 subject to the
limitation imposed under the proviso to section 188 Cr PC, 1973.64. Section 4 gives

extraterritorial jurisdiction but as the Explanation says the acts committed must
amount to an offence under the Penal Code.65.
[s 4.2] Acts done within Indian as well as foreign territory.—
A person who is a citizen of India is liable to be tried by the Courts of this country for
acts done by him, partly within and partly without the Indian territories, provided the
acts amount together to an offence under the Code.66.
(B) Admiralty jurisdiction.—The jurisdiction to try offences committed on the high seas
is known as the admiralty jurisdiction. It is founded on the principle that a ship on the
high seas is a ﬂoating island belonging to the nation whose ﬂag she is ﬂying.
Admiralty jurisdiction extends over—
(1) Offences committed on Indian ships on the high seas.
(2) Offences committed on foreign ships in Indian territorial waters.
(3) Piracy.

Power to enforce claims against foreign ships is an essential attribute of admiralty
jurisdiction and it is assumed over such ships while they are within the jurisdiction of
the High Court by arresting and detaining them. Admiralty jurisdiction of the High
Courts in India has been historically traced to the Charters of 1774 and 1728, as
subsequently expanded and clariﬁed by the Letters Patent of 1823, 1862 and 1865 read
with the Admiralty Court Act, 1861, the Colonial Courts of Admiralty Act, 1890, and the
Colonial Court of Admiralty (India) Act, 1891 and preserved by section 106 of the
Government of India Act, 1915, section 223 of the Government of India Act, 1935 and

Article 225 of the Constitution of India. The pre-Constitution enactments have
continued to remain in force in India as existing laws.67.
The High Court as a Court of Admiralty is treated as a separate entity exercising a
distinct and speciﬁc or prescribed or limited jurisdiction. This reasoning is based on the
assumption that the continuance in force of the Colonial Courts of Admiralty Act, 1890
as an existing law carves out a distinct jurisdiction of the High Court limited in ambit
and eﬃcacy to what has been granted by the Admiralty Court Act 1861, and that
jurisdiction has remained stultiﬁed ever since. This restrictive construction is not
warranted by the provisions of the Constitution. Accordingly, a foreign ship falls within
the jurisdiction of the High Court where the vessel happens to be at the relevant time,
i.e., at the time when the jurisdiction of the High Court is invoked, or, where the cause of
action wholly or in part arises. The Merchant Shipping Act empowers the concerned

High Court to arrest a ship in respect of a substantive right. This jurisdiction can be
assumed by the concerned High Court, whether or not the defendant resides or carries
on business, or the cause of action arose wholly or in part, within the local limits of its
jurisdiction. Once a foreign ship is arrested within the local limits of the jurisdiction of
the High Court, and the owner of the ship has entered appearance and furnished
security to the satisfaction of the High Court for the release of the ship, the
proceedings continue as a personal action. The conclusion is that all the High Courts in
India have inherent admiralty jurisdiction and can invoke the same for the enforcement
of a maritime claim.68.
Even while exercising extraordinary powers available under the Constitution the

jurisdiction of the High Court is primarily circumscribed by its territorial limits, viz., the
jurisdiction has to be in context of the territorial jurisdiction available to the High Court.
If the overall scheme of IPC, 1860 (section 4), Cr PC, 1973 (section 188), The Merchant
Shipping Act, 1958 (section 437) and the Territorial Waters Act, 1976 (section 13) are
taken into consideration read with sections 2(2) and 3(15) of the Merchant Shipping
Act, it is apparent that for a Court, including High Court, to be vested with jurisdiction,
an offender or offending vessel have to be found within local territorial limits of such
Court.69.
[s 4.3] Piracy
Piracy consists of any of the following acts:
(a) any illegal acts of violence or detention, or any act of depredation, committed for

Court.69.
private ends by the crew or the passengers of a private ship or a private aircraft,
and directed:
(i) on the high seas, against another ship or aircraft, or against persons or
property on board such ship or aircraft;
(ii) against a ship, aircraft, persons or property in a place outside the
jurisdiction of any State;
(b) any act of voluntary participation in the operation of a ship or of an aircraft with
knowledge of facts making it a pirate ship or aircraft;
(c) any act of inciting or of intentionally facilitating an act described in
subparagraph (a) or (b).70.
The Convention on the Law of Sea known as United National Convention on the Law of
Sea, 1982 (UNCLOS) sets out the legal framework applicable to combating piracy and
armed robbery at sea, as well as other ocean activities. UNCLOS, 1982 is a

comprehensive code on the international law of sea. It codiﬁes and consolidates the
traditional law within a single, uniﬁcatory legal framework. It has changed the legal
concept of continental shelf and also introduced a new maritime zone known as
exclusive economic zone. Exclusive economic zone is a new concept having several
new features.71. The UNCLOS signed by India in 1982 and ratiﬁed on 29 June 1995,
encapsulates the law of the sea and is supplemented by several subsequent
resolutions adopted by the Security Council of the United Nations.
Before UNCLOS came into existence, the law relating to the seas which was in
operation in India, was the Territorial Waters, Continental Shelf, Exclusive Economic
Zone and Other Maritime Zones Act, 1976, which spelt out the jurisdiction of the
Central Government over the Territorial Waters, the Contiguous Zones and the
Exclusive Economic Zone. The provisions of the UNCLOS are in harmony with and not

in conﬂict with the provisions of the Maritime Zones Act, 1976, in this regard. Article 33
of the Convention recognises and describes the Contiguous Zone of a nation to extend
to 24 nautical miles from the baseline from which the breadth of the territorial sea is
measured. Similarly, Articles 56 and 57 describe the rights, jurisdiction and duties of
the coastal State in the Exclusive Economic Zone and the breadth thereof extending to
20 nautical miles from the baseline from which the breadth of the territorial sea is
measured. This provision is also in consonance with the provisions of the 1976 Act.
The area of difference between the provisions of the Maritime Zones Act, 1976, and the
Convention occurs in Article 97 of the Convention which relates to the penal
jurisdiction in matters of collision or any other incident of navigation.72.

[s 4.4] Jurisdiction of Indian High Courts.—
In view of the declaration of law made by the Supreme Court in M V Elisabeth v Harwan
Investment and Trading,73. the High Courts in India have inherent admiralty jurisdiction.
The offences which come within the admiralty jurisdiction are now deﬁned by the
Merchant Shipping Act, 1958.
(C) Aircraft.—The provisions of the Code are made applicable to any offence
committed by any person on any aircraft registered in India, wherever it may be.
[s 4.5] Liability of foreigners in India for offences committed outside its limits.
—
The acts of a foreigner committed by him in territory beyond the limits of India do not
constitute an offence against the Penal Code, and, consequently, a foreigner cannot be
held criminally responsible under that Code by the tribunals of India for acts committed

by him beyond its territorial limits. Thus, when it is sought to punish a person, who is
not an Indian subject, as an offender in respect of a certain act, the question is not
'where was the act committed,' but 'was that person at the time, when the act was
done, within the territory of India'. For, if he was not, the act is not an offence, the doer
of it is not liable to be punished as an offender, and he is, therefore, not subject to the
jurisdiction of criminal Courts.74. But if a foreigner in a foreign territory initiates an
offence which is completed within Indian territory, he is, if found within Indian territory,
liable to be tried by the Indian Court within whose jurisdiction the offence was
completed.75.

45.  Subs. by Act 4 of 1898, section 2, for section 4.
46.  Subs. by the A.O. 1950, for clauses (1) to (4).
47.  Ins. by the Information Technology (Amendment) Act, 2008 (10 of 2009), section 51(a)(i)
(w.e.f. 27-10- 2009).
48.  Subs. by the Information Technology (Amendment) Act, 2008 (10 of 2009), section 51(a)(ii),
for Explanation (w.e.f. 27-10-2009). Explanation, before substitution, stood as under:
"Explanation.—In this section the word "offence" includes every act committed outside India
which, if committed in India, would be punishable under this Code."
49.  Subs. by Act 36 of 1957, section 3 and Sch II, for "Illustrations" (w.e.f. 17-9-1957).
50.  The brackets and letter "(a)" omitted by Act 36 of 1957, section 3 and Sch II (w.e.f. 17-9-
1957).

1957).
51.  Subs. by the A.O. 1948, for "a coolie, who is a Native Indian subject".
52.  Subs. by the A.O. 1950, for "a British subject of Indian domicile".
53.  The words "British India" have been successively amended by the A.O. 1948, the A.O. 1950
and Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951), to read as above.
54.  Illustrations (b), (c) and (d) omitted by the A.O. 1950.
55.  Muhammad Raﬁ v State of Kerala, 2010 Cr LJ 592 Ker DB.
56.  State of WB v Jugal Kishore More, (1969) 3 SCR 320 [LNIND 1969 SC 8] : 1969 Cr LJ 1559 :
AIR 1969 SC 1171 [LNIND 1969 SC 8] .
57.  Abu Salem Abdul Qayoom Ansari v State of Maharashtra, JT 2010 (10) SC 202 [LNIND 2010
SC 858] : 2010 (9) Scale 460 : (2011) 3 SCC (Cr) 125 : (2011) 11 SCC 214 [LNIND 2010 SC 858] .

58.  Ajay Aggarwal v UOI, 1993 (3) SCC 609 [LNIND 1993 SC 431] : AIR 1993 SC 1637 [LNIND
1993 SC 431] : 1993 Cr LJ 2516 .
59.  Central Bank of India Ltd v Ram Narain, (1955) 1 SCR 697 [LNIND 1954 SC 126] : 1955 Cr LJ
152 : AIR 1955 SC 36 [LNIND 1954 SC 126] .
60.  Maganlal v State, (1882) 6 Bom 622.
61.  Lopez and Sattler, (1858) 27 LJ (MC) 48.
62.  Vinayak D Savarkar, (1910) 13 Bom LR 296 , 35 Bom 225.
[s 4.6] Section 4 IPC and section 188 of Cr PC.—
Section 188 Cr PC, 1973 and section 4 of the IPC, 1860 spell out that if the person
committing the offence at that point of time is a citizen of India, then, even if the
offence is committed beyond the contours of India, he will be subject to the jurisdiction
of the Courts in India. The rule enunciated under the two sections rests on the principle

that qua citizens the jurisdiction of Courts is not lost by reason of the venue of the
offence. However, section 188 of the Code places an interdiction in the enquiry or trial
over offences committed outside India by a citizen of India insisting for sanction from
the Central Government to do so.76.

63.  Supra. Also see Om Hemrajani v State of UP, (2005) 1 SCC 617 [LNIND 2004 SC 1181] : AIR
2005 SC 392 [LNIND 2004 SC 1181] .
64.  Thota Venkateswarlu v State of AP, AIR 2011 SC 2900 [LNIND 2011 SC 850] : (2011) 9 SCC
527 [LNIND 2011 SC 850] : 2011 Cr LJ 4925 : (2011) 3 SCC (Cr) 772.
65.  Rambharthi, (1923) 25 Bom LR 772 [LNIND 1923 BOM 115] : 47 Bom 907; Sheikh Haidar v
Syed Issa, (1939) Nag 241.
66.  Moulivie Ahmudoollah, (1865) 2 WR (Cr) 60.
67.  See Kamalakar Mahadev Bhagat v Scindia Steam Navigation Co Ltd, AIR 1961 Bom 186
[LNIND 1960 BOM 71] : (1960) 62 Bom LR 995 ; Sahida Ismail v Petko R Salvejkov, AIR 1973 Bom
18 [LNIND 1971 BOM 74] : (1972) 74 Bom LR 514 ; Jayaswal Shipping Co v SS Leelavati, AIR
1954 Cal 415 [LNIND 1953 CAL 202] ; Reena Padhi v 'Jagdhir', AIR 1982 Ori 57 [LNIND 1981 ORI
93] .
68.  M V Elisabeth v Harwan Investment and Trading, 1993 Supp (2) SCC 433 : AIR 1993 SC 1014
[LNIND 1992 SC 194] ; MV Al Quamar v Tsavliris Salvage (International) Ltd, AIR 2000 SC 2826

93] .
[LNIND 2000 SC 1119] : (2000) 8 SCC 278 [LNIND 2000 SC 1119] : 2000 (5) Scale 618 [LNIND
2000 SC 1119] ; MV Free Neptune v DLF Southern Towns Private, 2011 (1) Ker LT 904 : 2011 (1)
KHC 628 .
69.  MG Forests Pte Ltd v "MV Project Workship", Gujarat High Court Judgement dated 24
February 2004.
70.  Article 100. United Nations Convention on the Law of the Sea (UNCLOS), 1982.
71.  Aban Loyd Chiles Offshore Ltd v UOI, JT 2008 (5) SC 256 [LNIND 2008 SC 897] : 2008 (6)
72.  Republic of Italy through Ambassador v UOI, (2013) 4 SCC 721 : 2013 (1) Scale 462
73.  M V Elisabeth v Harwan Investment and Trading, 1993 Supp (2) SCC 433 : AIR 1993 SC 1014
[LNIND 1992 SC 194] .

74.  Musst. Kishen Kour, (1878) PR No. 20 of 1878; Jameson, (1896) 2 QB 425 .
75.  Chhotalal, (1912) 14 Bom LR 147 [LNIND 1912 BOM 26] .
76.  P T Abdul Rahiman v State of Kerala, 2013 Cr LJ 893 (Ker).

77.[[s 5] Certain laws not to be affected by this Act.
Nothing in this Act shall affect the provisions of any Act for punishing mutiny and
desertion of oﬃcers, soldiers, sailors or airmen in the service of the Government of
India or the provisions of any special or local law 1 .]
COMMENT—
This section is a saving clause to section 2. Though the Code was intended to be a
general one, it was not thought desirable to make it exhaustive, and hence, offences
deﬁned by local and special laws were left out of the Code, and merely declared to be

punishable as theretofore.78. Thus, the personnel of the Army, Navy and Airforce are
governed by the provisions of the Army Act, 1950, The Navy Act, 1957, and The Indian
Air Force Act, 1950 in regard to offences of mutiny and desertion committed by
them.79.
1. 'Special or local law'.—A special law is a law relating to a particular subject;80.
whereas a local law is a law which applies only to a particular part of the country.81.
The distinction between a statute creating a new offence with a particular penalty and
a statute enlarging the ambit of an existing offence by including new acts within it with
a particular penalty is well settled. In the former case the new offence is punishable by
the new penalty only; in the latter it is punishable also by all such penalties as were

applicable before the Act to the offence in which it is included. The Principle is that
where a new offence is created and the particular manner in which proceedings should
be taken is laid down, then proceedings cannot be taken in any other way.82. However,
a person cannot be punished under both the Penal Code and a special law for the same

offence,83. and ordinarily the sentence should be under the special Act.84. This is,
however, conﬁned to cases where the offences are coincident or practically so.85.
The Supreme Court issued speciﬁc guidelines regarding the interpretation of general law
and special law. See the Box below for these Guidelines.
Supreme Court Guidelines on Interpretation of General law and Special law
(i) When a provision of law regulates a particular subject and a subsequent law
contains a provision regulating the same subject, there is no presumption that
the later law repeals the earlier law. The rule-making authority while making the
later rule is deemed to know the existing law on the subject. If the subsequent
law does not repeal the earlier rule, there can be no presumption of an intention
to repeal the earlier rule;
(ii) When two provisions of law — one being a general law and the other being
special law govern a matter, the court should endeavour to apply a harmonious

construction to the said provisions. But where the intention of the rule-making
authority is made clear either expressly or impliedly, as to which law should
prevail, the same shall be given effect.
(iii) If the repugnancy or inconsistency subsists in spite of an effort to read them
harmoniously, the prior special law is not presumed to be repealed by the later
general law. The prior special law will continue to apply and prevail in spite of
the subsequent general law. But where a clear intention to make a rule of
universal application by superseding the earlier special law is evident from the
later general law, then the later general law, will prevail over the prior special law.
(iv) Where a later special law is repugnant to or inconsistent with an earlier general

law, the later special law will prevail over the earlier general law.
[Maya Mathew v State of Kerala86. and P Raghava Kurup v V Ananthakumari87..]
[s 5.1] Contempt of Court
Contempt of Courts Act, 1971 (Act 70 of 1971) makes it clear that, Contempt of Court
means 'Civil contempt' or 'Criminal contempt'.88. 'Civil contempt' means wilful
disobedience to any judgment, decree, direction, order, writ or other process of a Court
or wilful breach of an Undertaking given to a Court.89. "Criminal contempt" means the
publication (whether by words, spoken or written, or by signs, or by visible
representations, or otherwise) of any matter or the doing of any other act whatsoever
which – (i) scandalises or tends to scandalise or lowers or tends to lower the authority

of any Court; or (ii) prejudices, or interferes or tends to interfere with, the due course of
any judicial proceeding; or (iii) interferes or tends to interfere with, or obstructs or tends
to obstruct, the administration of justice in any other manner.90. The provisions of this
Act shall be in addition to and not in derogation of, the provisions of any other law
relating to contempt of Courts.91. Contempt proceeding is sui generis (of its own kind
or class or unique). It has peculiar features which are not found in criminal
proceedings. The respondent does not stand in the position of a person accused of an
offence. Initiation of contempt proceedings against the respondent who is already
accused in a criminal proceedings, does not amount to double jeopardy.92. Mens rea is

not necessary for committing contempt of Court. The main ingredient of the offence of
contempt of Court is the result of one's contumacious act of offending the prestige and
dignity of the judiciary so as to lower it in the estimation of the general public. Whether
the contemnor intended it or not is of no consequence.93.

77.  Subs. by the A.O. 1950, for section 5.
78.  Ramachandrappa, (1883) 6 Mad 249; Motilal Shah, (1930) 32 Bom LR 1502 : 55 Bom 89.
[s 5.2] Contempt of Supreme Court and High Courts
Articles 129 and 215 preserve all the powers of the Supreme Court and the High Court,
respectively, as a Court of Record which includes the power to punish the contempt of
itself. There are no curbs on the power of the High Court to punish for contempt of
itself except those contained in the Contempt of Courts Act, 1971.94. For the judiciary
to carry out its obligations effectively and true to the spirit with which it is sacredly
entrusted the task, constitutional Courts have been given the power to punish for
contempt, but greater the power; higher the responsibility.95.
[s 5.3] Contempt of Subordinate Courts

Every High Court shall have and exercise the same jurisdiction, powers and authority, in
accordance with the same procedure and practice, in respect of contempt of Courts
subordinate to it as it has and exercises in respect of contempt of itself provided that
no High Court shall take cognizance of a contempt alleged to have been committed in
respect of a Court subordinate to it where such contempt is an offence punishable
under the IPC, 1860 [section 10 Contempt of Courts Act, 1971]. The procedure
prescribed either under the Cr PC, 1973 or under the Indian Evidence Act, 1872 is not
attracted to the proceedings initiated under section 15 of the Contempt of Courts Act.
The High Court can deal with such matters summarily and adopt its own procedure.

The only caution that has to be observed by the Court in exercising this inherent power
of summary procedure is that the procedure followed must be fair and the contemnors
are made aware of the charges levelled against them and given a fair and reasonable
opportunity.96.
[s 5.4] Section 228 IPC vis-a-vis Contempt of Courts Act
What is made publishable under section 228 IPC, 186097. is the offence of intentional
insult to a Judge or interruption of Court proceedings but not as a contempt of Court.
The deﬁnition of criminal contempt is wide enough to include any act by a person
which would either scandalise the Court or tend to interfere with the administration of
justice. It would also include any act which lowers the authority of the Court or
prejudices or interferes with the due course of any judicial proceedings. It is not limited

to the offering of intentional insult to the Judge or interruption of the judicial
proceedings.98.

79.  UOI v Anand Singh Bisht, AIR 1997 SC 361 [LNIND 1996 SC 1341] : (1996) 10 SCC 153
[LNIND 1996 SC 1341] : 1996 Cr LJ 4435 : (1996) 1 SCC (Cr) 1198.
80.  Section 41 IPC, 1860.
81.  Section 42 IPC, 1860.
82.  Bhalchandra Ranadive, (1929) 31 Bom LR 1151 , 1178 : 54 Bom 35.
83.  Hussun Ali, (1873) 5 NWP 49.
84.  Kuloda Prosad Majumdar, (1906) 11 Cal WN 100; Bhogilal, (1931) 33 Bom LR 648 .
85.  Joti Prasad Gupta, (1931) 53 All 642 , 649; Suchit Raut v State, (1929) 9 Pat 126.
86.  Maya Mathew v State of Kerala, (2010) 4 SCC 498 [LNIND 2010 SC 190] : (2010) 3 SCR 16
[LNIND 2010 SC 190] : AIR 2010 SC 1932 [LNIND 2010 SC 190] : 2010 (2) Scale 833 [LNIND
2010 SC 190] .
87.  P Raghava Kurup v V Ananthakumari, (2007) 9 SCC 179 [LNIND 2007 SC 215] : 2007 (2) SCR
1058 [LNIND 2007 SC 215] : (2007) 3 Scale 431 [LNIND 2007 SC 215] .
88.  Section 2(a).
89.  Section 2(b).
90.  Section 2(c).
91.  Section 22.
92.  Delhi Judicial Service, Association, Tis Hazari Court v State of Gujarat, AIR 1991 SC 2176

[LNIND 1991 SC 446] : 1991 (4) SCC 406 [LNIND 1991 SC 446] .
93.  VG Ramachandran, Contempt of Court, 6th Edn, p 319 quoted in Re MV Jayarajan, 2012 (1)
Ker LT SN 23 : 2011 (4) KHC 585 .
94.  V G Peterson v O V Forbes, AIR 1963 SC 692 [LNIND 1962 SC 298] : 1963 Supp (1) SCR 40 :
1963 (1) Cr LJ 633 .
95.  HG Rangangoud v State Trading Corp of India, AIR 2012 SC 490 : 2012 (1) SCC 297 .
96.  Daroga Singh v BK Pandey, AIR 2004 SC 2579 [LNIND 2004 SC 485] : (2004) 5 SCC 26
[LNIND 2004 SC 485] : 2004 Cr LJ 2084 .
97.  [s 228] - Intentional insult or interruption to public servant sitting in judicial proceeding.—
Whoever intentionally offers any insult, or causes any interruption to any public servant, while
such public servant is sitting in any stage of a judicial proceeding, shall be punished with simple

imprisonment for a term which may extend to six months, or with ﬁne which may extend to one
thousand rupees, or with both.
98.  Daroga Singh v BK Pandey, AIR 2004 SC 2579 [LNIND 2004 SC 485] : (2004) 5 SCC 26

CHAPTER II GENERAL EXPLANATIONS
THIS Chapter is for the most part an elaborate interpretation clause. It is a key to the
interpretation of the whole Code. The leading terms used are here deﬁned and
explained and the meanings thus, announced are steadily adhered to throughout the
subsequent chapters.
[s 6] Deﬁnitions in the Code to be understood subject to exceptions.
Throughout this Code every deﬁnition of an offence, every penal provision, and every
illustration of every such deﬁnition or penal provision, shall be understood subject to
the exceptions contained in the Chapter entitled "General Exceptions", though those
exceptions are not repeated in such deﬁnition, penal provision, or illustration.
ILLUSTRATION
(a) The sections, in this Code, which contain deﬁnitions of offences, do not express
that a child under seven years of age cannot commit such offences, but the
deﬁnitions are to be understood subject to the general exception which provides

that nothing shall be an offence which is done by a child under seven years of
age.
(b) A, a police-oﬃcer, without warrant, apprehends Z, who has committed murder.
Here A is not guilty of the offence of wrongful conﬁnement; for he was bound by
law to apprehend Z and therefore the case falls within the general exception
which provides that "nothing is an offence which is done by a person who is
bound by law to do it".
COMMENT—
The "general exceptions" enacted by Indian Penal Code, 1860 (IPC, 1860) are of
universal application and for the sake of brevity of expression, instead of repeating in
every section that the deﬁnition is to be taken subject to the exceptions, the legislature
by section 6 IPC, 1860 enacted that all the deﬁnitions must be regarded as subject to
the general exceptions. Therefore, general exceptions are part of the deﬁnition of every

offence contained in IPC, 1860, but the burden to prove their existence lies on the
accused.1.
Section 6 is a convenient formula to avoid reproduction of lengthy exceptions in the
description of offences. In other words, all the offences must be read subject to
Chapter IV relating to General Exceptions (sections. 76–106 IPC, 1860). So when an act
falls within any one of these exceptions by virtue of section 6 of the Code, the accused
has to be given beneﬁt of the appropriate General Exception even though it is not
speciﬁcally stated over again in the description of the offence committed.2. Section 6
of the Indian Penal Code imposes an obligation on the court to consider the case of
exceptions on its own so far as it relates to the burden of proving legal insanity under

section 106 of the Act. If the case of the accused comes within the purview of section
84 IPC, 1860, which is one of the provisions in Chapter IV of the General Exceptions of

1.  Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] :
(2005) 9 SCC 71 [LNIND 2004 SC 1370] .
2.  Abdul Latif v State of Assam, 1981 Cr LJ 1205 (Gau); see also Patras Mardi v State, 1982 Cr
LJ NOC 7 (Gau).
3.  Khageswar Pujari v State of Orissa, 1984 Cr LJ 1108 (Orissa), see also Smt. Sandhya Rani
Bardhan v State, 1977 Cr LJ NOC 245 (Gau). Subodh Tewari v State of Assam, 988 Cr LJ 223
(Assam).
4.  Khuraijam Somat Singh v State, 1997 Cr LJ 1461 (Gau).
5.  Section 105 Evidence Act.
the Indian Penal Code, the court is to give due consideration and ﬁnd out as to whether
at the time of the occurrence the accused had any mental disability so as not to know
what he was doing.3.
The provisions of section 6 should be read as a proviso to section 105 of the Evidence
Act 1872.4. When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General Exceptions in

the Indian Penal Code (XLV of 1860), or within any special exception or proviso
contained in any other part of the same Code, or in any law deﬁning the offence, is
upon him, and the Court shall presume the absence of such circumstances.5.

[s 7] Sense of expression once explained.
Every expression which is explained in any part of this Code is used in every part of
this Code in conformity with the explanation.
6.  RS Nayak v AR Antulay, (1984) 2 SCC 183 [LNIND 1984 SC 43] : AIR 1984 SC 684 [LNIND
1984 SC 43] .
COMMENT—
Section 7 of IPC, 1860 provides that 'every expression' which is explained in any part of
the Code, is used in every part of the Code in conformity with the explanation. Let it be
noted that unlike the modern statute, section 7 does not provide 'unless the context
otherwise indicate' a phrase that prefaces the dictionary clauses of a modern statute.

Therefore, the expression 'Government' in section 21(12)(a) must mean either the
Central Government or the Government of a State.6.

[s 8] Gender.
The pronoun "he" and its derivatives are used of any person, whether male or female.
7.  Vijaya (Dr.) v Kashirao Rajaram Sawai, 1987 Cr LJ 977 : AIR 1987 SC 1100 [LNIND 1987 SC
200] ; M Areefa Beevi v Dr. K M Sahib, 1983 Cr LJ 412 (Ker) : See also Girdhar Gopal v State, 1953
Cr LJ 964 (MB) (Section 354 IPC, 1860).
COMMENT—
Section 8 of the Indian Penal Code lays down that the pronoun 'he' and its derivatives
are used for any person whether male or female. Thus, in view of section 8, IPC, 1860
read with section 2(y), Code of Criminal Procedure, 1973 (Cr PC, 1973) the pronoun 'his'
in clause (d) of section 125(1), Cr PC, 1973 also indicates a female.7.

[s 9] Number.
Unless the contrary appears from the context, words importing the singular number
include the plural number, and words importing the plural number include the singular
number.

[s 10] "Man" "Woman".
The word "man" denotes a male human being of any age; the word "woman" denotes a
female human being of any age.
8.  State of Punjab v Major Singh, AIR 1967 SC 63 [LNIND 1966 SC 130] : 1967 Cr LJ 1 .
COMMENT—
A female child of seven and a half months was held to be a "woman" for the purpose of
section 354 IPC, 1860.8.

[s 11] "Person".
The word "person" includes any Company or Association or body of persons, whether
incorporated or not.
COMMENT—
The term 'person' has been deﬁned in section 11, IPC, 1860, and the same is in pari
materia with section 3(42) of the General Clauses Act 1897. Obviously, the deﬁnition is
inclusive.9. A natural person, an incorporated person or even an unincorporated
association or body of persons like a partnership can be a person under section 11 of
IPC, 1860.10. The Supreme Court has held in Standard Chartered Bank v Directorate of
Enforcement,11. that, as regards corporate criminal liability, there is no doubt that a

corporation or company could be prosecuted for any offence punishable under law,
whether it is coming under the strict liability or under absolute liability. A juristic person
has been held to come within the meaning of the word "person" for the purposes of
section 415 (cheating).12.
The State and its instrumentalities are juristic persons,13. but by implication, the State
stands excluded from the purview of the word 'person' for the purpose of limiting its
right to avail the revisional power of the High Court under section 397(1) of Cr PC, 1973
for the reason that the State, being the prosecutor of the offender, is enjoined to
conduct prosecution on behalf of the society and to take such remedial steps as to
deems proper.14. Chief Educational Oﬃcer is an artiﬁcial person/ juristic person falling
under section 11 of IPC, 1860.15.

[s 11.1] Accused person.—
Though the word "person" is deﬁned in the Indian Penal Code section 11 and the
General Clauses Act section 3(42) which are identical and are not exhaustive but an
inclusive one. The words "accused" or "accused person" or "accused of an offence" are
not deﬁned either in the Indian Penal Code or in the Indian Evidence Act or in the
General Clauses Act 1897.16.
[s 11.2] Complainant.—
A complaint can be ﬁled in the name of a juristic person because it is also a person in
the eye of law. It is clear that complainant must be a corporeal person who is capable
of making a physical presence in the court. Its corollary is that even if the complaint is

9.  Chief Education Oﬃcer, Salem v K S Palanichamy, 2012 Cr LJ 2543 (Mad).
10.  B Raman v M/S. Shasun Chemicals and Drugs Ltd, 2006 Cr LJ 4552 (Mad); Target Overseas
Exports Pvt Ltd v A M Iqbal, 2005 Cr LJ 1931 (Ker).
11.  Standard Chartered Bank v Directorate of Enforcement, AIR 2005 SC 2622 [LNIND 2005 SC
476] .
12.  Reji Michael v Vertex Securities Ltd, 1999 Cr LJ 3787 (Ker).
13.  Common Cause, A Registered Society v UOI, (1999) 6 SCC 667 [LNIND 1999 SC 637] : AIR
1999 SC 2979 [LNIND 1999 SC 637] .
14.  Krishnan v Krishnaveni, AIR 1997 SC 987 [LNIND 1997 SC 1883] : 1997 Cr LJ 1519 : (1997) 4
SCC 241 [LNIND 1997 SC 1883] .
15.  Chief Education Oﬃcer, Salem v K S Palanichamy, 2012 Cr LJ 2543 (Mad).
16.  Directorate of Enforcement v Deepak Mahajan, AIR 1994 SC 1775 [LNIND 1993 SC 656] :
(1994) 3 SCC 440 : 1994 Cr LJ 2269 .
17.  Associated Cement Co Ltd v Keshvanand, AIR 1998 SC 596 [LNIND 1997 SC 1634] : (1998) 1
SCC 687 [LNIND 1997 SC 1634] : 1998 Cr LJ 856 .

18.  CM Ibrahim v Tata Sons Ltd, 2009 Cr LJ 228 (Kar).
made in the name of incorporeal person (like a company or corporation) it is necessary
that a natural person represents such juristic person in the court and it is that natural
person who is looked upon, for all practical purposes, to be the complainant in the
case. In other words, when the complainant is a body corporate it is the de jure
complainant, and it must necessarily associate a human being as de facto complainant
to represent the former in court proceedings.17. A company is a person in law and not
in fact. A person in law is always required to be represented by a person in fact. A
company can ﬁle a complaint for Defamation (section 500 IPC, 1860) through its
authorised representative.18.

[s 12] "Public.".
The word "public" includes any class of the public, or any community.
19.  Harnandan Lal v Rampalak Mahto, (1938) 18 Pat 76.
COMMENT—
This deﬁnition is inclusive and does not deﬁne the word 'public'. It only says that any
class of public or any community is included within the term 'public'. A body or class of
persons living in a particular locality may come within the term 'public'.19.

[s 13] [ R e p e a l e d ] 
[Deﬁnition of "Queen".] [Rep. by the A.O. 1950.]

20.[[s 14] "Servant of Government".
The words "servant of Government" denote any oﬃcer or servant continued, appointed
or employed in India by or under the authority of Government.]
20.  Subs. by the A.O. 1950, for section 14.

[s 15] [ R e p e a l e d ] 
[Deﬁnition of "British India".] [Rep. by the A.O. 1937.]

[s 16] [ R e p e a l e d ] 
[Deﬁnition of "Government of India".] [Rep. by the A.O. 1937.]

21.[s 17] "Government"
The word "Government" denotes the Central Government or the Government of a 22.
[***] State.]
21.  Subs. by A.O. 1950, for section 17.
22.  The word and letter "Part A" omitted by Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951).
23.  RS Nayak v AR Antulay, (1984) 2 SCC 183 [LNIND 1984 SC 43] : AIR 1984 SC 684 [LNIND
COMMENT—
Legislature of a State cannot be comprehended in the expression 'State
Government'.23.

24.[[s 18] "India."
"India" means the territory of India excluding the State of Jammu and Kashmir.]
24.  Subs. by Act 3 of 1951, section 3 and Sch, for section 18 (w.e.f. 1-4-1951). Earlier section 18
was repealed by the A.O. 1937 and was again inserted by the A.O. 1950.
25.  KRK Vara Prasad v UOI, AIR 1980 AP 243 [LNIND 1980 AP 27] .
26.  Virender Singh v General Oﬃcer Commanding, 1974 J & K LR 101 (FB).
COMMENT—
This exclusion of the State of Jammu and Kashmir in this section is not violative of
Article 1 and the First Schedule of the Constitution of India.25. In fact, Fazal Ali, CJ, as
he then was, held that exclusion of a territory postulates the existence of a territory

itself; State of Jammu and Kashmir cannot be taken as a foreign territory.26. Since the
First Schedule to the Constitution of India speciﬁcally includes Jammu and Kashmir as
a part of the territories of India, the exclusion of the State of Jammu and Kashmir from
section 18 of the Penal Code only means that for the purposes of application of the
provisions of the Indian Penal Code, that State shall not be considered as a part of
India. In fact, section 1 of the Code itself makes this position abundantly clear. The
State of Jammu and Kashmir has a separate Penal Code of its own. It is known as the
Ranbir Penal Code, which is almost same as the Indian Penal Code.

[[s 19] "Judge."
[s 19] The word "Judge" denotes not only every person who is oﬃcially designated as
a Judge, but also every person,—
who is empowered by law to give, in any legal proceeding, civil or criminal, a deﬁnitive
judgment, or a judgment which, if not appealed against, would be deﬁnitive, or a
judgment which, if conﬁrmed by some other authority, would be deﬁnitive, or
who is one of a body of persons, which body of persons is empowered by law to give
such a judgment.
ILLUSTRATIONS
(a) A Collector exercising jurisdiction in a suit under Act 10 of 1859, is a Judge.
(b) A Magistrate exercising jurisdiction in respect of a charge on which he has

power to sentence to ﬁne or imprisonment, with or without appeal, is a Judge.
(c) A member of a panchayat which has power, under 27.Regulation VII, 1816, of the
Madras Code, to try and determine suits, is a Judge.
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has
power only to commit for trial to another Court, is not a Judge.
COMMENT—
Section 19 IPC, 1860 deﬁnes a 'Judge' as denoting not only every person who is
oﬃcially designated as a Judge, but also every person who is empowered by law to
give in any legal proceedings, civil or criminal, a deﬁnitive judgment, or a judgment
which, if not appealed against, would be deﬁnitive, or a judgment which, if conﬁrmed by
some other authority, would be deﬁnitive, or who is one of a body of persons

empowered by law to give such a judgment. The Collector is neither a Judge as deﬁned
under section 19 nor does he act judicially, when discharging any of the functions
under the Land Acquisition Act.28. Regional Provident Fund Commissioner while
passing an order under section 7-A of Employees' Provident Funds and Miscellaneous
Provisions Act 1952 was 'Judge' within deﬁnition under section 19 of IPC, 1860.29. The
right to pronounce a deﬁnitive judgment is considered the sine qua non of a Court.30.

27.  Rep. by the Madras Civil Courts Act, 1873 (3 of 1873).
28.  Surendra Kumar Bhatia v Kanhaiya Lal, AIR 2009 SC 1961 [LNIND 2009 SC 209] : (2009)12
SCC 184 [LNIND 2009 SC 209] .
29.  E S Sanjeeva Rao v CBI, Mumbai, 2012 Cr LJ 4053 (Bom) : 2013 (1) RCR (Criminal) 284.
30.  Brajnandan Sinha v Jyoti Narain, AIR 1956 SC 66 [LNIND 1955 SC 98] : 1956 SCJ 155 .
Illustration (d) is very important as it indicates that a Magistrate, who has power to try
and determine cases, is a Court of Justice, but is not a Court of Justice when sitting in
committal proceedings.

[s 20] "Court of Justice.".
The words "Court of Justice" denote a Judge who is empowered by law to act
judicially alone, or a body of Judges which is empowered by law to act judicially as a
body, when such Judge or body of Judges is acting judicially.
A panchayat acting under 31.Regulation VII, 1816, of the Madras Code, having power to
try and determine suits, is a Court of Justice.
31.  Rep. by the Madras Civil Courts Act, 1873 (3 of 1873).
32.  Supreme Court Legal Aid Committee v UOI, (1994) 6 SCC 731 [LNIND 1994 SC 955] : JT 1994
(6) SC 544 [LNIND 1989 SC 165] .
COMMENT—
The word 'court' is a generic term and embraces a Judge but the vice versa is not true.

COMMENT—
Therefore, the words 'court' and 'Judge' are frequently used interchangeably because a
Judge is an essential constituent of a court since there can be no dispensation of
justice without a Judge. But that is not to say that when a Judge demits oﬃce the court
ceases to exist Supreme Court Legal Aid Committee v UOI.32.

[s 21] "Public servant.".
The words "public servant" denote a person falling under any of the descriptions
hereinafter following; namely:—
33. [***]
34.Second.—Every Commissioned Oﬃcer in the Military, 35.[Naval or Air] Forces 36.[37.
[***] of India];
38. [Third.—Every Judge including any person empowered by law to discharge,
whether by himself or as a member of any body of persons, any adjudicatory
functions;]
Fourth.—Every oﬃcer of a Court of Justice 39.[(including a liquidator, receiver or
commissioner)] whose duty it is, as such oﬃcer, to investigate or report on any matter
of law or fact, or to make, authenticate, or keep any document, or to take charge or

dispose of any property, or to execute any judicial process, or to administer any oath,
or to interpret, or to preserve order in the Court, and every person specially authorized
by a Court of Justice to perform any of such duties;
Fifth.—Every juryman, assessor, or member of a panchayat assisting a Court of
Justice or public servant;
Sixth.—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;
Seventh.—Every person who holds any oﬃce by virtue of which he is empowered to
place or keep any person in conﬁnement;
Eighth.—Every oﬃcer of 40.[the Government] whose duty it is, as such oﬃcer, to
prevent offences, to give information of offences, to bring offenders to justice, or to
protect the public health, safety or convenience;

Ninth.—Every oﬃcer whose duty it is, as such oﬃcer, to take, receive, keep or expend
any property on behalf of 41.[the Government], or to make any survey, assessment or
contract on behalf of 42.[the Government], or to execute any revenue process, or to
investigate, or to report, on any matter affecting the pecuniary interests of 43.[the
Government], or to make, authenticate or keep any document relating to the pecuniary
interests of 44.[the Government], or to prevent the infraction of any law for the
protection of the pecuniary interests of 45.[the Government]46.[***];
Tenth.—Every oﬃcer whose duty it is, as such oﬃcer, to take, receive, keep or expend
any property, to make any survey or assessment or to levy any rate or tax for any

secular common purpose of any village, town or district, or to make, authenticate or
keep any document for the ascertaining of the rights of the people of any village, town
or district;
47. [Eleventh.—Every person who holds any oﬃce in virtue of which he is empowered
to prepare, publish, maintain or revise an electoral roll or to conduct an election or
part of an election;]
48. [Twelfth.—Every person—
(a) in the service or pay of the Government or remunerated by fees or commission
for the performance of any public duty by the Government;
(b) in the service or pay of a local authority, a corporation established by or under
a Central, Provincial or State Act or a Government company as deﬁned in
section 617 of the Companies Act, 1956 (Act 1 of 1956).]
A Municipal Commissioner is a public servant.
Explanation 1.—Persons falling under any of the above descriptions are public
servants, whether appointed by the Government or not.
Explanation 2.—Wherever the words "public servant" occur, they shall be

understood of every person who is in actual possession of the situation of a
public servant, whatever legal defect there may be in his right to hold that
situation.
49.[Explanation 3.—The word "election" denotes an election for the purpose of
selecting members of any legislative, municipal or other public authority, of
whatever character, the method of selection to which is by, or under, any law
prescribed as by election.]
50.[***]
STATE AMENDMENT
Rajasthan.—In section 21, after clause twelfth, add the following clause, namely:
— "Thirteenth.—Every person employed or engaged by any public body in the
conduct and supervision of any examination recognised or approved under any
law.
Explanation.—The The expression 'Public Body' includes—
(a) a University, Board of Education or other body, either established by or
under a Central or State Act or under the provisions of the Constitution of

India or constituted by the Government; and
(b) a local authority."
[Vide Rajasthan Act, 4 of 1993, sec. 2 (w.e.f. 11-2-1993)].
COMMENT—

Public Servant.—A line is drawn between the great mass of the community and certain
classes of persons in the service and pay of Government, or exercising various public
functions, who are here included in the words "public servant." There are several
offences which can only be committed by public servants and, on the other hand,
public servants in the discharge of their duties have many privileges peculiar to
themselves.51.
The test to determine whether a person is a public servant is (1) whether he is in the
service or pay of the Government and (2) whether he is entrusted with the performance
of any public duty.52. The deﬁnition is not exhaustive. A person may be a public servant
in terms of another statute.53.
Illustration.—The illustration at the end of the section relates to clause (10). The word
"Commissioner" is used in the sense of a Municipal Councillor or member and not
merely an oﬃcer designated as "Commissioner."54.

The deﬁnition of the term "public servant" cannot be extended to the provisions of the
Representation of the People Act where this Act makes reference to persons in the
service of the Government.55.
[s 21.1] Enlargement of concept under Prevention of Corruption Act 1988.—
Section 2(i) of the Prevention of Corruption Act 1988 has enlarged the concept of
public servant wider than that contained in section 21 IPC, 1860. A comparison of the
deﬁnition of 'public servant' contained in section 21 of IPC, 1860 and that contained in
section 2(c) of the 1988 Act would show that section 21 of IPC, 1860 did not include
persons falling under sub-clause (ix), (x), (xi) and (xii) of section 2(c). Sub-clause (viii)
of section 2(c) is also wider in amplitude than clause (12)(a) of section 21 of IPC,
1860.56. Deﬁnition of 'public servant' is of no relevance under the PC Act 1988.57.

[s 21.2] Deﬁnition not exhaustive.—
The deﬁnition under the section has been held to be not exhaustive. A person may be a
public servant in terms of some other statute.58.
[s 21.3] Judges [clause "Third"].—
Examining the scope of clause "third", the Supreme Court has laid down in K
Veeraswami v UOI,59. that this category of public servants would include judges of the
High Courts and Supreme Court. The words "every judge", as used in the clause, the
Court said, indicates "all judges and judges of all courts". "It is a general term... and
should not be narrowly construed. It must receive comprehensive meaning. A judge of
the superior court cannot ... be excluded from the deﬁnition of "public servant". It is not
necessary that there should be master and servant relationship to constitute a person

as a "public servant". The court noted that section 21 IPC, 1860 does not deﬁne the
expression "public servant" as a concept. It enumerates only the categories of public
servants. Each category is different from the other and in some of the categories there
is hardly any relationship of master and servant. In the view of the Andhra Pradesh
High Court the Central Government is not a competent authority for sanctioning the
prosecution of a High Court Judge.60.

[s 21.4] Explanation 2.—
The person who in fact discharges the duties of the oﬃce which brings him under
some one of the descriptions of public servant, is for all the purposes of the Code
rightfully a public servant, whatever legal defect there may be in his right to hold the
oﬃce.61. But even if a person is in actual possession of the situation of a public
servant, he is not a public servant unless he has a right to hold that situation, although
in determining that right the legal defect, if any, has to be ignored.62. A public servant
under suspension does not cease to be a public servant within the meaning of this
section.63.
[s 21.5] CASES.—
.64.
The following persons are held to be Public Servants:
(1) Member of Parliament (MP)65.
(2) Chief Minister and Ministers66.
(3) Judges of Superior Courts67.
(4) Speaker of Legislative Assembly68.
(5) Employee of a Nationalised Bank69.
(6) All Railway Servants70.
(7) Teacher in a Government school71.
(8) Chairman of Managing Committee of a Municipality72.

(9) Employees of Life Insurance Corporation73.
(10) Member of Auxiliary Air Force74.
(11) Employee of Bharat Heavy Electricals (India) Limited75.
(12) Employees of Government Company76.
(13) Oﬃcers of State Electricity Board77.
(14) An employee of a Co-operative Society which is controlled or aided by the
government, is a public servant covered under section 2(c) of the IPC Act
198878. as also the manager for the commission of offence under section 409
of the IPC, 186079.
(15) Secretary, Health Supervisor of Municipality80.
(16) Drug Inspector81.
(17) Any surveyor while performing his legitimate function under any of the Revenue
Civil Court82.
(18) Government Pleaders83.

33.  Clause First omitted by the A.O. 1950.
34.  Clause First omitted by the A.O. 1950.
35.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Naval".
36.  The original words "of the Queen while serving under the Government of India, or any
Government" have successively been amended by the A.O. 1937, the A.O. 1948 and the
A.O.1950 to read as above.
37.  The words "of the Dominion" omitted by the A.O. 1950.
38.  Subs. by Act 40 of 1964, section 2, for clause Third (w.e.f. 18-12-1964).
39.  Ins. by Act 40 of 1964, section 2 (w.e.f. 18-12-1964).
40.  Subs. by the A.O. 1950, for "the Crown". Earlier the words "the Crown" were substituted by
the A.O. 1937, for the word "Government".
(19) An IAS oﬃcer posted as the managing director of a State Financial
Corporation84.
(20) The sarpanch of a Gram Panchayat.85.
The following persons are not Public Servants:
(1) University Examiner86.
(2) Elected oﬃce bearers with President and Secretary of a registered Co-operative
Society.87.

(3) A Chartered Accountant who had been appointed as an Investigator by the
Central Government under the Insurance Act 1938.88.
(4) Municipal Councillor89.
(5) Laboratory Oﬃcer in Municipal Corporation90.
(6) Member of IAS whose service placed at the disposal of Co-operative Society.91.
(7) A Government Company is not a public servant though its employees are public
servants Government Company.92.
(8) Chairperson and Standing Committee Chairman of Municipality.93.
(9) Leader of Opposition.94.
(10) Hospital or the Authorization Committee constituted by the Government under
section 9(4) of the Transplantation of Human Organs Act 1994.95.
(11) Branch Manager under the Assam State Warehousing Corporation.96.
(12) Commissioner appointed by Civil Court to seize account book.97.
(13) A panel doctor under the ESI Scheme.98.

41.  Subs. by the A.O. 1950, for "the Crown". Earlier the words "the Crown" were substituted by
42.  Subs. by the A.O. 1950, for "the Crown". Earlier the words "the Crown" were substituted by
43.  Subs. by the A.O. 1950, for "the Crown". Earlier the words "the Crown" were substituted by
44.  Subs. by the A.O. 1950, for "the Crown". Earlier the words "the Crown" were substituted by
45.  Subs. by the A.O. 1950, for "the Crown". Earlier the words "the Crown" were substituted by
the A.O. 1937, for "the word Government".
46.  Certain words omitted by Act 40 of 1964, section 2 (w.e.f. 18-12-1964).
47.  Ins. by Act 39 of 1920, section 2.
48.  Subs. by Act 40 of 1964, section 2, for clause Twelfth (w.e.f. 18-12-1964).
49.  Ins. by Act 39 of 1920, section 2.

50.  Explanation 4 omitted by Act 40 of 1964, section 2 (w.e.f. 18-12-1964). Earlier Explanation 4
was inserted by Act 2 of 1958, section 2 (w.e.f. 12-2-1958).
51.  M&M 20.
52.  GA Monterio, AIR 1957 SC 13 [LNIND 1956 SC 66] : 1957 Cr LJ 1956 . See further
Lakshmimansingh (Dr.) v Naresh KC Jah, 1990 Cr LJ 1921 : AIR 1990 SC 1976 [LNIND 1990 SC
370] : (1990) 4 SCC 169 [LNIND 1990 SC 370] ; where a municipal oﬃcer working on deputation
on a Government post (public analyst) committed an act entailing his removal and it was held
that his removal would have to be effected by the Municipality and there he was not a public
servant and hence, permission of the State under s 197(1) of Cr PC, 1973 was not necessary.
Mohinder Singh v State of Punjab, 2001 Cr LJ 2329 (P&H), sanction is necessary only when the

offence occurs in the course of the performance of oﬃcial duty. For offences connected with
cheating, preparing false records, misappropriation of public funds, including criminal
conspiracy against a public servant, no prior sanction is necessary.
53.  Naresh Kumar Madan v State of MP AIR 2008 SC 385 [LNIND 2007 SC 452] : (2007) 4 SCC
766 [LNIND 2007 SC 452] .
54.  Banshilal Luhadia, AIR 1962 Raj 250 [LNIND 1962 RAJ 124] .
55.  Abdul Rehman v State of Kerala, 1999 Cr LJ 4801 (Ker).
56.  PV Narsimha Rao v State (CBI/SPE), AIR 1998 SC 2120 [LNIND 1998 SC 1259] : 1998 Cr LJ
2930 .
57.  State of Maharashtra v Prabhakarrao, (2002) 7 SCC 636 : JT 2002 (Supp1 ) SC 5.
58.  Naresh Kumar Madan v State of MP, (2007) 4 SCC 766 [LNIND 2007 SC 452] : AIR 2008 SC
385 [LNIND 2007 SC 452] : (2007) 2 KLT 539 : (2007) 54 AIC 87 .

59.  K. Veeraswami v Union of India, (1991) 3 SCC 655 [LNIND 1991 SC 320] : 1991 SCC (Cr) 734
: 1991 Cr LR (SC) 677 .
60.  Advocate General, AP v Rachapudi Subba Rao, 1991 Cr LJ 613 AP.
61.  Ramkrishna Das, (1871) 7 Beng LR 446, 448.
62.  Bira Kishore, AIR 1964 Orissa 202 .
63.  Dhanpal Singh, AIR 1970 Punj & Haryana 514.
64.  M Karunanidhi v UOI, 1979 Cr LJ 773 : AIR 1979 SC 598 ; See also Shiv Bahadur, 1954 Cr LJ
910 : AIR 1954 SC 322 [LNIND 1954 SC 30] ; AR Antulay, (1984) Cr LJ 613 : AIR 1984; Rajendra
Kumar Singh v State of MP, 1999 Cr LJ 2807 (MP).
65.  PV Narasimha Rao v State (CBI/SPE), AIR 1998 SC 2120 [LNIND 1998 SC 1259] : (1998) 4
SCC 626 [LNIND 1998 SC 1259] (CB) Though another Constitution Bench in RS Nayak v AR

Antulay, AIR 1984 SC 684 [LNIND 1984 SC 43] : (1984) 2 SCC 183 [LNIND 1984 SC 43] that MLA
is not a public servant within the meaning of Section 21 IPC, 1860, in view of the Narasimha Rao
case (Supra) MLA and MPs are public servant within the meaning of Section 2 (i) of PC Act. See
also Habibulla Khan v State of Orissa, 1993 Cr LJ 3604 ; L. K. Advani v Central Bureau of
Investigation, 1997 Cr LJ 2559 (Del) : 1997 (4) Crimes 1 [LNIND 1997 DEL 319] .
66.  M Karunanidhi v UOI, AIR 1979 SC 898 [LNIND 1979 SC 135] : (1979) 3 SCC 431 [LNIND
1979 SC 135] ; R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND 2003 SC 1023] : (2004) 2
SCC 9 [LNIND 2003 SC 1023] , Minister is a Public Servant -R Balakrishna Pillai v State of Kerala,
AIR 1996 SC 901 [LNIND 1995 SC 1239] : (1996) 1 SCC 478 [LNIND 1995 SC 1239] , Dattatraya
Narayan Patil v State of Maharashtra, AIR 1975 SC 1685 [LNIND 1975 SC 157] : (1976) 1 SCC 11
[LNIND 1975 SC 157] ; Rajendra Kumar Singh and etc. v State of MP, 1999 Cr LJ 2807 (MP).

67.  K Veeraswami v UOI, (1991) 3 SCC 655 [LNIND 1991 SC 320] : (1991) 1 SCC (Cr) 734.
68.  P Nallammal v State, 1999 Cr LJ 1591 (Mad).
69.  UOI v Ashok Kumar Mitra, AIR 1995 SC 1976 [LNIND 1995 SC 295] : (1995) 2 SCC 768
[LNIND 1995 SC 295] ; Mir Nagvi Askari v CBI, AIR 2010 SC 528 [LNIND 2009 SC 1651] : (2009)
15 SCC 643 [LNIND 2009 SC 1651] ; State (Delhi Administration) v S R Vij, 1999 Cr LJ 4762 (Del).
70.  Ram Krishan v State of Delhi, AIR 1956 SC 476 [LNIND 1956 SC 157] : 1956 Cr LJ 837 ,
Shamrao Vishnu Parulekar v The District Magistrate, AIR 1957 SC 23 [LNIND 1956 SC 60] : 1957
Cr LJ 5 ; GA Monterio v State of Ajmer, AIR 1957 SC 13 [LNIND 1956 SC 66] : 1957 Cr LJ 1 ;
Bajrang Lal v State of Rajasthan AIR 1976 SC 1008 [LNIND 1976 SC 57] : (1976) 2 SCC 217

[LNIND 1976 SC 57] . But see KN Shukla v Navnit Lal Manilal Bhatt, AIR 1967 SC 1331 [LNIND
1966 SC 310] : 1967 Cr LJ 1200 .
71.  State of Ajmer v Shiv Lal, AIR 1959 SC 847 [LNIND 1959 SC 67] : 1959 Cr LJ 1127 .
72.  Maharudrappa Danappa Kesarappanavar v The State of Mysore, AIR 1961 SC 785 [LNIND
1961 SC 60] : 1961 Cr LJ 857 .
73.  State through Central Bureau of Investigation v D P Dogra, AIR 1986 SC 312 : (1985) 4 SCC
319 .
74.  State (SPE, Hyderabad) v Air Commodore Kailash Chand, AIR 1980 SC 522 [LNIND 1979 SC
504] : (1980) 1 SCC 667 [LNIND 1979 SC 504] .
75.  State of MP v M v Narasimhan, AIR 1975 SC 1835 [LNIND 1975 SC 212] : (1975) 2 SCC 377
[LNIND 1975 SC 212] .
76.  National Small Industries Corporation Ltd v State AIR 2009 SC 1284 [LNIND 2008 SC 2243] :
(2009) 1 SCC 407 [LNIND 2008 SC 2243] .

77.  Bihar State Electricity Board v Nand Kishore Tamakhuwala, AIR 1986 SC 1653 [LNIND 1986
SC 82] : (1986) 2 SCC 414 [LNIND 1986 SC 82] , Naresh Kumar Madan v State of MP AIR 2008 SC
385 [LNIND 2007 SC 452] : (2007) 4 SCC 766 [LNIND 2007 SC 452] .
78.  Govt. of AP v P Venken Reddy AIR 2002 SC 3346 : (2002) 7 SCC 631 .
79.  Haridas Mondal v State of WB, 2016 Cr LJ 4335 : 2016 (4) Crimes 530 (Cal).
80.  Chairperson, Kanhangad Municipality v State of Kerala, 2012 Cr LJ 4366 (Ker); G S K
Janardhana Rao v Guntupalli Guru Prasad, 2000 Cr LJ 2927 (A.P) - oﬃcers of Municipal
Corporation.
81.  Laxmi Medical Distributors v State of AP, 2005 Cr LJ 1601 (A.P).
82.  Ram Avtar Sah v State of Bihar, 2002 Cr LJ 3899 (Pat).
83.  Appadirai v State, Rep. By The Station House Oﬃcer, Cid Branch, Pondicherry 2001 Cr LJ
3129 (Mad).

84.  Girish Chandra Patra v Pinakee Enterprises Ltd, 1989 Cr LJ 527 (Ori).
85.  Sarat Chandra Dehury v Sankirtan Behera, 1989 Cr LJ (NOC) 162 Orissa; Sukhdev Singh v
State of Punjab, 1988 Cr LJ 265 P&H.

86.  Dilaver Babu Khurana v State of Maharashtra, AIR 2002 SC 564 [LNIND 2002 SC 1739] :
(2002) 2 SCC 135 [LNIND 2002 SC 1739] ; State of Gujarat v Manshanker Prabhashanker Dwivedi,
AIR 1973 SC 330 [LNIND 1972 SC 257] : (1972) 2 SCC 392 [LNIND 1972 SC 257] .
87.  Govt. of AP v P Venken Reddy, AIR 2002 SC 3346 : (2002) 7 SCC 631 : Rabindra Nath Bera v
State Of WB, 2012 Cr LJ 913 (Cal); Haladhar Sasmal v State Of WB, 2012 Cr LJ 1726 (CAL) A
'public servant' within the meaning of Maharashtra Co-operative Societies Act, 1960 is not a
public servant under Section 21 of IPC, 1860; State of Maharashtra v Laljit Rajshi Shah, AIR 2000
SC 937 [LNIND 2000 SC 387] : (2000) 2 SCC 699 [LNIND 2000 SC 387] .
88.  Ram Krishna Dalmia v Delhi Administration, (1963 (1) SCR 253 [LNIND 1962 SC 146] : AIR
1962 SC 1821 [LNIND 1962 SC 146] ; Insurance surveyer is not public servant- 1988 Cr LJ 311
Delhi).
89.  State of TN v T Thulasingam, AIR 1995 SC 1314 [LNIND 1994 SC 1256] : (1994) Supp 2 SCC

Delhi).
405; Ramesh Balkrishna Kulkarni v State of Maharashtra, 1985 (3) SCC 606 [LNIND 1985 SC 235]
: AIR 1985 SC 1655 [LNIND 1985 SC 235] .
90.  Lakshmansingh Himatsingh Vaghela v Naresh Kumar Chandrashanker Jha, AIR 1990 SC 1976
[LNIND 1990 SC 370] : (1990) 4 SCC 169 [LNIND 1990 SC 370] .
91.  SS Dhanoa v Municipal Corporation Delhi, AIR 1981 SC 1395 [LNIND 1981 SC 282] : (1981) 3
SCC 431 [LNIND 1981 SC 282] .
92.  National Small Industries Corporation Ltd v State, AIR 2009 SC 1284 [LNIND 2008 SC 2243] :
93.  Chairperson, Kanhangad Municipality v State of Kerala, 2012 Cr LJ 4366 (Ker).
94.  Sushil Modi v Mohan Guruswamy, 2008 Cr LJ 541 (Del).
95.  Santosh Hospitals Private Ltd Chennai v State Human Rights Commission, TN AIR 2005 Mad.
348 [LNIND 2005 MAD 935] .

96.  Ghulam Rabbani v State of Assam, 2001 Cr LJ 2331 : 2002 (1) Crimes 132 [LNIND 2001 GAU
403] (Gau).
97.  Padam Sen v State of UP AIR 1961 SC 218 [LNIND 1960 SC 221] : 1961 Cr LJ 322 .
98.  State of Maharashtra v Dr. Rustom Franrose Hakim, 2000 Cr LJ 3401 (Bom).

[s 22] "Movable property.".
The words "movable property" are intended to include corporeal property 1 of every
description, except land and things attached to the earth 2 or permanently fastened to
anything which is attached to the earth.
COMMENT—
This deﬁnition is restricted to corporeal property; it excludes all choices in action. The
deﬁnition of "movable property" in the section is not exhaustive.99. The deﬁnition of
"movable property" given in the Indian Penal Code is basically meant for the provisions
contained in the Indian Penal Code itself (section 125 Cr PC, 1973).100.
1. 'Corporeal property' is property which may be perceived by the senses, in

contradistinction to incorporeal rights, which are not so perceivable, as obligations of
all kinds. Thus, salt produced on a swamp,101. and papers forming part of the record of
a case,102. are movable property within the meaning of this section. Even if an
assessment order is not 'property' in the hands of the Income-tax Oﬃcer, it is 'property'
in the hands of the assessee (section 420 IPC, 1860).103.
2. 'Land and things attached to the earth'.—This section does not exempt "earth and
things attached to the earth", but "land and things attached to the earth"; "land" and
"earth" are not synonymous terms, and there is a great distinction between "the earth",
and "earth". By severance, things that are immovable become movable; and it is
perfectly correct to call those things attached which can be severed; and undoubtedly it

is possible to sever earth from the earth and attach it again thereto. Earth, that is soil,
and all the component parts of the soil, inclusive of stones and minerals, when severed
from the earth or land to which it was attached, are movable property capable of being
the subject of theft.104. Any part of "the earth", whether it is stones or sand or clay or
any other component, when severed from "the earth", is movable property.105. Standing
crop, so long as it is attached to the earth is not movable property as deﬁned in the
Code, but the moment it is severed from the earth its character is changed and it can
become the subject of theft.106.
Fish in any water are corporeal property and they become subject of theft as soon as
they are separated from the waters, dead or alive, and are moved.107.

99.  RK Dalmia v Delhi Administration, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1962) 2 Cr LJ
805 .
100.  Bhagwat Baburao Gaikwad v Baburao Bhaiyya Gaikwad, 1993 Cr LJ 2393 (Bom).
101.  Tamma Ghantaya, (1881) 4 Mad 228.
102.  Ramaswami Aiyer v Vaithiling Mudali, (1882) 1 Weir 28.
103.  Ishwarlal Girdharilal Parekh v State of Maharashtra, AIR 1969 SC 40 [LNIND 1968 SC 143] :
1969 Cr LJ 271 .
104.  Shivram, (1891) 15 Bom 702.
105.  Suri Venkatappayya Sastri v Madula Venkanna, (1904) 27 Mad 531, 535 (FB), overruling
Kotayya, (1887) 10 Mad 255. It has been said that the words "corporeal property of every
description" were not supposed to apply for all purposes. The matter before the court was that
of attachment of salary for payment of maintenance.
106.  Kunhayu v State, 1965 KLT 66 : 1965 KLJ 51 .
107.  State of Rajasthan v Pooran Singh, 1977 Cr LJ 1055 .

[s 23] "Wrongful gain.".
"Wrongful gain" is gain by unlawful means of property to which the person gaining is
not legally entitled.
"Wrongful loss."
"Wrongful loss" is the loss by unlawful means of property to which the person
losing it is legally entitled.
Gaining wrongfully, Losing 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,1 as well as when such
person is wrongfully deprived of property.
COMMENT—
The word 'wrongful' means prejudicially affecting a party in some legal right. For either

COMMENT—
wrongful loss or gain, the property must be lost to the owner, or the owner must be
wrongfully kept out of it. Thus, where a pledgee used a turban that was pledged, it was
held that the deterioration of the turban by use was not 'wrongful loss' of property to
the owner, and the wrongful beneﬁcial use of it by the pledgee was not a 'wrongful gain'
to him.108. The gain or loss contemplated need not be a total acquisition or a total
deprivation but it is enough if it is a temporary retention of property by the person
wrongfully gaining or a temporary "keeping out" of property from the person legally
entitled.109. Forcible and illegal seizure of bullocks of a widow in satisfaction of a debt
due to the accused by her deceased husband was held to be a 'wrongful loss'.110.
Where a person, who purchased rice from a famine relief oﬃcer, at a certain rate on

condition that he should sell it at a pound the rupee less, did not sell it at the rate
agreed upon, but at four pounds the rupee less, it was held that no wrongful gain or
wrongful loss had been caused to anyone within the meaning of this section. The rice
having been sold to the accused, and he having paid for it, it was not unlawful for him
to sell it again at such price as he thought ﬁt.111. Where the accused removed jute kept
in a pond of the complainant for wetting and requested the complainant to take it away
as the accused bona ﬁde claimed the ownership of the pond, it was held that no
wrongful loss was caused to the complainant.112.
The words "gaining wrongfully," or "losing wrongfully" would cover cases of wrongful
detention of property in the one case and wrongfully being kept out of property in the

108.  (1866) 3 MHC (Appx.) 6.
109.  KN Mehra v State of Rajasthan, AIR 1957 SC 369 [LNIND 1957 SC 14] : 1957 Cr LJ 552 .
110.  Preonath Banerjee, (1866) 5 WR (Cr) 68.
111.  Lal Mohomed, (1874) 22 WR (Cr) 82.
112.  Paltu Goswami v Ram Kumar, AIR 1960 Tripura 40 .
113.  Krishan Kumar, (1960) 1 SCR 452 [LNIND 1959 SC 135] : 1959 Cr LJ 1508 : AIR 1960 SC
1390 .
114.  Sri Churn Chungo, (1895) 22 Cal 1017 , FB; Ganpat Krishnaji, (1930) 32 Bom LR 351 .
115.  Shriram v Thakurdas, 1978 Cr LJ 715 (Bom).
116.  Soshi Bhushan, (1893) 15 All 210 , 216.
other.113.
1. 'Wrongfully kept out of any property'.—When the owner is kept out of possession of
his property with the object of depriving him of the beneﬁt arising from the possession
even temporarily, the case will come within the deﬁnition. If a creditor by force or
otherwise takes the goods of his debtor out of his possession against his will in order
to put pressure on him to compel him to discharge his debt he will be guilty of theft by

causing wrongful loss to the debtor.114. The loss must be caused wrongfully. Thus,
whose municipal oﬃcers demolished an unauthorised construction as the complainant
refused to remove the structure in spite of notice, they could not be held guilty of
committing an offence of mischief within the meaning of section 425, IPC, 1860, for
there was no intention to cause wrongful loss to the complainant as the demolition
was done lawfully in exercise of powers under sections 179 and 189 of the
Maharashtra Municipalities Act.115.
Fees payable to a college for attending lectures are "property" within the meaning of
this section.116.

[s 24] "Dishonestly.".
Whoever does anything with the intention of causing wrongful gain to one person or
wrongful loss to another person, is said to do that thing "dishonestly".
COMMENT—
From this deﬁnition it will appear that the term 'dishonestly' is not used in the Code in
its popular signiﬁcance. Unless there is wrongful gain to one person, or wrongful loss
to another, an act would not be 'dishonest'. Wrongful gain includes wrongful retention
and wrongful loss includes being kept out of the property as well as being wrongfully
deprived of property.117. An act done with the intention to cause 'wrongful gain' can be

said to be dishonest.118. Deceit is not an ingredient of the deﬁnition of the word
"dishonestly". "Dishonestly" involves a pecuniary or economic gain or loss.119. Thus,
"dishonestly" means an intention to cause either wrongful gain or wrongful loss. So
where municipal oﬃcers demolished and removed an unauthorised structure lawfully
by virtue of powers given to them under the Municipal Act, it could not be said that they
committed the offence of theft under section 380, IPC, 1860, as their act was not
committed dishonestly within the meaning of section 24 read with section 23, IPC,
1860. And since "dishonesty" is an essential ingredient of the offence of theft, they
could not be charged with that offence.120. A mere erroneous belief and persistence in
a wrong or perverse opinion cannot be said to be offence tainted with a dishonest or

fraudulent intent.121.
[s 24.1] Cheating.—
Two main ingredients of section 420 IPC, 1860 are dishonest and fraudulent
intention.122. For the purpose of establishing the offence of cheating, the complainant
is required to show that the accused had fraudulent or dishonest intention at the time
of making promise or representation.123.
[s 24.2] Breach of Trust.—
The element of 'dishonest intention' is an essential element to constitute the offence of
Criminal Breach of Trust.124.
[s 24.3] Hire-purchase.—

117.  Krishan Kumar v UOI, 1959 Cr LJ 1508 : AIR 1959 SC 1390 [LNIND 1959 SC 135] .
118.  Venkatakrishnan v CBI, AIR 2010 SC 1812 [LNIND 2009 SC 1653] : (2009) 11 SCC 737
[LNIND 2009 SC 1653] .
119.  Dr. Vimala, AIR 1963 SC 1572 [LNIND 1962 SC 397] : (1963) 2 Cr LJ 434 .
120.  Shriram v Thakurdas, 1978 Cr LJ 715 (Bom). See also Narendra Pratap Narain Singh v State
of UP, AIR 1991 SC 1394 [LNIND 1991 SC 186] : 1991 Cr LJ 1816 ; N Vaghul v State of
Maharashtra, 1987 Cr LJ 385 (Bom).
121.  N Vaghul v State of Maharashtra, 1987 Cr LJ 385 (Bom).
122.  Annamalai v State of Karnataka, (2010) 8 SCC 524 [LNIND 2010 SC 745] : 2011 Cr LJ 692 .
123.  B Suresh Yadav v Sharifa Bee, AIR 2008 SC 210 [LNIND 2007 SC 1238] : (2007) 13 SCC 107
[LNIND 2007 SC 1238] ; Indian Oil Corporation vNEPC India Ltd, JT 2006 (6) SC 474 [LNIND 2006
SC 537] ) : (2006) 6 SCC 736 [LNIND 2006 SC 537] .
124.  Venkatakrishnan v CBI, AIR 2010 SC 1812 [LNIND 2009 SC 1653] : (2009) 11 SCC 737

125.  Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] : (2001)7
SCC 417 [LNIND 2001 SC 2906] ; Sardar Trilok Singhv Satya Deo Tripathi, (1979) 4 SCC 396 : AIR
1979 SC 850 ; KA Mathai v Kora Bibbikutty, (1996) 7SCC 212 : (1996) 1 SCC (Cr) 281.
The element of 'dishonest intention' which is an essential element to constitute the
offence of theft cannot be attributed to a person exercising his right under an
agreement entered into between the parties as he may not have an intention of causing
wrongful gain or to cause wrongful loss to the hirer.125.

[s 25] "Fraudulently.".
A person is said to do a thing fraudulently if he does that thing with intent to defraud 1
but not otherwise.
COMMENT—
The intention with which an act is done is very important in determining whether the
act is done 'dishonestly' or 'fraudulently'.
1. 'Intent to defraud'.—The terms 'fraud' and 'defraud' are not deﬁned in the Penal Code.
The word 'defraud' is of double meaning in the sense that it either may or may not imply
deprivation, and, as it is not deﬁned, its meaning must be sought by a consideration of
the context in which the word 'fraudulently' is found.126.
Fraud is an act of deliberate deception with a design to secure something, which is

otherwise not due. Fraud and deception are synonymous.127.
To 'defraud' or do something fraudulently is not by itself made an offence under the
Penal Code, but various acts when done fraudulently (or fraudulently and dishonestly)
are made offences. These include:
(i) Fraudulent removal or concealment of property (sections 206, 421, 424)
(ii) Fraudulent claim to property to prevent seizure (section 207).
(iii) Fraudulent suffering or obtaining a decree (sections 208 and 210)
(iv) Fraudulent possession/delivery of counterfeit coin (sections 239, 240, 242 and
243).
(v) Fraudulent alteration/diminishing weight of coin (sections 246–253)
(vi) Fraudulent acts relating to stamps (sections 261–261)
(vii) Fraudulent use of false instruments/weight/measure (sections 264–266)
(viii) Cheating (sections 415–420)

(ix) Fraudulent prevention of debt being available to creditors (section 422).
(x) Fraudulent execution of deed of transfer containing false statement of
consideration (section 423).
(xi) Forgery making or executing a false document (sections 463–471 and 474)

(xii) Fraudulent cancellation/destruction of valuable security, etc. (section 477)
(xiii) Fraudulently going through marriage ceremony (section 496).
It follows therefore, that by merely alleging or showing that a person acted fraudulently,
it cannot be assumed that he committed an offence punishable under the Code or any
other law, unless that fraudulent act is speciﬁed to be an offence under the Code or
other law.128.
The expression 'defraud' involves two elements, namely, deceit and injury to the person
deceived. The injury may even comprise a non-economic or non-pecuniary loss. Even in
those rare cases where the beneﬁt to the deceiver does not cause corresponding loss
to the deceived, the second condition is satisﬁed.129. The expression "intent to deceive"
is different from the expression "intent to defraud".130. "Intent to defraud" is established
only when the deception has as its aim some advantage or the likelihood of advantage

to the person who causes the deceit or some kind of injury or the possibility of injury to
another.131. Thus, where an expert deposing before a court as a defence witness was
asked to produce his credentials before the court and it appeared from the documents
produced that they were not genuine, it was held that as he acted under the orders of
the court and not voluntarily, it could not be said that his intention was to cause any
one to act to his disadvantage. In the circumstances, he did not act with "intent to
defraud". He was, therefore, held liable under sections 193 and 196 but not under
sections 465 and 471, IPC, 1860.132.
[s 25.1] 'Fraudulently'; 'dishonestly'.—
According to the Supreme Court "the word "defraud" includes an element of deceit.

Deceit is not an ingredient of the deﬁnition of the word "dishonestly" while it is an
important ingredient of the deﬁnition of the word "fraudulently". The former involves a
pecuniary or economic gain or loss while the latter by construction excludes that
element. Further, the juxtaposition of the two expressions "dishonestly" and
"fraudulently" used in the various sections of the Code indicate their close aﬃnity and
therefore, the deﬁnition of one may give colour to the other. To illustrate, in the
deﬁnition of "dishonestly", wrongful gain or wrongful loss is the necessary ingredient.
Both need not exist, one would be enough. So too, if the expression "fraudulently" were
to be held to involve the element of injury to the person or persons deceived, it would
be reasonable to assume that the injury should be something other than pecuniary or

economic loss. Though almost always an advantage to one causes loss to another and
vice versa, it need not necessarily be so."133.
Where the accused, after the execution and registration of a document, which was not
required by law to be attested, added his name to the document as an attesting
witness, it was held that his act was neither fraudulent nor dishonest and the accused
was, therefore, not guilty of forgery.134. A person who is not a member of Scheduled
Caste or Scheduled Tribes obtains a false certiﬁcate with a view to gain undue
advantage to which he or she was not otherwise entitled to would amount to
commission of fraud135. Suppression of a material document would also amount to a
fraud on the court.136.

126.  Abbas Ali, supra.
127.  Meghmala v G Narasimha Reddy, 2010 (8) SCC 383 [LNIND 2010 SC 761] ; Inderjit Singh
Grewal v State of Punjab, (2011) 12 SCC 588 [LNIND 2011 SC 801] : (2011) 10 SCR 557 [LNIND
2011 SC 801] : 2012 Cr LJ 309 (SC).
128.  Mohd. Ibrahim v State of Bihar, (2009) 8 SCC 751 [LNIND 2009 SC 1774] : (2009) 3 SCC (Cr)
929.
129.  Dr. Vimala, AIR 1963 SC 1572 [LNIND 1962 SC 397] : (1963) 2 Cr LJ 434 ; State of UP v
Ranjit Singh, AIR 1999 SC 1201 : 1999 (2) SCC 617 .
130.  S Dutt v State of UP, 1966 Cr LJ 459 : AIR 1960 SC 523 .
131.  Re: BV Padmanabha Rao, 1970 Cr LJ 1502 (Mysore).
132.  S Dutt, Supra.
133.  Dr. Vimla, AIR 1963 SC 1572 [LNIND 1962 SC 397] : (1963) 2 Cr LJ 434 .
134.  Surendra Nath Ghosh, (1910) 14 CWN 1076 . See also TR Arya v State of Punjab, 1987 Cr LJ
222 (P&H); Pramod Malhotra v UOI, (2004) 3 SCC 415 [LNIND 2004 SC 1543] : AIR 2004 SC 3338
[LNIND 2004 SC 1543] : (2004) 111 DLT 605 .

135.  Lilly Kutty v Scrutiny Committee, AIR 2005 SC 4313 [LNIND 2005 SC 989] : (2005) Ibrahim v
State of Bihar, (2009) 8 SCC751 : (2009) 3 SCC 8 SCC 283 Also see- Bhaurao Dagdu Paralkar v
State of Maharashtra, AIR 2005 SC 3330 : (2005) 7 SCC 605 [LNIND 2005 SC 624] .
136.  Gowrishankar v Joshi Amba Shankar Family Trust, (1996 (3) SCC 310) [LNIND 1996 SC 447]
For meaning of fraud See :Ram Chandra Singh v Savitri Devi, (2003 (8) SCC 319) Roshan Deen v
Preeti Lal, (2002 (1) SCC100) Ram Preeti Yadav v UP Board of High School and Intermediate
Education, (2003 (8) SCC 311) [LNIND 2003 SC 741] ,Ashok Leyland Ltd v State of TN, (2004 (3)
SCC 1) [LNIND 2004 SC 1556] .

[s 26] "Reason to believe.".
A person is said to have "reason to believe" a thing, if he has suﬃcient cause to
believe that thing but not otherwise.
137.  Joti Parshad v State of Haryana, AIR 1993 SC 1167 : 1993 Cr LJ 413 .
138.  Hamid Ali v State, 1961 (2) Cr LJ 801 .
139.  Prabha Malhotra v State, 2000 Cr LJ 549 (All), the Court was examining the conduct of
doctors in reference to a patient and found no departure from the normal medical practices.
140.  State of Punjab v Balbir Singh, AIR 1994 SC 1872 [LNIND 1994 SC 283] : (1994) 3 SCC 299
[LNIND 1994 SC 283] ; Noor Aga v State of Punjab, (2008) 16 SCC 417 [LNIND 2008 SC 1363] :
JT 2008 (7) SC 409 [LNIND 2008 SC 1363] .
COMMENT—

COMMENT—
"Reason to believe" is another facet of the state of mind. It is not the same thing as
"suspicion" or "doubt" and mere seeing also cannot be equated to believing. It is a
higher level of state of mind. It means that a person must have reason to believe if the
circumstances are such that a reasonable man would, by probable reasoning, conclude
or infer regarding the nature of the thing concerned.137. The word "believe" is a very
much stronger word than "suspect" and that it involves the necessity of showing that
the circumstances were such that a reasonable man must have felt convinced in his
mind that the note with which he was dealing was a forged one and that it was not
suﬃcient to show that the accused was careless or he had reason to suspect or that he
did not make suﬃcient enquiry to ascertain the fact.138. A person can be supposed to

know something where there is a direct appeal to his senses. Suspicion or doubt
cannot be raised to the level of "reason to believe."139. "Reason to believe" in section 42
of NDPS Act is a question of fact and depends upon the facts and circumstances of
each case.140.

[s 27] Property in possession of wife, clerk or servant.
When property is in the possession of a person's wife, clerk or servant, on account of
that person, it is in that person's possession within the meaning of this Code.
E x p l a n a t i o n . —  A person employed temporarily or on a particular occasion in the
capacity of a clerk or servant, is a clerk or servant within the meaning of this section.
COMMENT—
Under this section property in the possession of a person's wife, clerk, or servant, is
deemed to be in that person's possession. The possession must be conscious and
intelligent possession and not merely the physical presence of the accused near the
object.141.

Corporeal property is in a person's possession when he has such power over it that he
can exclude others from it, and intends to exercise, if necessary, that power on behalf
of himself or of some person for whom he is a trustee.
A man's goods are in his possession not only while they are in his house or on his
premises, but also when they are in a place where he may usually send them (as when
horses and cattle feed on common land), or in a place where they may be lawfully
deposited by him, e.g., when he buries money or ornaments in his own land, or puts
them in any other secret place of deposit.
1. 'Wife'.—A permanent mistress may be regarded as a 'wife'. When a man furnishes a
house for his mistress' occupation, he may reasonably be presumed to be in

possession of all articles therein which can reasonably be inferred to belong to him or
to be in possession of his mistress on his behalf. But the inference must be
inapplicable to articles of which the mistress is in possession illegally or contrary to the
provisions of law, especially when the article in question is such that he might well
remain in ignorance that it was in his mistress' possession.142.
Under this section the possession of the wife or servant must be shown to be on
account of the accused otherwise he cannot be held liable for possession by his wife
or servant of any incriminatory thing even in his own house. In other words, it must be
shown that the accused was in conscious possession of the thing in question through
his wife or servant. Moreover, it must also be shown that the possession of the

incriminatory thing amounted to an offence under the Indian Penal Code. Thus,
possession of illicit liquor or an unlicenced pistol by the wife of the accused in his
house would not make him liable for an offence under the Prohibition Act or the Arms
Act. The mere fact that the accused was the head of the family would not go to show

141.  Wahib Basha, AIR 1961 Mad 162 [LNIND 1960 MAD 38] .
142.  Banwari Lal, (1913) PR No. 20 of 1914; see also Narendra Nath Majumdar, AIR 1951 Cal
140 [LNIND 1951 CAL 14] ; Dharam Singh, 1961 Cr LJ 152 (Pun) where the wife alone was held
responsible as she produced the key.
143.  Chela Ram v State of Rajasthan, 1984 Cr LJ 17 .1143 (Raj); Narendra Nath Majumdar, AIR
1951 Cal 140 [LNIND 1951 CAL 14] .
that the accused must have been in conscious possession of the incriminatory
thing.143.

[s 28] "Counterfeit.".
A person is said to "counterfeit" who causes one thing to resemble another thing,
intending by means of that resemblance to practise deception, or knowing it to be
likely that deception will thereby be practised.
144. [Explanation 1.—It is not essential to counterfeiting that the imitation should be
exact.
Explanation 2.—When a person causes one thing to resemble another thing, and the
resemblance is such that a person might be deceived thereby, it shall be presumed,
until the contrary is proved, that the person so causing the one thing to resemble the
other thing intended by means of that resemblance to practise deception or knew it to

be likely that deception would thereby be practised.]
COMMENT—
The aforesaid deﬁnition states that imitation is not required to be exact. It also says
that it is not necessary that counterfeit note should be made with primary intention of
its being looked as genuine. It is suﬃcient if resemblance to genuine currency note is
so caused that it is capable to being passed as such.145. In order to apply section 28,
what the Court has to see is whether one thing is made to resemble another thing and
if that is so and if the resemblance is such that a person might be deceived by it, there
will be a presumption of the necessary intention or knowledge to make the thing
counterfeit, unless the contrary is proved. The difference between the counterfeit and
the original is not therefore, limited to a difference existing only by reason of faulty

reproduction.146. The main ingredients of counterfeiting as laid down in section 28,
IPC, 1860, are:
(i) causing one thing to resemble another thing,
(ii) intending by means of such resemblance to practice deception, or
(iii) knowing it to be likely that deception will thereby be practised.
There can be counterfeiting even though the imitation is not exact and there are
differences in detail between the original and the imitation so long as the resemblance
is so close that deception may thereby be practised. And if the resemblance is such
that a person might be deceived thereby, it shall be presumed until the contrary is
proved that the person causing one thing to resemble another thing was intending by
means of that resemblance to practise deception or knew it to be likely that deception
would thereby be practised.147.

144.  Subs. by Act 1 of 1889, section 9, for Explanation.
145.  Narayan Maruti Waghmode v State of Maharashtra, 2011 Cr LJ 3318 (Bom).
146.  Liyakat Ali v State of Rajasthan 2010 Cr LJ 2450 (Raj); Golo Mandla Ram Rao v State of
Jharkhand, > 2003 Cr LJ 1738 (Jha); Local Government v Seth Motilal Jain, (1938) Nag 192.
147.  State of UP v HM Ismail, 1960 Cr LJ 1017 : AIR 1960 SC 669 [LNIND 1960 SC 29] ; K Hasim
v State of TN, 2005 Cr LJ 143 : AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1 SCC 237
[LNIND 2004 SC 1142] , exact reproduction is not necessary.
148.  Velayudham, (1938) Mad 80.
149.  Shahid Sultan Khan v State of Maharashtra, 2007 Cr LJ 568 (Bom).
150.  State of Kerala v Mathai Verghese, (1986) 4 SCC 746 [LNIND 1986 SC 461] : AIR 1987 SC 33
[LNIND 1986 SC 461] : 1987 Cr LJ 308 .
The word 'counterfeit' occurs in offences relating to coin provided in Chapter XII and
offences relating to property marks and currency notes in Chapter XVIII.

If coins are made to resemble genuine coins and the intention of the makers is merely
to use them in order to foist a false case upon their enemies, those coins do not come
within the deﬁnition of counterfeit coins.148. The prosecution must establish that the
coins manufactured resemble the original. It must also establish that there is an
intention to deceive, or the knowledge that deception would be caused by such
resemblance.149.
[s 28.1] Foreign Currency.—
The Supreme Court has observed that the word "counterfeit" has been deﬁned in this
provision in very wide terms and the same has been further supplemented by the
Explanation which draws an adverse inference against the maker of the counterfeit
matter. There being no restriction as to the subject-matter of the offence, quite

obviously the offence of imitating a foreign currency would be within the scope of the
expression.150.

[s 29] "Document.".
The word "document" denotes any matter expressed or described upon any substance
by means of letters, ﬁgures, or marks, or by more than one of those means, intended
to be used, or which may be used, as evidence of that matter.
Explanation 1.—It is immaterial by what means or upon what substance the letters,
ﬁgures or marks are formed, or whether the evidence is intended for, or may be used
in, a Court of Justice, or not.
A writing expressing the terms of a contract, which may be used as evidence of the
contract, is a document.
A cheque upon a banker is a document. A power-of-attorney is a document.

A map or plan which is intended to be used or which may be used as evidence, is a
document. A writing containing directions or instructions is a document.
Explanation 2.—Whatever is expressed by means of letters, ﬁgures or marks as
explained by mercantile or other usage, shall be deemed to be expressed by such
letters, ﬁgures or marks within the meaning of this section, although the same may
not be actually expressed.
A writes his name on the back of a bill of exchange payable to his order. The meaning
of the endorsement, as explained by mercantile usage, is that the bill is to be paid to
the holder. The endorsement is a document, and must be construed in the same
manner as if the words "pay to the holder" or words to that effect had been written over
the signature.
COMMENT—

COMMENT—
An assessment order is certainly a 'document', under section 29, IPC, 1860.151. An
agreement in writing, which purported to be entered into between ﬁve persons, was
signed by only two of them. It was held that it was a 'document' within the meaning of
this section though it was not signed by all the parties thereto.152. Letters or marks
imprinted on trees and intended to be used as evidence that the trees had been passed
for removal by the Ranger of a forest are documents.153. Currency notes would be
included in the deﬁnition of "documents."154. A charge ticket for overseas calls which a
telephone operator has to prepare for accounting purposes is a document.155.

151.  Ishwarlal Girdharilal Parekh v State Of Maharashtra, AIR 1969 SC 40 [LNIND 1968 SC 143] :
1969 Cr LJ 271 (SC).
152.  Ramaswami Ayyar v State, (1917) 41 Mad 589. Boraiah v State, 2003 Cr LJ 1031 (Kant),
post mortem report which was marked without objection was allowed to be read in evidence
without its author being produced.
153.  Krishtappa, (1925) 27 Bom LR 599 .The deﬁnition includes anything done by pen, by
engraving, by printing or otherwise, whereby, it is made on paper, parchment, wood or other
substance. Similar deﬁnitions of the word 'document' are found in Section 3, Evidence Act, and
also in Section 3 (16), General Clauses Act. L K Siddappa v Lalithamma 1954 Cr LJ 1235 (Mys).
154.  Shyama Charan, AIR 1962 Tripura 50 .
155.  RV Sharma, (1990) 2 All ER 602 (CA).

156.[s 29A] "Electronic record."
The words "electronic record" shall have the meaning assigned to them in clause (t) of
sub-section (1) of section 2 of the Information Technology Act, 2000.]
156.  Ins. by Act 21 of 2000, section 91 and Sch. I (w.e.f. 17-10-2000).
COMMENT—
This section has been inserted by the Information Technology Act 2000 (Act No. 21 of
2000), which came into force on 17 October, 2000. With the on-going electronic and
communicational developments, electronic commerce requires the use of electronic
record. Section 29A simply refers to the deﬁnition of 'electronic record' as the meaning
assigned to these words in clause (t) of sub-section (1) of section 2 of the Information

Technology Act 2000. It reads thus;
"(t) "electronic record" means data, record or data generated, image or sound stored,
received or sent in an electronic form or micro ﬁlm or computer generated microﬁche;"
While giving meaning to the words "electronic record" and its deﬁnition under section
29A one has to resort to the meaning of the words "computer" and "data" as given in
sections 2(1)(i) and 2(1)(o) of the Information Technology Act 2000. The words
"electronic form" used in the deﬁnition of electronic record have further been deﬁned in
section 2(1)(r) of the Information Technology Act, which reads thus,
"2(1)(r) "electronic form" with reference to informations, means any information
generated, sent, received or stored in media, magnetic, optical, computer memory,
micro ﬁlm, computer generated microﬁche or similar device."

[s 30] "Valuable security.".
The words "valuable security" denote a document which is, or purports to be, 1 a
document whereby any legal right is created, extended, transferred, restricted,
extinguished or released, or where by any person acknowledges that he lies under
legal liability, or has not a certain legal right.
A writes his name on the back of a bill of exchange. As the effect of this endorsement
is transfer the right to the bill to any person who may become the lawful holder of it, the
endorsement is a "valuable security".
157.  Hari Prasad v State, (1955) 1 All 749 ; Moosa v State of Kerala, AIR 1963 Ker. 68 .

158.  Gobinda Prasad v State, AIR 1962 Cal 174 [LNIND 1961 CAL 76] .
COMMENT—
The words "valuable security" also occurs in sections 329–331, 347, 348, 420, 467 and
471. Account books containing entries not signed by a party are not "valuable
security."157. A copy of a valuable security is not a valuable security.158. An 'order of
assessment' is a 'valuable security'.159.
1. 'Which is, or purports to be'.—The use of the words "which is, or purports to be"
indicates that a document which, upon certain evidence being given, may be held to be
invalid, but on the face of it creates, or purports to create, a right in immoveable
property, although a decree could not be passed upon the document, comes within the
purview of this section.160. The words "purports to be" are wide enough to include a
document which is not in conformity with the provisions of the Registration Act. Such a

document though not otherwise receivable in evidence would still be receivable in
evidence for the purpose of the Indian Penal Code.161. However, certiﬁcates which the
accused had forged in order to get admission in a college could not be described as
"valuable security" and as such their conviction under section 471 read with section
467 had to be changed to one under section 471 read with section 465, IPC, 1860.162.A
lottery ticket is a valuable security.163.

159.  Ishwarlal Girdharilal Parekh v State Of Maharashtra, AIR 1969 SC 40 [LNIND 1968 SC 143] :
160.  Ram Harakh Pathak, (1925) 48 All 140 .
161.  Kalimuddin v State, 1977 Cr LJ NOC 261 (Cal).
162.  BK Patil v State of Maharashtra, 1980 Cr LJ 1312 : AIR 1981 SC 80 ; Noor Mohamad v State
ofMaharashtra, 1980 Cr LJ 1345 AIR 1981 SC 297 ;.
163.  Farzeen Sulthana v Government of Kerala, 2012 (1) KLT 309 ; Chacko v State of Kerala, 1970
KLT358; relied on Central Government of India v Krishnaji Parvetesh Kulkarni, AIR 2006 SC 1744
[LNIND 2006 SC 253] : (2006) 4 SCC 275 [LNIND 2006 SC 253] .

[s 31] "A will".
The words "a will" denote any testamentary document.
164.  The Indian Succession Act (XXXIX of 1925), section 2(h).
COMMENT—
'Will' is the legal declaration of the intention of a testator with respect to his property
which he desires to be carried into effect after his death.164.

[s 32] Words referring to acts include illegal omissions.
In every part of this Code, except where a contrary intention appears from the context,
words which refer to acts 1 done extend also to illegal omissions. 2
COMMENT—
This section puts an illegal omission on the same footing as a positive act.
1. 'Acts'.—An 'act' generally means something voluntarily done by a person. 'Act' is a
determination of the will, producing an effect in the sensible world. This word includes
writing and speaking, or, in short, any external manifestation. In the Code it is not
conﬁned to its ordinary meaning of positive conduct of doing something, but includes
also illegal omissions.

2. 'Omissions'.—Liability for an omission requires a legal duty to act; a moral duty to act
is not suﬃcient. A duty arises from the former when an offence is deﬁned in terms of
omission. This is the situation where the legislature has made it an offence. A legal
duty to act may also be created by a provision of either criminal or civil separate from
the offence charged. Since there is no moral difference between (i) a positive act and
(ii) an omission when a duty is established, it is to be borne in mind that cases of
omissions, the liability should be exceptional and needs to be adequately justiﬁed in
each instance. Secondly, when it is imposed this should be done by clear statutory
language. Verbs primarily denoting (and forbidding) active conduct should not be

construed to include omissions except when the statute contains a genuine implication
to this effect.165.
An 'act' generally means something voluntarily done by a person, but in IPC, 1860 the
term 'act' is not conﬁned to its ordinary meaning of positive conduct of doing
something but includes also illegal omission. The effect of sections 32 and 33, IPC,
1860 taken together is that the term 'act' comprises one or more 'acts' or one or more
illegal omissions. The Code (IPC, 1860) makes punishable omissions which have
caused, which have been intended to cause or which have been known to be likely to
cause certain evil effect in the same manner as it punishes acts provided they were
illegal and when the law imposes on a person a duty to act, his illegal omission to act
renders (him) in liable to punishment.166.
[s 32.1] Penalty for omission.—

Maximum penalties applied to active wrongdoing should not automatically be
transferred to corresponding omissions; penalties for omissions should be re-thought

165.  Dr PB Desai v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .
166.  Raj Karan Singh v State of UP 2000 Cr LJ 555 (All).
167.  Dr PB Desai v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .
in each case. Indeed, the Indian Penal Code, 1860 does include explicitly the liability
due to omissions. And even Indian courts have aﬃrmed so.167.

[s 33] "Act" "Omission";.
The word "act" denotes as well a series of acts as a single act: the word "omission"
denotes as well a series of omissions as a single omission.
168.  Dr PB Desai v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .
169.  Om Parkash v State Of Punjab, AIR 1961 SC 1782 [LNIND 1961 SC 201] : 1961 (2) Cr LJ 848
.
COMMENT—
An omission is sometimes called a negative act, but this seems dangerous practice, for
it too easily permits an omission to be substituted for an act without requiring the
special requirement for omission liability such as legal duty and the physical capacity

to perform the act. Criminal liability for an omission is also well accepted where the
actor has a legal duty and the capacity to act. It is said that this rather fundamental
exception to the act requirement is permitted because an actor's failure to perform a
legal duty of which he is capable, satisﬁes the purposes of the act requirement or at
least satisﬁes them as well as an act does. Speciﬁcally these two special requirements
for omission liability help to exclude from liability cases of fantasizing and irresolute
intentions, important purposes of the act requirement.168. The effect of section 32 and
this section taken together is that the term 'act' comprises one or more acts or one or
more illegal omissions. The word 'act' does not mean only any particular, speciﬁc,

instantaneous act of a person, but denotes, as well, a series of acts.169.

170.[[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 1 of all, each of such persons is liable for that act in the same manner as if it
were done by him alone.]
COMMENT—
Introduction.—Ordinarily, no man can be held responsible for an independent act and
wrong committed by another. However, section 34 of the IPC, 1860 makes an exception
to this principle. It lays down a principle of joint liability in the doing of a criminal act.
The essence of that liability is to be found in the existence of common intention,

animating the accused leading to the doing of a criminal act in furtherance of such
intention. It deals with the doing of separate acts, similar or adverse by several
persons, if all are done in furtherance of common intention. In such situation, each
person is liable for the result of that as if he had done that act himself.171. The soul of
section 34, IPC, 1860 is the joint liability in doing a criminal act.172.
[s 34.1] History.—
Section 34 IPC, 1860 is part of the original Code of 1860 as drafted by Lord Macaulay.
The original section as it stood was "When a criminal act is done by several persons,
each of such persons is liable for that act in the same manner as if the act was done by
him alone." However, on account of certain observations made by Sir Barnes Peacock,

CJ, in Queen v Gora Chand Gope,173. it was necessary to bring about a change in the
wordings of the section. Accordingly, in the year 1870 an amendment was brought
which introduced the following words after "when a criminal act is done by several
persons..." "…in furtherance of the common intention...". After this change, the section
has not been changed or amended ever.
[s 34.2] Object.—
The provision is intended to meet a case in which it may be diﬃcult to distinguish
between acts of individual members of a party who act in furtherance of the common
intention of all or to prove exactly what part was taken by each of them. The true
contents of the section are that if two or more persons intentionally do an act jointly,
the position in law is just the same as if each of them has done it individually by

himself. As observed in Ashok Kumar v State of Punjab,174. the existence of a common
intention amongst the participants in a crime is the essential element for application of
this section. It is not necessary that the acts of the several persons charged with

commission of an offence jointly must be the same or identically similar. The acts may
be different in character, but must have been actuated by one and the same common
intention in order to attract the provision.175. Barendra Kumar Ghosh v King Emperor,176.
stated the true purport of section 34 as:
The words of s.34 are not to be eviscerated by reading them in this exceedingly limited
sense. By s.33 a criminal act in s.34 includes a series of acts and, further, 'act' includes
omission to act, for example, an omission to interfere in order to prevent a murder being
done before one's very eyes. By s.37, when any offence is committed by means of several
acts whoever intentionally cooperates in the commission of that offence by doing any one
of those acts, either singly or jointly with any other person, commits that offence. 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'.177.
[s 34.3] Principle.—

This section is only a rule of evidence and does not create a substantive offence.
Section 34 IPC, 1860 lays down the principle of constructive liability. The essence of
section 34 IPC, 1860 is a simultaneous consensus of the minds of the persons
participating in criminal action to bring about a particular result. Section 34 IPC, 1860
stipulates that the act must have been done in furtherance of the common intention. In
fact, the section is intended to cover a case where a number of persons act together
and on the facts of the case it is not possible for the prosecution to prove as to which
of the persons who acted together actually committed the crime. Little or no distinction
exists between a charge for an offence under a particular section and a charge under

that section read with section 34.178. Therefore, section 34, IPC, 1860, would apply
even if no charge is framed under that section provided of course from the evidence it
becomes clear that there was pre-arranged plan to achieve the commonly intended
object.179. Thus, where six persons were charged under sections 148, 302/149 and
307/149, IPC, 1860, but two were acquitted, the remaining four accused could be
convicted on the charges of murder and attempt to murder with the aid of section 34 of
the Penal Code.180. This section really means that if two or more persons intentionally
do a thing jointly, it is just the same as if each of them had done it individually.181. If the
criminal act was a fresh and independent act springing wholly from the mind of the

doer, the others are not liable merely because when it was done they were intending to
be partakers with the doer in a different criminal act.
[s 34.4] Scope, ambit and applicability.—
Section 34 of the Indian Penal Code recognises the principle of vicarious liability in
criminal jurisprudence. The said principle enshrined under Section 34 of the Code
would be attracted only if one or more than one accused person act conjointly in the
commission of offence with others. It is not necessary that all such persons should be
named and identiﬁed before the liability under Section 34 of the Indian Penal Code can
be invoked. So long as the evidence brought by the prosecution would disclose that
one or more accused persons had acted in concert with other persons not named or

identiﬁed, the liability under Section 34 of the Code would still be attracted. Once the
other accused stands acquitted in absence of said evidence, the vicarious liability
under section 34 of the Code would not be attracted so as to hold the accused liable
for the offence with the aid of Section 34 of the Code. However, the accused would still
be liable for the offence if the injury or injuries leading to offence can be attributed to
him.182. A bare reading of this section shows that the section could be dissected as
follows:

(a) Criminal act is done by several persons;
(b) Such act is done in furtherance of the common intention of all; and
(c) Each of such persons is liable for that act in the same manner as if it were done
by him alone.
(d) But, it is not necessary that all such persons should be named and identiﬁed
before the liability under Section 34 of the Indian Penal Code can be invoked.183.
In other words, these three ingredients would guide the court in determining whether an
accused is liable to be convicted with the aid of section 34. While ﬁrst two are the acts
which are attributable and have to be proved as actions of the accused, the third is the
consequence. Once the criminal act and common intention are proved, then by ﬁction
of law, criminal liability of having done that act by each person individually would arise.
The criminal act, according to section 34 IPC, 1860 must be done by several persons.
The emphasis in this part of the section is on the word "done".184. The section does not

envisage the separate act by all the accused persons for becoming responsible for the
ultimate criminal act. If such an interpretation is accepted, the purpose of section 34
shall be rendered infructuous.185. Under section 34 of the Indian Penal Code, a pre-
concert in the sense of a distinct previous plan is not necessary to be proved.186. It is a
well settled law that mere presence or association with other members is not per se
suﬃcient to hold each of them criminally liable for the offences committed by the other
members, unless there is suﬃcient evidence on record to show that one such member
also intends to or knows the likelihood of commission of such an offending act.187.
[s 34.5] Three leading Cases.—
The case of Barendra Kumar Ghosh v King Emperor,188. is a locus classicus and has

been followed by number of High Courts and the Supreme Court in a large number of
cases. In this case, the Judicial Committee dealt with the scope of section 34 dealing
with the acts done in furtherance of the common intention, making all equally liable for
the results of all the acts of others. It was observed that section 34 when it speaks of a
criminal act done by several persons in furtherance of the common intention of all, has
regard not to the offence as a whole, but to the criminal act, that is to say, the totality of
the series of acts which result in the offence. In the case of a person assaulted by
many accused, the criminal act is the offence which ﬁnally results, though the
achievement of that criminal act may be the result of the action of several persons.

In another celebrated case Mehbub Shah v King-Emperor,189. the court held that:
Section 34 lays down a principle of joint liability in the doing of a criminal act. The section
does not say "the common intentions of all," nor does it say "an intention common to all."
Under the section, the essence of that liability is to be found in the existence of a common
intention animating the accused leading to the doing of a criminal act in furtherance of such
intention. To invoke the aid of s.34 successfully, it must be shown that the criminal act
complained against was done by one of the accused persons in the furtherance of the
common intention of all; if this is shown, then liability for the crime may be imposed on any
one of the persons in the same manner as if the act were done by him alone. This being the

principle, it is clear to their Lordships that common intention within the meaning of the
section implies a pre-arranged plan, and to convict the accused of an offence applying the
section it should be proved that the criminal act was done in concert pursuant to the pre-
arranged plan.
Approving the judgments of the Privy Council in Barendra Kumar Ghosh (Barendra
Kumar Ghosh v King Emperor,190. and Mahbub Shah cases191 a three-Judge Bench of
Supreme Court in Pandurang v State of Hyderabad,192. held that to attract the
applicability of section 34 of the Code the prosecution is under an obligation to

establish that there existed a common intention which requires a pre-arranged plan
because before a man can be vicariously convicted for the criminal act of another, the
act must have been done in furtherance of the common intention of all. The Court had
in mind the ultimate act done in furtherance of the common intention
[s 34.6] Common intention and mens rea.—
Under section 34, every individual offender is associated with the criminal act which
constitutes the offence both physically as well as mentally i.e. he is a participant not
only in what has been described as a common act but also what is termed as the
common intention and, therefore, in both these respects his individual role is put into
serious jeopardy although this individual role might be a part of a common scheme in
which others have also joined him and played a role that is similar or different. But
referring to the common intention, it needs to be clariﬁed that the courts must keep in

mind the ﬁne distinction between "common intention" on the one hand and mens rea as
understood in criminal jurisprudence on the other. Common intention is not alike or
identical to mens rea. The latter may be coincidental with or collateral to the former but
they are distinct and different.193.
[s 34.7] Participation.—
Participation of several persons in some action with the common intention of
committing a crime is an essential ingredient; once such participation is established,
section 34 is at once attracted.194. Thus, the dominant feature of section 34 is the
element of intention and participation in action. This participation need not in all cases
be by physical presence.195. The Supreme Court has held that it is the essence of the
section that the person must be physically present at the actual commission of the

crime. He need not be present in the actual room; he can, for instance, stand guard by a
gate outside ready to warn his companions about any approach of danger or wait in a
car on a nearby road ready to facilitate their escape, but he must be physically present
at the scene of the occurrence and must actually participate in the commission of the
offence in some way or other at the time crime is actually being committed.196.
The Supreme Court has emphasised that proof of participation by acceptable evidence
may in circumstances be a clue to the common intention and that it would not be fatal
to the prosecution case that the culprits had no community of interests.197.
Sometimes, however, absence of actual participation may serve an important purpose
as it happened, for example, where in a love triangle the paramour killed the woman's

husband and she remained sitting with the dead body inside the house without opening
the door. The main accused having been acquitted, the Supreme Court held that the
woman alone could not be convicted under section 302 read with section 34
particularly in view of the fact that the nature of the injuries (gandasa blows with a
heavy hand) made it explicit that they were the handiwork of masculine power and not
that of feminine hands.198. It is also necessary to remember that mere presence of the
offender at the scene of murder without any participation to facilitate the offence is not
enough.199. By merely accompanying the accused one does not become liable for the
crime committed by the accused within the meaning of section 34, IPC, 1860.200. The
degree of participation is also an important factor.201. The court restated the two

ingredients for application of the section which are:
(i)

common intention to commit a crime, and
(ii) participation by all the accused in the act or acts in furtherance of the common
intention. These two things establish their joint liability.202.
Where one of the accused persons focussed light on the victim with a torch so as to
enable others to assault him, otherwise it is a dark night. The court said that his
conduct prior and subsequent to the occurrence clearly showed that he shared the
common intention so far as the assault on the deceased was concerned. Hence, he
was rightly roped in under section 34.203. If participation is proved and common
intention is absent, section 34 cannot be invoked.204. The co-accused was standing
outside the house, where the incident took place, while the others committed the
murder. There is no evidence of his having played any part in the crime. He did not even
act as a guard; he did not prevent the witness from entering the house. There is no
evidence of the formation or sharing of any common intention with the other accused.

No weapon was seized from him, nor was any property connected with the crime,
conﬁscated from him. It was therefore, held that, it was not safe to convict the co-
accused of the offence of murder with the aid of sub-sections 34 and 120(B).205.
[s 34.8] Physical Presence not sine qua non.—
Physical presence at the very spot is not always a necessary ingredient to attract the
action. The Supreme Court decision in Shreekantiah Ramayya v State of Bombay,206. is
the authority for the aforesaid proposition. Vivian Bose, J, speaking for the Bench of
three Judges stated thus:
He need not be present in the actual room; he can, for instance, stand guard by a gate
outside ready to warn his companions about any approach of danger or wait in a car on a
nearby road ready to facilitate their escape.

What is required is his actual participation in the commission of the offence in some
way or other at the time when the crime is actually being committed. The participation
need not in all cases be by physical presence. In offence involving physical violence,
normally presence at the scene of offence may be necessary, but such is not the case
in respect of other offences when the offence consists of diverse acts which may be
done at different times and places. The physical presence at the scene of offence of
the offender sough to be rendered liable under this section is not one of the conditions
of its applicability in every case.207. Even the concept of presence of the co-accused at
the scene is not a necessary requirement to attract section 34 of the IPC, 1860, e.g., the
co-accused can remain a little away and supply weapons to the participating accused

either by throwing or by catapulting them so that the participating accused can inﬂict
injuries on the targeted person. There may be other provisions in the IPC, 1860 like sub-
sections 120B or 109 which could be invoked then to catch such non-participating
accused. Thus, participation in the crime in furtherance of the common intention is sine
qua non for section 34 IPC, 1860. Exhortation to other accused, even guarding the
scene etc. would amount to participation. Of course, when the allegation against an
accused is that he participated in the crime by oral exhortation or by guarding the
scene the court has to evaluate the evidence very carefully for deciding whether that
person had really done any such act.208.
The absence of any overt act of assault, exhortation or possession of weapon cannot

be singularly determinative of absence of common intention.209.

[s 34.9] In furtherance of common intention.—
The Supreme Court referred to the Oxford English Dictionary where the word
"furtherance" is deﬁned as an "action of helping forward." Russell, in his book on
Criminal Law adopted this deﬁnition and said:
It indicates some kind of aid or assistance proceeding an effect in future and that any act
may be regarded as done in furtherance of the ultimate felony if it is a step intentionally
taken for the purpose of effecting the felony." The Supreme Court has also construed the
word "furtherance" as "advancement or promotion.210.
1. 'Common intention'.—The phrase 'common intention' means a pre-oriented plan and
acting in pursuance to the plan. The common intention to give effect to a particular act
may even develop at the spur of moment between a number of persons with reference
to the facts of a given case.211. In Amrik Singh's case it has further been held that
though common intention may develop in course of the ﬁght but there must be clear

and unimpeachable evidence to justify that inference.212. Before a Court can convict a
person for any offence read with section 34, it should come to a deﬁnite conclusion
that the said person had a prior concert with one or more other persons, named or
unnamed, for committing the said offence.213. Where the act of murder by the main
accused was facilitated by two others by catching hold of the victim but without
knowing nor having the intention of causing death, it was held that the only common
intention that could be inferred was that of causing grievous hurt.214. Where the
accused had inﬂicted lathi blows causing injuries only on the eyewitness and not on the
deceased, he could not be said to have shared the common intention of committing
murder of the deceased. He was acquitted for the charge of murder and was convicted

under section 325.215.
Common intention does not mean similar intention of several persons. To constitute
common intention it is necessary that the intention of each one of them be known to
the rest of them and shared by them.216.
What to speak of similar intention even same intention without sharing each other's
intention is not enough for this section.217. In a case like this each will be liable for
whatever injury he caused but none could be vicariously convicted for the act of any of
the others.218. In ﬁne, if common intention cannot be inferred from the evidence of
facts and circumstances of the case, section 34, IPC, 1860, cannot be invoked.219. A
party of farmers was cutting their crop. The deceased took away a portion of the
harvested crop. That night when he was returning from a barat 16 persons waited for

him on the way. They came towards him and the convict who was carrying a knife gave
him a stab wound on the neck which proved fatal. The others did not know that he had
a knife and all of them being with bare hands, it could not be said that they had the
common intention of causing death. They could as well have thought that after
surrounding the accused he would be called upon to return or pay for the harvest taken
away by him.220.A person gifted his land to one of his grandsons. His other son along
with his wife fully armed, the man with a lathi and the woman with a gandasa came to
protest. The man lost control and both grandson and his father intervened to save the
situation but they received lathi blows and died. The woman struck only her brother-in-
law with the gandasa causing a non-fatal injury. Her husband was convicted for murder

but her punishment was reduced to causing grievous hurt because it appeared that the
whole thing was a spot happening and not a planned affair.221.
Where the genesis of the verbal wrangle between the neighbours was not known, but it
appeared to have arisen suddenly, there being no chance for common intention to be
formulated, each attacker was held to be punishable for his individual acts.222.

Where common intention was established the mere fact that one of the culprits
distanced himself from the scene could not absolve him from liability.223.
It is not necessary for bringing a case within the scope of section 34 to ﬁnd as to who
in fact inﬂicted the fatal blow. A conviction under the section read with the relevant
substantive provision can be made when the ingredients required by the section are
satisﬁed and it is not necessary to mention the section number in the judgment.224.
Death of two persons was caused by unprovoked ﬁring by appellants who are police
oﬃcials and grievous gunshot injuries to another person. It was not necessary to
assign a speciﬁc role to each individual appellant as the ﬁring at the Car was
undoubtedly with a clear intent to annihilate those in it and was resorted to in
furtherance of common intention of all the appellants. The accused were liable to
conviction under section 302/34 IPC, 1860.225. The acts of all the accused need not be

the same or identically similar. All that is necessary is that they all must be actuated by
the one and the same common intention. The fact that two of them caused injuries at
the back of their victim and the injury at the head which proved to be fatal was caused
by the third person, the two co-accused could not claim to be absolved of liability for
murder.226.
It is not necessary for bringing about the conviction of the co-accused to show that he
also committed an overt act for the achievement of their object. The absence of any
overt act or possession of weapon cannot be singularly determinative of absence of
common intention. If common intention by meeting of minds is established in the facts
and circumstances of the case there need not be an overt act or possession of weapon
required, to establish common intention.227.

The accused caught hold of the victim and exhorted the main accused to strike him. On
such exhortation the main accused inﬂicted a Kirpan wound. The victim died. It was
held that the instigation was only to strike. It could not be said that the accused shared
the intention of the main accused to kill. The conviction was altered from under
sections 202/34 to one under section 324.228. The victim woman was murdered by her
father-in-law and brother-in-law. The third person helped them to conceal the dead body
to screen them. The conviction of the two accused for murder was upheld but that of
the third one only for concealment of evidence under sections 201/34.229.
[s 34.10] Common Intention: How Proved.—
The common intention can be inferred from the circumstances of the case and that the
intention can be gathered from the circumstances as they arise even during an

incident.230. Common intention is a state of mind. It is not possible to read a person's
mind. There can hardly be direct evidence of common intention. The existence or non-
existence of a common intention amongst the accused has to be deciphered
cumulatively from their conduct and behaviour in the facts and circumstances of each
case. Events prior to the occurrence as also after, and during the occurrence, are all
relevant to deduce if there existed any common intention. There can be no straight
jacket formula.231. The Court has to examine the prosecution evidence in regard to
application of section 34 cumulatively and if the ingredients are satisﬁed, the
consequences must follow. It is diﬃcult to state any hard and fast rule which can be
applied universally to all cases. It will always depend on the facts and circumstances of

the given case whether the person involved in the commission of the crime with a
common intention can be held guilty of the main offence committed by them
together.232. Courts, in most cases, have to infer the intention from the act(s) or
conduct of the accused or other relevant circumstances of the case. However, an
inference as to the common intention shall not be readily drawn; the criminal liability

can arise only when such inference can be drawn with a certain degree of
assurance.233. In most cases it has to be inferred from the act or conduct or other
relevant circumstances of the case in hand.234. This inference can be gathered by the
manner in which the accused arrived on the scene and mounted the attack, the
determination and concert with which the beating was given or the injuries caused by
one or some of them, the acts done by others to assist those causing the injuries, the
concerted conduct subsequent to the commission of the offence, for instance all of
them left the scene of the incident together and other acts which all or some may have
done as would help in determining the common intention. In other words, the totality of
the circumstances must be taken into consideration in arriving at the conclusion
whether the accused had a common intention to commit an offence of which they
could be convicted.235. Manner of attack shows the common intention of accused.236.

The Supreme Court has reiterated:
We reiterate that for common intention, there could rarely be direct evidence. The ultimate
decision, at any rate would invariably depend upon the inference deducible from the
circumstances of each case. It is settled law that the common intention or the intention of
the individuals concerned in furtherance of the common intention could be proved either
from direct evidence or by inference from the acts or attending circumstances of the case
and conduct of the parties.237.
[s 34.11] Complaint.—
In order to attract section 34 of the IPC, 1860, the complaint must, prima facie, reﬂect a
common prior concert or planning amongst all the accused.238.
[s 34.12] Effect of no charge under section 34.—
Even if section 34 has not been included in a charge framed for the offence under

section 302 IPC, 1860 against the accused, a conviction for the offence under section
302 with the aid of section 34 is not bad as no prejudice would be caused to him.239.
Where the appellants caused injuries not enough to cause the death but the same were
caused by another, in the absence of a charge under section 34, they were found to be
guilty under section 326 of IPC, 1860.240.
Sections 34, 114 and 149 of the IPC, 1860 provide for criminal liability viewed from
different angles as regards actual participants, accessories and men actuated by a
common object or a common intention; and as explained by ﬁve Judge Constitution
Bench of in Willie Slavey v The State of MP,241. the charge is a rolled-up one involving
the direct liability and the constructive liability without specifying who are directly liable

and who are sought to be made constructively liable.242. But before a court can convict
a person under section 302, read with section 34, of the Indian Penal Code, it should
come to a deﬁnite conclusion that the said person had a prior concert with one or more
other persons, named or unnamed, for committing the said offence. A few illustrations
will bring out the impact of section 34 on different situations.
(1) A, B, C and D are charged under section 302, read with section 34, of the Indian
Penal Code, for committing the murder of E. The evidence is directed to establish that
the said four persons have taken part in the murder.
(2) A, B, C and D and unnamed others are charged under the said sections. But
evidence is adduced to prove that the said persons, along with others, named or

unnamed, participated jointly in the commission of that offence.

(3) A, B, C and D are charged under the said sections. But the evidence is directed to
prove that A, B, C and D, along with 3 others, have jointly committed the offence. As
regards the third illustration, a Court is certainly entitled to come to the conclusion that
one of the named accused is guilty of murder under section 302, read with section 34,
of the Indian Penal Code, though the other three named accused are acquitted, if it
accepts the evidence that the said accused acted in concert along with persons,
named or unnamed, other than those acquitted, in the commission of the offence. In
the second illustration the Court can come to the same conclusion and convict one of
the named accused if it is satisﬁed that no prejudice has been caused to the accused
by the defect in the charge. But in the ﬁrst illustration the Court certainly can convict
two or more of the named accused if it accepts the evidence that they acted conjointly

in committing the offence. But what is the position if the Court acquits 3 of the 4
accused either because it rejects the prosecution evidence or because it gives the
beneﬁt of doubt to the said accused? Can it hold, in the absence of a charge as well as
evidence, that though the three accused are acquitted, some other unidentiﬁed persons
acted conjointly along with one of the named persons? If the Court could do so, it
would be making out a new case for the prosecution: it would be deciding contrary to
the evidence adduced in the case. A Court cannot obviously make out a case for the
prosecution which is not disclosed either in the charge or in regard to which there is no
basis in the evidence. There must be some foundation in the evidence that persons

other than those named have taken part in the commission of the offence and if there
is such a basis the case will be covered by the third illustration.243. Absence of charge
under section 34 is not fatal by itself unless prejudice to the accused is shown.244.
[s 34.13] Alternative Charge.—
The trial Court framed charges under sections 302/307 r/w 120B IPC, 1860 and an
alternative charge under sections 302/307 r/w section 34 IPC, 1860 without opining on
the alternative charge, convicted the accused under sections 302/307 r/w 120B, The
contention that accused is deemed to be acquitted for charges under sections
302/307/34 IPC, 1860 of the charge of common intention of committing murder and
there was no appeal by the State against the deemed acquittal against that charge, it

was not open to the High Court to alter or modify the conviction under sections
302/307/34 IPC, 1860, repelled by holding that charges had indeed been framed in the
alternative and for cognate offences having similar ingredients as the main allegation
of murder.245.
[s 34.14] Distinction between sections 34 and 149, IPC, 1860.—
Though both these sections relate to the doctrine of vicarious liability and sometimes
overlap each other there are substantial points of difference between the two. They are
as under:—
(i) Section 34 does not by itself create any speciﬁc offence, whereas section 149,
IPC, 1860, does so (see discussion under sub-para "principle" ante).
(ii) Some active participation, especially in a crime involving physical violence is
necessary under section 34 but section 149, IPC, 1860, does not require it and

the liability arises by reason of mere membership of the unlawful assembly with
a common object and there may be no active participation at all in the
preparation and commission of the crime.
(iii) Section 34 speaks of common intention but section 149, IPC, 1860,

contemplates common object which is undoubtedly wider in its scope and
amplitude than intention. If the offence committed by a member of an unlawful
assembly is in prosecution of the common object of the unlawful assembly or
such as the members of that assembly knew to be likely to be committed in
prosecution of the common object, all other members of the unlawful assembly
would be guilty of that offence under section 149, IPC, 1860, although they may
not have intended to do it or participated in the actual commission of that
offence.246.
(iv) Section 34 does not ﬁx a minimum number of persons who must share the
common intention, whereas section 149, IPC, 1860, requires that there must be
at least ﬁve persons who must have the same common object (see also
discussion under sub-head "Sections 34 and 149" under section 149, IPC, 1860,
infra).247.
[s 34.15] Effect of conviction or acquittal of one or more or others.—
Several persons involved in a criminal adventure may be guilty of different offences

depending upon their respective acts. If the act is done in furtherance of their common
intention, all of them become equally liable for the act. Similarly, if they are members of
an unlawful assembly, an act done by any one in prosecution of the common object or
any act which the members knew could happen in such prosecution, every member
would be liable for the act. If any one of them happens to be wrongly acquitted and no
appeal has been ﬁled against it, it would not ipso facto impede the conviction of others.
Likewise, the conviction of any one or more them does not automatically result in the
conviction of others.248.
[s 34.16] Substitution of conviction from section 149 to section 34.—
Following some earlier rulings,249. the Supreme Court has stated the law in the
following terms:250.

It is true that there was no charge under s. 302 read with s. 34... but the facts of the case
are such that the accused could have been charged alternatively either under s. 302 read
with s. 149 or under s. 302 read with s. 34 and one of the accused having been acquitted,
the conviction under s. 302/149 can be substituted with one under s. 302/34. No prejudice
is likely to be caused to the accused whose appeal is being dismissed.251.
[s 34.17] Robbery.—
Provision under section 397 inevitably negates the use of the principles of constructive
or vicarious liability engrafted under section 34. The sentence for offence under section
397 of the IPC, 1860 cannot be awarded to those of the members of the group of
dacoits who did not use any deadly weapon. A plain reading of section 397 of the IPC,

1860 would make it clear that such guilt can be attributed only to that offender who
uses any deadly weapon or causes grievous hurt to any person during course of the
commission of the robbery. The provision postulates that only the individual act of
accused will be relevant to attract section 397 of the IPC, 1860.252. In a sudden quarrel
over payment, person sitting inside the car pulled the petrol pump attendant into the
car and drove away. The occupants of the car escaped punishment. It was held that the
driver alone could not be held guilty of the offence of robbery and abduction with the
aid of section 34.253. In a serial highway robbery and murder in which same persons

were involved, it was found as a fact that the self-same two persons were seen by a
witness together in a different town before the occurrence. One of their victims
survived and he also testiﬁed that he saw both of them together. Both of them were
held to be guilty of successive crimes and convicted for murder with the aid of section
34 without any need of knowing who played what part.254.
[s 34.18] Mob action.—
A mob of 200 persons armed with different weapons came to the ﬁeld with the object
of preventing the prosecution party from carrying on transplantation operations. Some
of them caused death of a person at the spur of the moment for some spot reason.
The whole mob could not be convicted for it.255 A mob chased the members of the
rival community up to their locality. A part of the mob started burning their houses and
the other part kept on chasing and caused deaths. The court said that the two parts of
the mob could not be said to have shared the intention of burning or causing death.256.

[s 34.19] Misappropriation.—
Where the accused the Sarpanch and Secretary of a Gram Panchayat misappropriated
the funds of the Panchayat and the circumstances and evidence showed patent
dishonest intention on the part of the accused persons, the conviction and sentence of
the accused under section 409/34, was not interfered with.257.
[s 34.20] Rape cases.—
In Gang Rape it is not necessary that the intention should exists from the beginning. It
can be developed at the last minute before the commission of the offence.258.
[s 34.21] Exhortation.—
One of the accused exhorted while the other immobilised the deceased and the third
accused delivered the fatal injuries. It was held that each one shared a common
intention.259. Section 34 was held to have been rightly applied where two of the

accused persons caught hold of the deceased and on their exhortation the third
accused shot him on the right temple resulting in death.260.
Mere exhortation by one of the accused persons saying that they would not leave the
victim till he died was held to be not a basis for roping into the common intention of the
others.261. The only allegation against the appellant was her exhortation. Enmity
between the family of the deceased and that of the accused proved. In such a situation,
where the eye witnesses have not narrated any speciﬁc role carried by the appellant,
rather the speciﬁc role of assaulting with the sword has been attributed to the co-
accused, it cannot be ruled out that the name of the appellant has been added due to
enmity with the main accused.262.
[s 34.22] Pre-conceived common intention.—

170.  Subs. by Act 27 of 1870, section 1, for section 34.
171.  Goudappa v State of Karnataka, (2013) 3 SCC 675 [LNIND 2013 SC 177] ; Satyavir Singh
Rathi v State Thr. CBI, AIR 2011SC 1748 : (2011) 6 SCC 1 [LNIND 2011 SC 475] : 2011 Cr LJ.
2908 ; Abdul Sayeed v State of MP, 2010 (10) SCC 259 [LNIND 2010 SC 872] : 2010(9) Scale 379
: (2010) 3 SCC (Cr) 1262.
172.  Kuria v State of Rajasthan, AIR 2013 SC 1085 [LNIND 2012 SC 678] : (2012) 10 SCC 433
[LNIND 2012 SC 678] : 2012 Cr LJ 4707 (SC).
173.  Queen v Gora Chand Gope, (1866) 5 South WR (Cr) 45.
174.  Ashok Kumar v State of Punjab, AIR 1977 SC 109 : (1977)1 SCC 746 .
175.  Babulal Bhagwan Khandare v State Of Maharashtra AIR 2005 SC 1460 [LNIND 2004 SC
1203] : (2005) 10 SCC 404 [LNIND 2004 SC 1203] .
176.  Barendra Kumar Ghosh v King Emperor, AIR 1925 PC 1 [LNIND 1924 BOM 206] .
177.  Lallan Rai v State of Bihar, AIR 2003 SC 333 [LNIND 2002 SC 705] : 2003 Cr LJ 465 : (2003)
1 SCC 268 [LNIND 2002 SC 705] .

Only when a court with some certainty holds that a particular accused must have pre-
conceived or pre-meditated the result which ensued or acted in concert with others in
order to bring about that result, that section 34 may be applied.263.
[s 34.23] Common intention and private defence.—
If two or more persons had common intention to commit murder and they had
participated in the acts done by them in furtherance of that common intention, all of
them would be guilty of murder. Section 96 IPC, 1860 says that nothing is an offence
which is done in the exercise of the right of private defence. Though all the accused
would be liable for committing the murder of a person by doing an act or acts in
furtherance of the common intention, they would not be liable for the act or acts if they
had the right of private defence to voluntarily cause death of that person. Common

intention, therefore, has relevance only to the offence and not to the right of private
defence. What would be an offence by reason of constructive liability would cease to
be one if the act constituting the offence was done in exercise of the right of private
defence.
If the voluntary causing of death is not permissible under the right of private defence
under section 96, then the common intention in regard thereto will lead to the result
that the accused persons must be held guilty by reason of constructive liability under
the relevant section (in this case section 304 Part I IPC, 1860). If, however, the common
intention was only to commit an act which was permissible within the conﬁnes of s. 96
read with s. 98, then constructive liability under section 34 cannot be said to have been

accrued to the accused. If the right of private defence was exceeded by some persons,
the guilt of each of the accused proved to have exceeded the right of private defence
would have to be dealt with separately. The instant case came under the former
situation, and hence, such persons were guilty under section 304, Part I IPC, 1860.
They, therefore, must be held to have had a common object for causing death of P.
They were sentenced to undergo ten years' rigorous imprisonment each.264.

178.  Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] : (2010) 3 SCC (Cr)
893 : 2011 Cr LJ 952 .
179.  Garib Singh v State of Punjab, 1972 Cr LJ 1286 : AIR 1973 SC 460 [LNIND 1972 SC 187] .
See also Yogendra v State of Bihar, 1984 Cr LJ 386 (SC).
180.  Ram Tahal v State of UP, 1972 Cr LJ 227 : AIR 1972 SC 254 [LNIND 1971 SC 579] relied in
Thoti Manohar v State of AP,2012, (7) Scale 215 : (2012) 7 SCC 723 [LNIND 2012 SC 365] : 2012
Cr LJ 3492 ; see also Amar Singh v State of Haryana, 1973 Cr LJ 1409 : AIR 1973 SC 2221 ;
Dharam Pal v State of UP, 1975 Cr LJ 1666 : AIR 1975 SC1917 [LNIND 1975 SC 314] ; Amir
Hussain v State of UP, 1975 Cr LJ 1874 : AIR 1975 SC 2211 State of Rajasthan v ArjunSingh,
(2011) 9 SCC 115 [LNIND 2011 SC 855] : AIR 2011 SC 3380 [LNIND 2011 SC 855] .
181.  BN Srikantiah v State of Mysore, AIR 1958 SC 672 [LNIND 1958 SC 49] : 1958 Cr LJ 1251 .
182.  Killer Thiayagu v. State, AIR 2017 SC 612 [LNINDORD 2017 SC 1134] .

183.  Killer Thiayagu v. State, AIR 2017 SC 612 [LNINDORD 2017 SC 1134] .
184.  Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 :
AIR 2012 SC 3539 [LNIND 2012 SC 397] ; NandKishore v State of MP, AIR 2011 SC 2775 [LNIND
2011 SC 622] : (2011) 12 SCC 120 [LNIND 2011 SC 622] ; Baldeo Singh v State of Bihar, AIR 1972
SC 464 : 1972 Cr LJ 262 ; Rana Pratap v State of Haryana, AIR 1983 SC 680 [LNIND 1983 SC 157]
: 1983 Cr LJ 1272 : (1983) 3 SCC 327 [LNIND 1983 SC 157] ,
185.  Syed Yousuf Hussain v State of AP, AIR 2013 SC 1677 [LNIND 2013 SC 275] : 2013 Cr LJ
2172 : 2013 (5) Scale 346 [LNIND 2013 SC 275] , (2013)4 SCC 517 [LNIND 2013 SC 275] ; Suresh
v State of UP, 2001 (3) SCC 673 [LNIND 2001 SC 623] ; Lallan Rai v State of Bihar, AIR 2003 SC

333 [LNIND 2002 SC 705] : 2003 Cr LJ 465 : (2003) 1 SCC 268 [LNIND 2002 SC 705] .
186.  Sudip Kr. Sen v State of WB, AIR 2016 SC 310 [LNIND 2016 SC 10] : 2016 Cr LJ 1121 .
187.  Nagesar v State of Chhatisgarh, 2014 Cr LJ 2948 .
188.  Barendra Kumar Ghosh v King Emperor, AIR 1925 PC 1 [LNIND 1924 BOM 206] .
189.  Mehbub Shah v King-Emperor, AIR 1945 PC 148 .
190.  Supra.191.Supra.
192.  Pandurang v State of Hyderabad, AIR 1955 SC 216 [LNIND 1954 SC 171] : 1955 Cr LJ 572 .
193.  Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 :
AIR 2012 SC 3539 [LNIND 2012 SC 397] NandKishore v State of MP, AIR 2011 SC 2775 [LNIND
2011 SC 622] : (2011) 12 SCC 120 [LNIND 2011 SC 622] .
194.  Vijendra Singh v State of UP, AIR 2017 SC 860 [LNIND 2017 SC 16] ; Bharwad Mepa Dana v

State of Bombay, AIR 1960SC 289.
195.  Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] : (2010) 3 SCC (Cr)
196.  Shreekantiah Ramayya, (1954) 57 Bom LR 632 (SC); Shiv Prasad, AIR 1965 SC 264 [LNIND
1964 SC 51] : (1965) 1 CrLJ 249 .
197.  Baba Lodhi v State of UP, (1987) 2 SCC 352 : AIR 1987 SC 1268 : 1987 Cr LJ 1119 ; MA
AbdullaKunhi v State of Kerala, AIR 1991 SC 452 [LNIND 1991 SC 24] : 1991 Cr LJ 525 : (1991) 2
SCC 225 [LNIND 1991 SC 24] ; Noor v State ofKarnataka, (2007) 12 SCC 84 [LNIND 2007 SC 639]
: (2008) 2 SCC Cr 221 : 2007 Cr LJ 4299 .
198.  Tara Devi v State of UP, (1990) 4 SCC 144 : AIR 1991 SC 342 . See also Hem Raj v State
Delhi Admn., 1990 Cr LJ 2665 : 1990 Supp SCC 291 : AIR 1990 SC 2252 , one of the accused
alone proved to have given the fatal blow, the participation of others not proved, others not

convicted under section 302/34.
199.  Bishan Singh v State of Punjab, 1983 Cr LJ 973 : AIR 1983 SC 748 : 1983 Cr LJ (SC) 327 :
1983 SCC (Cr) 578; Ghanshyam v State of UP, 1983 Cr LJ 439 (SC) : AIR 1983 SC 293 : (1982) 2

SCC 400 .
200.  Dasrathlal v State of Gujarat, 1979 Cr LJ 1078 (SC) : AIR 1979 SC 1342 . See further
Rangaswami v State of TN, AIR 1989 SC 1137 : 1989 Cr LJ 875 : 1989 SCC (Cr) 617 : 1989 Supp
(1) SCC 686 . Gulshan v State of Punjab, 1989 Cr LJ 120 : AIR 1988 SC 2110 : 1990 Supp SCC
682 .
201.  Jarnail Singh v State of Punjab, (1996) 1 SCC 527 [LNIND 1995 SC 1172] : AIR 1996 SC 755
[LNIND 1995 SC 1172] : 1996 Cr LJ 1139 .
202.  Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd (2010) 10 SCC 479
[LNIND 2010 SC 979] : 2011 Cr LJ 8 ; Chandrakant Murgyappa Umrani v State of Maharashtra,
1998 SCC (Cr) 698; Hamlet @ Sasi. v State of Kerala, (2003) 10 SCC 108 [LNIND 2003 SC 688] ;
Surendra Chauhan v State of MP, (2000) 4 SCC 110 [LNIND 2000 SC 515] : AIR 2000 SC 1436
[LNIND 2000 SC 515] ; Ramjee Rai v State of Bihar, (2006) 13 SCC 229 [LNIND 2006 SC 647] :
2006 Cr LJ 4630 ; Prakash v State of MP, (2006) 13 SCC 508 [LNIND 2006 SC 1071] : 2007 Cr LJ

798 ; Sham Shankar Kankaria v State of Maharashtra, (2006) 13 SCC 165 [LNIND 2006 SC 684] ;
Manik Das v State of Assam, (2007) 11 SCC 403 [LNIND 2007 SC 769] : AIR 2007 SC 2274
[LNIND 2007 SC 769] , participation proved.
203.  Chacko v State of Kerala, (2004) 12 SCC 269 [LNIND 2004 SC 86] : AIR 2004 SC 2688
[LNIND 2004 SC 86] ; Abdul Wahid v State of Rajasthan, (2004) 11 SCC 241 [LNIND 2004 SC
1454] : AIR 2004 SC 3211 [LNIND 2004 SC 1454] : 2004 Cr LJ 2850 ; Janak Singh v State of UP,
(2004) 11 SCC 385 [LNIND 2004 SC 515] : AIR 2004 SC 2495 [LNIND 2004 SC 515] : 2004 Cr LJ
2533 ; Parsuram Pandey v State of Bihar, 2005 SCC (Cr) 113 : AIR 2004 SC 5068 [LNIND 2004 SC
1075] .
204.  Suresh Sakharam Nangare v State of Maharashtra, 2012 (9) Scale 245 [LNIND 2012 SC 574]
: (2012) 9 SCC 249 [LNIND 2012 SC 574] .

1075] .
205.  Raju v State of Chhatisgarh, 2014 Cr LJ 4425 .
206.  Shreekantiah Ramayya v State of Bombay, AIR 1955 SC 287 [LNIND 1954 SC 180] : 1955
SCR (1) 1177 .
207.  Parasa Raja Manikyala Rao v State of AP, (2003) 12 SC 306 : AIR 2004 SC 132 [LNIND 2003
SC 888] : 2004 Cr LJ 390 ; Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] :
(2010) 3 SCC (Cr) 893 : 2011 Cr LJ 952 ; Jaikrishnadas Desai, (1960) 3 SCR 319 [LNIND 1960 SC
79] : AIR 1960 SC 889 [LNIND 1960 SC 79] : 1960 Cr LJ 1250 ; Dani Singh v State of Bihar, AIR
2004 SC 4570 [LNIND 2004 SC 1490] : (2004) 13 SCC 203 [LNIND 2004 SC 1490] .
208.  Suresh v State of UP, 2001 (3) SCC 673 [LNIND 2001 SC 623] : AIR 2001 SC 1344 [LNIND
2001 SC 623] ; Ramaswami Ayyangar v State of TN, AIR 1976 SC 2027 [LNIND 1976 SC 128] :

1976 Cr LJ 1536 (the presence of those who in one way or the other facilitate the execution of
the common design itself tantamounts to actual participation in the "criminal act").
209.  Rajkishore Purohit v State of Madhya Pradesh, AIR 2017 SC 3588 [LNIND 2017 SC 362] .
210.  Parasa Raja Manikyala Rao v State of AP, (2003) 12 SC 306 : AIR 2004 SC 132 [LNIND 2003
SC 888] : 2004 Cr LJ 390 , citing Shankarlal Kacharabhai, AIR 1965 SC 1260 [LNIND 1964 SC
230] : 1965 (2) Cr LJ 226 .
211.  Dharnidhar v State of UP, (2010) 7 SCC 759 [LNIND 2010 SC 584] : 2010 (7) Scale 12 ;
Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr LJ 3825 : AIR
2012 SC 3539 [LNIND 2012 SC 397] .
212.  Amrik Singh v State of Punjab, 1972 Cr LJ 465 (SC) : (1972) 4 SCC (N) 42 (SC).

213.  Krishna Govind Patil v State of Maharashtra, AIR 1963 SC 1413 [LNIND 1963 SC 12] : 1964
(1) SCR 678 [LNIND 1963 SC 12] : 1963 Cr LJ 351 (SC); State of Maharashtra v Jagmohan Singh
Kuldip Singh Anand, (2004) 7 SCC 659 [LNIND 2004 SC 862] : AIR 2004 SC 4412 [LNIND 2004 SC
862] , the prosecution is not required to prove in every case a pre-arranged plan or prior concert.

Preetam Singh v State of Rajasthan, (2003) 12 SCC 594 , prior concert can be inferred, common
intention can develop on the spot.
214.  Harbans Nonia v State of Bihar, AIR 1992 SC 125 : 1992 Cr LJ 105 .
215.  Dharam Pal v State of UP, AIR 1995 SC 1988 [LNIND 1995 SC 198] : 1995 Cr LJ 3642 .
216.  Hanuman Prasad v State of Rajasthan, (2009) 1 SCC 507 [LNIND 2008 SC 2256] : (2009) 1
SCC Cr 564, the Supreme Court distinguishes common intention from similar intention and also
explains the meaning and applicability of the expression.
217.  Dajya Moshaya Bhil v State of Maharashtra, 1984 Cr LJ 1728 : AIR 1984 SC 1717 : 1984
Supp SCC 373 . The Supreme Court applied the distinction between common intention and
similar intention in State of UP v Rohan Singh, (1996) Cr LJ 2884 (SC) : AIR 1996 SCW 2612 . In
Mohan Singh v State of Punjab, AIR 1963 SC 174 [LNIND 1962 SC 118] it was held that persons
having similar intention which is not the result of pre-concerted plan cannot be held guilty for

the "criminal act" with the aid of Section 34.
218.  Parichhat v State of MP, 1972 Cr LJ 322 : AIR 1972 SC 535 ; Amrik Singh v State of Punjab,
1972 Cr LJ 465 (SC). Followed in Khem Karan v State of UP, 1991 Cr LJ 2138 All where each
accused hit differently at the behest of one of them, hence, no common intention.
219.  Mitter Sen v State of UP, 1976 Cr LJ 857 : AIR 1976 SC 1156 ; see also Gajjan Singh v State
of Punjab, 1976 Cr LJ 1640 : AIR 1976 SC 2069 [LNIND 1976 SC 72] ; Jarnail Singh v State of
Punjab, 1982 Cr LJ 386 : AIR 1982 SC 70 (SC).
220.  Rambilas Singh v State of Bihar, AIR 1989 SC 1593 [LNIND 1989 SC 216] : (1989) 3 SCC 605
[LNIND 1989 SC 216] : 1989 Cr LJ 1782 . The conviction under sub-sections 34/149 and 34/302
was set aside.

221.  Tripta v State of Haryana, AIR 1992 SC 948 : 1992 Cr LJ 3944 . See also Major Singh v State
of Punjab, AIR 2003 SC 342 [LNIND 2002 SC 742] : 2003 Cr LJ 473 : (2002) 10 SCC 60 [LNIND
2002 SC 742] ; Balram Singh v State of Punjab, AIR 2003 SC 2213 [LNIND 2003 SC 514] : (2003)
SCC 286 .
222.  Devaramani v State of Karnataka, (1995) 2 Cr LJ 1534 SC. See also Gopi Nath v State of UP,
AIR 2001 SC 2493 : 2001 Cr LJ 3514 ; Pal Singh v State of Punjab, AIR 1999 SC 2548 [LNIND
1999 SC 604] : 1999 Cr LJ 3962 ;Prem v Daula, AIR 1997 SC 715 [LNIND 1997 SC 64] : 1997 Cr
LJ 838 ; Muni Singh v State of Bihar, AIR 2002 SC 3640 ;Mahesh Mahto v State of Bihar, AIR 1997
SC 3567 [LNIND 1997 SC 1103] : 1997 Cr LJ 4402 .
223.  Lallan Rai v State of Bihar, AIR 2003 SC 333 [LNIND 2002 SC 705] : 2003 Cr LJ 465 : (2003)

224.  Narinder Singh v State of Punjab, AIR 2000 SC 2212 [LNIND 2000 SC 615] : 2000 Cr LJ 3462
, Sheelam Ramesh v State ofAP, AIR 2000 SC 118 [LNIND 1999 SC 926] : 2000 Cr LJ 51 ; State of
Haryana v Bhagirath, AIR 1999 SC 2005 [LNIND 1999 SC 541] : 1999 CrLJ 2898 ; Asha v State of
Rajasthan, AIR 1997 SC 2828 [LNIND 1997 SC 844] : 1997 Cr LJ 3561 .
225.  Satyavir Singh Rathi v State Thr. CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC
1 [LNIND 2011 SC 475] : 2011 Cr LJ 2908 .
226.  Krishnan v State, (2003) 7 SCC 56 [LNIND 2003 SC 587] : AIR 2003 SC 2978 [LNIND 2003
SC 587] : 2003 Cr LJ 3705 .
227.  Rajkishore Purohit v State of MP, AIR 2017 SC 3588 [LNIND 2017 SC 362] .
228.  Ajay Sharma v State of Rajasthan, AIR 1998 SC 2798 [LNIND 1998 SC 879] : 1998 Cr LJ

4599 . See also State of Karnatakav Maruthi, AIR 1997 SC 3797 : 1997 Cr LJ 4407 ; Bhupinder
Singh v State of Haryana, AIR 1997 SC642 : 1997 Cr LJ 958 .
229.  State of UP v Balkrishna Das, AIR 1997 SC 225 [LNIND 1996 SC 1753] : 1997 Cr LJ 73 .
230.  State of AP v M Sobhan Babu, 2011 (3) Scale 451 [LNIND 2010 SC 1219] : 2011 Cr LJ 2175
(SC).

231.  Rajkishore Purohit v State of MP, AIR 2017 SC 3588 [LNIND 2017 SC 362] ; State of AP v M.
Sobhan Babu, 2011 (3) Scale 451 [LNIND 2010 SC 1219] : 2011 Cr LJ 2175 (SC).
232.  Kuria v State of Rajasthan, (2012) 10 SCC 433 [LNIND 2012 SC 678] : 2012 Cr LJ 4707 (SC);
Hemchand Jha v State of Bihar, (2008) 11 SCC 303 [LNIND 2008 SC 1299] : (2008) Cr LJ 3203 ;
2012 SC 3539 [LNIND 2012 SC 397] ; Nand Kishore v State of MP, AIR 2011 SC 2775 [LNIND
233.  Bengai Mandal v State of Bihar, AIR 2010 SC 686 [LNIND 2010 SC 39] : (2010) 2 SCC 91
[LNIND 2010 SC 39] .
234.  Maqsoodan v State of UP, 1983 Cr LJ 218 : AIR 1983 SC 126 [LNIND 1982 SC 199] : (1983)
1 SCC 218 [LNIND 1982 SC 199] ; Aizaz v State of UP, (2008) 12 SCC 198 [LNIND 2008 SC 1621]
: 2008 Cr LJ 4374 , Lala Ram v State of Rajasthan, (2007) 10 SCC 225 [LNIND 2007 SC 803] :

(2007) 3 SCC Cr 634, Harbans Kaur v State of Haryana, AIR 2005 SC 2989 [LNIND 2005 SC 211] :
2005 Cr LJ 2199 (SC), Dani Singh v State of Bihar, 2004 (13) SCC 203 [LNIND 2004 SC 1490] :
2004 Cr LJ 3328 (SC).
235.  Ram Tahal v State of UP, 1972 Cr LJ 227 : AIR 1972 SC 254 [LNIND 1971 SC 579] ; see also
Nitya Sen v State of WB, 1978 Cr LJ 481 : AIR 1978 SC 383 ; Sivam v State of Kerala, 1978 Cr LJ
1609 : AIR 1978 SC 1529 ; Jagdeo Singh v State of Maharashtra, 1981 Cr LJ 166 : AIR 1981 SC
648 (SC); Aher Pitha Vajshi v State of Gujarat, 1983 Cr LJ 1049 : AIR 1983 SC 599 [LNIND 1983
SC 98] : 1983 SCC (Cr) 607; Manju Gupta v MS Paintal, AIR 1982 SC 1181 [LNIND 1982 DEL 128] :
1982 Cr LJ 1393 : (1982) 2 SCC 412 . Another instance of failed prosecution under the Act is

Harendra Narayan Singh v State of Bihar, AIR 1991 SC 1842 [LNIND 1991 SC 307] : 1991 Cr LJ
2666 . Ghana Pradhan v State of Orissa, AIR 1991 SC 1133 : 1991 Cr LJ 1178 . Common intention
not established even when the two accused were striking the same person in their own ways.
236.  Raju @ Rajendra v State of Rajasthan, 2013 Cr LJ 1248 (SC) : (2013) 2 SCC 233 [LNIND
2013 SC 25] .
237.  Jhinku Nai v State of UP, AIR 2001 SC 2815 [LNIND 2001 SC 1587] at p. 2817. See also
Jagga Singh v State of Punjab, (2011) 3 SCC 137 [LNINDORD 2011 SC 288] : AIR 2011 SC 960
[LNINDORD 2011 SC 288] .
238.  Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd, (2010) 10 SCC 479
[LNIND 2010 SC 979] : 2011 Cr LJ 8 : (2010) 12 SCR 551 : (2011) 1 SCC (Cr) 68.

239.  Darbara Singh v State of Punjab, 2012 (8) Scale 649 [LNIND 2012 SC 545] : (2012) 10 SCC
476 [LNIND 2012 SC 545] ; Gurpreet Singh v State of Punjab, AIR 2006 SC 191 [LNIND 2005 SC
887] : (2005) 12 SCC 615 [LNIND 2005 SC 887] .
240.  Vijay Singh v State of MP, 2014 Cr LJ 2158 .
241.  Willie Slavey v The State of MP, 1955 (2) SCR 1140 [LNIND 1955 SC 90] at p 1189 : AIR
1956 SC 116 [LNIND 1955 SC 90] .
242.  Santosh Kumari v State of J&K, (2011) 9 SCC 234 [LNIND 2011 SC 901] : AIR 2011 SC 3402
[LNIND 2011 SC 901] : (2011) 3 SCC (Cr) 657.
243.  Krishna Govind Patil v State of Maharashtra, AIR 1963 SC 1413 [LNIND 1963 SC 12] : 1963
Cr LJ 351 relied in Chinnam Kameswara Rao v State of AP 2013 Cr LJ 1540 : JT 2013 (2) SC 398
[LNIND 2013 SC 57] : 2013 (1) Scale 643 [LNIND 2013 SC 57] .

244.  Anil Sharma v State of Jharkhand, (2004) 5 SCC 679 [LNIND 2004 SC 590] : AIR 2004 SC
2294 [LNIND 2004 SC 590] : 2004 Cr LJ 2527 .
245.  Satyavir Singh Rathi v State Thr. CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC
246.  Barendra Kumar Ghosh v Emp., AIR 1925 PC 1 [LNIND 1924 BOM 206] (7) : 26 Cr LJ 431;
Nanak Chand v State of Punjab, 1955 Cr LJ 721 (SC); Anam Pradhan v State, 1982 Cr LJ 1585

(Ori). Chittaramal v State of Rajasthan, (2003) 2 SCC 266 [LNIND 2003 SC 14] : AIR 2003 SC 796
[LNIND 2003 SC 14] : 2003 Cr LJ 889 , points of similarity and distinction explained in the case.
247.  Virendra Singh v State of MP, (2010) 8 SCC 407 [LNIND 2010 SC 723] : (2010) 3 SCC (Cr)
248.  Surinder Singh v State of Punjab, (2003) 10 SCC 66 [LNIND 2003 SC 652] .
249.  Lachman Singh v The State, 1952 SCR 839 [LNIND 1952 SC 21] : AIR 1952 SC 167 [LNIND
1952 SC 21] : 1952 Cr LJ 863 and Karnail Singh vState of Punjab, 1954 SCR 904 [LNIND 1953 SC
126] : AIR 1954 SC 204 [LNIND 1953 SC 126] : 1954 Cr LJ 580 .
250.  Sangappa Sanganabasappa v State of Karnataka (2010) 11 SCC 782 [LNIND 2010 SC 866] :
(2011) 1 SCC (Cr) 256; BaitalSingh v State of UP, AIR 1990 SC 1982 : 1990 Cr LJ 2091 : 1990
Supp SCC 804 ; Ramdeo RaoYadav v State of Bihar, AIR 1990 SC 1180 [LNIND 1990 SC 126] :
1990 Cr LJ 1983 .
251.  Dahari vState of UP, AIR 2013 SC 308 2012 (10) Scale 160, (2012)10 SCC 256 [LNIND 2012

SC 638] ; Jivan Lal v State ofMP, 1997 (9) SCC 119 [LNIND 1996 SC 2679] ; and Hamlet @ Sasi v
State of Kerala, AIR 2003 SC 3682 [LNIND 2003 SC 688] ; Gurpreet Singh vState of Punjab, AIR
2006 SC 191 [LNIND 2005 SC 887] ; Sanichar Sahni v State of Bihar, AIR 2010 SC 3786 [LNIND
2009 SC 1350] ; S Ganesan vRama Raghuraman, 2011 (2) SCC 83 [LNIND 2011 SC 5] ; Darbara
Singh v State of Punjab, 2012 (8) Scale 649 [LNIND 2012 SC 545] : (2012)10 SCC 476 [LNIND
2012 SC 545] : JT 2012 (8) SC 530 [LNIND 2012 SC 545] .
252.  Manik Shankarrao Dhotre v State of Maharashtra, 2008 Cr LJ 1505 (Kar); State of
Maharashtra vMahipal Singh Satyanarayan Singh, 1996 Cr LJ 2485 .
253.  Brahmjit Singh v State, 1992 Cr LJ 408 (Del).
254.  Prem v State of Maharashtra, 1993 Cr LJ 1608 (Bom).255.Dukhmochan Pandey v State of

Bihar, AIR 1998 SC 40 [LNIND 1997 SC 1255] : 1998 Cr LJ 66 .
256.  State of Gujarat v Chandubhai Malubhai Parmar, AIR 1997 SC 1422 [LNIND 1997 SC 627] :
1997 Cr LJ 1909 (SC).
257.  Ghoura Chandra Naik v State of Orissa, 1992 Cr LJ 275 (Ori). See Rameshchandra Bhogilal
Patel vState Of Gujarat, 2011 Cr LJ 1395 (Guj) (Section 420/34).
258.  Dev Cyrus Colabawala v State of Maharashtra, 2010 Cr LJ 758 (Bom).
259.  Atambir Singh v State of Delhi, 2016 Cr LJ 568 (Del).
260.  Vinay Kumar Rai v State of Bihar, (2008) 12 SCC 202 [LNIND 2008 SC 1646] : 2008 Cr LJ
4319 : AIR 2008 SC 3276 [LNIND 2008 SC 1646] .
261.  Nagaraja v State of Karnataka, (2008) 17 SCC 277 [LNIND 2008 SC 2484] : AIR 2009 SC
1522 [LNIND 2008 SC 2484] : one accused struck onthe road with an iron rod, two others used
ﬁsts and kicks, there was nothing more common, the twocould be convicted under section 323.

See also Mohan Singh v State of MP AIR 1999 SC 883 [LNIND 1999 SC 69] : (1999) 2 SCC 428
[LNIND 1999 SC 69] , Abdul Wahid v State of Rajasthan, AIR 2004 SC 3211 [LNIND 2004 SC 1454]
: (2004) 11 SCC 241 [LNIND 2004 SC 1454] ; AjaySharma v State of Rajasthan, AIR 1998 SC 2798
[LNIND 1998 SC 879] : (1999) 1 SCC 174 [LNIND 1998 SC 879] .
262.  Chandra Kaur v State of Rajasthan, 2016 Cr LJ 3346 : AIR 2016 SC 2926 [LNINDU 2015 SC
139] .
263.  Suresh v State of UP AIR 2001 SC 1344 [LNIND 2001 SC 623] : (2001) 3 SCC 673 [LNIND
2001 SC 623] quoted from Shatrughan Patar vEmperor. See also Sewa Ram v State of UP, 2008
Cr LJ 802 : AIR 2008 SC682 [LNIND 2007 SC 1452] ; Abaram v State of MP, (2007) 12 SCC 105
[LNIND 2007 SC 546] : (2008) 2 SCC Cr 243 : 2007 Cr LJ 2743 .

264.  Bhanwar Singh v State of MP, (2008) 16 SCC 657 [LNIND 2008 SC 1246] : AIR 2009 SC 768
[LNIND 2008 SC 1246] ; Vajrapu Sambayya Naidu vState of AP, AIR 2003 SC 3706 [LNIND 2003
SC 176] : (2004) 10 SCC 152 [LNIND 2003 SC 176] .

follows:

(i) common intention to commit a crime, and

as under:—

defence.

defence.

SCC 400 .

SCC 400 .
682 .

1075] .

SCC 286 .

(SC).

(SC).

139] .

[s 35] When such an act is criminal by reason of its being done with a criminal
knowledge or intention.
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.
COMMENT—
The preceding section provided for a case in which a criminal act was done by several
persons in furtherance of the common intention of all. Under this section several
persons who actually perform the act must be shown to have the particular intent or

knowledge, if the act is criminal only by reason of its being done with a criminal
knowledge or intention. If several persons, having one and the same criminal intention
or knowledge, jointly commit murder or an assault, each is liable for the offence as if he
has acted alone; but if several persons join in an act, each having a different intention
or knowledge from the others, each is liable according to his own criminal intention or
knowledge, and he is not liable further. If an act which is an offence in itself and
without reference to any criminal knowledge or intention on the part of the doers is
done by several persons, each of such persons is liable for the offence.
Neither section 34 nor this section provides that those who take part in the act are
jointly liable for the same offence. They merely provide that each of the performers

shall be liable for the act in the same manner as if the act were done by him alone. In
this section also, the responsibility is shared by each offender individually if the act
which is criminal only by reason of certain criminal knowledge or intention is done by
each person sharing that knowledge or intention.265. A mere look at that section shows
that if the act alleged against these accused becomes criminal on account of their
sharing common knowledge about the defective running of Plant at Bhopal by the
remaining accused who represented them on the spot and who had to carry out their
directions from them and who were otherwise required to supervise their activity.
Section 35 of the Indian Penal Code could at least prima facie be invoked against
accused 2, 3, 4 and 12 to be read with section 304-A Indian Penal Code.266.

265.  Afrahim Sheikh v State of WB, AIR 1964 SC 1263 [LNIND 1964 SC 1] : 1964 Cr LJ 350 ; State
v Bhimshankar Siddannappa Thobde, 1968 Cr LJ 898 (Bom).
266.  Keshub Mahindra v State of MP, (1996) 6 SCC 129 [LNIND 1996 SC 2462] : JT 1996 (8) SC
136 [LNIND 1996 SC 2462] (1996) 1 SCC (Cri) 1124 (Bhopal Gas Tragedy case) against which a
curative petition was ﬁled by the CBI and it was dismissed by the Constitution bench in CBI v
Keshub Mahindra, AIR 2011 SC 2037 [LNINDORD 2011 SC 209] : (2011) 6 SCC 216 [LNIND 2011
SC 514] .

[s 36] Effect caused partly by act and partly by omission.
Wherever the causing of a certain effect, or an attempt to cause that effect, by an act
or by an omission, is an offence, it is to be understood that the causing of that effect
partly by an act and partly by an omission is the same offence.
A intentionally causes Z's death, partly by illegally omitting to give Z food, and partly by
beating Z. A has committed murder.
267.  Sushil Ansal v State, 2002 Cr LJ 1369 . Also see Association of Victims of Uphaar Tragedy v
Gopal Ansal, (2008) 14 SCC 611 [LNIND 2008 SC 1818] : (2009) 2 SCC (Cr) 878.
COMMENT—

COMMENT—
This section follows as a corollary from section 32. The legal consequences of an 'act'
and of an 'omission' being the same, if an offence is committed partly by an act and
partly by an omission the consequences will be the same as if the offence was
committed by an 'act' or by an 'omission' alone. Fire in the transformer installed in a
cinema hall led to multiple deaths but was not the causa causans of the tragedy. The
absence of rapid dispersal facilities, various acts of omission and commission,
violation of rules and bye-laws meant for public safety were other causes which
contributed to the tragedy in equal proportion. A charge under this section was held to
be justiﬁable.267.

[s 37] Co-operation by doing one of several acts constituting an offence.
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 person, commits that offence.
(a) 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 according 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.
(b) A and B are joint jailors, and as such have the charge of Z, a prisoner,
alternatively for six hours at a time. A and B, intending to cause Z's death,
knowingly co-operate in causing that effect by illegally omitting, each during the
time of his attendance, to furnish Z with food supplied to them for that purpose,
Z dies of hunger. Both A and B are guilty of the murder of Z.
(c) A, a jailor, has the charge of a prisoner. A, intending to cause Z's death, illegally
omits to supply Z with food; in consequence of which Z is much reduced in
strength, but the starvation is not suﬃcient to cause his death. A is dismissed
from his oﬃce, and B succeeds him. B, without collusion or co-operation with A,

illegally omits to supply Z with food, knowing that he is likely thereby to cause
Z's death. Z dies of hunger. B is guilty of murder, but, as A did not co-operate
with B. A is guilty only of an attempt to commit murder.
COMMENT—
This section follows as a corollary from section 35 as appears from the illustrations. It
provides that, when several acts are done so as to result together in the commission of
an offence, the doing of any one of them, with an intention to co-operate in the offence
(which may not be the same as an intention common to all), makes the actor liable to
be punished for the commission of the offence.268. By co-operating in the doing of
several acts which together constitute a single criminal act, each person who co-
operates in the commission of that offence by doing any one of the acts is either singly

or jointly liable for that offence.269. If common intention is the hub of section 34,
intentional cooperation is the spindle of section 37 of the Penal Code. One who shares
common intention can as well cooperate in the commission of the offence

268.  Barendra Kumar Ghosh, (1924) 52 IA 40 : 52 Cal 197 : 211, 27 Bom LR 148.
269.  Afrahim Sheikh v State of WB, AIR 1964 SC 1263 [LNIND 1964 SC 1] : 1964 (6) SCR 172
[LNIND 1964 SC 1] : 1964 Cr LJ 350 .
270.  Justus v State, 1987 (2) KLT 330 [LNIND 1987 KER 337] : ILR 1988 (1) Ker 98 .
intentionally. In that sense the two sections are not contradictory to each other. The
former does not necessarily exclude the latter. Co-operation in the commission of the
offence need not be for the entire gamut of the offence committed. It is enough if he
cooperates in one of the several acts which constitute the offence. Sections 34–38 of
the Penal Code delineate the parameters of constructive or vicarious penal liability in
different situations. Therefore, it is not imperative that the charge should contain the
particular section of the Penal Code with which constructive liability is fastened.270.

[s 38] Persons concerned in 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.
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 subject 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.
COMMENT—

COMMENT—
Section 38 provides that the responsibility for the completed criminal act may be of
different grades according to the share taken by the different accused in the
completion of the criminal act and this section does not mention anything about
intention common or otherwise or knowledge.271.
Sections 34–38 lay down principles similar to the English law of 'principals in the ﬁrst
and second degrees.' See Comment on section 107.
The basic principle which runs through sections 32 to 38 is that in certain
circumstances an entire act is attributed to a person who may have performed only a
fractional part of it. This axiom is laid down in section 34 in which emphasis are on the
act. Sections 35–38 take up this axiom as the basis of a further rule by which the
criminal liability of the doer of a fractional part (who is to be taken as the doer of the

entire act) is to be adjudged in different situations of mens rea. Without the axiom
itself, however, the other sections would not work, inasmuch as it is the foundation on
which they all stand.272.
This section provides for different punishments for different offences as an alternative
to one punishment for one offence, whether the persons engaged or concerned in the
commission of a criminal act are set in motion by the one intention or by the other.273.
The section applies where a criminal act jointly done by several persons and the several
persons have different intentions or states of knowledge in doing the joint act.274.
Where three accused assaulted the deceased but only two used their weapons in a
determined manner which clearly showed their common intention to kill the deceased

and the third accused who had a lathi in his hand did not even use it to cause any injury
to the victim, it was held that the former two were liable to be convicted under section
302 read with section 34, IPC, 1860, and the third accused was only liable under
section 304, Part II read with section 38, IPC, 1860, as he had intentionally joined the

271.  Afrahim Sheikh v State of WB, AIR 1964 SC 1263 [LNIND 1964 SC 1] : 1964 (6) SCR 172
272.  Ibra Akanda, (1944) 2 Cal 405 .
273.  Barendra Kumar Ghosh, (1924) 52 IA 40 : 52 Cal 197 211 : 27 Bom LR 148.
274.  State v Bhimshankar Siddannappa Thobde, 1968 Cr LJ 898 (Bom).
275.  Bhaba Nanda v State of Assam, 1977 Cr LJ 1930 : AIR 1977 SC 2252 [LNIND 1977 SC 291] .
Mano Dutt v State of UP, JT 2012 (2) SC 573 : 2012 (3) Scale 219 [LNIND 2012 SC 160] : (2012) 4
SCC 79 [LNIND 2012 SC 160] .
other two in the commission of the act with the knowledge that the assault was likely
to cause death of the deceased even though he did not have the intention to kill
him.275.

[s 39] "Voluntarily.".
A person is said to cause an effect "voluntarily" when he causes it by means whereby
he intended to cause it, or by means which, at the time of employing those means, he
knew or had reason to believe to be likely to cause it.
A sets ﬁre, by night, to an inhabited house in a large town, for the purpose of facilitating
a robbery and thus causes the death of a person. Here, A may not have intended to
cause death; and may even be sorry that death has been caused by his act; yet, if he
knew that he was likely to cause death, he has caused death voluntarily.
276.  Dr.Meenu Bhatia Prasad v State, 2002 Cr LJ 1674 (Del).

277.  Abdul Majeed v State of Kerala, (1994) 2 Cr LJ 1404 (Ker).
278.  Olga Tellis v. Bombay MC, (1985) 3 SCC 545 [LNIND 1985 SC 215] : 1986 CrLR (SC) 23 : AIR
1986 SC 180 [LNIND 1985 SC 215] .
COMMENT—
Bare reading of this section shows that a person need not intend to cause a certain
effect. If an act is the probable consequence of the means used by him, he is said to
have caused it voluntarily whether he really means to cause it or not. Section implicitly
lays down the principle that a man is presumed to intend the probable consequences
of his act.276. Following this it has been held that if the accused was not aware that the
person whom they conﬁned was a public servant, section 332 (voluntarily causing hurt
to deter public servant from his duty) would not be attracted. The accused would be
guilty of causing hurt under section 323.277. The Supreme Court has given a new

meaning to the word "voluntary" by holding in Olga Tellis v Bombay MC,278. that the act
of slum dwellers putting up their huts on public footpaths and pavements cannot be
described to be "voluntary" for the purposes of the deﬁnition of "criminal trespass" in
section 441, it being the result of utter helplessness and their moral right of survival.

279.[[s 40] "Offence".
Except in the 280.[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, 281.[Chapter VA] and in the following sections, namely, sections 282.[64,
65, 66, 283.[67], 71], 109, 110, 112, 114, 115, 116, 117, 284.[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.]
COMMENT—
"Offence" means 'an act or instance of offending'; 'commit an illegal act' and illegal
means, 'contrary to or forbidden by law'. "Offence" has to be read and understood in the
context as it has been prescribed under the provisions of sub-section 40, 41 and 42
IPC, 1860 which cover the offences punishable under IPC, 1860 or under special or
local law or as deﬁned under section 2(n) Cr PC, 1973 or section 3(38) of the General
Clauses Act 1897. There is no statutory offence that takes place when adults willingly
engage in sexual relations outside the marital setting, with the exception of 'adultery' as
deﬁned under section 497 IPC, 1860.285. In Joseph Shine v UOI286. a ﬁve judge

Constitution bench of the Supreme Court struck down section 497 of the Indian Penal
Code as manifestly discriminatory and arbitrary. Section 2(n) of Cr PC, 1973 deﬁnes
offence as any act or omission made punishable by any law for the time being in force
and includes any act in respect of which a complaint may be under section 20 of the
Cattle Trespass Act 1871 (1 of 1871). Thus, the deﬁnition of 'offence' under section
2(n), Cr PC, 1973, is wider enough to enable the police to investigate into offences
under other enactments also, apart from those under the IPC, 1860.287. An offence
seldom consists of a single act. It is usually composed of several elements and, as a
rule; a whole series of acts must be proved before it can be established.288. There is a
basic difference between the offences under the Penal Code and acts and omissions

which have been made punishable under different Acts and statutes which are in
nature of social welfare legislations. For framing charges in respect of those acts and
omissions, in many cases, mens rea is not an essential ingredient; the concerned
statute imposes a duty on those who are in charge of the management, to follow the
statutory provisions and once there is a breach or contravention, such persons become
liable to be punished. But for framing a charge for an offence under the Penal Code, the

traditional rule of existence of mens rea is to be followed.289. In the absence of a
deﬁnition in a special act, the term 'offence' should be understood in the context of
section 40 of the Indian Penal Code as an act that is criminally punishable and section
3(38) of the General Clauses Act as an act made punishable by any law and the
essential ingredient is that it should be a criminal act as understood.290. In Naz
Foundation v NCT Delhi.291. section 377 of IPC, 1860 in so far it criminalised
consensual sexual acts of adults in private, was held violative of Article 21, Article 14
and Article 15 of the Constitution by the Delhi High Court.292. This judgement of the
Delhi High Court was later overruled by the Supreme Court on 12 December 2013 in
Suresh Kumar Koushal case.293. Finally in Navtej Singh Johar v UOI,294. a ﬁve-judge
bench of the Supreme Court declared section 377 of the Indian Penal Code
unconstitutional, insofar as it criminalises consensual sexual acts of adults of same

sex in private. However, other parts of Section 377 relating to sex with minors and
bestiality remain in force.
[s 40.1] Offences under Special law.—
A plain reading of this provision of law makes it crystal clear that the effect of clause
(2) of section 40 is to make everything punishable under the special law as an offence
within the meaning of the Indian Penal Code. The offences under the NDPS Act thus,
become offences under the Indian Penal Code as the term "offence" in certain cases is
extended to the things made punishable under any special or local law.295.
[s 40.2] Article 20(1).—
The word 'offence' under Article 20 sub-clause (1) of the Constitution has not been
deﬁned under the Constitution. But Article 367 of the Constitution states that unless
the context otherwise requires, the General Clauses Act 1897 shall apply for the

interpretation of the Constitution as it does for the interpretation of an Act.296.
[s 40.3] Offence and breach of duty distinguished.—
Offence generally implies infringement of public, as distinguished from mere private
rights punishable under criminal law. When trial for criminal offence is conducted it
should be in accordance with proof of the offence as per the evidence deﬁned under
the provisions of the Evidence Act. Converse is the case of departmental enquiry. The
enquiry in departmental proceedings relates to conduct or breach of duty of the
delinquent oﬃcer to punish him for his misconduct deﬁned under the relevant statutory
rules or law.297.
[s 40.4] Suicide.—
Suicide by itself is not an offence under either English or Indian Criminal Law, though at
one time it was a felony in England.298.
[s 40.5] Euthanasia.—

279.  Subs. by Act 27 of 1870, section 1, for section 40.
280.  Subs. by Act 8 of 1930, section 2 and Sch I, for "Chapter".
281.  Ins. by Act 8 of 1913, section 2.
282.  Ins. by Act 8 of 1882, section 1.
283.  Ins. by Act 10 of 1886, section 21(1).
284.  Ins. by Act 10 of 2009, section 51(b) (w.e.f. 27-10-2009).
285.  S Khushboo v Kanniammal, (2010) 5 SCC 600 [LNIND 2010 SC 411] : AIR 2010 SC 3196
[LNIND 2010 SC 411] : (2010) 2 SCC (Cr) 1299; VijaySingh v State of UP, (2012) 5 SCC 242
[LNIND 2012 SC 1216] : AIR 2012 SC 2840 [LNINDORD 2012 SC 356] .
In India active euthanasia is illegal and a crime under section 302 or at least section
304 IPC, 1860. Physician assisted suicide is a crime under section 306 IPC, 1860
(abetment to suicide).299. But in Aruna Ramchandra Shanbaug v UOI,300. the Supreme
Court held that passive euthanasia can be allowed under exceptional circumstances
under the strict monitoring of the Court. In March 2018, a ﬁve-judge Constitution Bench

of the Supreme Court gave legal sanction to passive euthanasia, permitting 'living will'
by patients.301.
[s 40.6] Sections 40 and 141 IPC, 1860.—
Section 40 speciﬁcally mentions as to how the term 'offence' will have to be construed.
In the main clause of the said section it has been clearly set out that the word "offence"
denotes a thing made punishable by this Code except the chapters and sections
mentioned in clauses 2 and 3 of the said section. Therefore, going by the main clause
of section 40, the word "offence" since denotes the thing made punishable under the
Code, 'other offence' mentioned in section 141 'third', can only denote to offences,
which are punishable under any of the provisions of the Code. Therefore, by applying
the main clause of section 40, it can be straight away held that all offences referred to

in any of the provisions of the Code for which the punishment is provided for would
automatically fall within the expression "other offence", which has been used in section
141 'third'. Therefore, a conspectus reading of section 40 makes the position
abundantly clear that for all offences punishable under the Indian Penal Code, the main
clause of section 40 would straight away apply in which event the expression "other
offence" used in section 141 'third', will have to be construed as any offence for which
punishment is prescribed under the Code. To put it differently, whosoever is proceeded
against for any offence punishable under the provisions of the Indian Penal Code,
section 40 sub-clause 1 would straight away apply for the purpose of construing what

the offence is and when it comes to the question of offence under any other special or
local law, the aid of sub-clause 2 and 3 will have to be applied for the purpose of
construing the offence for which the accused is proceeded against. Therefore, having
regard to sub-clause 1 of section 40 of the Code read along with section 141 'third', the
argument of learned senior counsel for the Appellants will have to be rejected. Only
such a construction would be in tune with the purport and intent of the law makers
while deﬁning an unlawful assembly for commission of an offence with a common
object, as speciﬁed under section 141 of the Code.302.

286.  Joseph Shine v UOI, decided by Hon'ble Supreme Court of India.
287.  Dharma Reddy v State, 1990 Cr LJ 1476 . (AP); Director of Enforcement v MCT M
Corporation PvtLtd, AIR 1996 SC 1100 [LNIND 1996 SC 63] : (1996) 2 SCC 471 [LNIND 1996 SC
63] .
288.  Shreekantiah Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 [LNIND 1954 SC 180] :
1955 (1) SCR 1177 [LNIND 1954 SC 180] : 1955Cr LJ 857.
289.  Radhey Shyam Khemka v State of Bihar, (1993) 3 SCC 54 [LNIND 1993 SC 276] : 1993 Cr LJ
2888 .
290.  Standard Chartered Bank v Directorate of Enforcement, AIR 2006 SC 1301 [LNIND 2006 SC
145] : (2006) 4 SCC 278 [LNIND 2006 SC 145] .
291.  Naz Foundation v NCT Delhi, 2010 Cr LJ 94 (Del).
292.  Naz Foundation v NCT Delhi, 2010 Cr LJ 94 (Del).
293.  Suresh Kumar Koushal v Naz Foundation, (2014) 1 SCC 1 [LNIND 2013 SC 1059] .
294.  Navtej Singh Johar v UOI, 2018 (10) Scale 386 [LNIND 2018 SC 451] .
295.  Daulat Raghunath Derale v State of Maharashtra, 1991 Cr LJ 817 (Bom).

296.  SEBI v Ajay Agarwal, AIR 2010 SC 3466 [LNIND 2010 SC 203] : (2010) 3 SCC 765 [LNIND
2010 SC 203] .
297.  Depot Manager, AP State Road Transport Corporation v Mohd. Yousuf Miya, AIR 1997 SC
2232 [LNINDORD 1996 SC 4] : (1997) 2 SCC 699 [LNINDORD 1996 SC 4] .
298.  Gangula Mohan Reddy v State of AP, AIR 2010 SC 327 [LNIND 2010 SC 3] : (2010) 1 SCC
327 ; Gian Kaur v State ofPunjab, 1996 (2) SCC 648 [LNIND 1996 SC 653] : AIR 1996 SC 946
[LNIND 1996 SC 653] .
299.  The Constitution Bench in Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC
653] held that both euthanasiaand assisted suicide are not lawful in India, overruling the two
Judge Bench decision of the SupremeCourt in P Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994
SC 1533] : 1994 (3) SCC 394 [LNIND 1994 SC 1533] . The Court held that the right tolife under

Article 21 of the Constitution does not include the right to die.
300.  Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC
1290 [LNIND 2011 SC 265] .
301.  Common Cause (A Registered Society) v UOI, (2018) 5 SCC 1 [LNIND 2018 SC 87] .
302.  Manga @ Man Singh v State of Uttarakhand, (2013) 7 SCC 629 [LNIND 2013 SC 529] : 2013
Cr LJ 3332 (SC).

63] .

63] .
2888 .

[s 41] "Special law".
A "special law" is a law applicable to a particular subject.
303.  Rajan K Moorthy v M Vijayan, 2008 Cr LJ 1254 (Mad).
304.  Ejas Ahmed v State of Jharkhand, 2010 Cr LJ 1953 (Jha) also see the comments under
Section 5 of IPC, 1860.
COMMENT—
Laws dealing with special subjects are called special laws. The special laws
contemplated in section 40 and this section are only laws, such as the Excise, Opium,
Cattle Trespass, Gambling and Railway Acts, creating fresh offences, that is, laws
making punishable certain things which are not already punishable under the Penal
Code. Negotiable Instruments Act being a special statute has overriding effect over the

provisions of Cr PC, 1973.303. Since nothing in Factories Act (Special Law) which
prescribes punishment for rash and negligent act of occupier or manager of factory
which resulted into death of any worker or any other person, the general Law, i.e., IPC,
1860 will apply.304.

[s 42] "Local law".
A "local law" is a law applicable only to a particular part of 305.[306.[***]307.[India]].
305.  Subs. by the A.O. 1948, for "British India".
306.  The words "the territories comprised in" omitted by Act 48 of 1952, section 3 and Sch II
(w.e.f. 2-8- 1952).
307.  Subs. by Act 3 of 1951, section 3 and Sch, for "the States" (w.e.f. 3-4-1951). Earlier the
words "the States" were substituted by the A.O. 1950, for "the Provinces".
COMMENT—
Laws applicable to a particular locality only are termed local laws, e.g., Port Trust Acts.

[s 43] "Illegal." "Legally bound to do.".
The word "illegal" is applicable to everything which is an offence or which is
prohibited by law, or which furnishes ground for a civil action; and a person is said to
be "legally bound to do" whatever it is illegal in him to omit.
COMMENT—
The word `illegal' in the section has been given a very wide meaning. It consists of
three ingredients: (1) everything which is an offence; (2) everything which is prohibited
by law and (3) everything which furnishes ground for civil action.308. The words "legally
bound" do not necessarily only mean the law made by the legislature or statutory law.

Section 43 IPC, 1860 contains a deﬁnition of a person being legally bound to do, that is,
a person is stated to be legally bound to do whatever it is illegal in him to omit.309.
The expression "legally bound to do" carries very wide meaning where any ground for
civil action can be founded on the basis of any act or omission on the part of a person,
his act may be held to be illegal or it may be held that he was legally bound to do an act
which he had omitted to do. If a person breaches a departmental order, he may be held
guilty as he was legally bound to act in terms of the order.310.
Sexual contact between two persons with consent but out of marriage does not
amount to an illegal act.311.
[s 43.1] "Ground for civil action."—
In order to constitute a ground for a civil action there must be the right in a party which

can be enforced. It may be breach of a contract or a claim for damages or any such
similar right accruing under the law. There is no law which debars the Chief Minister
from participating in a sale conducted by any Government Department or any of the
corporation or any public sector undertaking affording a cause for civil action
particularly when no fraud or illegal gain is involved. There was nothing in the charge to
indicate, nor did the prosecution take a speciﬁc stand that the purchase of the property
of the Government company furnished a ground for a civil action. The nature of the civil
action should not be left to a guess work. The accused could not be expected to meet
such a case at any subsequent stage.312.
[s 43.2] "Illegal" and "unlawful".—

308.  R Venkatakrishnan v Central Bureau of Investigation, (2009) 11 SCC 737 [LNIND 2009 SC
1653] : AIR 2010 SC 1812 [LNIND 2009 SC 1653] : (2010) 1 SCC (Cr) 164.
309.  R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND 2003 SC 1023] : (2004) 2 SCC 9
[LNIND 2003 SC 1023] : JT 2003 (9) SC 343 [LNIND 2003 SC 1023] .
310.  Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr) 646
: AIR 2009 SC 480 [LNIND 2008 SC 2235] .
311.  S Khushboo v Kanniammal, (2010) 5 SCC 600 [LNIND 2010 SC 411] : 2010 Cr LJ 2828 : AIR
2010 SC 3196 [LNIND 2010 SC 411] : (2010) 2 SCC(Cr) 1299; Mailsami v State, (1994) 2 Cr LJ
2238 (Mad).
312.  R Sai Bharathi v J Jayalalitha, (2004) 2 SCC 9 [LNIND 2003 SC 1023] : AIR 2004 SC 692
[LNIND 2003 SC 1023] : 2004 Cr LJ 286 .
313.  Zeenath v Khadeeja, 2007 Cr LJ 600 .
The expression "illegal" and "unlawful" are synonymous and convey the same idea in
language - ordinary and legal. But when a statute employs an expression with intention

of conveying a special meaning and with the said purpose deﬁnes the expression in
such statute as the expression "illegal" is deﬁned in section 43 of the IPC, 1860, such
meaning is to be ascertained for that expression specially and speciﬁcally for such a
statute and for the purpose of such statute. Merely because two expressions mean the
same ordinarily in language and law, both cannot be held to have the same meaning
when one of them is specially and speciﬁcally deﬁned and explained in one statute. So
reckoned, it cannot be accepted that the deﬁnition of the expression "illegal" in section
43 of the IPC, 1860 must straightaway be mechanically imported into section 98 of the
Cr PC, 1973 when we consider the ambit and play of the expression "unlawful" in
section 98 of the Cr PC, 1973.313.

[s 44] "Injury.".
The word "injury" denotes any harm whatever illegally caused to any person, in body,
mind, reputation or property.
314.  Svami Nayudu v Subramania Mudali, (1864) 2 MHC 158 .
315.  Yalla Gangulu v Mamidi Dali, (1897) 21 Mad 74 (FB).
316.  Saif Ali v State, (1989) PR No. 17 of 1898 (FB).
317.  TPSH Selva Saroja v TPSH Sasinathana, 1989 Cr LJ 2032 (Mad).
318.  Prayag Das v State, 1963 (1) Cr LJ 279 .
319.  Subramanian Swamy v UOI, 2016 Cr LJ 3214 .
COMMENT—
'Injury' is an act contrary to law.314. It will include any tortious act.
A Magistrate imposed a ﬁne in addition to a sentence of imprisonment on a conviction

COMMENT—
for the offence of causing death by a rash and negligent act and gave compensation to
the widow of the deceased out of the ﬁne imposed. It was held that compensation
could not be given to her for she did not suffer any injury as here deﬁned.315. It may,
however, be argued that nothing could be more harmful to the mind of a woman than
the death of her husband, and the section speaks of harm to the mind as 'injury'. The
former Chief Court of the Punjab held that loss of her husband's support affected a
widow prejudicially in a legal right, and was therefore, an injury as deﬁned in the Penal
Code.316. The context of section 125(1)(c) does not require reference to the deﬁnition
of 'injury' rendered in section 44 IPC, 1860. The words "physical or mental abnormality"

will prima facie take in congenital defects while 'injury' leading to inability to maintain
itself can have reference, be at any point of time even after the attaining of majority. It
may even be possible to take in all cases of physical or mental abnormality which need
not necessarily be congenital.317. As deﬁned in section 44 IPC, 1860, "injury" denotes
any harm whatever illegally caused to any person in body, mind, reputation or property.
Now, if a person wants to save himself from injury, such as conviction in a criminal
case, it does not mean that he caused injury to another.318. Harm caused to a
reputation has been held to constitute an injury, within the purview of section 44.319.

[s 45] "Life".
The word "life" denotes the life of a human being, unless the contrary appears from
the context.
COMMENT—
Section 45 of the IPC, 1860 deﬁnes life as denoting the life of a human being, unless
the contrary appears from the context. Therefore, when a punishment for murder is
awarded under section 302 of the IPC, 1860, it might be imprisonment for life, where
life denotes the life of the convict or death. The term of sentence spanning the life of
the convict, can be curtailed by the appropriate Government for good and valid reasons
in exercise of its powers under section 432 of the Cr PC, 1973.320. Life imprisonment

cannot be equivalent to imprisonment for 14 years or 20 years or even 30 years, rather
it always means the whole natural life.321. The expression 'imprisonment for life' must
be read in the context of section 45, IPC, 1860.322. The Court may feel that the
punishment more just and proper, in the facts of the case, would be imprisonment for
life with life given its normal meaning and as deﬁned in section 45 of the Indian Penal
Code.323.
[s 45.1] Imprisonment for the remainder of Accused's natural life.—
As per the Criminal Law (Amendment) Act 2013324. the punishment for rape (section
376) is rigorous imprisonment for a term which shall not be less than ten years, but
which may extend to imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life, and shall also be liable to ﬁne. In sub-sections 370,

376(A), 376(D), 376(E) also it is speciﬁcally mentioned that 'Life' shall mean
imprisonment for the remainder of that person's natural life. Parliament has enacted
the Criminal Law (Amendment) Act, 2018 which provides for enhanced punishment in
rape cases. The Amendment Act provides stringent punishment for perpetrators of
rape particularly of girls below 12 years. Gang rape of a girl under 12 years of age is
now made punishable with a jail term for remainder of guilty person's natural life or
death. 325.
The right to claim remission, commutation, reprieve, etc., as provided under Article 72
or Article 161 of the Constitution will always be available, being guaranteed
Constitutional remedies, which are untouchable by the Court.326.

320.  Sangeet v State Of Haryana, (2013) 2 SCC 452 [LNIND 2012 SC 719] : 2013 Cr LJ 425 .
321.  Mohinder Singh v State of Punjab, (2013) 3 SCC 294 [LNIND 2013 SC 71] : 2013 Cr LJ 1559
(SC); Life Convict Bengal @Khoka @Prasanta Sen v BK Srivastava, 2013 Cr LJ 1446 (SC) : AIR
2013 SC 1163 , JT 2013 (3) SC20 : 2013 (2) Scale 467 : (2013) 3 SCC 425 [LNINDORD 2013 SC
6760] ; Zahid Hussein v State of WB, AIR 2001 SC 1312 [LNIND 2001 SC 692] : (2001)3 SCC 750
[LNIND 2001 SC 692] ; Munna v UOI, AIR 2005 SC 3440 [LNIND 2005 SC 701] : (2005) 7 SCC 417
[LNIND 2005 SC 701] - A plea for premature release after21 years of imprisonment rejected.
322.  Ashok Kumar v UOI, (1991) 3 SCC 498 [LNIND 1991 SC 288] : 1991 SCC (Cr) 845 (3 Judge
Bench); Gopal VinayakGodse v State of Maharashtra, 1961 (3) SCR 440 [LNIND 1961 SC 11] : AIR
1961 SC (Const. Bench) : But a two judgebench in Ramraj v State of Chhattisgarh, (2010) 1 SCC
573 [LNIND 2009 SC 2093] : AIR 2010 SC 420 [LNIND 2009 SC 2093] held that lifeimprisonment

is not to be interpreted as being imprisonment for the whole of a convict's natural lifewithin the
scope of Section 45.
323.  Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :
AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008 CrLJ 3911 .
324.  Act No. 13 of 2013 w.e.f 2-4-2013.
325.  Refer Chapter XVI infra.
326.  UOI v V Sriharan, (2016) 7 SCC 1 [LNIND 2015 SC 677] : 2016 Cr LJ 845 .

[s 46] "Death.".
The word "death" denotes the death of a human being, unless the contrary appears
from the context.
327.  Aruna ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC
COMMENT—
A present day understanding of death as the irreversible end of life must imply total
brain failure, such that neither breathing, nor circulation is possible any more.327.

[s 47] "Animal.".
The word "animal" denotes any living creature, other than a human being.

[s 48] "Vessel.".
The word "vessel" denotes anything made for the conveyance by water of human
beings or of property.
328.  P Balaraman v The State, 1991 Cr LJ 166 (Mad).
COMMENT—
The word "vessel" has been deﬁned in section 48 of the Indian Penal Code to denote
anything made for the conveyance by water of human beings or of property. The train
compartment is not a building, tent or vessel used as a human building neither a place
for worship nor a place used for the custody of property.328.

[s 49] "Year." "Month.".
Wherever the word "year" or the word "month" is used, it is to be understood that the
year or the month is to be reckoned according to the British calendar.
329.  Migotti v Colvill, (1879) 4 CPD 233 .
COMMENT—
A person sentenced to imprisonment for the space of one calendar month is entitled to
be discharged on the day in the succeeding month immediately preceding the day
corresponding to that from which his sentence takes effect.329. The day on which a
sentence is passed on a prisoner is calculated as a whole day.

[s 50] "Section.".
The word "section" denotes one of those portions of a Chapter of this Code which are
distinguished by preﬁxed numeral ﬁgures.

[s 51] "Oath.".
The word "oath" includes a solemn aﬃrmation substituted by law for an oath, and any
declaration required or authorized by law to be made before a public servant or to be
used for the purpose of proof, whether in a Court of Justice or not.
330.  White v White, (1786) 1 Leach 430; U Vali Basha v Mohd. Bashu, (2008) Cr LJ 1011 (Karn).
COMMENT—
An oath is a religious asseveration, by which a person renounces the mercy, and
imprecates the vengeance of heaven, if he does not speak the truth.330. The form of
oath differs according to the religious persuasion of the swearer. A Christian swears on
the Bible, a Jew upon the Pentateuch, a Mahommedan upon the Koran, and a Hindu on

the Gita. A Hindu or a Mahommedan has the statutory right to be aﬃrmed instead of
taking an oath.

[s 52] "Good faith.".
Nothing is said to be done or believed in "good faith" which is done or believed without
due care and attention.
COMMENT—
The expression "good faith" in criminal jurisprudence has a deﬁnite connotation. Its
import is totally different from saying that the person concerned has honestly believed
the truth of what is said. See the language of the law in this regard. It starts in the
negative tone excluding all except what is allowed to be within its amplitude. Insistence
sought to be achieved through the commencing words of the deﬁnition "nothing is said
to be done or believed in good faith" is that the solitary item included within the purview

of the expression "good faith" is what is done with "due care and attention". Due care
denotes the degree of reasonableness in the care sought to be exercised. In Black's
Law Dictionary, "reasonable care" is explained as "such a degree of care, precaution, or
diligence as may fairly and properly be expected or required, having regard to the
nature of the action, or of the subject matter and the circumstances surrounding the
transaction. It is such care as an ordinary prudent person would exercise under the
conditions existing at the time he is called upon to act".331. The element of honesty
which is introduced by the deﬁnition prescribed by the General Clauses Act is not
introduced by the deﬁnition of the Penal Code; and we are governed by the deﬁnition

prescribed by section 52 of that Code.332. Nothing is an offence which is done by any
person who is justiﬁed by law, or who by reason of mistake of fact and not by reason of
mistake of law, in good faith, believes himself to be justiﬁed by law, in doing it.333.
Some parents made poisonous propaganda against an educational institution. The
court said that this could not have been done by them in good faith. Hence, the
exception to section 499 was not attracted. The complaint of defamation against them
could not be quashed.334.
[s 52.1] Burden of proof.—
The burden is on the accused to prove this fact. Whether a person took due care and
attention before he made the imputation is a matter most often within the personal
knowledge of that person himself. The accused must prove that he made due enquiries

before he published the imputation. It is not enough to say that he made a formal
enquiry in a slipshod manner. The words 'due care and attention' imply that the accused
must have made the enquiry in a reasonable manner with all circumspection. It is true
that the accused is not bound to prove that the enquiry made by him was fool-proof or
without the possibility of any error or chance of mistake. However, the accused must
show that he got the information from proper source and he had reasonable grounds to

331.  Re: SK Sundaram, AIR 2001 SC 2374 [LNIND 2000 KER 575] : (2001) 2 SCC 171 [LNIND
2000 SC 1889] .
332.  Harbhajan Singh v State of Punjab, AIR 1966 SC 97 [LNIND 1965 SC 65] : 1966 Cr LJ 82 .
333.  Section 79 IPC, 1860.
334.  Dogar Singh v Shobha Gupta, 1998 Cr LJ 1541 (P&H).
335.  Damodra Shenoi v Public Prosecutor, Ernakulam, 1989 Cr LJ 2398 at 2400 (Ker). A
declaration in newspapers 2½ months; after selling land by registered sale deed that the sale
was under compulsion was held to be not made in good faith. The defence of exception 9 to
section 499 (defamation) was not available. P Swaminathan v Lakshmanan, 1992 Cr LJ 990
(Mad).
336.  R K Mohammed Ubaidullah v Hajee C Abdul Wahab, AIR 2001 SC 1658 [LNIND 2000 SC 924]
: (2000) 6 SCC 402 [LNIND 2000 SC 924] See Assistant Commissioner Anti Evasion Commercial
Taxes Bharatpur v Amtek India Ltd, (2007) 11 SCC 407 [LNIND 2007 SC 210] : JT 2007 (4) SC 297
[LNIND 2007 SC 210] for deﬁnition of "good faith" in various enactments.

337.  In the matter of RKaruppan, 2004 Cr LJ 4284 (Mad)(FB).
338.  State of Orissa v Bhagaban Barik, AIR 1987 SC 1265 [LNIND 1987 SC 366] : (1987) 2 SCC
498 [LNIND 1987 SC 366] ; Chaman Lal v State of Punjab, AIR 1970 SC 1372 [LNIND 1970 SC
106] : 1970 Cr LJ 1266 .
believe the truth of the statement he made. The accused must prove by preponderance
of probability that there was good faith on his part. The accused also should show that
there was no malice on his part, that is to say, that there was no ill-will or spite towards
the person against whom he made the imputation. What must ultimately be decided is
the honesty of the accused in publishing the words complained of. So also the accused
are not entitled to exception 9 of section 499, IPC, 1860 merely on the reason that the
publications were not made in good faith.335.

Good faith is a question of fact to be considered and decided on the facts of each
case. Section 52 of the Penal Code emphasizes due care and attention in relation to
the good faith. In the General Clauses Act emphasis is laid on honesty.336. The
meaning of the expression "good faith" is what is done with "due care and attention".
Due care denotes the degree of reasonableness in the care sought to be exercised. So,
before a person proposes to make an imputation, he must ﬁrst make an enquiry into
the factum of the imputation which he proposes to make. It is not enough that he does
just a make believe show for an enquiry. The enquiry expected of him is of such a depth
as a reasonable and prudent man would make with the genuine intention in knowing
the real truth of the imputation. If he does not do so he cannot claim that what he did

was bona ﬁde i.e. done in good faith. Thus, a contemner, if he is to establish "good
faith" has to say that he conducted a reasonable and proper enquiry before making an
imputation.337. The question of good faith must be considered with reference to the
position of the accused and the circumstances under which he acted. 'Good faith'
requires not logical infallibility but due care and attention.338.

339.[[s 52A] "Harbour."
Except in section 157, and in section 130 in the case in which the harbour is given by
the wife or husband of the person harboured, the word "harbour" includes the
supplying a person with shelter, food, drink, money, clothes, arms, ammunition or
means or conveyance, or the assisting a person by any means, whether of the same
kind as those enumerated in this section or not, to evade apprehension.]
339.  Ins. by Act 8 of 1942, section 2 (w.e.f. 14-2-1942).
340.  Kalpnath Rai v State, AIR 1998 SC 201 [LNIND 1997 SC 1396] : (1997) 8 SCC 732 .
COMMENT—
There are two hurdles in the way to adopt the IPC, 1860 deﬁnition of the word "harbour"

COMMENT—
as for TADA. First is that TADA permits reliance to be made only on the deﬁnitions
included in the Procedure Code and not on the deﬁnitions in the IPC, 1860. Second is,
the word "harbour" as such has not been used in the Procedure Code and hence, the
question of side-stepping to Penal Code deﬁnitions does not arise. Sections 136 and
312 of IPC, 1860 are the provisions incorporating two of the offences involving
"harbour" in which the common words used are "whoever knowing or having reason to
believe. Another offence in the Penal Code involving "harbour" is section 157 wherein
also the words "whoever harbours knowing that such person etc." are available. It was
contended that mens rea is explicitly indicated in the said provisions in the Penal Code

whereas no such indication is made in section 3(4) of TADA and therefore, the element
of mens rea must be deemed to have been excluded from the scope of section 3(4) of
TADA. The word "harbours" used in TADA must be understood in its ordinary meaning
as for penal provisions.340.

CHAPTER III OF PUNISHMENTS
[s 53] "Punishments.".
The punishments to which offenders are liable under the provisions of this Code are—
First.—Death;
1. [Secondly.—Imprisonment for life;]
2. [***]
Fourthly.—Imprisonment, which is of two descriptions, namely:—
(1) Rigorous, that is, with hard labour;
(2) Simple;
Fifthly.—Forfeiture of property;
Sixthly.—Fine.
COMMENT—
The object of punishment in the scheme of modern social defence is correction of the
wrongdoer and not wrecking gratuitous punitive vengeance on the criminal. Some
attempts have been made to modernise our penal system through piecemeal
legislation at best for the ﬁrst offenders, the children and the juvenile delinquents
example the Probation of Offenders Act 1958, the Juvenile Justice (Care and
Protection of Children) Act 2000, Juvenile Justice (Care and Protection of Children) Act,
2015 etc. In the Indian Penal Code, there is no scope for individualising the punishment;

rather these ﬁve forms of punishment have to be doled out to the offenders irrespective
of their psycho-social problems and needs of individual offenders. Commenting on this
unhappy aspect of our penal system Krishna iyer, J, observed in Shivaji's case'.3.
Two men in their twenties thus stand convicted of murder and have to suffer imprisonment
for life because the punitive strategy of our Penal Code does not suﬃciently reﬂect the
modern trends in correctional treatment and personalised sentencing. When accused
persons are of tender age then even in a murder case it is not desirable to send them
beyond the high prison walls and forget all about their correction and eventual reformation.
In Inder Singh's case4. the Supreme Court issued directions to the State Government to

see that the young accused of the case are not given any degrading work and they are
given the beneﬁt of liberal parole every year if their behaviour shows responsibility and
trustworthiness. Moreover, the Sessions Judge was directed to make jail visits to
ensure compliance with these directions.
[s 53.1] Object of Punishment.—
One of the prime objectives of criminal law is imposition of appropriate, adequate, just
and proportionate sentence commensurate with the nature and gravity of crime and

the manner in which the crime is done.5. Undue sympathy by means of imposing
inadequate sentence would do more harm to the justice system and undermine the
public conﬁdence in the eﬃcacy of law.6. The object should be to protect the society
and to deter the criminal in achieving the avowed object to law by imposing appropriate
sentence. It is expected that the Courts would operate the sentencing system so as to
impose such sentence which reﬂects the conscience of the society and the sentencing
process has to be stern where it should be.7. The main purpose of the sentence broadly
stated is that the accused must realise that he has committed an act which is not only
harmful to the society of which he forms an integral part but is also harmful to his own
future, both as an individual and as a member of the society. Punishment is designed
to protect society by deterring potential offenders as also by preventing the guilty party

from repeating the offence; it is also designed to reform the offender and re-claim him
as a law-abiding citizen for the good of the society as a whole. Reformatory, deterrent
and punitive aspects of punishment thus play their due part in judicial thinking while
determining this question. In modern civilized societies, however, reformatory aspect is
being given somewhat greater importance. Too lenient as well as too harsh sentences
both lose their eﬃcaciousness. One does not deter and the other may frustrate thereby
making the offender a hardened criminal.8.
[s 53.2] Different Approaches.—
Punishment in criminal cases is both punitive and reformative. The purpose is that the
person found guilty of committing the offence is made to realise his fault and is

deterred from repeating such acts in future. On the commission of crime, three types of
reactions may generate; the traditional reaction of universal nature which is termed as
punitive approach. It regards the criminal as a notoriously dangerous person who must
be inﬂicted severe punishment to protect the society from his criminal assaults. The
other approach is the therapeutic approach. It regards the criminal as a sick person
requiring treatment, while the third is the preventive approach, which seeks to eliminate
those conditions from the society, which were responsible for crime causation. Under
the punitive approach, the rationalisation of punishment is based on retributive and
utilitarian theories. Deterrent theory, which is also part of the punitive approach,

proceeds on the basis that the punishment should act as a deterrent not only to the
offender, but also to others in the community. The therapeutic approach aims at curing
the criminal tendencies, which were the product of a diseased psychology. Therapeutic
approach has since been treated as an effective method of punishment, which not only
satisﬁes the requirements of law that a criminal should be punished and the
punishment prescribed must be meted out to him, but also reforms the criminal
through various processes, the most fundamental of which is that in spite of having
committed a crime, may be a heinous crime, he should be treated as a human being
entitled to all the basic human rights, human dignity and human sympathy. It was under
this theory that this Court in a stream of decisions, projected the need for prison

reforms, the need to acknowledge the vital fact that the prisoner, after being lodged in
jail, does not lose his fundamental rights or basic human rights and that he must be
treated with compassion and sympathy.9. Imposing a hard punishment on the accused
serves a limited purpose, but at the same time, it is to be kept in mind that relevance of
deterrent punishment in matters of serious crimes affecting society should not be
undermined. Within the parameters of the law an attempt has to be made to afford an
opportunity to the individual to reform himself and lead life of a normal, useful member
of society and make his contribution in that regard.10. In Dhannajoy Chatterjee v State of
WB,11. the Supreme Court has observed that shockingly large number of criminals go

unpunished, thereby increasingly encouraging the criminals and ultimately making
justice suffer by weakening the system's credibility. Realising that it is not the brutality
of punishment but its surety that serves as a greater deterrent, our Supreme Court held

that a barbaric crime does not have to be visited with a barbaric penalty such as public
hanging which will be clearly violative of Article 21 of the Constitution.12. With regards
the question of punishment, it should be noted that punishment in one matter cannot
be the guiding factor for punishment in another. Punishment has a co-relation with
facts and in each case where punishment is imposed, the same must be the resultant
effect of the acts complained of. More serious the violation, more severe is the
punishment and that has been the accepted norm, in matters though, however, within
the prescribed limits.13.
[s 53.3] Reformation Theory.—
The reformative aspect is meant to enable the person concerned to relent and repent
for his action and make himself acceptable to the society as a useful social being.14.
Theory of reformation through punishment is grounded on the sublime philosophy that
every man is born good but circumstances transform him into a criminal. The aphorism

that "if every saint has a past every sinner has a future" is a tested philosophy
concerning human life. VR Krishna Iyer, J, has taken pains to ornately fresco the
reformative proﬁle of the principles of sentencing in Mohammad Giasuddin v State of
AP.15. Reformation should hence be the dominant objective of a punishment and
during incarceration, every effort should be made to recreate the good man out of
convicted prisoner. An assurance to him that his hard labour would eventually snowball
into a handsome saving for his own rehabilitation would help him to get stripped of the
moroseness and desperation in his mind while toiling with the rigours of hard labour
during the period of his jail life. Thus, reformation and rehabilitation of a prisoner are of
great public policy. Hence, they serve a public purpose.16. Punishment is also to reform

such wrongdoers not to commit such offence in future.17.
[s 53.4] Deterrence.—
Deterrence is one of the vital considerations of punishment. Law demands that the
offender should be adequately punished for the crime, so that it can deter the offender
and other persons from committing similar offences. Nature and circumstances of the
offence; the need for the sentence imposed to reﬂect the seriousness of the offence; to
afford adequate deterrence to the conduct and to protect the public from such crimes
are certain factors to be considered while imposing the sentence.18. Any liberal attitude
by imposing meagre sentences or taking too sympathetic view merely on account of
lapse of time or personal inconveniences in respect of such offences will be result-wise

counterproductive in the long run and against societal interest which needs to be cared
for and strengthened by string of deterrence built in the sentencing system.19. For
instance, a murder committed due to deep-seated mutual and personal rivalry may not
call for penalty of death. However, an organised crime or mass murders of innocent
people would call for imposition of death sentence as deterrence.20. Protection of
society and deterring the criminal is the avowed object of law and is required to be
achieved by imposing an appropriate sentence. The sentencing Courts are expected to
consider all relevant facts and circumstances bearing on the question of sentence and
proceed to impose a sentence commensurate with the gravity of the offence. Courts
must hear the loud cry for justice by the society in cases of heinous crimes like rape on

innocent helpless girls of tender years, as in this case, and respond by imposition of
proper sentence. Public abhorrence of the crime needs reﬂection through imposition of
appropriate sentence by the Court. To show mercy in the case of such a heinous crime
would be a travesty of justice.21. To give a lesser punishment to the appellants would
be to render the justice system of this country suspect. The common man will lose

faith in the Courts. In such cases, he understands and appreciates the language of
deterrence more than the reformative jargon.22. Punishment to an accused in criminal
jurisprudence is not merely to punish the wrongdoer but also to strike warning to those
who are in the same sphere of crime or to those intending to join in such crime.23.
[s 53.5] Principles of sentencing.—
Sentencing is an important task in the matters of crime. There is no straitjacket
formula for sentencing an accused on proof of crime. In practice, there is much
variance in the matter of sentencing. In many countries, there are laws prescribing
sentencing guidelines, but there is no statutory sentencing policy in India.24. The Indian
Penal Code provides discretion to Indian Judges while awarding the sentence.25.
Courts have wide discretion in awarding sentence within the statutory limits.26. The
Courts have evolved certain principles: twin objective of the sentencing policy is

deterrence and correction.27. There are many philosophies behind sentencing justifying
penal consequences. The philosophical/jurisprudential justiﬁcation can be retribution,
incapacitation, speciﬁc deterrence, general deterrence, rehabilitation, or restoration.
Anyone or a combination thereof can be the goal of sentencing. However, when it
comes to sentencing a person for committing a heinous crime, the deterrence theory
as a rationale for punishing the offender becomes more relevant. In such cases, the
role of mercy, forgiveness and compassion becomes secondary and while determining
the quantum of sentence, discretion lies with the Court. While exercising such a
discretion, the Court has to govern itself by reason and fair play, and discretion is not to
be exercised according to whim and caprice. It is the duty of the Court to impose

adequate sentence, for one of the purposes of imposition of requisite sentence is
protection of the society and a legitimate response to the collective conscience. While
considering as to what would be the appropriate quantum of imprisonment, the Court
is empowered to take into consideration mitigating circumstances, as well as
aggravating circumstances.28. What sentence would meet the ends of justice depends
on the facts and circumstances of each case and the Court must keep in mind the
gravity of the crime, motive for the crime, nature of the offence and all other attendant
circumstances.29. The criminal law adheres in general to the principle of proportionality
in prescribing liability according to the culpability of each kind of criminal conduct. It

ordinarily allows some signiﬁcant discretion to the Judge in arriving at a sentence in
each case, presumably to permit sentences that reﬂect more subtle considerations of
culpability that are raised by the special facts of each case. Judges in essence aﬃrm
that punishment ought always to ﬁt the crime; yet in practice, sentences are
determined largely by other considerations. Sometimes it is the correctional needs of
the perpetrator that are offered to justify a sentence, sometimes the desirability of
keeping him out of circulation, and sometimes even the tragic results of his crime.
Inevitably, these considerations cause a departure from just desert as the basis of
punishment and create cases of apparent injustice that are serious and widespread.30.

Proportion between crime and punishment is a goal respected in principle, and in spite
of errant notions, it remains a strong inﬂuence in the determination of sentences. The
practice of punishing all serious crimes with equal severity is now unknown in civilized
societies, but such a radical departure from the principle of proportionality has
disappeared from the law only in recent times. Even now for a single grave infraction,
drastic sentences are imposed. Anything less than a penalty of greatest severity for
any serious crime is thought then to be a measure of toleration that is unwarranted and
unwise. But in fact, quite apart from those considerations that make punishment
unjustiﬁable when it is out of proportion to the crime, uniformly disproportionate
punishment has some very undesirable practical consequences.31. The principle of

proportionality in sentencing a crime doer is well entrenched in criminal jurisprudence.

As a matter of law, proportion between crime and punishment bears most relevant
inﬂuence in determination of sentencing the crime doer. The Court has to take into
consideration all aspects including social interest and consciousness of the society for
award of appropriate sentence.32. Undue sympathy to impose inadequate sentence
would do more harm to the justice system to undermine the public conﬁdence in the
eﬃcacy of law and society could not long endure under such serious threats.
Imposition of sentence without considering its effect on the social order in many cases
may be in reality a futile exercise. The social impact of the crime e.g. where it relates to
offences against women, dacoity, kidnapping, misappropriation of public money,
treason and other offences involving moral turpitude or moral delinquency which have
great impact on social order and public interest, cannot be lost sight of and per se
require exemplary treatment. Any liberal attitude by imposing meagre sentences or

taking too sympathetic view merely on account of lapse of time in respect of such
offences will be result wise counterproductive in the long run and against societal
interest which needs to be cared for and strengthened by a string of deterrence inbuilt
in the sentencing system.33. Undue sympathy to impose inadequate sentence would do
more harm to the justice system to undermine the public conﬁdence in the eﬃcacy of
law and society could not long endure under such serious threats. It is, therefore, the
duty of every Court to award proper sentence keeping in mind the nature of the offence
and the manner in which it was executed or committed etc. Thus, it is evident that
Criminal Law requires strict adherence to the rule of proportionality in providing
punishment according to the culpability of each kind of criminal conduct keeping in

mind the effect of not awarding just punishment on the society.34. An undeserved
indulgence or liberal attitude in not awarding adequate sentence in such cases would
amount to allowing or even to encouraging 'potential criminals'. The society can no
longer endure under such serious threats. Courts must hear the loud cry for justice by
society in cases of heinous crime of rape and impose adequate sentence. Public
abhorrence of the crime needs reﬂection through imposition of appropriate sentence
by the Court.35.
[s 53.6] Factors to be considered.—
These are some factors which are required to be taken into consideration before
awarding appropriate sentence to the accused. These factors are only illustrative in
character and not exhaustive. Each case has to be seen from its special perspective.
The relevant factors are as under:

(a) Motive or previous enmity;
(b) Whether the incident had taken place on the spur of the moment;
(c) The intention/knowledge of the accused while inﬂicting the blow or injury;
(d) Whether the death ensued instantaneously or the victim died after several days;
(e) The gravity, dimension and nature of injury;
(f) The age and general health condition of the accused;
(g) Whether the injury was caused without pre-meditation in a sudden ﬁght;
(h) The nature and size of weapon used for inﬂicting the injury and the force with which
the blow was inﬂicted;
(i) The criminal background and adverse history of the accused;

(j) Whether the injury inﬂicted was not suﬃcient in the ordinary course of nature to
cause death but the death was because of shock;
(k) Number of other criminal cases pending against the accused;
(l) Incident occurred within the family members or close relations;
(m) The conduct and behaviour of the accused after the incident. Whether the accused
had taken the injured/the deceased to the hospital immediately to ensure that he/she
gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an
appropriate sentence to the accused.
The list of circumstances enumerated above is only illustrative and not exhaustive. In
our considered view, proper and appropriate sentence to the accused is the bounded
obligation and duty of the Court. The endeavour of the Court must be to ensure that the
accused receives appropriate sentence, in other words, sentence should be according
to the gravity of the offence. These are some of the relevant factors which are required

to be kept in view while convicting and sentencing the accused.36. The facts and given
circumstances in each case, the nature of the crime, the manner in which it was
planned and committed, the motive for commission of the crime, the conduct of the
accused, the nature of weapons used and all other attending circumstances are
relevant facts which would enter into the area of consideration.37.
[s 53.7] Judicial Discretion:38. Cases.—
A Judge has wide discretion in awarding the sentence within the statutory limits. Since
in many offences, only the maximum punishment is prescribed and for some offences
the minimum punishment is prescribed, each Judge exercises his discretion
accordingly.39. In case where for an offence, maximum imprisonment is prescribed and
there is no provision for minimum imprisonment, the Court can exercise wide

discretion imposing any imprisonment which may be from one day (or even till the
rising of the court) to ten years/life.40. However, the Courts will have to take into
account certain principles while exercising their discretion in sentencing, such as
proportionality, deterrence and rehabilitation. In a proportionality analysis, it is
necessary to assess the seriousness of an offence in order to determine the
commensurate punishment for the offender.41. Though punishment is the discretion of
the Court, yet it must be exercised judicially and where circumstances call for a
deterrent punishment, it ought to be awarded in an appropriate case.42. Thus where the
accused, a young man of 22 committed multiple murders for sheer gain in a most
cruel, callous and ﬁendish fashion, there was no way to show him any mercy as it was

rarest of the rare cases where a sentence of death was fully justiﬁed.43. In exercising
this discretion, the Court must consider the gravity of the offence, the mitigating or the
extenuating circumstances of the case which may justify the award of the lesser or
maximum sentence.44. Where the accused was a youth of 19, the Supreme Court while
upholding conviction under section 304-Part I, Indian Penal Code, 1860, (IPC, 1860)
reduced his sentence to the period already undergone which was 18 and a half months
in the instant case. The accused, a Government servant, who will lose pensionary
beneﬁts due to conviction, deserves to be treated leniently.
The Supreme Court has laid down that in cases of death in custody on account of third
degree methods, deterrent punishment should be awarded.45. Where certain police

oﬃcials, who took a man illegally in their custody and gave him beating due to which he

died, were convicted under section 342, it was held that the facts that one of the
accused was recipient of a medal from the President for saving a life, was awarded Rs.
5,000 by the State Government also and was suffering from T.B. and the other accused
had acted on the direction of his superior, were not mitigating circumstances and the
accused were liable to be punished with the maximum sentence.46.
Where due to dire poverty the accused killed his ailing wife, as he could not provide
money for her operation and thereafter killed his two children, as they would be
neglected after their mother's death, it was held the accused deserved to be awarded
life imprisonment and not capital punishment.47. Where the murder in question showed
signs of ruthless, unrelenting and determined vindictiveness and though the accused
was 55 at the time of occurrence and 70 at the time of this appeal, the Supreme Court
did not think it necessary to modify his sentence of life imprisonment.48. Similarly,

where murders were committed for gain, the Supreme Court refused to interfere with
death sentence only because the condemned prisoners were very young and their
wives and children and aged parents were dependent on them. Such considerations,
the Court said, are present in most cases.49. Where, for the offence of dacoity under
section 395, the trial Court awarded three years' R.I., the High Court acquitted the
offenders, but the Supreme Court restored the conviction after a long gap during which
they got married and had resumed normal life, the period already undergone was
considered to be suﬃcient, but a ﬁne of Rs. 3,000 was imposed on each of them.50.
Where a conviction under section 16I, IPC, 1860 read with section 5(2) of the
Prevention of Corruption Act, 1988 was conﬁrmed, the Gujarat High Court modiﬁed the

sentence of R.I. for one year and ordered that the appellant shall undergo sentence of
R.I. for six months only. This was done in view of his age of 60 years and a number of
illnesses he was suffering from.51. The accused had been out of job for nearly 16 years
and had undergone the trial for a number of years. He was 65 years old but had
received no pension and had a large family to maintain. Hence, the Supreme Court
while conﬁrming the conviction, reduced the sentence of one year R.I. each under
section 161 and the Prevention of Corruption Act to 15 days R.I. on each count. The
sentence of ﬁne was however conﬁrmed.52. Where the accused had accepted a very
small amount of Rs. 30 as bribe about 16 years back and underwent the agony of trial
for a long time and had to support his family, he had been in jail for some time during

trial, considering these facts his sentence of imprisonment was reduced from three
months R.I. to the period already undergone.53.
Imposition of proper and appropriate sentence is bounded obligation and duty of the
Court. The endeavour of the Court must be to ensure that the accused received
appropriate sentence. The sentence must be accorded to the gravity of the offence.54.
[s 53.8] Minimum Sentence.—
In order to exercise the discretion of reducing the sentence the statutory requirement is
that the Court has to record "adequate and special reasons" in the judgment and not
fanciful reasons, which would permit the Court to impose a sentence less than the
prescribed minimum. The reason has not only to be adequate but also special. What is
adequate and special would depend upon several factors and no straitjacket formula

can be indicated.55. Mere absence of provisions for minimum sentence is no reason or
justiﬁcation to treat the offence under the Act (NDPS) as any less serious.56.
For the offence of murder, minimum sentence is 'life imprisonment'. Thus, the High
Court cannot modify the sentence of life imprisonment awarded by the Trial Court to
the one already undergone.57.

To the ﬁve kinds of punishments in the section, two more were added by subsequent
enactments, viz., whipping (now abolished) and detention in reformatories.
1. Death.—Death punishment is awarded for murder in rarest of the rare cases.58. It
may be awarded as punishment for the following offences:—
(1) Waging war against the Government of India (section 121).
(2) Abetting mutiny actually committed (section 132).
(3) Giving or fabricating false evidence upon which an innocent person suffers death
(section 194).
(4) Threatening or inducing any person to give false evidence- if innocent person is
convicted and sentenced in consequence of such false evidence, with death (195A-Part
II)
(5) Murder (section 302).
(6) Abetment of suicide of a minor, or an insane or an intoxicated person (section 305).
(7) Attempt to murder by life convicts (section 307-PartII)
(8) Kidnapping for ransom, etc. (section 364A)
(9) Causing death or resulting in persistent vegetative state of rape victim (section
376A)

376A)
(10) Repeat offenders of offences punishable under section 376 or section 376A or
section 376D (section 376E)
(11) Dacoity accompanied with murder (section 396).
(12) Attempt to murder by a person under sentence of imprisonment for life, if hurt is
caused (section 307). [For the detailed discussion on Death Penalty See Comments
under section 302 IPC].
In addition to this, Death penalty can be imposed by virtue of section 34, 149,109 and
120B of IPC.
2. Imprisonment for life is now substituted for transportation. "Imprisonment for life" in
the Code means "rigorous imprisonment for life" and not "simple imprisonment for
life".59.
3. Imprisonment.—Imprisonment is of two kinds: (a) rigorous and (b) simple. In the
case of rigorous imprisonment, the offender is put to hard labour such as grinding corn,

life".59.
digging earth, drawing water, cutting ﬁrewood, bowing wool, etc. In the case of simple
imprisonment, the offender is conﬁned to jail and is not put to any kind of work.
Imposition of hard labour on prisoners undergoing rigorous imprisonment has been
held to be legal.60.
The minimum term of imprisonment, however, is ﬁxed in the following two cases: (1) If,
at the time of committing robbery or dacoity, the offender uses any deadly weapon, or
causes grievous hurt to any person, he is punished with imprisonment of not less than
seven years (section 397).
(2) If, at the time of attempting to commit robbery or dacoity, the offender is armed
with any deadly weapon, he is punished with imprisonment of not less than seven years
(section 398).

The Criminal Law (Amendment) Act 2013 [Act No. 13 of 2013 w.e.f 2 April 2013]
provides minimum punishment for the following offences:
(1) Public servant disobeying direction under law- Imprisonment for a term, which
shall not be less than six months. (section 166A)
(2) Voluntarily causing grievous hurt by use of acid, etc.- Imprisonment for not less
than ten years. (section 326A)
(3) Outraging the modesty of a woman- Imprisonment of either description for a
term which shall not be less than one year (section 354)
(4) Assault or use of criminal force to woman with intent to disrobe- Imprisonment
of not less than three years. (section 354B)
(5) Voyeurism- Imprisonment of not less than one year. (section 354C)
(6) Traﬃcking of person- Seven years [section 370(2)], ten years [sections 370(3),
(4)], 14 years [section 370(5)],
(7) Exploitation of a traﬃcked child- Imprisonment of not less than ﬁve years but
which may extend to seven years and with ﬁne. (section 370A)

(8) Rape- Seven years [section 376(1)], ten years [section 376(2)].
(9) Causing death or resulting in persistent vegetative state of victim- Imprisonment
for a term which shall not be less than 20 years (section 376A)
(10) Sexual intercourse by husband upon his wife during separation- Imprisonment
of either description for a term which shall not be less than two years (section
376B)
(11) Sexual intercourse by a person in authority- Imprisonment of either description
for a term which shall not be less than ﬁve years. (section 376C)
(12) Gang rape- Imprisonment for a term, which shall not be less than 20 years.
(section 376D).
The Criminal Law (Amendment) Act, 2018 has further amended the Indian Penal Code
1860. The Criminal Law (Amendment) Act, 2018 has increased the minimum sentence

in section 376(1) from seven years to ten years. The 2018 Amendment Act has inserted
sections 376AB, 376DA and 376DB which provide for enhanced punishment in certain
aggravated forms of rape. Refer Chapter XVI infra.
An offender is punished with rigorous imprisonment without the alternative of simple
imprisonment, in the cases of—
(1) Giving or fabricating false evidence with intent to procure conviction of an offence,
which is capital by this Code (section 194).
(2) Rape (sections 376, 376A, 376AB, 376C, 376D, 376DA, 376DB and 376E)
(3) House-trespass in order to the commission of an offence punishable with death
(section 449).
The following offences are punishable with simple imprisonment only:—
(1) Public servant unlawfully engaging in trade; or unlawfully buying or bidding for
property (sections 168, 169).

(2) A person absconding to avoid service of summons or other proceedings from a
public servant or preventing service of summons or other proceedings, or preventing

publication thereof; or not attending in obedience to an order from a public servant
(sections 172, 173, 174).
(3) Intentional omission to produce a document to a public servant by a person legally
bound to produce such document; or intentional omission to give notice or information
to a public servant by a person legally bound to give; or intentional omission to assist a
public servant when bound by law to give assistance (sections 175, 176, 187).
(4) Refusing oath when duly required to take oath by a public servant; or refusing to
answer a public servant authorised to question or refusing to sign any statement made
by a person himself before a public servant (sections 178, 179, 180).
(5) Disobedience to an order duly promulgated by a public servant if such disobedience
causes obstruction, annoyance, or injury (section 188).
(6) Escape from conﬁnement negligently suffered by a public servant; or negligent
omission to apprehend, or negligent sufferance of escape, on the part of a public

servant in cases not otherwise provided for (sections 223, 225-A).
(7) Intentional insult or interruption to a public servant sitting in any stage of a judicial
proceeding (section 228).
(8) Continuance of nuisance after injunction to discontinue (section 291).
(9) Wrongful restraint (section 341).
(10) Defamation: printing or selling defamatory matter known to be so (sections 500,
501, 502).
(11) Uttering any word, or making any sound or gesture, with an intention to insult the
modesty of a woman (section 509).
(12) Misconduct in a public place by a drunken person (section 510).61.
[s 53.9] Imprisonment for the remainder of the Accused's natural life.—
As per the Criminal Law (Amendment) Act, 2013,62. the punishment for rape (section

remainder of that person's natural life, and shall also be liable to ﬁne. In sections 370,
376(A), 376(D), 376(E) it is also speciﬁcally mentioned that 'Life' shall mean
imprisonment for the remainder of that person's natural life. The Criminal Law
(Amendment) Act, 2018 has increased the minimum sentence in section 376(1) from
seven years to ten years as well as inserted sections 376AB, 376DA and 376DB which
provide for enhanced punishment in certain aggravated forms of rape. Refer Chapter
XVI infra.
Spending 13 and half years in jail does not mean that the petitioner has undergone a
sentence for life.63.
4. Forfeiture.—The punishment of absolute forfeiture of all property of the offender is

now abolished. Sections 61 and 62 of the IPC, 1860 dealing with such forfeiture are
repealed by Act XVI of 1921.
There are, however, three offences in which the offender is liable to forfeiture of
speciﬁc property. They are sections 126, 127 and 169 of the Code.64.

5. Fine.—Fine is the only punishment in the following cases:—
(1) A person in charge of a merchant vessel, negligently allowing a deserter from the
Army or Navy or Air Force to obtain concealment in such vessel, is liable to a ﬁne not
exceeding Rs. 500 (section 137).
(2) The owner or occupier of land on which a riot is committed or an unlawful assembly
is held, and any person having or claiming any interest in such land, and not using all
lawful means to prevent such riot or unlawful assembly, is punishable with a ﬁne not
exceeding Rs. 1,000 (section 154).
(3) The person for whose beneﬁt a riot has been committed not having duly
endeavoured to prevent it (section 155).
(4) The agent or manager of such person under like circumstances (section 156).
(5) False statements in connection with an election (section 171-G).
(6) Illegal payments in connection with an election (section 171-H).
(7) Failure to keep election accounts (section 171-I).

(8) Voluntarily vitiating the atmosphere so as to render it noxious to the public health, is
punishable with a ﬁne up to Rs. 500 (section 278).
(9) Obstructing a public way or line of navigation, is punishable with a ﬁne not
exceeding Rs. 200 (section 283).
(10) Committing of a public nuisance not otherwise punishable is punishable with a
ﬁne not exceeding Rs. 200 (section 290).
(11) Publication of a proposal regarding a lottery, is punishable with a ﬁne not
exceeding Rs. 1,000 (section 294-A).
Where the accused partners of a ﬁrm were acquitted on a charge under section 420 of
making substantial gains for themselves and an appeal against their acquittal was
decided against them 15 years after the acquittal, ﬁne and not imprisonment was
considered proper punishment.65. Where the murder accused remained in prison for

sometime and was on bail for 13 years, he was not committed to prison; a ﬁne of Rs.
50,000 in addition to the imprisonment already undergone was imposed, he being a
young man.66. Where the accused along with others convicted under section 323 for
six months' imprisonment had already undergone an imprisonment of one year and,
looking at his good conduct inside jail and lest he should lose his service, he was given
the beneﬁt of section 3 of the Probation of Offenders Act 1958 so to assure that his
conviction should not affect his service.67.
[s 53.10] Rigorous and Simple imprisonment.—
Section 53 of the IPC, 1860 deﬁnes ﬁve kinds of punishment which includes
punishment for life and two other kinds of imprisonment, i.e., rigorous and simple
imprisonment. Rigorous imprisonment is one which is required by law to be completed

with hard labour. There are principally two categories of prisoners: (1) under trial
prisoners and (2) convicted prisoners (Besides them there are those detained as
preventive measure, and those undergoing detention for default of payment of ﬁne). A
person sentenced to simple imprisonment cannot be required to work unless he
volunteers himself to do the work. However, the Jail oﬃcer who requires a prisoner

sentenced to rigorous imprisonment to do hard labour would be doing so as enjoined
by law and mandated by the Court.68. Thus, while a person sentenced to simple
imprisonment has the option of choosing to work, a person sentenced to rigorous
imprisonment is required by law to undergo hard labour. The under trials are not
required to work in Jail.69. Section 60 of the Indian Penal Code confers power on a
sentencing Court to direct that "such imprisonment shall be wholly rigorous or that
such imprisonment shall be wholly simple, or that any part of such imprisonment shall
be rigorous and the rest simple." The sentence of "imprisonment for life" tagged along
with a number of offences delineated in the IPC, 1860 is interpreted as "rigorous
imprisonment for life" and not simple imprisonment.70.
Supreme Court Guidelines regarding employment of prisoners and wages.—
(1) It is lawful to employ the prisoners sentenced to rigorous imprisonment to do hard
labour whether he consents to do it or not.

(2) It is open to the jail oﬃcials to permit other prisoners also to do any work which
they choose to do provided such prisoners make a request for that purpose.
(3) It is imperative that the prisoner should be paid equitable wages for the work done
by them. In order to determine the quantum of equitable wages payable to prisoners
the State concerned shall constitute a wage ﬁxation body for making
recommendations. We direct each State to do so as early as possible.
(4) Until the State Government takes any decision on such recommendations every
prisoner must be paid wages for the work done by him at such rates or revised rates as
the Government concerned ﬁxes in the light of the observations made above. For this
purpose we direct all the State Governments to ﬁx the rate of such interim wages within
six weeks from today and report to this Court of compliance of this direction.

(5) We recommend to the State concerned to make law for setting apart a portion of
the wages earned by the prisoners to be paid as compensation to deserving victims of
the offence the commission of which entailed the sentence of imprisonment to the
prisoner, either directly or through a common fund to be created for this purpose or in
any other feasible mode.
[State of Gujarat v Hon'ble High Court of Gujarat.71.]
[s 53.11] Rights of Convicts.—
Convicts are not, by mere reason of the conviction, denuded of all the fundamental
rights which they otherwise possess. A compulsion under the authority of law,
following upon a conviction, to live in a prison house entails by its own force the
deprivation of fundamental freedoms like the right to move freely throughout the

territory of India or the right to "practise" a profession. A man of profession would thus
stand stripped of his right to hold consultations while serving out his sentence. But the
Constitution guarantees other freedoms like the right to acquire, hold and dispose of
property for the exercise of which incarceration can be no impediment, likewise, even a
convict is entitled to the precious right guaranteed by Article 21 of the Constitution that
he shall not be deprived of his life or personal liberty except according to procedure
established by law.72.
[s 53.12] Cases of Leniency.—

In a given situation, where it is demonstrated that during the pendency of the
proceedings the accused has undergone a lot of suffering such as where the accused
was in custody or for that matter, in situations where the accused is suspended and is
on a subsistence allowance or where as a result of the prosecution the consequences
have been so disastrous that the accused has suffered virtual ruination, these aspects
alone would be valid justiﬁcation on which a plea for leniency could be based. On the
other hand, one needs to bear in mind that the consequences of criminal acts catch up
with the accused particularly when the crimes are against the society the ethical
concept of forgive and forget merely because the incident took place in the distant past
will not hold good in a Court of Law.73. Where there was acquittal in the same year in
which the crime was committed but the acquittal was reversed after eight years and
conviction and jail terms were awarded and appeal against this order was disposed of

in the 20th year of the crime, the Supreme Court reduced the sentence to the period
already undergone and imposed a ﬁne which if not paid, the original sentence was to
be restored.74. Where the guilt of the accused under sections 406 and 120-B were
established beyond all reasonable doubt, the Supreme Court did not interfere with their
conviction. However, in view of the fact that the accused had undergone proceedings
for a period of two decades, their sentence was reduced to one already undergone.75.
Where the accused was convicted for criminal conspiracy and breach of trust and
about 48 years had elapsed since the accused was charged for the offences, keeping in
view his advanced age he was sentenced to imprisonment till rising of the Court with a
ﬁne of Rs. 5,000.76. Where a man of 20 was convicted under section 324 and

sentenced to undergo imprisonment for four months whereas he had already
undergone imprisonment of one year and two months, his sentence was reduced to
one already undergone.77. Where the accused were convicted under section 326 for
causing grievous hurt to the victim, considering the lapse of about six years from the
incident, accused not being habitual criminals or previous convicts and there being no
misuse of liberty during bail, the sentence was reduced to the period already undergone
with a ﬁne of Rs. 5,000 each.78. Where the accused convicted and sentenced under
sections 379 and 411, were found to be the sole earning member of their families and
they had no past criminal records, the Court directed that one year's rigorous
imprisonment instead of two would meet the ends of justice.79. Where the accused

seeing his wife in a compromising position with a man assaulted both of them as a
result of grave and sudden provocation resulting in the death of both, his conviction
under section 304, Part II was upheld but the sentence of ﬁve years' R.I. was reduced to
one years' R.I. with the recommendation that the State Government might remit such a
portion of sentence as it deemed ﬁt and proper.80.
[s 53.13] Offences against women.—
Where the accused had outraged the modesty of a woman, his conviction under
section 354 was upheld but considering the lapse of eight years, it was not found
desirable to send him back to jail to be in midst of hardened criminals. He was
sentenced to sit in the Court of Judicial Magistrate First Class for ﬁve days
continuously, during the entire working hours.81. Where the accused, in his late ﬁfties,

betraying the conﬁdence of the prosecutrix committed rape on her, it was held that he
deserved no sympathy. However, as the accused remained in jail for eight years, the
Court took a liberal view and considering his age and helplessness sentenced him to
the period for which he had already been in jail.82. Where the victim of rape belonged to
a tribal (Bhilla) community and the act of the accused did not cast any serious stigma
on the girl and she was married to a different person sometime after the incident by her
father, it was held that sentence much below the minimum sentence prescribed could
be inﬂicted on the accused.83. Where the conviction and sentence of the accused

husband to rigorous imprisonment for six months under section 498-A was substituted
with a ﬁne of Rs. 6,000, taking into consideration the age, occupation and family
conditions of the husband, it was held that though the appellate Court was justiﬁed in
substituting the jail sentence, the Court ought not have awarded a modest ﬁne. The ﬁne
was raised to Rs. 30,000.84. Where a person was married in childhood and was
subjected to a second marriage under the pressure exerted by his parents as well as
the woman who became his second wife, it was held that a lesser sentence of six
months instead two years' R.I. and a ﬁne of Rs. 2,000 to the accused husband and
imprisonment till the rising of the Court and a ﬁne of Rs. 1,500 to the accused parents
and the second wife in place of the original sentence of six months' R.I. and a ﬁne of
Rs. 1,000 would meet the ends of justice.85.
[s 53.14] Conversion of death sentence into life imprisonment.—

Where the accused, being dissatisﬁed with the partition of family property, committed
ghastly murders of four members of his family and there was no evidence that the
crime was pre-planned and the circumstances indicated that he was under the
inﬂuence of some kind of extreme mental or emotional disturbance which impaired his
capacity to appreciate criminality of his conduct, death sentence awarded to him was
converted into imprisonment for life.86. Where three accused persons conspired to kill
the wife and two minor children of one of the accused but one of the accused was not
a party to actual commission of murder and the part played by the other accused was
not deﬁnitely proved, the sentence of death imposed on both the accused was
commuted to that of life imprisonment. The death sentence of the main accused, the

father, was not interfered with.87. Where the accused shot his two younger brothers
dead on a petty quarrel, as there was no pre-plan to commit murder, the death sentence
awarded to the accused was altered into life imprisonment with a ﬁne of Rs. 30,000.88.
[s 53.15] Award of compensation.—
Power of Courts to award compensation is not ancillary to other sentences but it is in
addition thereto. This power was intended to do something to reassure the victim that
he or she is not forgotten in the criminal justice system. It is a measure of responding
appropriately to crime as well of reconciling the victim with the offender. It is, to some
extent, a constructive approach to crimes. It is indeed a step forward in our criminal
justice system.89. The purpose of imposition of ﬁne and/or grant of compensation to a

great extent must be considered having the relevant factors therefore in mind. It may
be compensating the person in one way or the other.90.
In the BMW Case, the Supreme Court directed the accused to pay an amount of Rs. 50
lakh to the Union of India which will be utilized within for providing compensation to the
victims of motor accidents, where the vehicles owner, driver etc. could not be traced,
like victims of hit and run cases.91. Where a doctor was convicted for an attempt to
cause miscarriage and sentenced to undergo rigorous imprisonment for one year and
pay a ﬁne of Rs. 5,000, the sentence of imprisonment was found to be excessive and
was set aside but the ﬁne was enhanced to Rs. 15,000 out of which, if realised Rs.
10,000 was to be paid to the mother of the deceased for the maintenance of the

children of the deceased shown to be living with her.92. The accused, an agriculturist,
assaulted his sister's husband with a knife giving a blow in his abdomen resulting in
death. The accused was convicted and sentenced to imprisonment for life under
section 302. However, on overall appraisal of material on record and the accused
having no criminal antecedents, his conviction under section 302 was set aside and he

was convicted under section 304 and directed to undergo 10 years' R.I. But on special
facts of the case an option was given to the accused to pay a ﬁne of Rs. 40,000 in all
and in default to undergo R.I. for seven years and, if the ﬁne was paid within 12 weeks,
jail sentence was to be reduced to three years' R.I. Out of the ﬁne, if paid, Rs. 10,000
were to be given to the mother of the deceased and Rs. 30,000 utilised for the beneﬁt
of the three minor children of the deceased in sum of Rs. 10,000 each.93. Where the
accused caused a serious injury in the abdomen of a man and was convicted under
section 307 but considering that he had a widowed mother and two children and was
willing to compensate the victim substantially, sentence imposed upon him was
modiﬁed into one of ﬁne in the way of compensation of Rs. One lakh.94. Where in a
case under section 304, Part II the accused remained in custody for over a year after
conviction by the High Court and also for sometime during investigation, the Apex

Court reduced the sentence to the period already undergone but imposed a ﬁne of Rs.
20,000 payable to the widow of the deceased as compensation.95.
[s 53.16] Reform and rehabilitation.—
Where the accused caused several incised injuries to a man, he was convicted under
section 326 but as there was no previous enmity between the accused and the injured
person and it was the ﬁrst offence committed by him, besides 14 years had lapsed
since the commission of the offence, he was given an opportunity to reform and
rehabilitate in society and his sentence was reduced to the period already
undergone.96. Where the accused convicted under section 302 was only 15 years old at
the time of offence and at the time of appeal he was over 30, he could not be sent to
approved school or jail. His conviction was upheld but the sentence was quashed.97.

[s 53.17] Separate trial for child offender.—
One of the members of an unlawful assembly was of 13 years at the time of the
incident. His trial was conducted along with other members who were not children.
This was held to be illegal. The plea of child offender was not raised before the trial
court or the High Court. The Supreme Court, therefore, conﬁrmed the conviction but set
aside the sentence imposed on him.98.
[s 53.18] Cases of no leniency.—
In a multiple murder case, it was argued that the accused had donated to the social
organisations and that he was not a hardened criminal and not a menace to the society
and at any rate by wiping him out the crime cannot be wiped out. The Supreme Court
observed that the accused was involved in "organised criminal activity" and he had

acquired social status through crime. The accused had no regard for the value of
human life. It was held that there were no mitigating circumstances. The main cause of
his conviction was illicit arrack business and brothel. The fact that for this reason he
became the victim of police cruelty was also considered to be not a mitigating
circumstance.99. In a double murder case, the accused was awarded death sentence
but the execution was postponed. It was held that pain, agony and horror suffered by
the prisoner after he was informed about execution was no ground for substituting
death sentence.100. Where the accused constructed a water tank which collapsed due
to use of low quality material resulting in the death of several persons and the accused
was sentenced to the maximum of two years of R.I. provided under section 304A, it

was held that the sentence could not be reduced merely because the matter was more
than seven years old and that it would also be a grave injustice to the victims of the
crime.101. Where the accused formed an unlawful assembly with the common object of
killing three members of a family and one of the accused killed all the three on the spot
one after the other in few minutes while others caught hold of the victims, the sentence
of life imprisonment awarded to them under sections 302/149 was conﬁrmed but the
High Court observed that it was a ﬁt case to award the maximum penalty of death
sentence as the accused had acted like a butcher in a slaughter house.102. Where the
accused were convicted under section 328 r/w. section 34 for robbing a simple
innocent lady of 50 years by administering a stupefying drug through sugarcane juice,
the Court refused to take a lenient view and reduce the sentence.103. Where the
accused committed a high-handed and broad daylight robbery on a public road, the

Court declined to take a lenient view.104. Voluntary intoxication by itself neither
absolves the offender of the consequences of his act nor does it makes him liable for
lesser offence.105. The mere fact that the accused inﬂicted a single injury resulting in
death is not suﬃcient in itself to convert the offence from one under sections 300–304,
Part II.106. When the victim has sustained a grievous injury on a vital portion of the
body and the injury is life-threatening imposition of sentence of six days only which
was the period already undergone by the accused in conﬁnement is too lenient.
However, as the parties have forgotten their differences and are living peacefully since
25 years, the Court taking into consideration the aggravating as well as mitigating
factors under the facts of this case, imposed a sentence of six months' R.I. and a ﬁne

of Rs. 25,000/- against the accused.107.
[s 53.19] No leniency—Offences against women.—
Where the accused committed rape on a woman and killed her and it was found that he
had behaved like an animal, it was held that it was not a ﬁt case for showing
leniency.108. Where in a case of bride burning, the mother-in-law of the victim was
sentenced to life imprisonment, the Supreme Court refused to show any leniency on
the ground that the accused mother-in-law had remained in jail for more than a decade.
The Court observed that it would be a travesty of justice if sympathy was shown when
a cruel act like bride burning is committed. It is rather strange that the mother-in-law
who herself is a woman should resort to killing another woman. Undue sympathy
would be harmful to the cause of justice.109. Where the accused himself killed his wife

by burning and made his two children motherless, no lenient view could be taken on the
ground that he had two children.110.
[s 53.20] Enhancement of sentence.—
Where in a group clash due to old enmity, the accused killed ten persons of a
community indiscriminately within a span of two hours and accused took the leading
part, sentence of life imprisonment imposed upon him was enhanced to death penalty
in the facts and circumstances of the case but life imprisonment awarded to the co-
accused under sections 302/149 was conﬁrmed.111.
[s 53.21] Guidelines for sentencing policy.—

Currently, India does not have a structured sentencing guidelines that have been issued
either by the legislature or the judiciary. However, the Courts have framed certain
guidelines in the matter of imposition of sentence. The Courts will have to take into
account certain principles while exercising their wide discretion in sentencing, such as
commensurate punishment for the offender.112. Justice demands that Courts should
impose punishment beﬁtting the crime so that the Courts reﬂect public abhorrence of
the crime.113. Law regulates social interests, arbitrates conﬂicting claims and demand.
Undoubtedly, there is a cross-cultural conﬂict where living law must ﬁnd answer to the
new challenges and the Courts are required to mould the sentencing system to meet
the challenges.114.

The principle governing the imposition of punishment will depend upon the facts and
circumstances of each case. However, the sentence should be appropriate, adequate,
just, proportionate and commensurate with the nature and gravity of the crime and the
manner in which the crime is committed. The gravity of the crime, motive for the crime,
nature of the crime and all other attending circumstances have to be borne in mind
while imposing the sentence.115. An offence, which affects the morale of the society,
should be severely dealt with. Socio-economic status, religion, race, caste or creed of
the accused and the victim although may not be wholly irrelevant, should be eschewed
in a case of this nature (abduction and rape of minor), particularly when Parliament
itself has laid down minimum sentence.

One of the principles that the judiciary had all along kept in its mind that rape being a
violation with violence of the private person of a woman causes mental scar, thus, not
only a physical injury but also a deep sense of some deathless shame is also
inﬂicted.116.
The Court cannot afford to be casual while imposing the sentence, inasmuch as both
the crime and the criminal are equally important in the sentencing process. The Courts
must see that the public does not lose conﬁdence in the judicial system. Imposing
inadequate sentences will do more harm to the justice system and may lead to a state
where the victim loses conﬁdence in the judicial system and resorts to private
vengeance.117.
6. Whipping.—This form of punishment is now abolished.
7. Detention in reformatories.—Juvenile offenders sentenced to imprisonment may be

sentenced to, and detained in, a Reformatory School for a period of three–seven
years.118.
[s 53.22] Detention during trial.—
Every conﬁnement of a person and every restraint of the liberty of a free man is
imprisonment. Thus, "imprisonment" would include under trial detention. "Under trial
detention of a prisoner is undoubtedly an imprisonment."119.
[s 53.23] Postponement of sentence.—
Where all the members of the family of the deceased were convicted and nobody was
left to take care of his daughter, the Court upheld the sentence of the daughter's

1.  Subs. by Act 26 of 1955, section 117 and Sch, for "Secondly—Transportation" (w.e.f. 1-1-
1956).
2.  Clause "Thirdly" omitted by Act 17 of 1949, section 2 (w.e.f. 6-4-1949).
grandmother but granted her six months' time to arrange for the daughter and then to
surrender to serve the sentence.120.
[s 53.24] Community Service for Avoiding Jail Sentence.—
Convicts in various countries, now, voluntarily come forward to serve the community,
especially in crimes relating to motor vehicles. Graver the crime greater the sentence.
But, serving the society actually is not a punishment in the real sense where the
convicts pay back to the community which he owes. Conduct of the convicts will not
only be appreciated by the community, it will also give a lot of solace to him, especially
in a case where because of one's action and inaction, human lives have been lost. In
the facts and circumstances of the case, where six human lives were lost, Court felt to

adopt this method would be good for the society rather than incarcerating the convict
further in jail. The Court ordered to do community service for two years, which will be
arranged by the Ministry of Social Justice and Empowerment within two months. On
default, the convict will have to undergo simple imprisonment for two years.121.
[s 53.25] Probation.—
Probation of Offenders Act, 1958 ('PO Act') is a milestone in the progress of the
modern liberal trend of reform in the ﬁeld of penology. It is the result of the recognition
of the doctrine that the object of the criminal law is more to reform the individual
offender than to punish him. Broadly stated that the PO Act distinguishes offenders
below 21 years of age and those above that age, and offenders who are not guilty of

having committed an offence punishable with death or that imprisonment for life and
those who are guilty of a lesser offence. While in the case of offenders who are above
the age of 21 years absolute discretion is given to the Court to release them after
admonition or on probation of good conduct, subject to the conditions laid down in the
appropriate provisions of the PO Act. In case of offender below the age of 21 years, an
injunction is issued to the Court not to sentence them to imprisonment unless it is
satisﬁed that, having regard to the circumstances of the case, including the nature of
the offence and the character of the offenders, it is not desirable to deal with them
under sections 3 and 4 of the PO Act.122. The PO Act introduced a very basic change in

the criminal law of the country. At the same time, Courts were also to be careful about
the impact on the society consequent on letting offenders on probation. Indiscriminate
application of provisions of the PO Act to anti-social and white collar offenders may
have an adverse effect on the security of the society. Application of the PO Act is
speciﬁcally barred in some cases.123. Provisions of the PO Act should be applied
having regard to the nature of offence and age, character and antecedents of the
offender.124.

3.  Shivaji v State of Maharashtra, 1973 Cr LJ 1783 : AIR 1973 SC 2622 [LNIND 1973 SC 249] .
4.  Inder Singh v State, AIR 1978 SC 1091 : 1978 Cr LJ 766 (SC), see also Ram Prasad, 1980 Cr LJ
10 : AIR 1980 SC 83 [LNIND 1979 SC 404] ; Ashok Kumar, 1980 Cr LJ 444 : AIR 1980 SC 636
[LNIND 1980 SC 36] .
5.  Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 : (2012) 2 SCC 648 [LNIND
2012 SC 15] : (2012) 1 SCC (Cr) 953 : AIR 2012 SC 3802 [LNIND 2012 SC 15] .
6.  State of Punjab v Bawa Singh, 2015 Cr LJ 1701 .
7.  UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND
2003 SC 1056] ; State of MP v Ghanshyan Singh, JT 2003 (Supp.1 ) SC 129 : 2003 (8) SCC 13
[LNIND 2003 SC 772] ; Jashubha Bharatsinh Gohil v State of Gujarat, JT 1994 (3) SC 250 [LNIND
1994 SC 415] : 1994 (4) SCC 353 [LNIND 1994 SC 415] .
8.  BG Goswami v Delhi Administration, 1974 (3) SCC 85 [LNIND 1973 SC 194] : AIR 1973 SC
1457 [LNIND 1973 SC 194] : 1973 SCC (Cr) 796 1974 Cr LJ 243 .

9.  TK Gopal alias Gopi v State of Karnataka, AIR 2000 SC 1669 [LNIND 2000 SC 826] : (2000) 6
SCC 168 [LNIND 2000 SC 826] : JT 2000 (6) SC 177 [LNIND 2000 SC 826] : 2000 Cr LJ 2286 :
Sunil Batra (I) v Delhi Administration, AIR 1978 SC 1675 [LNIND 1978 SC 215] : (1978) 4 SCC 494
[LNIND 1978 SC 215] : 1979 (1) SCR 392 [LNIND 1978 SC 215] : ( 1978 Cr LJ 1741 ); Sunil Batra
(II) v Delhi Administration, AIR 1980 SC 1579 : (1980) 3 SCC 488 [LNIND 1978 SC 215] : 1980 (2)
SCR 557 [LNIND 1978 SC 215] : ( 1980 Cr LJ 1099 ); Charles Sobraj v Superintendent, Central Jail,
Tihar, AIR 1978 SC 1514 [LNIND 1978 SC 218] : ( 1978 Cr LJ 1534 ) and Francis Coralie Mullin v
The Administrator, Union Territory of Delhi, (1981) 1 SCC 608 [LNIND 1981 SC 27] : AIR 1981 SC
746 [LNIND 1981 SC 27] : 1981 (2) SCR 516 [LNIND 1981 SC 27] : ( 1981 Cr LJ 306 ) etc.

10.  Karamjit Singh v State, AIR 2000 SC 3467 [LNIND 2000 SC 707] : (2001) 9 SCC 161 [LNIND
2000 SC 707] .
11.  Dhannajoy Chatterjee v State of WB, (1994) (2) SCC 220 [LNIND 1994 SC 34] : 1994 (3) RCR
(Cr) 359 (SC).
12.  Attorney General of India v Lachma Devi, 1986 Cr LJ 364 : AIR 1986 SC 467 .
13.  Murray and Co v Ashok Kr Newatia, AIR 2000 SC 833 [LNIND 2000 SC 159] : (2000) 2 SCC
367 [LNIND 2000 SC 159] .
14.  Karamjit Singh v State, AIR 2000 SC 3467 [LNIND 2000 SC 707] : (2001) 9 SCC 161 [LNIND
15.  Mohammad Giasuddin v State of AP, (1977) 3 SCC 287 [LNIND 1977 SC 211] : AIR 1977 SC
1926 [LNIND 1977 SC 211] .
16.  State of Gujarat v Hon'ble High Court of Gujarat, (1998) 7 SCC 392 [LNIND 1998 SC 920] : AIR
1998 SC 3164 [LNIND 1998 SC 920] : JT 1998 (6) SC 530 : 1998 Cr LJ 4561 .

17.  Gurdeep Singh alias Deep v State, AIR 1999 SC 3646 [LNIND 1999 SC 837] : (2000) 1 SCC
498 [LNIND 1999 SC 837] : JT 1999 (7) SC 191 [LNIND 1999 SC 837] : 1999 Cr LJ 4573 .
18.  State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC 459]
: 2012 Cr LJ 4174 : AIR 2012 SC 3104 [LNIND 2012 SC 459] .
19.  UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND
2003 SC 1056] .
20.  Sahdev v Jaibar, (2009) 11 SCC 798 [LNIND 2009 SC 476] : (2010) 1 SCC (Cr) 215.
21.  State of Karnataka v Krishnappa, 2000 Cr LJ 1793 : AIR 2000 SC 147 .
22.  Mahesh v State of MP, AIR 1987 SC 1346 ; State of Punjab v Rakesh Kumar, AIR 2009 SC 391
[LNIND 2008 SC 1729] .
23.  Gurdeep Singh alias Deep v State, AIR 1999 SC 3646 [LNIND 1999 SC 837] : (2000) 1 SCC

24.  Mohd Arif v The Registrar, Supreme Court of India, 2014 Cr LJ 4598 .
25.  State of HP v Nirmala Devi, AIR 2017 SC 1981 [LNIND 2017 SC 189] .
26.  State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .
27.  Alister Anthony Pareira v State of Maharashtra, AIR 2012 SC 3802 [LNIND 2012 SC 15] :
(2012) 2 SCC 648 [LNIND 2012 SC 15] : (2012) 1 SCC (Cr) 953 : 2012 Cr LJ 1160 .
28.  State of HP v Nirmala Devi, AIR 2017 SC 1981 [LNIND 2017 SC 189] .
29.  Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 : (2012) 2 SCC 648 [LNIND
30.  Sahdev v Jaibar, (2009) 11 SCC 798 [LNIND 2009 SC 476] : (2010) 1 SCC (Cr) 215.
31.  Sahdev v Jaibar, (2009) 11 SCC 798 [LNIND 2009 SC 476] : (2010) 1 SCC (Cr) 215.
32.  Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 : (2012) 2 SCC 648 [LNIND

33.  State of MP v Saleem alias Chamaru, 2005 (5) SCC 554 [LNIND 2005 SC 1070] 61.
34.  C Muniappan v State of TN, (2010) 9 SCC 567 [LNIND 2010 SC 809] : AIR 2010 SC 3718
[LNIND 2010 SC 809] : (2010) 10 SCR 262 [LNIND 2010 SC 809] : (2010) 3 SCC (Cr) 1402.
35.  Dinesh v State of Rajasthan, 2006 (3) SCC 771 [LNIND 2006 SC 151] : AIR 2006 SCW 1123 :
AIR 2006 SC 1267 [LNIND 2006 SC 151] .
36.  Gurmukh Singh v State of Haryana, JT 2009 (11) SC 122 : 2009 (11) Scale 688 [LNIND 2009
SC 1725] .
37.  Jameel v State of UP, 2010 Cr LJ 2106 : (2010) 12 SCC 532 [LNIND 2009 SC 1960] : AIR
2010 SC (Supp) 303 : (2011) 1 SCC (Cr) 582.
38.  UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND
2003 SC 1056] . Meaning of Judicial discretion explained.
39.  State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .

40.  State of HP v Nirmala Devi, AIR 2017 SC 1981 [LNIND 2017 SC 189] .
41.  State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .
42.  State v Narayan Bisoi, 1975 Cr LJ 1399 (Ori).
43.  Javed Ahmed, 1983 Cr LJ 960 : AIR 1983 SC 594 [LNIND 1983 SC 119] : (1983) 3 SCC 39
[LNIND 1983 SC 119] : 1983 SCC (Cr) 559; see also Henry Westmuller, 1985 Cr LJ 1079 : AIR
1985 SC 823 [LNIND 1985 SC 105] : (1985) 3 SCC 291 [LNIND 1985 SC 105] ; Lok Pal Singh,
1985 Cr LJ 1134 (SC) : AIR 1985 SC 823 [LNIND 1985 SC 105] .
44.  Munnalal, 1977 Cr LJ NOC 108 (MP).
45.  Gauri Shanker Sharma v State of UP, AIR 1990 SC 709 [LNIND 1990 SC 8] : 1990 (2) SCC 502
[LNIND 1990 SC 100] , the acquittal granted by the High Court was set aside and the sentence of
7-year RI restored.
46.  State v Balkrishna, 1992 Cr LJ 1872 (Mad).
47.  State of UP v MK Anthony, 1985 Cr LJ 493 : AIR 1985 SC 48 . For an account of the

perplexities of criminal justice, see S Venugopal Rao, Perplexities of Criminal Justice, (1985) 27
JILI 458. See also Pandurang Dhondu Bhuwad v State of Maharashtra, 1991 Cr LJ 3177 Bom,
domestic servants committing day-light robberty in an apartment resulting in the death of an
inmate, life imprisonment, no concession for young age or poverty.
48.  Guvala China Venkatesu v State of AP, AIR 1991 SC 1926 : 1991 Cr LJ 2326 .
49.  Sevaka Perumal v State of TN, AIR 1991 SC 1463 [LNIND 1991 SC 269] : 1991 Cr LJ 1845 .
50.  State of Rajasthan v Sukhpal Singh, (1983) 1 SCC 393 [LNIND 1982 SC 206] : 1983 SCC (Cr)
213 : AIR 1984 SC 207 [LNIND 1982 SC 206] ; Philip Bhimsen Aind v State, (1995) Cr LJ 1694
(Bom).
51.  Babarali Ahmedali Sayed v State of Gujarat, 1991 Cr LJ 1269 Guj.

52.  TM Joseph v State of Kerala, AIR 1992 SC 1922 : 1992 Cr LJ 3166 . The court referred to its
own decision in BC Goswami v Delhi Administration, AIR 1973 SC 1457 [LNIND 1973 SC 194] :
1974 Cr LJ 243 .
53.  Ajit Kumar Vasantlal Zaveri v State of Gujarat, AIR 1992 SC 2064 : 1992 Cr LJ 3593 .
54.  Gurmukh Singh v State of Haryana, 2010 Cr LJ 450 : AIR 2009 SC 2697 [LNIND 2009 SC 847]
.
55.  State of MP v Sheikh Shahid, AIR 2009 SC 2951 [LNIND 2009 SC 867] : (2009) 12 SCC 715
[LNIND 2009 SC 867] : (2010) 1 SCC (Cr) 704.
56.  UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND
57.  Jitendra v State of Govt of NCT of Delhi, AIR 2018 SC 5253 [LNIND 2018 SC 537] .
58.  Bachan Singh v State of Punjab, 1980 Cr LJ 636 : AIR 1980 SC 898 [LNIND 1980 SC 260] .
The minimum sentence awardable under section 302 being life imprisonment, it has been held
that the sentence cannot be reduced. Dori v State of UP, 1991 Cr LJ 3139 (All); Dadasaheb Misal

v State of Maharashtra, 1987 Cr LJ 1512 (Bom). See Triveniben v State of Gujarat, 1990 Cr LJ 273
(Guj); Sham Sunder v Puran, (1990) 4 SCC 731 [LNIND 1990 SC 994] : 1991 SCC (Cr) 38 : 1990 Cr
LJ 2600 ; Kannan v State of TN, 1989 Cr LJ 825 : AIR 1989 SC 396 [LNIND 1982 SC 73] : 1989
Supp (1) SCC 81 .
59.  Laxman Naskar v State of WB, 2000 Cr LJ 4017 : AIR 2000 SC 2762 [LNIND 2000 SC 1180] .
60.  State of Gujarat v Hon'ble High Court of Gujarat, 1998 Cr LJ 4561 : AIR 1998 SC 3164 [LNIND
1998 SC 920] .
61.  For an example of early release see Iqbal Singh v State of Punjab, 1990 Cr LJ 1460 .
62.  Act No. 13 of 2013 w.e.f 2 April 2013.
63.  Mohd Arif v The Registrar, Supreme Court of India, 2014 Cr LJ 4598 : (2014) 9 SCC 737
[LNIND 2014 SC 769] .

64.  R S Joshi v Ajit Mills, AIR 1977 SC 2279 [LNIND 1977 SC 260] : 1977 SCC (Tax) 536 : (1978)
1 SCJ 239 .
65.  State of Maharashtra v Chandra Prakash Keshavdeo, 1991 Cr LJ 3187 (Bom).
66.  Kapoor Lal v State of UP, 1991 Cr LJ 2159 (All).
67.  Rajbir v State of Haryana, 1985 Cr LJ 1495 : 1985 Guj LH 117 : AIR 1985 SC 1278 . Referred
to in Dhansukh Chhotalal Joshi v State of Gujarat, 1990 Cr LJ 2333 to reduce the sentence of a
19 year- old boy convicted under section 304-II to that already undergone who was a member of
a party which caused death without any intention to do so.
68.  State of Gujarat v Hon'ble High Court of Gujarat, (1998) 7 SCC 392 [LNIND 1998 SC 920] : AIR
1998 SC 3164 [LNIND 1998 SC 920] See the box.
69.  Phool Kumari v Oﬃce of the Superintendent Central Jail, Tihar New Delhi, (2012) 8 SCC 183

[LNINDORD 2012 SC 410] : 2012 Cr LJ 4261 : AIR 2012 SC 3198 [LNINDORD 2012 SC 410] .
70.  Constitution Bench in GV Godse v State, AIR 1961 SC 600 [LNIND 1961 SC 11] and Naib
Singh v State of Punjab, AIR 1983 SC 855 [LNIND 1983 SC 116] .
71.  State of Gujarat v Hon'ble High Court of Gujarat, (1998) 7 SCC 392 [LNIND 1998 SC 920] : AIR
72.  Bhuvan Mohan Patnaik v State of AP, (1975) 3 SCC 185 [LNIND 1974 SC 269] : AIR 1974 SC
2092 [LNIND 1974 SC 269] .
73.  State of Maharashtra v Jethmat Himatmal Jain, 1994 Cr LJ 2613 (Bom).
74.  Chanda Lal v State of Rajasthan, AIR 1992 SC 597 : 1992 Cr LJ 523 .
75.  Ramanlal Baldevdas Shah v State of Gujarat, 1992 Cr LJ 3164 : AIR 1992 SC 1916 . See also
State of Karnataka v Bhojappa Hanamanthappa, 1994 Cr LJ 1543 .

76.  Sushil Kumar Sanghi v State, 1995 Cr LJ 3457 (Del).
77.  Babloo v State of MP, 1995 Cr LJ 3534 (MP). Jaya Mala v Home Secy, Govt of J&K, AIR 1982
SC 1297 [LNIND 1982 SC 109] : 1982 Cr LR (SC) 441 relied upon.
78.  Pratapsingh Rathod v State of Maharashtra, 1996 Cr LJ 790 (Bom). Incident of causing stab
wound taking place 24 years back and the injury being of simple nature, the sentence was
reduced into one already undergone, Pritam Singh v State, 1996 Cr LJ 7 (Del).
79.  Rasananda Bindhani v State of Orissa, 1992 Cr LJ 121 (Ori).
80.  BY Deshmukh v State of Maharashtra, 1996 Cr LJ 1108 (Bom), relying on in Re Vadivel
Padayachi, 1972 Cr LJ 1641 (Mad).
81.  Panchu Parida v State of Orissa, 1993 Cr LJ 953 (Ori). The court referred to Ippili Trinadha
Rao v State of AP, 1984 Cr LJ 1254 .
82.  State of Orissa v Gangadhar Behuria, 1992 Cr LJ 3814 (Ori).
83.  Dayaram v State of MP, 1992 Cr LJ 3154 (MP).
84.  Madhuri Mukund Chitnis v Mukund Martand Chitnis, 1992 Cr LJ 111 (Bom).

85.  Kashiram v Sonvati, 1992 Cr LJ 760 (MP).
86.  MS Sheshappa v State of Karnataka, 1994 Cr LJ 3372 (Kant).
87.  SC Bahri v State of Bihar, AIR 1994 SC 2020 : 1994 Cr LJ 3271 .
88.  State v Banwari Lal, 1996 Cr LJ 1078 (Raj).
89.  Manish Jalan v State of Karnataka, JT 2008 (7) SC 643 [LNIND 2008 SC 1396] .
90.  Dilip S Dahanukar v Kotak Mahindra Co Ltd, ((2007) 6 SCC 528 [LNIND 2007 SC 451] 65) See
also Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 : (2012) 2 SCC 648 [LNIND
91.  State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC 459]
92.  Akhil Kumar v State of MP, 1992 Cr LJ 2029 (MP).

93.  Madhukar Chandar v State of Maharashtra, 1993 Cr LJ 3281 (Bom).
94.  Joshi v State of Kerala, 1996 Cr LJ 143 (Ker).
95.  Sarup Singh v State of Haryana, AIR 1995 SC 2452 : 1995 Cr LJ 4168 .
96.  Raja Ram v State of Rajasthan, 1993 Cr LJ 1016 (Raj).
97.  Lal Diwan v State of UP, 1995 Cr LJ 3899 (All).
98.  Umesh Singh v State of Bihar, AIR 2000 SC 2111 [LNIND 2000 SC 871] : 2000 Cr LJ 6167 .
99.  Shankar v State of TN, (1994) 4 SCC 478 [LNIND 1994 SC 377] : 1994 Cr LJ 3071 .
100.  Sharomani Akali Dal (Mann) v State of JK, 1993 Cr LJ 927 (J&K).
101.  Bhimabhai Kalabhai v State of Gujarat, 1992 Cr LJ 2585 (Guj).
102.  Arjunan v State, 1993 Cr LJ 3113 (Mad).
103.  Madhukar Damu Patil v State of Maharashtra, 1996 Cr LJ 1062 (Bom).
104.  Jaivir Singh v State of UP, 1996 Cr LJ 1494 (All).
105.  Dedekula Khabala Saheb v State of AP, 1996 Cr LJ 2196 (AP).

106.  Gochipathula Samudralu v State of AP, 1992 Cr LJ 2488 (AP).
107.  State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .
108.  Jagat Bahadur v State of HP, 1994 Cr LJ 3396 (HP).
109.  Paniben v State of Gujarat, AIR 1992 SC 1817 [LNIND 1992 SC 248] : 1992 Cr LJ 2919 .
110.  Venkappa K Chowdari v State of Karnataka, 1996 Cr LJ 15 (Kant).
111.  Jodha Khoda Rabari v State of Gujarat, 1992 Cr LJ 3298 (Guj).
112.  State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .
113.  Jameel v State of UP, 2010 Cr LJ 2106 : (2010) 12 SCC 532 [LNIND 2009 SC 1960] : AIR

114.  UOI v Kuldeep Singh, AIR 2004 SC 827 [LNIND 2003 SC 1056] : (2004) 2 SCC 590 [LNIND
115.  State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .
116.  State of MP v Babu Natt, (2009) 2 SCC 272 [LNIND 2008 SC 2471] : (2009) 1 SCC (Cr) 713 :
AIR 2009 SC 1810 [LNIND 2008 SC 2471] : (2009) 1 Ker LJ 686 : 2009 Cr LJ 1722 .
117.  State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .
118.  Act VIII of 1897, section 8. Where the accused was a child of 14 at the time of the incident
and, therefore, the beneﬁt of being sent to an approved school under the U.P. Children Act (1 of
1952) would have been available to him but he became a man of 28 by the time of the ﬁnal
judgment, and, therefore, not ﬁt for the school, his conviction was sustained and the sentence
reduced to already undergone. Pachrangi v State of UP, 1991 Cr LJ 3232 (All), relying on Bhoop
Ram v State of UP, 1989 All Cr R 276 : 1990 Cr LJ 2671 : AIR 1990 SC 1329 [LNIND 1990 SC 277]
.

.
119.  Prahlad G Gajbhiye v State of Maharashtra, (1994) 2 Cr LJ 2555 at p 2561 (Bom).
120.  Harkori v State of Rajasthan, 1998 Cr LJ 814 : AIR 1998 SC 2821 [LNIND 1997 SC 1368] .
121.  State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC
459] : 2012 Cr LJ 4174 : AIR 2012 SC 3104 .
122.  Rattan Lal v State of Punjab, AIR 1965 SC 444 [LNIND 1964 SC 135] : 1964 (7) SCR 676
[LNIND 1964 SC 135] : 1965 (1) Cr LJ 360 ; DalbirSingh v State of Haryana, AIR 2000 SC 1677
[LNIND 2000 SC 810] : 2000 (5) SCC 82 [LNIND 2000 SC 810] : 2000 Cr LJ 2283 .
123.  Nalinakshan v Rameshan, 2009 Cr LJ 1703 (Ker).
124.  MCD v State of Delhi, 2005 (4) SCC 605 [LNIND 2005 SC 445] : AIR 2005 SC 2658 [LNIND
2005 SC 445] : 2005 SCC (Cr) 1322 : 2005 Cr LJ3077; Sitaram Paswan v State of Bihar, 2005 (13)

SCC 110 [LNIND 2005 SC 703] : AIR 2005 SC 3534 [LNIND 2005 SC 703] : 2005 Cr LJ 4135 .

125.[[s 53A] Construction of reference to transportation.
(1) Subject to the provisions of sub-section (2) and sub-section (3), any reference
to "transportation for life" in any other law for the time being in force or in any
instrument or order having effect by virtue of any such law or of any enactment
repealed shall be construed as a reference to "imprisonment for life".
(2) In every case in which a sentence of transportation for a term has been passed
before the commencement of the Code of Criminal Procedure (Amendment)
Act, 126.[1955] (26 of 1955), the offender shall be dealt with in the same
manner as if sentenced to rigorous imprisonment for the same term.
(3) Any reference to transportation for a term or to transportation for any shorter
term (by whatever name called) in any other law for the time being in force
shall be deemed to have been omitted.
(4) Any reference to "transportation" in any other law for the time being in force
shall,—

shall,—
(a) if the expression means transportation for life, be construed as a
reference to imprisonment for life;
(a) if the expression means transportation for any shorter term, be deemed
to have been omitted.]
125.  Ins. by Act 26 of 1955, section 117 and Sch. (w.e.f. 1-1-1956).
126.  Subs. by Act 36 of 1957, section 3 and Sch. II, for "1954" (w.e.f. 17-9-1957).
COMMENT—
This section has been inserted by Act XXVI of 1955. It deals with a sentence of
transportation wherever it occurs in a statute. After this amendment of the Code
'transportation' as a sentence has been done away with as a punishment.

[s 54] Commutation of sentence of death.
In every case in which sentence of death shall have been passed, 127.[the appropriate
Government] may, without the consent of the offender, commute the punishment for
any other punishment provided by this Code.
COMMENT—
The law governing suspension, remission and commutation of sentence is both
statutory and constitutional.128. The stage for the exercise of this power generally
speaking is post-judicial, i.e., after the judicial process has come to an end. After the
judicial function ends, the executive function of giving effect to the judicial verdict
commences. Constitutional power under Article 72/161 would override the statutory
power contained in sections 432 and 433 and the limitation of section 433A of the
Code as well as the power conferred by sections 54 and 55, IPC, 1860.129. No convict
has a fundamental right of remission or shortening of sentence. The State in exercise

of its executive power of remission must consider each individual case keeping in view
the relevant factors. The power of the State to issue general instructions, so that no
discrimination is made, is also permissible in law.130. Exercise of executive clemency is
a matter of discretion and yet subject to certain standards. It is not a matter of
privilege.131. A right to be considered for remission, keeping in view the constitutional
safeguards of a convict under Articles 20 and 21 of the Constitution of India, must be
held to be a legal one. Such a legal right emanates from not only the Prisons Act but
also from the Rules framed thereunder.132. The power of remission vested in the
Government under section 433A Code of Criminal Procedure, 1973 (Cr PC, 1973) is not

in conﬂict with Articles 72 and 162 of the Constitution.133. Granting of pardon is in no
sense an overturning of a judgment of conviction, but rather it is an executive action
that mitigates or sets aside the punishment for a crime. It eliminates the effect of
conviction without addressing the defendant's guilt or innocence.134. It is open to the
President in the exercise of the power vested in him by Article 72 of the Constitution to
scrutinize the evidence on the record of the criminal case and come to a different
conclusion from that recorded by the Court in regard to the guilt of, and sentence
imposed on, the accused.135.
[s 54.1] Delay in Execution whether entitle commutation of Death sentence to
Life Imprisonment.—
In TV Vatheeswaran's case, AIR 1983 SC 361 [LNIND 1983 SC 43] : 1983 SCR (2) 348136.

a two-Judge Bench of SC considered whether the accused, who was convicted for an
offence of murder and sentenced to death, kept in solitary conﬁnement for about eight
years was entitled to commutation of death sentence. It was held that delay exceeding
two years in the execution of a sentence of death should be considered suﬃcient to
entitle the person under sentence of death to invoke Article 21 and demand the
quashing of the sentence of death.137. But a three-Judge in Sher Singh v State of
Punjab,138. held that though prolonged delay in the execution of a death sentence is

unquestionably an important consideration for determining whether the sentence
should be allowed to be commuted, no hard and fast rule that "delay exceeding two
years in the execution of a sentence of death should be considered suﬃcient to entitle
the person under sentence of death to invoke Article 21 and demand the quashing of
the sentence of death" can be laid down as has been done in Vatheeswaran Javed
Ahmed v State of Maharashtra,139. re-iterated the proposition laid down in Vatheeswaran
(supra) case and doubted the competence of the three-Judge Bench to overrule the
Vatheeswaran Case. The conﬂicting views are ﬁnally settled by the Constitution Bench
in Triveni Ben v State of Gujarat.140. It overruled Vatheeswaran (supra) holding that
undue long delay in execution of the sentence of death will entitle the condemned
person to approach this Court under Article 32 but the Court will only examine the
nature of delay caused and circumstances that ensued after sentence was ﬁnally

conﬁrmed by the judicial process and will have no jurisdiction to reopen the
conclusions reached by the Court while ﬁnally maintaining the sentence of death.
Court, however, may consider the question of inordinate delay in the light of all
circumstances of the case to decide whether the execution of sentence should be
carried out or should be altered into imprisonment for life. No ﬁxed period of delay
could be held to make the sentence of death inexecutable and to this extent the
decision in Vatheeswaran case cannot be said to lay down the correct law. In Madhu
Mehta v UOI,141.,142. Supreme Court commuted the death sentence on the ground that
the mercy petition was pending for eight years after disposal of the criminal appeal by
Supreme Court.
[s 54.1.1] Devender Singh Bhullar and Mahendra Das.—

In Devender Pal Singh Bhullar v State of NCT of Delhi,143. the convict appealed to the
President for clemency in 2003. The President, after a lapse of over eight years,
dismissed his mercy plea in 2011. Bhullar had sought commutation of his death
penalty to life sentence by the Supreme Court on the ground that there was inordinate
delay by the President over his plea for clemency. A two-Judge Bench144. by order
dated 12 April 2013 dismissed his plea, by holding that the rule enunciated in Sher
Singh's case (supra), Triveniben's case (supra) and some other judgments that long
delay may be one of the grounds for commutation of the sentence of death into life
imprisonment cannot be invoked in cases where a person is convicted for offence
under TADA or similar statutes. Two weeks later in Mahendra Nath Das v UOI,145. the

same Bench held that the convict's death sentence could be commuted to life
imprisonment because much of the inordinate delay of 12 years in the rejection of his
mercy petition by the President was unexplained, and therefore, inexcusable.
[s 54.2] Modiﬁcation of death sentence to a particular period with the further
direction that the convict must not be released from prison for the rest of his
life or before actually serving out the term.—
It was in Swamy Shraddananda (2) v State of Karnataka,146. the three-Judge Bench held
that there is a good and strong basis for the Court to substitute a death sentence by life
imprisonment or by a term in excess of 14 years and further to direct that the convict
must not be released from the prison for the rest of his life or for the actual term as

speciﬁed in the order, as the case may be. But a two-Judge Bench in Sangeet v State of
Haryana147. in which it was held that:
a reading of some recent decisions delivered by this Court seems to suggest that the
remission power of the appropriate Government has effectively been nulliﬁed by awarding
sentences of 20 years, 25 years and in some cases without any remission. Is this
permissible? Can this Court (or any Court for that matter) restrain the appropriate
Government from granting remission of a sentence to a convict? What this Court has done

127.  Subs. by the A.O. 1950, for "the Central Government or the Provincial Government of the
Provincewithin which the offender shall have been sentenced". The words in italics were
in Swamy Shraddananda and several other cases, by giving a sentence in a capital offence
of 20 years or 30 years imprisonment without remission, is to effectively injunct the
appropriate Government from exercising its power of remission for the speciﬁed period. In
our opinion, this issue needs further and greater discussion, but as at present advised, we
are of the opinion that this is not permissible. The appropriate Government cannot be told
that it is prohibited from granting remission of a sentence. Similarly, a convict cannot be
told that he cannot apply for a remission in his sentence, whatever the reason. In this case,
though the Division Bench raised a doubt about the decision of a three-Judge Bench in
Swamy Shraddananda (supra), yet the same has not been referred to a larger Bench.

In Sahib Hussain @ Sahib Jan v State of Rajasthan,148. another two-Judge Bench re-
iterated the position held in Swamy Shraddananda (supra) by holding that the
observations in Sangeet (supra) are not warranted. In Gurvail Singh @ Gala v State of
Punjab,149. another two Judge also termed the remarks in Sangeet (supra) were
'unwarranted' and opined that if the two-Judge Bench was of the opinion that earlier
judgments, even of a larger Bench were not justiﬁed, the Bench ought to have referred
the matter to the larger Bench.
[s 54.3] Cases where the death sentence was modiﬁed to a particular period
(or life) with further direction to avoid premature release
1. Subhash Chander v Krishan Lal 150.
2. Shri Bhagwan v State of Rajasthan 151.
3. Ram Anup Singh v State of Bihar 152.
4. Mohd. Munna v UOI 153.

5. Jayawant Dattatraya Suryarao v State of Maharashtra 154.
6. Nazir Khan v State of Delhi 155.
7. Swamy Shraddananda (2) v State of Karnataka 156.
8. Haru Ghosh v State of WB 157.
9. Ramraj v State of Chattisgarh 158.
10. Neel Kumar @ Anil Kumar v The State of Haryana 159.
11. Sandeep v State of UP 160.
12. Gurvail Singh @ Gala v State of Punjab 161.
13. Brajendra Singh v State of MP 162.
14. State of UP v Sanjay Kumar 163.

substituted by theA.O. 1937, for "the Government of India or the Government of the place".
128.  The Law Commission of India in its 41st report proposed that sections 54, 55 and 55A
may be omittedfrom the IPC and their substance incorporated in Section 402 Criminal
Procedure Code- See State(Govt of NCT of Delhi) v Prem Raj, (2003) 7 SCC 121 [LNIND 2003 SC
632] : JT 2003 (8) SC 17 [LNIND 2003 SC 632] .
129.  Ashok Kumar v UOI, AIR 1991 SC 1792 [LNIND 1990 SC 319] : (1991) 3 SCC 498 [LNIND
1991 SC 288] .
130.  State of Haryana v Mahender Singh, (2007) 13 SCC 606 [LNIND 2007 SC 1295] : 2008 Cr LJ
444 : (2009) 1 SCC (Cr) 221.
131.  Epuru Sudhakar v Govt of AP, (2006) 8 SCC 161 [LNIND 2006 SC 807] : AIR 2006 SC 3385
[LNIND 2006 SC 807] .
132.  State of Mysore v H Srinivasmurthy, (1976) 1 SCC 817 [LNIND 1976 SC 29] : AIR 1976 SC
1104 [LNIND 1976 SC 29] .
133.  Maru Ram v UOI, AIR 1980 SC 2147 [LNIND 1980 SC 446] : 1981 SCR (1)1196.

134.  Devender Pal Singh Bhullar v State of NCT of Delhi, AIR 2013 SC 1975 [LNIND 2013 SC
1281] : (2013) 6 SCC 195 [LNIND 2008 SC 2975] .
135.  Kehar Singh v UOI, AIR 1989 SC 653 [LNIND 1988 SC 586] : (1989) 1 SCC 204 [LNIND 1988
SC 586] .
136.  Overruled in Triveni Ben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989)
1 SCC 678 [LNIND 1989 SC 885] .
137.  In Ediga Annamma's case, (1974 (3) SCR 329), two years was considered suﬃcient to
justifyinterference with the sentence of death. In Bhagwan Baux's case ( AIR 1978 SC 34 ), two
and a halfyears and in Sadhu Singh's case ( AIR 1978 SC 1506 ), three and a half years were
taken as suﬃcientto justify altering the sentence of death into one of imprisonment for life, See
also KP Mohammed vState of Kerala, (1985) 1 SCC (Cr) 142 : 1984 Supp SCC 684.

138.  Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] : (1983) 2 SCC 344
[LNIND 1983 SC 89] .
139.  Javed Ahmed v State of Maharashtra, AIR 1985 SC 231 [LNIND 1984 SC 310] : (1985) 1 SCC
275 [LNIND 1984 SC 310] .
140.  Triveni Ben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678
[LNIND 1989 SC 885] : JT 1989 (1) SC 314 [LNIND 1989 SC 885] : 1990Cr LJ 1810 : (1989) 1
SCC (Cr) 248.
141.  Madhu Mehta v UOI, (1989) 3 SCR 775 [LNIND 1989 SC 390] .
142.  See also Daya Singh v UOI, (1991) 3 SCC 61 [LNIND 1991 SC 231] .
143.  Devender Pal Singh Bhullar v State of NCT of Delhi, AIR 2013 SC 1975 [LNIND 2013 SC
144.  GS Singhvi and S J Mukhopadhaya, JJ.
145.  Mahendra Nath Das v UOI, (2013) 6 SCC 253 [LNIND 2013 SC 522] : 2013 (6) Scale 591

[LNIND 2013 SC 522] .
146.  Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :
AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008Cr LJ 3911; Also see State of UP v Sanjay Kumar,
(2012) 8 SCC 537 [LNINDORD 2012 SC 416] .
147.  Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452
[LNIND 2012 SC 719] : 2013 Cr LJ 425 .
148.  Sahib Hussain @ Sahib Jan v State of Rajasthan, 2013 Cr LJ 2359 : 2013 (6) Scale 219
[LNIND 2013 SC 474] .
149.  Gurvail Singh @ Gala v State of Punjab, 2013 (10) Scale 671 [LNINDORD 2013 SC 1147] .

150.  Subhash Chander v Krishan Lal, (2001) 4 SCC 458 [LNIND 2001 SC 853] .
151.  Shri Bhagwan v State of Rajasthan, (2001) 6 SCC 296 [LNIND 2001 SC 1234] .
152.  Ram Anup Singh v State of Bihar, (2002) 6 SCC 686 [LNIND 2002 SC 482] .
153.  Mohd Munna v UOI, (2005) 7 SCC 417 [LNIND 2005 SC 701] .
154.  Jayawant Dattatraya Suryarao v State of Maharashtra, (2001) 10 SCC 109 [LNIND 2001 SC
2510] .
155.  Nazir Khan v State of Delhi, (2003) 8 SCC 461 [LNIND 2003 SC 696] .
156.  Swamy Shraddananda (2) v State of Karnataka, AIR 2008 SC 3040 [LNIND 2008 SC 1488] :
2008 (13) SCC 767 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 .
157.  Haru Ghosh v State of WB, (2009) 15 SCC 551 [LNIND 2009 SC 1734] .
158.  Ramraj v State of Chattisgarh, (2010) 1 SCC 573 [LNIND 2009 SC 2093] .
159.  Neel Kumar @ Anil Kumar v The State of Haryana, (2012) 5 SCC 766 [LNIND 2012 SC 298] .
160.  Sandeep v State of UP, (2012) 6 SCC 107 [LNIND 2012 SC 306] .
161.  Gurvail Singh @ Gala v State of Punjab, (2013) 2 SCC 713 [LNIND 2013 SC 94] .

162.  Brajendra Singh v State of MP, (2012) 4 SCC 289 [LNIND 2012 SC 159] .
163.  State of UP v Sanjay Kumar, (2013)8 SCC 537 .

[s 55] Commutation of sentence of imprisonment for life.
In every case in which sentence of 164.[imprisonment] for life shall have been passed,
165.[the appropriate Government] may, without the consent of the offender, commute
the punishment for imprisonment of either description for a term not exceeding
fourteen years.
COMMENT—
In the absence of an order under section 55 IPC, 1860 or section 433(b) Cr PC, 1973 a
life convict cannot be released even after expiry of 14 years, for a sentence of life
imprisonment means rigorous imprisonment for the rest of convict's life.166. It is now
conclusively settled by a catena of decisions that the punishment of imprisonment for
life handed down by the Court means a sentence of imprisonment for the convict for
the rest of his life.167. However, Supreme Court has been, for quite some time,
conscious of the liberal approach and sometimes discriminatory too, taken by the

States in exercise of their power under sections 432 and 433 of Cr PC, 1973 in
remitting or commuting sentences. In Jagmohan Singh v State of UP,168. Court had
expressed concern about such approach made by the States in remitting life sentences
that led to the amendment in Cr PC introducing section 433A by Act 45 of 1978. Under
section 433A of Cr PC, 1973 a sentence of imprisonment for life is imposed for an
offence for which death is one of the punishments or where a death sentence is
commuted to life under section 433, he shall not be released unless he has served 14
years of imprisonment.
It appears that the provision has been generally understood to mean that life sentence
would only be 14 years of incarceration. Taking judicial notice of such a trend, the
Supreme Court has, in cases where imposition of death sentence would be too harsh

and imprisonment for life (the way it is understood as above) too inadequate, in several
cases, has adopted different methods to ensure that the minimum term of life
imprisonment ranges from at least 20 years to the end of natural life. However, in some
cases, the Court had also been voicing concern about the statutory basis of such
orders.169. In the case of State of Rajasthan v Jamil Khan,170. the Supreme Court opined
that:
We are of the view that it will do well in case a proper amendment under section 53 of IPC is
provided, introducing one more category of punishment - life imprisonment without
commutation or remission. Dr. VS Malimath, J, in the Report on 'Committee of Reforms of
Criminal Justice System', submitted in 2003, had made such a suggestion but so far no

serious steps have been taken in that regard. There could be a provision for imprisonment
till death without remission or commutation.
[s 55.1] The power of High Court to commute.—
Exercise of power under section 433 is an executive discretion. The High Court in
exercise of its revisional jurisdiction had no power conferred on it to commute the
sentence imposed where a minimum sentence was provided for offence. The mandate
of section 433 Cr PC, 1973 enables the Government in an appropriate case to commute

164.  Subs. by Act 26 of 1955, section 117 and Sch, for transportation (w.e.f. 1-1-1956).
165.  Subs. by the A.O. 1950, for "the Provincial Government of the Province within which the
offender shall have been sentenced". The words in italics were substituted by the A.O. 1937, for
the Government of India or the Government of the place.
166.  Naib Singh v State of Punjab, 1983 Cr LJ 1345 : AIR 1983 SC 855 [LNIND 1983 SC 116] :
1983 Cr LR (SC) 348 : (1983) 2 SCC 454 [LNIND 1983 SC 116] : 1983 SCC (Cr) 536. The
provisions of these sections are subject to the overriding power conferred by Articles 72 and
161 of the Constitution of India. Ashok Kumar v UOI, AIR 1991 SC 1792 [LNIND 1990 SC 319] :
1991 Cr LJ 2483 , where the court also emphasised that imprisonment for life means
imprisonment for the full span of life. Aﬃrming, Gopal Vinayak Godse v State of Maharashtra,
AIR 1961 SC 600 [LNIND 1961 SC 11] : (1961) 3 SCR 440 [LNIND 1961 SC 11] : (1961) 1 Cr LJ

736 . In the absence of an order the section is not applicable because there can be no order by
the sentence of a convict and to prematurely order his release before expiry of the
sentence as imposed by the Courts.171. In State (Govt. of NCT of Delhi) v Prem Raj,172.
Supreme Court was called upon to consider whether in a case involving conviction
under section 7 read with section 13(1)(d) of the Prevention of Corruption Act 1988, the
High Court could commute the sentence of imprisonment on deposit of a speciﬁed
amount by the convict and direct the State Government to pass appropriate order under
section 433(c) Cr PC, 1973. It was held that the question of remission lay within the
domain of the appropriate government and it was not open to the High Court to give a

direction of that kind even if the High Court could give such a direction, it could only
direct consideration of the case of premature release by the Government and could not
have ordered the premature release of the respondent itself. The right to exercise the
power under section 433 Cr PC, 1973 vests in the Government and has to be exercised
by the Government in accordance with the rules and established principles. The
impugned order of the High Court cannot, therefore, be sustained and is hereby set
aside.173.
[s 55.2] Power to commute, when minimum sentence is provided in the
Statute.—
Punishment has a penological purpose. Reformation, retribution, prevention, and
deterrence are some of the major factors in that regard. Parliament is the collective
conscience of the people. If it has mandated a minimum sentence for certain offences,

the Government being its delegate, cannot interfere with the same in exercise of their
power for remission or commutation. Neither section 432 nor section 433 of Cr PC,
1973 hence contains a non-obstante provision. Therefore, the minimum sentence
provided for any offence cannot be and shall not be remitted or commuted by the
Government in exercise of their power under sections 432 or 433 of the Cr PC, 1973.
Wherever the Indian Penal Code or such penal statutes have provided for a minimum
sentence for any offence, to that extent, the power of remission or commutation has to
be read as restricted; otherwise the whole purpose of punishment will be defeated and
it will be a mockery on sentencing.174.

inference or implication, Sat Pal v State of Haryana, AIR 1993 SC 1218 [LNIND 1992 SC 526] :
1993 Cr LJ 314 : (1992) 4 SCC 172 [LNIND 1992 SC 526] .
167.  Gopal Vinayak Godse v The State of Maharashtra, (1961) 3 SCR 440 [LNIND 1961 SC 11]
(Constitution Bench); Dalbir Singh v State of Punjab, (1979) 3 SCC 745 [LNIND 1979 SC 281] ;
Maru Ram v UOI, (1981) 1 SCC 107 [LNIND 1980 SC 446] (Constitution Bench); Naib Singh v
State of Punjab, (1983) 2 SCC 454 [LNIND 1983 SC 116] ; Ashok Kumar alias Golu v UOI, (1991) 3
SCC 498 [LNIND 1991 SC 288] ; Laxman Naskar (Life Convict) v State of WB, (2000) 7 SCC 626
[LNIND 2000 SC 1180] ; Zahid Hussein v State of WB, (2001) 3 SCC 750 [LNIND 2001 SC 692] ;
Kamalanantha v State of TN, (2005) 5 SCC 194 [LNIND 2005 SC 337] ; Mohd Munna v UOI, (2005)
7 SCC 416 [LNIND 2005 SC 701] and CA Pious v State of Kerala, (2007) 8 SCC 312) [LNIND 2007
SC 1070] .
168.  Jagmohan Singh v State of UP, (1973) 1 SCC 20 [LNIND 1972 SC 477] .

SC 1070] .
169.  Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452
170.  State of Rajasthan v Jamil Khan, 2013 (12) Scale 200 [LNIND 2013 SC 883] .
171.  Delhi Administration (Now NCT of Delhi) v Madan Lal, 2002 (6) Supreme 77 [LNIND 2002 SC
533] .
172.  State (Govt of NCT of Delhi) v Prem Raj, (2003) 7 SCC 121 [LNIND 2003 SC 632] .
173.  State of Punjab v Kesar Singh, 1996 (5) SCC 495 [LNIND 1996 SC 1091] .
174.  State of Rajasthan v Jamil Khan, 2013 (12) Scale 200 [LNIND 2013 SC 883] .

175.[[s 55A] Deﬁnition of "appropriate Government".
In sections 54 and 55 the expression "appropriate Government" means,—
(a) in cases where the sentence is a sentence of death or is for an offence against
any law relating to a matter to which the executive power of the Union extends,
the Central Government; and
(b) in cases where the sentence (whether of death or not) is for an offence against
any law relating to a matter to which the executive power of the State extends,
the Government of the State within which the offender is sentenced.]
175.  Subs. by the A.O. 1950, for section 55A. Earlier section 55A was inserted by the A.O. 1937.
176.  GV Ramanaiah v Superintendent of Central Jail, Rajahmundry, AIR 1974 SC 31 [LNIND 1973
SC 300] : (1974) 3 SCC 531 [LNIND 1973 SC 300] ; Hanumant Dass v Vinay Kumar, AIR 1982 SC
1052 : (1982) 2 SCC 177 -the appropriate Government is the Government of the State where the

conviction took place and not the Government of the State where the offence was committed
(Section 432(7) Cr PC).
COMMENT—
This section was substituted for the old section by the Adaptation of Laws Order 1950.
The appropriate Government empowered to remit the sentence of a person convicted
of offences under sections 489-A to 489-D of the IPC, 1860 is the Central Government
not the State Government.176.

[s 56] Sentence of Europeans and Americans to penal servitude. Proviso as to
sentence for term exceeding ten years but not for life.
[Rep. by the Criminal Law (Removal of Racial Discriminations) Act, 1949 (17 of 1949),
sec. 2 (w.e.f. 6-4-1949).]

[s 57] Fractions of terms of punishment.
In calculating fractions of terms of punishment, 177.[imprisonment] for life shall be
reckoned as equivalent to 178.[imprisonment] for twenty years.
COMMENT—
Section 57 of the IPC, 1860 does not in any way limit the punishment of imprisonment
for life to a term of 20 years. Section 57 is only for calculating fractions of terms of
punishment and provides that imprisonment for life shall be reckoned as equivalent to
imprisonment for 20 years. The object and purpose of section 57 will be clear by simply
referring to sections 65, 116, 119, 129 and 511 of the IPC, 1860.179. The accused has
thus no right to be released after a period of 20 years. The remissions granted under
the rules made under the Prison Act or under the Jail Manual are merely administrative
orders of the appropriate Government and fall exclusively within the discretion of the

Government under section 401 (now section 432) Cr PC, 1973. In the case of a prisoner
who is convicted in one State but transferred to the jail of another State to serve out the
sentence, the appropriate Government to grant remission would be the Government of
the State where the accused was convicted and not that of the transferee
Government.180.
[s 57.1] Life imprisonment.—
Life imprisonment means imprisonment for the whole of a convict's natural life. It does
not automatically expire on his serving sentence of 14 years or 20 years, unless, of
course, the sentence is remitted or commuted by the Government in accordance with
the law181. The Court said that life imprisonment means imprisonment for the whole of
the remaining period of the convict's life. The fact that the West Bengal Correctional

Services Act 1992, equates life imprisonment with imprisonment for 20 years does not
entitle the convict to automatic release on expiry of such term of imprisonment
including remission.182.
[s 57.2] Punishment for attempt Under Section 511 when the offence
attempted is punishable with Life imprisonment.—
Section 57 of the IPC, 1860 provides that in calculating fractions of terms of
punishment, imprisonment for life shall be reckoned as equivalent to imprisonment for
20 years. In view of this, for the offence of attempt to commit rape punishable under
section 376(2)(a) read with section 511 maximum sentence would be rigorous
imprisonment for ten years.183.

177.  Subs. by Act 26 of 1955, sec. 117 and Sch., for "transportation" (w.e.f. 1-1-1956).
178.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation" (w.e.f. 1-1-1956).
179.  Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :
AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 .
180.  State of MP v Ratan Singh, 1976 Cr LJ 1192 : AIR 1976 SC 1552 [LNIND 1976 SC 215] ; see
also Naib Singh v State ofPunjab, (1983) 2 SCC 454 [LNIND 1983 SC 116] : AIR 1983 SC 855
[LNIND 1983 SC 116] : 1983 Cr LJ 1345 ; Gopal Vinayak Godse, AIR 1961SC 600 : (1961) 1 Cr LJ
736 : (1961) 63 Bom LR 517 [LNIND 1961 SC 11] SC.
181.  Life Convict, Laxman Naskar v State of WB, AIR 2000 SC 2762 [LNIND 2000 SC 1180] : 2000
Cr LJ 4017 .
182.  See the comments under section 45 and section 55.
183.  Chandrakant Vithal Pawar v State of Maharashtra, 2011 Cr LJ 4900 (Bom); Syed Ghouse
Alias Babu v State of AP, 2009 Cr LJ 311 (AP)(DB).

[s 58] Offenders sentenced to transportation how dealt with until transported.
[Rep. by the Code of Criminal Procedure (Amendment) Act, 1955 (26 of 1955), sec.
117 and Sch. (w.e.f. 1-1-1956).]

[s 59] Transportation instead of imprisonment.

[s 60] Sentence may be (in certain cases of imprisonment) wholly or partly
rigorous or simple.
In every case in which an offender is punishable with imprisonment which may be of
either description, it shall be competent to the Court which sentences such offender
to direct in the sentence that such imprisonment shall be wholly rigorous, or that such
imprisonment shall be wholly simple, or that any part of such imprisonment shall be
rigorous and the rest simple.
184.  Mohd Munna v UOI, (2005) 7 SCC 417 [LNIND 2005 SC 701] : AIR 2005 SC 3440 [LNIND
2005 SC 701] .
185.  Naib Singh case, (1983 (2) SCC 454 [LNIND 1983 SC 116] : 1983 SCC (Cr) 536.
COMMENT—
Life imprisonment means rigorous imprisonment for life.184. A distinction between
'imprisonment for life' and 'imprisonment for a term' has been maintained in the Indian
Penal Code in several of its provisions. Second, by its very terms section 60 is

applicable to a case where 'an offender is punishable with imprisonment which may be
of either description' and it is only in such case that it is competent for the Court to
direct that 'such imprisonment shall be either wholly rigorous or wholly simple or that
any part of such imprisonment shall be rigorous and the rest simple'. And it is clear that
whenever an offender is punishable with 'imprisonment for life' he is not punishable
with 'imprisonment which may be of either description', in other words section 60
would be inapplicable. The position in law as regards the nature of punishment
involved in a sentence of imprisonment for life is well settled and the sentence of
imprisonment for life has to be equated to rigorous imprisonment for life.185.

[s 61] Sentence of forfeiture of property.
[Rep. by the Indian Penal Code (Amendment) Act, 1921 (XVI of 1921), sec. 4.]

[s 62] Forfeiture of property in respect of offenders punishable with death,
transportation or imprisonment.
186.  Shobha Suresh Jumani v Appellate Tribunal, Forfeited Property, AIR 2001 SC 2288 [LNIND
2001 SC 1184] : 2001 Cr LJ 2583 .
COMMENT—
These sections were deleted by the Indian Penal Code (Amendment) Act of 1921. They
imposed the sentence of forfeiture of property. The Court recommended reintroduction
of these sections because they have become necessary to combat the cancerous
growth of corruption. These provisions would have a determined effect on those who
are bent upon to accumulate wealth at the cost of the society by misusing their
position of power.186.

[s 63] Amount of ﬁne.
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.
187.  Sebastian v State of Kerala, 1992 Cr LJ 3642 (Ker) : 1992 (3) Crimes 864 (Ker)
188.  Shahejadkhan Mahebubkhan Pathan v State of Gujarat, JT 2012 (10) SC 8 [LNIND 2012 SC
630] : 2012 (10) Scale 21 [LNIND 2012 SC 630] : AIR 2012 (SCW) 5875 (In this judgment the SC
COMMENT—
A ﬁne is ﬁxed with due regard to circumstances of the case in which it is imposed and
the condition of life of the offender. When the legislature has not ﬁxed any upper limit
for the quantum of ﬁne in respect of a particular offence, the Court has freedom to ﬁx
any amount but then the Court must see that the ﬁne imposed is not excessively high
or repulsively low. Financial capacity of the accused, enormity of the offence and extent
of damage caused to the victim of the offences etc. are relevant considerations in

ﬁxing up the amount.187.
[s 63.1] Fine not to be harsh or excessive.—
The general principle of law running through sections 63 to 70 is that the amount of
ﬁne should not be too harsh or excessive. Where a substantial term of imprisonment is
inﬂicted, an excessive ﬁne should not be imposed except in exceptional cases.188.
Section 63 does not prescribe any limit to the amount of ﬁne, but it should not be
excessive. In the present case having regard to the gravity of the offence and the illegal
gains made by the accused, the ﬁne imposed to the tune of Rs. 60 crores was held to
be not excessive.189.
[s 63.2] Applicability in other Statutes.—
Sections 63–70 IPC, 1860 and provision of Cr PC, 1973 relating to the award of
imprisonment in default of payment of ﬁne would apply to all cases wherein ﬁnes have

been imposed on an offender unless 'the Act, Regulation, Rules or Bye-law contains an
express provision to the contrary'.190.

quoted the previous edition of this book). See also Shantilal v State of MP, (2007) 11 SCC 243
[LNIND 2007 SC 1171] : 2008 Cr LJ 386 .
189.  Association of Victims of Uphaar Tragedy v Sushil Ansal, AIR 2017 SC 976 .
190.  Shantilal v State of MP, (2007) 11 SCC 243 [LNIND 2007 SC 1171] : 2008 Cr LJ 386 : (2008)
1 SCC (Cr) 1.

[s 64] Sentence of imprisonment for non-payment of ﬁne.
191. [In every case, of an offence punishable with imprisonment as well as ﬁne, 1 in
which the offender is sentenced to a ﬁne, whether with or without imprisonment, and
in every case of an offence punishable 192.[with imprisonment or ﬁne, or] with ﬁne
only, in which the offender is sentenced to a ﬁne,] it shall be competent to the Court
which sentences such offender to direct by the sentence that, in default of payment of
the ﬁne, the offender shall suffer imprisonment for a certain term, in which
imprisonment shall be in excess of any other imprisonment to which he may have
been sentenced or to which he may be liable under a commutation of a sentence.
COMMENT—
The term of imprisonment in default of payment of ﬁne is not a sentence. It is a penalty
which a person incurs on account of non-payment of ﬁne. The sentence is something

COMMENT—
which an offender must undergo unless it is set aside or remitted in part or in whole
either in appeal or in revision or in other appropriate judicial proceedings or "otherwise".
A term of imprisonment ordered in default of payment of ﬁne stands on a different
footing. A person is required to undergo imprisonment either because he is unable to
pay the amount of ﬁne or refuses to pay such amount. He, therefore, can always avoid
to undergo imprisonment in default of payment of ﬁne by paying such amount. It is,
therefore, not only the power, but also the duty of the Court to keep in view the nature
of offence, circumstances under which it was committed, the position of the offender
and other relevant considerations before ordering the offender to suffer imprisonment

in default of payment of ﬁne.193. A default sentence is no punishment under law. It is
only a method of enforcement of the direction for payment of amounts directed to be
paid as ﬁne. Wherever the Criminal Court has the jurisdictional competence to impose
a ﬁne, sections 64–70, IPC, and section 30 Cr PC, 1973 stipulate that the Court can
recover the same by imposition of a default sentence. The jurisdiction to impose a
default sentence is only incidental to the power to impose a ﬁne and the duty of the
Court to recover the same.194. The wording of the section is not happy, but the
Legislature intended by it to provide for the award of imprisonment in default of
payment of ﬁne in all cases in which ﬁne can be imposed to induce the offender to pay
the ﬁne.
The cases falling under this section are:—

the ﬁne.
Where the offence is punishable with (a) imprisonment with ﬁne, or (b) imprisonment
or ﬁne, or (c) ﬁne only, and the offender is sentenced to (i) imprisonment, or (ii) ﬁne, or
both, the Court may sentence the offender to a term of imprisonment in default of
payment of ﬁne. A term of imprisonment for non-payment of ﬁne is not a substantive
sentence. It is only a penalty for the default. It cannot be added to the substantive
sentence so as to see whether the maximum imprisonment that could be awarded for
the offence is not being exceeded.195.
1. 'Imprisonment as well as ﬁne.'—Magistrates cannot award compensation in addition
to ﬁne.196.

The full Bench of Madras High Court held that imprisonment in default of payment of
ﬁne cannot be directed to run concurrently with substantive sentence because both the
sentences are distinct in view of sections 53 and 64 IPC, 1860.197.
[s 64.1] Sentence and penalty distinguished.—
The term of imprisonment in default of payment of ﬁne is not a sentence. It is penalty
incurred for non-payment of ﬁne. A sentence is a term of imprisonment, which the
offender has to undergo unless it is remitted in a further judicial proceeding or
otherwise. A term of imprisonment on default in payment of ﬁne stands on a different
footing. The further imprisonment is due to non-payment by refusal or otherwise. The
convict can pay the amount and get rid of further imprisonment.198.
[s 64.2] Fine and Compensation.—
There exists a distinction between ﬁne and compensation, although, in a way it seeks
to achieve the same purpose. An amount of compensation can be directed to be

recovered as a 'ﬁne' but the legal ﬁction raised in relation to recovery of ﬁne only, it is in
that sense 'ﬁne' stands on a higher footing than compensation awarded by the
Court.199.
[s 64.3] Power of Magistrate to impose Sentence of imprisonment in default of
ﬁne.—
As per section 30 of Cr PC, 1973 the Court of a Magistrate may award such term of
imprisonment in default of payment of ﬁne as is authorised by law: provided that the
term is not in excess of the powers of the Magistrate under section 29 Cr PC, 1973; and
shall not, where imprisonment has been awarded as part of the substantive sentence,
exceed one-fourth of the term of imprisonment which the Magistrate is competent to
inﬂict as punishment for the offence otherwise than as imprisonment in default of

payment of the ﬁne. The imprisonment awarded may be in addition to a substantive
sentence of imprisonment for the maximum term awardable by the Magistrate under
section 29 of Cr PC, 1973. The default sentence is not to be in excess to the limitations
imposed under section 30 Cr PC, 1973.200.
[s 64.4] Default sentence on non-payment of Compensation.—
Undoubtedly, there is no speciﬁc provision in the Code which enables the Court to
sentence a person who commits breach of the order of payment of compensation. But
in Hari Singh v Sukhbir Singh,201. Supreme Court held that since the imposition of
compensation under section 357(3) Cr PC, 1973 was on account of social concern, the
Court could enforce the same by imposing sentence in default, particularly when no
mode had been prescribed in the Code for recovery of sums awarded as compensation

in the event the same remained unpaid. The position is re-iterated in Sugnathi Suresh
Kumar v Jagdeeshan.202. The provisions of sections 357(3) and 431 Cr PC, 1973 when
read with section 64 IPC, 1860 empower the Court, while making an order for payment
of compensation, to also include a default sentence in case of non-payment of the
same.203.

191.  Subs. by Act 8 of 1882, section 2, for "In every case in which an offender is sentenced to a
ﬁne".
192.  Ins. by Act 10 of 1886, section 21(2).
193.  Shahejadkhan Mahebubkhan Pathan v State of Gujarat, 2012 (10) Scale 21 [LNIND 2012 SC
630] : (2013) 1 SCC 570 [LNIND 2012 SC 630] : JT 2012 (10) SC 8 [LNIND 2012 SC 630] :
Shantilal v State of MP, (2007) 11 SCC 243 [LNIND 2007 SC 1171] : 2008 Cr LJ 386 : (2008) 1
SCC (Cr) 1.
194.  C Ganga v Lakshmi Ammal, 2008 Cr LJ 3359 (Ker).
195.  P Balaraman v State of TN, 1991 Cr LJ 166 Mad at pp 176-177.
196.  Dilip S Dahanukar v Kotak Mahindra Co Ltd, (2007) 6 SCC 528 [LNIND 2007 SC 451] : 2007
Cr LJ 2417 : 2007 (4) SCR1122 : (2007) 3 SCC (Cr) 209.
197.  Donatus Tony Ikwanusi v The Investigating Oﬃcer, NCB 2013 Cr LJ 1938 (Mad FB) : 2013
(2) CTC1. See also Sukumaran v State, 1993 Cr LJ 3228 (Ker) ; Madappen Muhassin v State of
Kerala, 2016Cr LJ 4792 (Ker).
198.  Shantilal v State of MP, (2007) 11 SCC 243 [LNIND 2007 SC 1171] : (2008) 1 SCC Cri 1

[LNIND 2007 SC 1171] .
199.  Dilip S Dahanukar v Kotak Mahindra Co Ltd, (2007) 6 SCC 528 [LNIND 2007 SC 451] : 2007
200.  Kuna Maharana v State, 1996 Cr LJ 170 (Ori).
201.  AIR 1988 SC 2127 [LNIND 1988 SC 411] : (1988) 4 SCC 551 [LNIND 1988 SC 411] .
202.  Sugnathi Suresh Kumar v Jagdeeshan, AIR 2002 SC 681 [LNIND 2002 SC 1622] : (2002) 2
SCC 420 [LNIND 2002 SC 1622] .
203.  Vijayan v Sadanandan, (2009) 6 SCC 652 [LNIND 2009 SC 1119] : 2009 Cr LJ 2957 : (2009)
3 SCC (Cr) 296; C Ganga v Lakshmi Ammal, 2008 Cr LJ 3359 (Ker).

[s 65] Limit to imprisonment for non-payment of ﬁne, when imprisonment and
ﬁne awardable.
The term for which the Court directs the offender to be imprisoned in default of
payment of a ﬁne shall not exceed one-fourth of the term of imprisonment which is
the maximum ﬁxed for the offence, if the offence be punishable with imprisonment as
well as ﬁne.
COMMENT—
This section applies to all cases where the offence is 'punishable with imprisonment as
well as ﬁne,' i.e., cases where ﬁne and imprisonment can be awarded, and also those
where the punishment may be either ﬁne or imprisonment, but not both. The only cases
that it does not apply to are those dealt with in section 67 where ﬁne only can be
awarded.204. Section 33 (now 30) of the Cr PC, 1973 acts as a corollary to this section.
Thus under section 65, IPC, 1860 the imprisonment in default of ﬁne cannot exceed
one-fourth of the maximum term of imprisonment that can be awarded for the offence.

Thus, where the High Court altered the conviction of the appellant to one under section
419 read with section 109 IPC, from a conviction recorded by the trial Court under
sections 420/511, 467, 468 and 471 read with section 120B IPC, and awarded a
sentence of two years' rigorous imprisonment while maintaining the ﬁne of Rs. 3,000
and by implication the default imprisonment of two years as awarded by the trial Court,
it was held that, though the trial Court's order regarding two years' imprisonment in
default of payment of ﬁne was quite in order in view of the fact that the ﬁve offences
for which the trial Court recorded a conviction were each punishable with seven years'
imprisonment and the ﬁne of Rs. 3,000 was only a part of the cumulative sentence for
the commission of those ﬁve offences, yet the sentence of three years' imprisonment

in default of payment of ﬁne became illegal the moment the High Court altered the
conviction to one under section 419 read with section 109 IPC, as under these sections
the accused could be sentenced to a maximum of three years' imprisonment and,
therefore, the default imprisonment could under no circumstance exceed nine months,
that is, one-fourth of the maximum sentence of three years that could be awarded
under section 419, IPC.205. While a Magistrate's powers are speciﬁcally limited by
section 33(old) Cr PC they must also be exercised so as not to contravene section 65
IPC.206. Section 326, IPC is punishable with imprisonment for life, or with imprisonment
of either description for a term which may extend to ten years, and shall also be liable
to ﬁne. However, because of section 29(2), Cr PC the learned Magistrate, First Class,

cannot impose the maximum amount of imprisonment prescribed by this section; he
also cannot, by resorting to section 65, IPC, award a period of imprisonment, in default
of payment of ﬁne, on the erroneous assumption that he has the power to award the
maximum sentence prescribed by section 326, IPC.207. Section 65 IPC that puts a limit
of imprisonment for default sentence upto one-fourth of the term of imprisonment, the
grievance against higher default sentence, if any, can be only by the accused and not by
the State.208.

204.  Yakoob Sahib v State, (1898) 22 Mad 238.
205.  Ram Jas v State of UP, 1974 Cr LJ 1261 : AIR 1974 SC 1811 [LNIND 1970 SC 363] ; see also
Partap Kumar, 1976 Cr LJ 818 (P&H).
206.  Chhajulal v State of Rajasthan, AIR 1972 SC 1809 [LNIND 1972 SC 179] : (1972) 3 SCC 411
[LNIND 1972 SC 179] . See Shantilal v State of MP, (2007) 11 SCC 243 [LNIND 2007 SC 1171] :
2008 Cr LJ 386 : (2008) 1 SCC (Cr) 1 in which the period of three years imprisonment for default
of ﬁne was reduced to six months.
207.  Bidhan Bisoi v State of Orissa, 1989 Cr LJ 1038 (Ori).
208.  Association of Victims of Uphaar Tragedy v Sushil Ansal, AIR 2017 SC 976 .

[s 66] Description of imprisonment for non-payment of ﬁne.
The imprisonment which the Court imposes in default of payment of a ﬁne may be of
any description to which the offender might have been sentenced for the offence.
COMMENT—
The imprisonment in default of payment of a ﬁne may be either rigorous or simple.

[s 67] Imprisonment for non-payment of ﬁne when offence punishable with
ﬁne only.
If the offence be punishable with ﬁne only,209. [the imprisonment which the Court
imposes in default of payment of the ﬁne shall be simple, and] the term for which the
Court directs the offender to be imprisoned, in default of payment of ﬁne, shall not
exceed the following scale, that is to say, for any term not exceeding two months
when the amount of the ﬁne shall not exceed ﬁfty rupees, and for any term not
exceeding four months when the amount shall not exceed one hundred rupees, and
for any term not exceeding six months in any other case.
209.  Ins. by Act 8 of 1882, section 3.
210.  Daulat Raghunath Derale v State of Maharashtra, 1991 Cr LJ 817 .
211.  Kuldip Kaur v Surinder Singh, ( AIR 1989 SC 232 [LNIND 1988 SC 987] ) : 1989 Cr LJ 794 . It
was held that the purpose of sending him to jail is not to wipe out the liability which he has

refused to discharge. A sentence of jail is no substitute for the recovery of the amount of
monthly allowance which has fallen in arrears.
212.  Moideenkutty Kunhankutty Haji v State of Kerala, 2008 Cr LJ 3402 (Ker).
COMMENT—
This section refers solely to cases in which the offence is punishable with ﬁne only and
has no application to an offence punishable either with imprisonment or with ﬁne, but
not with both. Such offences are governed by section 65. For a consideration under this
section of the Narcotic Drugs and Psychotropic Substances Act (61 of 1985), section
21 of which imposes a ﬁne and imprisonment in default, see Daulat Raghunath Derale v
State of Maharashtra.210.
[s 67.1] Default sentence on non-payment of Maintenance.—
The sentence is imposed under section 125(3) of Cr PC, 1973 only as a mode of

enforcement of the direction to pay the amount of maintenance and not as a
punishment. The Supreme Court was considering the question whether the default
sentence, if undergone shall wipe off the liability.211. It is impermissible to impose a
sentence of rigorous imprisonment on a defaulter under section 125(3) Cr PC, 1973.
Only a sentence of simple imprisonment can be imposed under section 125(3) of Cr
PC, 1973.212.

[s 68] Imprisonment to terminate on payment of ﬁne.
The imprisonment which is imposed in default of payment of a ﬁne shall terminate
whenever that ﬁne is either paid or levied by process of law.
213.  Ram Lakhan v State, 1986 Cr LJ 617 (All); Usman v State of UP, 2007 Cr LJ 3868 (All).
214.  State of Assam v Bir Bahadur Singh, 2005 Cr LJ 4345 (Gau).
215.  Prahalad Singh v State of MP, 2009 Cr LJ 3161 (MP); Ram Lakhan v State, 1986 Cr LJ 617
(All).
COMMENT—
The person sentenced to pay a ﬁne must deposit the ﬁne forthwith, but may be,
permitted to deposit it after some time in the discretion of the Court. Even in that event
he must deposit the amount before the period speciﬁcally ﬁxed by the Court and if he
does not do so, he immediately incurs the liability of being sent to prison. It would be
the duty of the Court to arrest him and conﬁne him into the prison. Only when such
conﬁnement in the prison has commenced that the accused can have a legal right to

deposit the amount whereupon section 68 IPC, 1860 would come into operation and
his imprisonment would terminate.213. The time given by the High Court or the
Sessions Judges in appeal or revision for payment of ﬁne merely means that the
realisation is deferred till the time granted. However, this cannot take away the rights of
the convicts as provided under section 68 and section 69 of the IPC, 1860. If the
convict offers to deposit the ﬁne imposed on him beyond the period provided, the
Courts cannot refuse to accept the same. It must apply the provisions of section 68
and section 69 of the IPC, 1860.214. The period to deposit the amount of ﬁne cannot be
extended by the High Court under section 482 Cr PC, 1973 and the petitioners can avail
the remedy of provisions of section 68 of IPC, 1860.215.

[s 69] Termination of imprisonment on payment of proportional part of ﬁne.
If, before the expiration of the term of imprisonment ﬁxed in default of payment, such
a proportion of the ﬁne be paid or levied that the term of imprisonment suffered in
default of payment is not less than proportional to the part of the ﬁne still unpaid, the
imprisonment shall terminate.
A is sentenced to a ﬁne of one hundred rupees and to four months' imprisonment in
default of payment. Here, if seventy-ﬁve rupees of the ﬁne be paid or levied before the
expiration of one month of the imprisonment, A will be discharged as soon as the ﬁrst
month has expired. If seventy-ﬁve rupees be paid or levied at the time of the expiration
of the ﬁrst month, or at any later time while A continues in imprisonment, A will be
immediately discharged. If ﬁfty rupees of the ﬁne be paid or levied before the expiration

of two months of the imprisonment, A will be discharged as soon as the two months
are completed. If ﬁfty rupees be paid or levied at the time of the expiration of those two
months, or at any later time while A continues in imprisonment, A will be immediately
discharged.
216.  Prahalad Singh v State of M P, 2009 Cr LJ 3161 (MP).
217.  Ram Lakhan v The State, 1986 Cr LJ 617 (All).
COMMENT—
If the ﬁne imposed on an accused is paid or levied while he is imprisoned for default of
payment, his imprisonment will immediately terminate: and if a proportion of the ﬁne
be paid during the imprisonment, a proportional abatement of the imprisonment will
take place. The Court has, however, no power to refund ﬁne. If the time limit had been
set by the Court for payment of ﬁne and the ﬁne amount is not paid within the time so

ﬁxed, then it goes without saying that the petitioner-accused has to either surrender
before the Court or the prosecuting agency will be in a position to arrest him and
produce before Court for his detention in prison for undergoing the default
sentence.216. In case of default in payment of ﬁne accused not obeying speciﬁc
directions as to making payment and postponing payment without surrendering into
Court. Accused is guilty of abuse of process of Court.217.

[s 70] Fine leviable within six years, or during imprisonment. Death not to
discharge property from liability.
The ﬁne, or any part thereof which remains unpaid, may be levied at any time within
six years after the passing of the sentence, and if, under the sentence, the offender be
liable to imprisonment for a longer period than six years, then at any time previous to
the expiration of that period; and the death of the offender does not discharge from
the liability any property which would, after his death, be legally liable for his debts.
218.  Ganu Sakharam, (1884) Unrep. Cr C 207.
219.  Collector of Broach v Ochhavlal Bhikalal, (1940) 43 Bom LR 122 , (1941) Bom 147. State v
Krishna Pillai Madhavan Pillai, 1953 Cr LJ 1265
COMMENT—
Imprisonment in default of ﬁne does not liberate the offender from his liability to pay
the full amount of ﬁne imposed on him. Such imprisonment is not a discharge or

COMMENT—
satisfaction of the ﬁne but is imposed as a punishment for non-payment or contempt
or resistance to the due execution of the sentence. The offender cannot be permitted
to choose whether he will suffer in his person or his property. His person will cease to
be answerable for the ﬁne. Nevertheless, his property will for a time continue to do so.
The bar of six years may save the property of the accused but not his personal arrest.
The liability for any sentence of imprisonment awarded in default of payment of ﬁne
continues after the expiration of six years.218. Any proceeding taken after six years to
recover the ﬁne by sale of immoveable property of the offender is time-barred.219. The
limitation starts from the date of passing of the sentence of conviction by the trial

Court and not the date of dismissal of the appeal or revision preferred by the
accused.220. The property of the accused is liable for the payment of ﬁne even if he has
undergone imprisonment in default of ﬁne and as such even on death of the offender
does not discharge any property which would after his death, be legally liable for his
debts due from him (including liability) to discharge the ﬁne.221.
The expression "levy" in this section means "to seize" for the purpose of collecting the
ﬁne or to enforce execution for a certain sum and not actual realisation.222. Any stay or
suspension obtained from the higher Court has to be excluded in computing the period
of six years' limitation under section 70 IPC.223. Section 70 says that State shall levy
ﬁne within six years from the date of sentence. What is contemplated is that the State

shall commence recovery proceedings within six years; and, need not be completed it
within six years of the sentence. Therefore, once a distress warrant is issued within six
years of the sentence, the plea of limitation is out of bounds for the sentence.224.

220.  Palakdhari Singh, AIR 1962 SC 1145 [LNIND 1962 SC 17] : (1962) 2 Cr LJ 256 .
221.  P R Anjanappa v Yurej Agencies Pvt Ltd, 2004 Cr LJ 2565 (Kar).
222.  Ramaswamy, (1962) 64 Bom LR 440 : 1963 (1) Cr LJ 152
223.  Mahtab Singh v State of UP, 1979 Cr LJ 1077 : AIR 1979 SC 1263 [LNIND 1978 SC 186] .
224.  Mahtab Singh, Supra; see also Brahameshwar Prasad Sinha, 1983 Cr LJ 8 (Pat).

[s 71] Limit of punishment of offence made up of several offences.
Where anything which is an offence is made up of parts, any of which parts is itself an
offence, the offender shall not be punished with the punishment of more than one of
such his offences, unless it be so expressly provided.
225. [Where anything is an offence falling within two or more separate deﬁnitions of
any law in force for the time being by which offences are deﬁned or punished, or
where several acts, of which one or more than one would by itself or themselves
constitute an offence, constitute, when combined, a different offence,
the offender shall not be punished with a more severe punishment than the Court
which tries him could award for any one of such offences.]
(a) A gives Z ﬁfty strokes with a stick. Here A may have committed the offence of
voluntarily causing hurt to Z by the whole beating, and also by each of the blows

which make up the whole beating. If A were liable to punishment for every blow,
he might be imprisoned for ﬁfty years, one for each blow. But he is liable only to
one punishment for the whole beating.
(b) But if, while A is beating Z, Y interferes, and A intentionally strikes Y, here, as the
blow given to Y is no part of the act whereby A voluntarily causes hurt to Z, A is
liable to one punishment for voluntarily causing hurt to Z, and to another for the
blow given to Y.
COMMENT—
The section says that where an offence is made up of parts, each of which constitutes
an offence, the offender should not be punished for more than one offence unless
expressly provided. Where an offence falls within two or more separate deﬁnitions of
offences; or where several acts of which one or more than one would, by itself or

themselves, constitute an offence, constitute, when combined, a different offence, the
offender should not be punished with a more severe punishment than the Court which
tries him could award for any one of such offences. The section governs the whole
Code and regulates the limit of punishment in cases in which the greater offence is
made up of two or more minor offences. It is not a rule of adjective law or procedure,
but a rule of substantive law regulating the measure of punishment, and it does not,
therefore, affect the question of conviction, which relates to the province of procedure.
Section 71 IPC, 1860 as well as section 26 of the General Clauses Act, 1897 talk only of
punishment and not of conviction. Thus, conviction of the accused in respect of the
same act for two different offences is quite legal.226. The section contemplates

separate punishments for an offence against the same law and not under different
laws. Where offences are committed under two separate enactments, section 71 IPC,
1860 is not helpful to the accused and as such, two separate sentences cannot be

questioned by pressing section 71 into service.227. In order to attract provisions of
Article 20(2) of the Constitution, i.e., doctrine of autrefois acquit or section 300 Cr PC,
1973 or section 71 IPC, 1860 or section 26 of the General Clauses Act, 1897
ingredients of the offences in the earlier case as well as in the latter case must be the
same and not different. The test to ascertain whether the two offences are the same is
not identity of the allegations but the identity of the ingredients of the offence.228.
The rules for assessment of punishment are laid down in sections 71 and 72 of the
IPC, 1860 and section 31 of the Cr PC, 1973. Section 31 of the Code of Criminal
Procedure provides that when a person is convicted at one trial of two or more
offences, the Court may, subject to the provisions of section 71 of the IPC, 1860,
sentence him, for such offences, to the several punishments prescribed therefor which
such Court is competent to inﬂict; and in the case of consecutive sentences, it shall not

be necessary for the Court, by reason only of the aggregate punishment for the several
offence being in excess of the punishment which it is competent to inﬂict on conviction
of a single offences, to send the offender for trial before a higher Court. It, therefore,
enhances the ordinary powers of sentences given to Magistrates by section 29, Cr PC,
1973; but in order to bring a case within the purview of this section, the accused must
have been convicted of two or more offences in the same trial, and the sentence for
any one of these offences should not exceed the limits of their ordinary powers. The
limits ﬁxed by this section refer to sentences passed simultaneously, or upon charges
which are tried simultaneously. Sentences of imprisonment passed under it may run

concurrently. When an accused is convicted at one trial of two or more offences,
section 31(1) of Cr PC, 1973 vests discretion in Court to direct that punishment shall
run concurrently. Court may sentence the accused for such offences to several
punishments prescribed therefor, and such punishment would consist of imprisonment
to commence, one after expiration of other in such order as the Court may direct,
subject to limitation contained in section 71 of IPC, 1860.229.
[s 71.1] Illustration (a).—
"A gives Z ﬁfty strokes with a stick. Here A may have committed the offence of
voluntarily causing hurt to Z by the whole beating, and also by each of the blows which
make up whole beating. If A were liable to punishment for every blow, he might be
imprisoned for 50years, one for each blow. But he is liable only to one punishment for

the whole beating." It is to be noted that the whole beating is considered to constitute
one offence while each of the blows also amounted to the offence of voluntarily
causing hurt. It can be said, therefore, that while the obtaining of money by cheating on
the presentation of an individual bill did constitute the offence of cheating the
obtaining of the entire money in pursuance of the terms of the single contract and the
single conspiracy entered into also constituted the offence of cheating. When the
accused could not be punished with the punishment for more than one such offence it
cannot be the intention of law that the accused be charged with each of the offences,
which were in a way included in the complete offence made up by the entire course of
conduct of the accused in pursuance of the conspiracy.230.

[s 71.2] Section 71 IPC and section 220 Cr PC.—
Section 71 of the IPC, 1860 has to be read in conjunction with section 220 of the Cr PC,
1973. It should, however, be remembered that section 220 Cr PC, 1973 contains only
rules of criminal pleading in regard to joinder of charges and does not deal with the
sentence to be passed on the charges of the offences mentioned in the several
illustrations thereunder. Sub-section (5) of section 220 Cr PC, 1973 makes this position
abundantly clear. A joint reading of section 71 IPC, 1860 and section 220 Cr PC, 1973
clearly shows that clause (2) of section 71 IPC, 1860 approximates sub-section (3) of

section 220 Cr PC, 1973 and clause (3) of section 71 IPC, 1860 corresponds to sub-
section (4) of section 220 Cr PC, 1973. It, therefore, follows that the embargo on
separate sentence under section 71 IPC, 1860 applies only to cases falling within sub-
sections (3) and (4) of section 220 Cr PC, 1973 and not under, for example, sub-section
(1) of that section.231. Thus in cases covered by illustrations (i), (j) and (k) to sub-
section (3) and illustration (m) to sub-section (4) of section 220 Cr PC, though the
offences mentioned therein could be tried together and conviction recorded in regard
to each one of them, yet no separate sentences could be passed in view of the
embargo contained in section 71 IPC, 1860. Similarly, where the accused was
convicted and sentenced under section 147 IPC, 1860 a separate sentence under
section 143 IPC, 1860 could not be passed.232. In the same way when an accused is
convicted for a more serious offence, e.g., under section 148 IPC, 1860 a separate

sentence under section 147 IPC, 1860 is not only uncalled for but illegal.233. It,
therefore, means that cases falling under sub-section (1) of section 220 Cr PC, 1973
where several distinct offences are committed in course of the same transaction, the
accused cannot only be tried and convicted of all of them at one trial but even separate
sentences can be passed in regard to each one of them. Thus, where a person
commits lurking house-trespass by night (section 457 IPC, 1860) and also commits
theft (section 380 IPC, 1860) in course of the same transaction, he can be convicted
and sentenced separately for both of them.234. Though the offence under section 420,
IPC, 1860 and offence under section 138, N.I. Act are very distinct and their ingredients
are different, still both the offences were committed during the same transaction;

accused could have been charged and tried for both the offences during single trial as
per section 220, Cr PC, 1973. However, from the language of section 220, it appears to
be enabling provision whereby two or more different offences may be tried together by
the Court and not mandatory.235.
[s 71.3] CASES.—
1.It was contended that the accused having caused the evidence of the two offences
under sections 330 and 348 to disappear, committed two separate offences under
section 201 and are punishable accordingly. Taking a strict view of the matter, it must
be said that by the same act the appellants committed two offences under section 201.
The case is not covered either by section 71 of the IPC, 1860 or by section 26 of the
General Clauses Act, and the punishment for the two offences cannot be limited under

those sections. But, normally, no Court should award two separate punishments for the
same act constituting two offences under section 201. The appropriate sentence under
section 201 for causing the evidence of the offence under section 330 to disappear
should be passed, and no separate sentence need be passed under section 201 for
causing the evidence of the offence under section 348 to disappear.236. Where death
was caused by rash and negligent driving of a truck and the accused could be
convicted under sections 279 and also under sections 304A, it was held that a separate
sentence under sections 279 could not be imposed.237.
[s 71.4] Rioting and grievous hurt.—
The illustration (a) to section 71 IPC makes it clear that where only an offence is made
up of many parts, and then only, the offender shall not be punished for more than one

such offence. When the offences are separate and distinct and do not constitute parts
of one offence, the accused can be convicted separately for each one of the offences.
Therefore, the argument that the sentence both under sections 148 and 324, IPC is
opposed to section 71, IPC is not acceptable.238.

225.  Added by Act 8 of 1882, sec. 4.
226.  Ramanaya v State, 1977 Cr LJ 467 (Pat).
227.  Re Natarajan, 1976 Cr LJ 1502 (Mad); see also Sukhnandan v State, (1917) 19 Cr LJ 157 .
228.  Mahendrabhai v State of Gujarat, AIR 2012 SC 2844 [LNIND 2012 SC 1473] : (2012) 7 SCC
621 [LNIND 2012 SC 1473] : 2012 Cr LJ 2432 .
229.  Satnam Singh Puransing Gill v State of Maharashtra, 2009 Cr LJ 3781 .
230.  Banwarilal Jhunjhunwala v UOI, AIR 1963 SC 1620 [LNIND 1962 SC 382] : 1963 (Supp2)
SCR 338 : 1963 Cr LJ 529 .
231.  Nirichan, 12 M. 36; Kalidas, 38 C 453 : Wazir, 10A 58.
232.  Poovappa, 1981 Cr LJ NOC 107 (Kant).
233.  Re Thangavelu, 1972 Cr LJ 390 (Mad).
234.  Udai Bhan, 1962 (2) Cr LJ 251 : AIR 1962 SC 1116 [LNIND 1962 SC 37] ; see also Ramanaya
v State, 1977 Cr LJ 467 (Pat).
235.  Sharan P Khanna v Oil & Natural Gas Corp Ltd, 2010 Cr LJ 4256 (Bom).
The provisions of section 31 of the Code of Criminal Procedure have to be read subject

to the provisions of this section and that where anything is an offence falling within two
or more separate deﬁnitions of any law in force for the time being by which offences
are deﬁned or punished, the offender shall not be punished with more severe
punishment than the Court which tries him could award for anyone of such
offences.239.
3. Same facts constituting different offences.—It has been held that although the act
of the petitioner is only one, namely plying of overloaded vehicle on the public road, he
had committed two distinct offences punishable under two different enactments,
namely (i) violation of the terms of permit and certiﬁcate of registration granted by the
authorities which is punishable under the Motor Vehicles Act, 1988 and (ii) causing

damage to the public property which is punishable under the Prevention of Damage to
Public Property Act, 1984. Hence, the claim of the petitioner that he is being punished
more than once for the same offence violating Article 20(2) of the Constitution of India
is neither factually correct nor legally tenable as he is being proceeded against for two
distinct offences punishable under two separate Acts and no parallel procedure for the
same offence is being adopted.240. Prosecution under sections 5 and 6 of Rajasthan
Sati (Prevention) Act 1987 not barred since section 5 makes the commission of an act
an offence and punishes the same while the provisions of section 6 are preventive in
nature and make provision for punishing contravention of prohibitory order so as to

make the prevention effective. The two offences have different ingredients.241.
4. An act giving rise to an offence and an aggravated form of the same offence.—
Section 457 makes punishable lurking house trespass by night or house breaking by
night in order to the committing of any offence punishable with imprisonment and if
the offence intended to be committed is theft, the punishment is higher. Section 380
makes punishable a theft committed in a dwelling house. The two offences do not, in
our opinion, fall under section 71 and, therefore, the conviction under both the sections
is not illegal.242.

236.  Roshan Lal v State of Punjab, AIR 1965 SC 1413 [LNIND 1964 SC 339] : 1965 (2) Cr LJ 426 .
See also Nafe Singh v State of Haryana, (1971) 3 SCC 934 : (1972) 1 SCC (Cr) 182; Kharkan v
State of UP, AIR 1965 SC 83 [LNIND 1963 SC 205] : 1965 (1) Cr LJ 116 .
237.  Kantilal Shivabhai v State of Gujarat, 1990 Cr LJ 2500 (Guj).
238.  Angadi Chennaiah v State of AP, 1985 Cr LJ 1366 (AP).
239.  Puranmal, AIR 1958 SC 935 [LNIND 1958 SC 89] : 1958 Cr LJ 1432 .
240.  Vikash Kumar Singh v State of Bihar, AIR 2011 Pat 72 [LNINDORD 2011 PAT 7073] .
241.  State of Rajasthan v Hat Singh, 2003 (2) SCC 152 [LNIND 2003 SC 7] : AIR 2003 SC 791
[LNIND 2003 SC 7] .
242.  Udai Bhan v State of UP, AIR 1962 SC 1116 [LNIND 1962 SC 37] : 1962 Cr LJ 251 .

[s 72] Punishment of person guilty of one of several offences, the judgment
stating that it is doubtful of which.
In all cases in which judgment is given that a person is guilty of one of several
offences speciﬁed in the judgment, but that it is doubtful of which of these offences,
he is guilty, the offender shall be punished for the offence for which the lowest
punishment is provided if the same punishment is not provided for all.
243.  Sahel Singh, 3 Cr LJ 364; see also Nesti Mondal, AIR 1940 Pat 289 .
COMMENT—
This provision is intended to prevent an offender whose guilt is fully established from
eluding punishment on the ground that the evidence does not enable the tribunal to
pronounce with certainty under what penal provision his case falls. The section applies
to cases in which the law applicable to a certain set of facts is doubtful. The doubt
must be as to which of the offences the accused has committed, not whether he has

committed any. Moreover, this rule would apply even if one of the alternatives were an
offence of murder.243.

[s 73] Solitary conﬁnement.
Whenever any person is convicted of an offence for which under this Code the Court
has power to sentence him to rigorous imprisonment, the Court may, by its sentence,
order that
the offender shall be kept in solitary conﬁnement for any portion or portions of the
imprisonment to which he is sentenced, not exceeding three months in the whole,
according to the following scale, that is to say—
a time not exceeding one month if the term of imprisonment shall not exceed six
months;
a time not exceeding two months if the term of imprisonment shall exceed six months
and 244.[shall not exceed one] year;
a time not exceeding three months if the term of imprisonment shall exceed one year.
COMMENT—
Solitary conﬁnement amounts to keeping the prisoner thoroughly isolated from any
kind of contact with the outside world. It is inﬂicted in order that a feeling of loneliness

COMMENT—
may produce wholesome inﬂuence and reform the criminal. This section gives the
scale according to which solitary conﬁnement may be inﬂicted. Where the petitioner, an
undertrial prisoner, who was arrested in connection with the assassination of a former
Prime Minister was put in a separate cell only as a precautionary measure, to ensure
his non-mingling with other prisoners and for his security, it was held that it did not
amount either to solitary conﬁnement or cellular conﬁnement.245. The well-known
principle of law is that the convict carrying death punishment is not deemed to be
'prisoner under sentence of death' unless death sentence becomes ﬁnal, conclusive
and beyond judicial scrutiny. Such convict is handed over to the jail authority to be kept

in safe and protected custody with purpose that he may be available for execution of
the sentence eventually conﬁrmed. This custody is different from custody of a convict
suffering from simple or rigorous imprisonment. Therefore, he cannot be kept in Cell or
solitary conﬁnement which itself is a separate punishment.246.
[s 73.1] Convicts on death row.—
The question about solitary conﬁnement or keeping condemned prisoner alone under
strict guard as provided in various jail manual has been considered in depth by the
Constitution Bench in Sunil Batra v Delhi Administration247. and Triveniben v State of
Gujarat.248. In Batra's case, it has been held that if the prisoner under sentence of death
is held in jail custody, punitive detention cannot be imposed upon him by jail authorities

except for prison offences. When a prisoner is committed under a warrant for jail
custody under section 366(2) Cr PC, 1973 and if he is detained in solitary conﬁnement
which is a punishment prescribed by section 73, IPC, 1860 it will amount to imposing
punishment for the same offence more than once which would be violative of Article

244.  Subs. by Act 8 of 1882, section 5, "for be less than a".
245.  Perrarivalan v IG of Prisons, Madras, 1992 Cr LJ 3125 (Mad).
246.  Anand Mohan v State of Bihar, 2008 Cr LJ 1273 (Pat).
247.  Sunil Batra v Delhi Administration, AIR 1978 SC 1675 [LNIND 1978 SC 215] : 1978 Cr LJ
1741 .
248.  Triveniben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : 1990 Cr LJ 1810 .
Also see Kishor Singh Ravinder Dev v State of Rajasthan, AIR 1981 SC 625 [LNIND 1980 SC 436] :
(1981) 1 SCC 503 [LNIND 1980 SC 436] .
249.  Acharaparambath Pradeepan v State of Kerala, 2004 Cr LJ 755 (Ker).
250.  Shatrughan Chauhan v UOI, 2014 Cr LJ 1327 .
20(2). Practice of keeping prisoners in condemned cell before conﬁrmation is a pre-
constitutional practice and such practices should be avoided. Therefore, practice
adopted in the jail until now cannot be a ground of putting the petitioners in solitary
conﬁnement or separate condemned cells.249.
The Supreme Court in Shatrughan Chauhan v UOI250. held that to be 'under sentence of

death' means 'to be under a ﬁnally executable death sentence'. The Court, in this case
also issued guidelines for safeguarding the rights of the death row convicts.

[s 74] Limit of solitary conﬁnement.
In executing a sentence of solitary conﬁnement, such conﬁnement shall in no case
exceed fourteen days at a time, with intervals between the periods of solitary
conﬁnement of not less duration than such periods; and when the imprisonment
awarded shall exceed three months, the solitary conﬁnement shall not exceed seven
days in any one month of the whole imprisonment awarded, with intervals between
the periods of solitary conﬁnement of not less duration than such periods.
251.  Nyan Suk Mether, (1869) 3 Beng LR 49.
COMMENT—
Solitary conﬁnement if continued for a long time is sure to produce mental
derangement.
The section limits the solitary conﬁnement, when the substantive sentence exceeds
three months, to seven days in any one month. Solitary conﬁnement must be imposed
at intervals. A sentence inﬂicting solitary conﬁnement for the whole imprisonment is
illegal, though not more than 14 days is awarded.251.

252.[[s 75] Enhanced punishment for certain offences under Chapter XII or
Chapter XVII after previous conviction.
Whoever, having been convicted, 1 —
(a) by a Court in 253.[India], of an offence punishable under Chapter XII or Chapter
XVII of this Code with imprisonment of either description for a term of three
years or upwards, 254.[***]
255. [***]
shall be guilty of any offence punishable under either of those Chapters with like
imprisonment for the like term, shall be subject for every such subsequent offence to
256.[imprisonment for life], or to imprisonment of either description for a term which
may extend to ten years.]
COMMENT—
Principle.—This section does not constitute a separate offence but only imposes a
liability to enhanced punishment. What section 75 IPC, 1860 contemplates is that
where a person who has been, previously convicted of an offence punishable under
Chapter XII (which deals with offences relating to coin and Government stamps) or

Chapter XVII. (which relates to offences against property) with imprisonment of either
description for a term of three years or up-wards, is once again found guilty of a similar
offence, he shall be liable to enhanced punishment which may extend to imprisonment
for life or to imprisonment of either description for a term which may extend to ten
years. The section is concerned with a previous conviction for a similar offence but it
does not postulate that in respect of the previous conviction, the punishment imposed
should have been one of not less than three years. All that it posits is that the previous
conviction should have been in respect of an offence punishable with a term of
imprisonment for a term of three years or upwards, but it does not lay down that the
offender should have been actually punished with such a term of imprisonment.257. It

does not apply to offences under other Acts.258.
1. 'Having been convicted'.—A plain reading of this provision goes to show that the
previous conviction ought to be for offence punishable under Chapter XII or Chapter
XVII and the sentence imposed is three years or more than that. If the sentence is less
than three years or the offence does not fall within any of the two Chapters then
section 75, IPC, 1860 would not be applicable. If any authority is required then
reference may be made to Re Kamya,259. wherein it has been held that the minimum
required for enhancement of punishment under section 75, IPC, 1860 is that the
previous conviction of the accused should have resulted in punishment of three years
or more.260. Section 75 is invoked for enhancement of the sentence and that can come

only at the time the sentence is to be imposed. The fact that the accused is an old
offender is not to be taken note of by the Court at the trial. Only at the conclusion of the

252.  Subs. by Act 3 of 1910, section 2, for section 75.
253.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
Act 3 of 1951, sec. 3 and Sch (w.e.f. 1-4-1951), to read as above.
254.  The word "or" omitted by Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951).
trial after entering the conviction, that question can be taken up for imposing the
sentence.261. Simply because the provisions of section 75 of the Indian Penal Code are
attracted in a particular case, is no ground for inﬂicting the extreme punishment
provided in that section. The provisions of this section are only permissive and not
obligatory. They do confer jurisdiction on the Courts to inﬂict enhanced punishment but
then that jurisdiction is to be exercised in a judicial manner after taking into
consideration the circumstances and the factors narrated above.262. Section 75, IPC,
1860 does not prescribe that a severe sentence should be imposed for repetition of any

crime by an offender. It does not prescribe a minimum sentence for any event. It does
not say that a convict of a petty theft committed without any violence should be given a
severe sentence if he had half a dozen previous convictions for like offences to his
credit.263.
[s 75.1] Clause (a).—
For the application of this section it is not necessary to show that the previous
sentence was for three years or upwards. What is required is that the previous
conviction was for an offence punishable under Chapter XII or XVII, for which sentence
of imprisonment could have been three years or upwards. The key word being
"punishable" the actual sentence awarded for the ﬁrst offence is not of any
consequence so long the offence was punishable with imprisonment for three years or

upwards.264. It is also necessary to remember that the conviction for the earlier
offence must remain in operation on the date of conviction for second offence. Thus if
the previous conviction is set aside on appeal, the accused cannot be awarded
enhanced punishment under this section.265. Non-applicability of section 75, IPC has
nothing to do with the proof or guilt of the main offence. If section 75, IPC is found to
be inapplicable then it would not mean that the ﬁnding of guilt for certain offences
recorded by the Magistrate will also go away. The conviction for the offences would
stand and the accused would be liable to be sentenced for the main offence and the
sentence cannot be enhanced with the aid of section 75, IPC, 1860.266.
[s 75.2] Section 75 and Section 236 of Cr PC.—

Under section 236 (310 of old Code) of the Code of Criminal Procedure and under
section 75 of the Indian Penal Code, it is enough if the person concerned has been
earlier convicted. It is not necessary that the sentence should be in force. Bearing in
mind that section 75 of the IPC and section 236 (310 of old code) of the Code of
Criminal Procedure deal with persons with previous conviction and the previous
sentence need not necessarily be in force when the subsequent offence is committed–
it would be clear that the latter section is intended to be applicable only to cases to
which section 75 of the Indian Penal Code applies.267.

255.  Clause (b) omitted by Act 3 of 1951, section 3 and Sch (w.e.f. 1-4-1951).
256.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-1956).
257.  Re Sugali Nage Naik, 1965 (1) Cr LJ 508 .
258.  Manaklal Jhamaklal v State, 1966 Cr LJ 1139 (MP).
259.  Re Kamya, AIR 1960 AP 490 [LNIND 1959 AP 115] : 1960 Cr LJ 1302 .
260.  Jagdish v State of Rajasthan, 1991 Cr LJ 2989 (Raj).
261.  State v Tampikannu, AIR 1970 Ker 251 [LNIND 1969 KER 110] .
262.  Daulat Singh v The State of HP, 1981 Cr LJ 1347 (HP).
263.  Kalarikkal Narayana Panicker Accused v State of Kerala, 1976 Cr LJ 410 .
264.  Ghisulal v State of MP, 1977 Cr LJ 88 (MP).
265.  Dilip Kumar Sharma, AIR 1976 SC 133 [LNIND 1975 SC 412] : 1976 Cr LJ 184 .
266.  Jagdish v State of Rajasthan, 1991 Cr LJ 2989 (Raj).
267.  Pratap v State of UP, AIR 1973 SC 786 [LNIND 1972 SC 595] : (1973) 3 SCC 690 [LNIND
1972 SC 595] .

CHAPTER IV GENERAL EXCEPTIONS
THIS chapter has been framed in order to obviate the necessity of repeating in every
penal clause a considerable number of limitations.
The word 'offence' in this chapter denotes a thing punishable under the Code or under
any special or local law when it satisﬁed the conditions laid down in section 40 of the
Code.
The "general exceptions" contained in sections 76–106 make an offence a non-offence.
every section that the deﬁnition is to be taken subject to the exceptions, the Legislature
the general exceptions. Therefore, general exceptions are part of deﬁnition of every
offence contained in IPC, 1860, but the burden to prove their existence lied on the

The following acts are exempted under the Code from criminal liability:—
1. Act of a person bound by law to do a certain thing (section 76).
2. Act of a Judge acting judicially (section 77).
3. Act done pursuant to an order or a judgment of a Court (section 78).
4. Act of a person justiﬁed, or believing himself justiﬁed, by law (section 79).
5. Act caused by accident (section 80).
6. Act likely to cause harm done without criminal intent to prevent other harm
(section 81).
7. Act of a child under seven years (section 82).
8. Act of a child above seven and under 12 years, but of immature understanding
(section 83).
9. Act of a person of unsound mind (section 84).
10. Act of an intoxicated person (section 85) and partially exempted (section 86).
11. Act not known to be likely to cause death or grievous hurt done by consent of

the sufferer (section 87).
12. Act not intended to cause death done by consent of sufferer (section 88).
13. Act done in good faith for the beneﬁt of a child or an insane person by or by the
consent of guardian (section 89).
14. Act done in good faith for the beneﬁt of a person without consent (section 92).
15. Communication made in good faith to a person for his beneﬁt (section 93).
16. Act done under threat of death (section 94).
17. Act causing slight harm (section 95).

18. Act done in private defence (sections 96–106).
The above exceptions, strictly speaking, come within the following seven categories:—
1. Judicial acts (section. 77, 78).
2. Mistake of fact (sections 76, 79).
3. Accident (section 80).
4. Absence of criminal intent (sections 81–86, 92–94).
5. Consent (sections 87, 90).
6. Triﬂing acts (section 95).
7. Private defence (sections 96–106).
Onus of proving exception lies on accused.—When a person is accused of any offence,
the burden of proving the existence of circumstances bringing the case within any of
the general exceptions in the Penal Code, or within any special exception or proviso
upon him, and the Court shall presume the absence of such circumstances.2.
Although the law lays down that the onus of proving circumstances which give the
beneﬁt of a general exception to an accused person lies on him, and in the absence of

evidence the presumption is against the accused, this does not mean that the accused
must lead evidence. If it is apparent from the evidence on the record, whether produced
by the prosecution or by the defence, that a general exception would apply, then the
presumption is removed and it is open to the Court to consider whether the evidence
proves to its satisfaction that the accused comes within the exception.3.
Applicability of General exceptions during investigation.—In considering that whether
accusation made in the complaint makes out a case for commission of offence or not,
the police while reaching the prima facie satisfaction of suspecting the commission of
cognizable offence, cannot ignore the general exception as provided under IPC, 1860
as per Chapter IV of IPC, 1860. If on the basis of the allegation made in the complaint,

the case is falling in general exceptions, it can be said that the action cannot be termed
as an offence.4. Investigating oﬃcer is bound to investigate and conﬁrm that despite
what is contained in the "General Exceptions"; acts committed by accused shall
constitute offence under IPC, 1860. This shall be done, by virtue of section 6 of IPC,
1860. In the light of section 6 of IPC, 1860, deﬁnition of every offence is to be
understood subject to the "General Exceptions". Therefore, investigation shall not
conﬁne merely to the acts committed by a person. Depending on facts and
circumstances of each case, many other relevant facts also have to be investigated
into, in the light of the provisions contained in "General Exceptions". It is only then that
an investigating oﬃcer will be able to conﬁrm whether the act committed by a person

is an offence or not, as deﬁned in IPC, 1860 subject to what is contained in "General
Exceptions". Further, the category of self-defence falling in general exception would fall
in a different category than the general exceptions, which are provided in the very
chapter for exercise of the statutory duty or lawful power either under the mistake of
law or fact or mistaken belief of law or fact.5.
[s 76] Act done by a person bound, or by mistake of fact believing himself
bound, by law.
Nothing is an offence which is done by a person who is, or who by reason of a mistake
of fact 1 and not by reason of a mistake of law 2 in good faith believes himself to be,

bound by law 3 to do it.
(a) A, a soldier, ﬁres on a mob by the order of his superior oﬃcer, in conformity with
the commands of the law. A has committed no offence.
(b) A, an oﬃcer of a Court of Justice, being ordered by that Court to arrest Y, and,
after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.
COMMENT.—
Sections 76 and 79 are based on the maxim ignorantia facti doth excusat and ignorantia
juris non excusat. Section 76 excuses a person who has done what by law is an offence,
under a misconception of facts, leading him to believe in good faith that he was
commanded by law to do it. See Comment on section 79, infra.
This section and sections 77, 78 and 79 deal with acts of a person bound or justiﬁed by
law. This section as well as sections 78 and 79 deal with acts of a person under a
mistake.
1. 'Mistake of fact'.—See Comment under section 79, infra.
2. 'Mistake of law'.—See Comment under section 79, infra.

mistake.
3. 'In good faith believes himself to be, bound by law'.—In order to entitle a person to
claim the beneﬁt of this section it is necessary to show the existence of a state of facts
which would justify the belief in good faith, interpreting the latter expression with
reference to section 52, that the person to whom the order was given was bound by law
to obey it. Thus, in the case of a soldier, the Penal Code does not recognize the mere
duty of blind obedience to the commands of a superior as suﬃcient to protect him
from the penal consequences of his act. But in certain circumstances a soldier
receives absolute protection under section 132 of the Cr PC, 1973.
For illegal acts, however, neither the orders of a parent nor a master nor a superior will
furnish any defence. Nothing but fear of instant death is a defence for a policeman who

tortures anyone by order of a superior. The maxim respondeat superior has no
application to such a case.6. The net position appears to be that if superior order is in
conformity with the law no further question arises and the subordinate oﬃcer is
protected by section 76 IPC, 1860, if he carries out that order. It is only when the order
is not in accordance with the law but the subordinate oﬃcer who carries out that order
in good faith, on account of a mistake of fact and not on ground of mistake of law,
believes himself to be bound by law to carry out such an order, that a further question
arises as to whether the subordinate oﬃcer will not still get protection of section 76
IPC, 1860, because of his mistake of fact. Thus, where the order was legal in the

circumstances of the case, e.g., where the police patrol party opened ﬁre under the
order of the Deputy Commissioner of Police after it had been attacked on a dark night
and an Assistant Commissioner of Police had been injured as a result of such attack,
really no question arose for the application of section 76 IPC, 1860, as the order was
both legal and justiﬁed by the circumstances of the case.7. The Indian law as contained
in sections 76 and 79 of the Penal Code appears to be the same as in England. This
point has, however, not been clearly decided in any case including the decision of the
Supreme Court in Shew Mangal Singh's case.8. There are, however, enough indications

2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .
2.  The Indian Evidence Act, I of 1872, section 105.
3.  Musammat Anandi, (1923) 45 All 329 ; Babulal, 1960 Cr LJ 437 (All).
4.  A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).
5.  A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).
6.  Latifkhan v State, (1895) 20 Bom 394; Gurdit Singh, (1883) PR No. 16 of 1883.
7.  State of WB v Shew Mangal Singh, 1981 Cr LJ 1683 : AIR 1981 SC 1917 [LNIND 1981 SC 355]
: (1981) 4 SCC 2 [LNIND 1981 SC 355] .
8.  Shew Mangal Singh, Supra.
9.  Chaman Lal, (1940) 21 Lah 521.
10.  A K Chaudhary v State of Gujarat, 2006 Cr LJ 726 (Guj).
in Shew Mangal Singh's case and in sections 76 and 79 IPC, 1860, that if the
subordinate due to a mistake of fact and not due to a mistake of law honestly believed
that he was bound or justiﬁed by law in carrying out the superior order which though

not manifestly illegal was nevertheless illegal, perhaps he would still get the beneﬁt of
superior order. Obedience to an illegal order can only be used in mitigation of
punishment but cannot be used as a complete defence.9. If on account of any
abnormal reaction, the employee has committed suicide, the conduct of the
complainant or of higher oﬃcer of taking departmental action by way of resorting to
legal remedy or enforcement of law, cannot be termed as leaving no option to the
delinquent employee but to commit suicide and, therefore, cannot be said as abetment
or incitement to suicide under such circumstances. In any case any action for resorting
to legal remedy for grievances or for enforcement of law in exercise of powers or
purported exercise of power cannot be said to contain any element of criminality

unless such action is ex facie without any competence, authority or jurisdiction.10.
[s 76.1] Protection of private persons assisting police.—
Private persons who are bound to assist the police under section 42 of the Cr PC, 1973
will be protected under this section.

[s 77] Act of Judge when acting judicially.
Nothing is an offence which is done by a Judge when acting judicially in the exercise
of any power which is, or which in good faith he believes to be, given to him by law.

11.  Rachapudi Subba Rao v Advocate General, (1981) 2 SCC 577 [LNIND 1980 SC 481] : AIR
1981 SC 755 [LNIND 1980 SC 481] .
12.  Surendera Kumar Bhatia v Kanhaiya Lal, (2009) 12 SCC 184 [LNIND 2009 SC 209] : AIR 2009
SC 1961 [LNIND 2009 SC 209] .
13.  E S Sanjeeva Rao v CBI, Mumbai, 2012 Cr LJ 4053 (Bom).
COMMENT.—
Under this section a Judge is exempted not only in those cases in which he proceeds
irregularly in the exercise of a power which the law gives him, but also in cases where
he, in good faith, exceeds his jurisdiction and has no lawful powers. It protects judges

from criminal process just as the Judicial Oﬃcers Protection Act, 1850, saves them
from civil suits. Judicial Oﬃcers' Protection Act affords protection to two broad
categories of acts done or ordered to be done by a judicial oﬃcer in his judicial
capacity. In the ﬁrst category fall those acts which are within the limits of his
jurisdiction. The second category encompasses those acts which may not be within
the jurisdiction of the judicial oﬃcer, but are, nevertheless, done or ordered to be done
by him, believing in good faith that he had jurisdiction to do them or order them to be
done.11.
A Collector who exercises powers of enquiry and award under the Land Acquisition Act,
1894 is not acting judicially because he is not a judge. He is not entitled to the

done.11.
protection of section 77.12. Regional Provident Fund Commissioner while passing order
under section 7-A of 1952 Act is entitled to get protection as envisaged under section
77 of IPC, 1860 and section 3(1) of Judges (Protection) Act, 1985.13.

[s 78] Act done pursuant to the judgment or order of Court.
Nothing which is done in pursuance of, or which is warranted by the judgment or order
of, a Court of Justice; if done whilst such judgment or order remains in force, is an
offence, notwithstanding the Court may have had no jurisdiction to pass such

judgment or order, provided the person doing the act in good faith believes that the
Court had such jurisdiction.
COMMENT.—
This section is merely a corollary to section 77. It affords protection to oﬃcers acting
under the authority of a judgment, or order of a Court of Justice. It differs from section
77 on the question of jurisdiction. Here, the oﬃcer is protected in carrying out an order
of a Court which may have no jurisdiction at all, if he believed that the Court had
jurisdiction; whereas under section 77 the Judge must be acting within his jurisdiction
to be protected by it.

Mistake of law can be pleaded as a defence under this section.

[s 79] Act done by a person justiﬁed or by mistake of fact believing himself
justiﬁed, by law.
Nothing is an offence which is done by any person who is justiﬁed by law1, or who by
reason of a mistake of fact2 and not by reason of a mistake of law3 in good faith,
believes himself to be justiﬁed by law, in doing it.

A sees Z commit what appears to A to be a murder. A, in the exercise, to the best of his
judgment exerted in good faith, of the power which the law gives to all persons of
apprehending murderers in the fact, seizes Z, in order to bring Z before the proper
authorities. A has committed no offence, though it may turn out that Z was acting in
self-defence.
COMMENT.—
Distinction between Sections 76 and 79.—The distinction between section 76 and this
section is that in the former a person is assumed to be bound, and in the latter to be
justiﬁed, by law; in other words, the distinction is between a real or supposed legal
obligation and a real or supposed legal justiﬁcation, in doing the particular act. Under
both (these sections) there must be a bona ﬁde intention to advance the law,
manifested by the circumstances attending the act which is the subject of charge; and
the party accused cannot allege generally that he had a good motive, but must allege

speciﬁcally that he believed in good faith that he was bound by law (section 76) to do
as he did, or that being empowered by law (section 79) to act in the matter, he had
acted to the best of his judgment exerted in good faith.14.
1. Any person who is justiﬁed by law.—Jurisprudentially viewed, an act may be an
offence, deﬁnitionally speaking but a forbidden act may not spell inevitable guilt if the
law itself declares that in certain special circumstances it is not to be regarded as an
offence. The chapter on General Exceptions operates in this province. Section 79
makes an offence a non-offence. When? Only when the offending act is actually
justiﬁed by law or is bona ﬁde believed by mistake of fact to be so justiﬁed.15. It is easy
to see that if the act complained of is wholly justiﬁed by law, it would not amount to an

offence at all in view of the provisions of section 79 of the IPC, 1860. Many cases may
however arise wherein acting under the provisions of the Police Act or other law
conferring powers on the police, the police oﬃcer or some other person may go beyond
what is strictly justiﬁed in law. Though section 79 of the IPC, 1860 will have no
application to such cases, section 53 of the Police Act will apply. But section 53 applies
to only a limited class of persons. So, it becomes the task of the Court, whenever any
question whether this section applies or not arises to bestow particular care on its
decision. In doing this it has to ascertain ﬁrst, what act is complained of and then to
examine, if there is any provision of the Police Act or other law conferring powers on

the police, under which it may be said to have been done or intended to be done. The
Court has to remember in this connection that an act is not "under" a provision of law
merely because the point of time at which it is done coincides with the point of time
when some act is done in the exercise of the powers granted by the provision or in
performance of the duty imposed by it. To be able to say that an act is done "under" a
provision of law, one must discover the existence of a reasonable relationship between
the provisions and the act. In the absence of such a relation the act cannot be said to
be done "under" the particular provision of law.16. But unless there is a reasonable
connection between the act complained of and the powers and duties of the oﬃce, it

cannot be said that the act was done by the accused oﬃcer under the colour of his
oﬃce.17. In Bhanuprasad Hariprasad Dave's case,18. wherein the allegations against the
police oﬃcer was of taking advantage of his position and attempting to coerce a
person to give him a bribe. The plea of colour of duty was negatived by the Supreme
Court. In Prof. Sumer Chand v UOI, 1994 (1) SCC 64 [LNIND 1993 SC 665] Supreme
Court on facts endorsed the opinion of the High Court that the act of the Police Oﬃcer
complained of fell within the description of `colour of duty'. The argument is irresistible
that if the performance of the act which constitutes the offence is justiﬁed by law, i.e.,

by some other provision, then section 79 exonerates the doer because the act ceases
to be an offence. Likewise, if the act were done by one 'who by reason of a mistake of
fact in good faith believes himself to be justiﬁed by law in doing it' then also, the
exception operates and the bona ﬁde belief, although mistaken, eliminates the
culpability. If the offender can irrefutably establish that he is actually justiﬁed by law in
doing the act or, alternatively, that he entertained a mistake of fact and in good faith
believed that he was justiﬁed by law in committing the act, then, the weapon of section
79 demolishes the prosecution.19.
2. 'Mistake of fact'.—Under this section, although an act may not be justiﬁed by law, yet
if it is done under a mistake of fact, in the belief in good faith that it is justiﬁed by law it
will not be an offence. Such cases are not uncommon where the Courts in the facts
and circumstances of the particular case have exonerated the accused under section

79 on the ground of having acted in good faith under the belief, owing to a mistake of
fact that he was justiﬁed in doing the act which constituted an offence. As laid down in
section 52 of the IPC, 1860, nothing is said to be done or believed in good faith which is
done or believed without due care and attention. The question of good faith must be
considered with reference to the position of the accused and the circumstances under
which he acted. 'Good faith' requires not logical infallibility but due care and attention.
The question of good faith is always a question of fact to be determined in accordance
with the proved facts and circumstances of each case.20.
'Mistake' is not mere forgetfulness.21. It is a slip "made, not by design, but by
mischance."22. Under sections 76 and 79 a mistake must be one of fact and not of law.

At common law an honest and reasonable belief in the existence of circumstances,
which, if true, would make the act for which a prisoner is indicted an innocent act has
always been held to be a good defence. Honest and reasonable mistake stands in fact
on the same footing as absence of the reasoning faculty, as in infancy, or perversion of
that faculty, as in lunacy.23. It may be laid down as a general rule that an alleged
offender is deemed to have acted under that state of facts which he in good faith and
on reasonable grounds believed to exist when he did the act alleged to be an
offence.24. Ignorantia facti doth excusat, for such ignorance many times makes the act
itself morally involuntary.25. Where a man made a thrust with a sword at a place where,
upon reasonable grounds, he supposed a burglar to be, and killed a person who was

not a burglar, it was held that he had committed no offence.26. In other words, he was
in the same situation as far as regards the homicide as if he had killed a burglar. The
accused while guarding his maize ﬁeld shot an arrow at a moving object in the bona
ﬁde belief that it was a bear and in the process caused the death of a man who was
hiding there. It was held that he could not be held liable for murder as his case was
fully covered by section 79 as well as section 80 IPC, 1860.27. Similarly, where the
accused while helping the police stopped a cart which they in good faith believed to be
carrying smuggled rice but ultimately their suspicion proved to be incorrect, it was held
that they could not be prosecuted for wrongful restraint under section 341 as their case

was covered by section 79 IPC, 1860.28. Section 79 makes an offence a non-offence.
Thus, where the Board of Censors, acting within their jurisdiction and on an application
made and pursued in good faith sanctions the public exhibition of a ﬁlm, the producer
and the connected agencies do enter the statutory harbour and are protected from
prosecution under section 292 IPC, 1860, because section 79 of the Code exonerates
them at least in view of their bona ﬁde belief that the certiﬁcate is justiﬁcatory.29.
3. 'Mistake of law'.—Mistake in point of law in a criminal case is no defence. Mistake of
law ordinarily means mistake as to the existence or otherwise of any law on a relevant
subject as well as mistake as to what the law is.30.
Ignorance of the municipal law of the Kingdom, or of the penalty thereby inﬂicted upon

offenders, doth not excuse any, that is of the age of discretion and compos mentis, from the

penalty of the breach of it; because every person of the age of discretion and compos
mentis is bound to know the law, and presumed so to do.31.
If any individual should infringe the statute law of the country through ignorance or
carelessness, he must abide by the consequences of his error; it is not competent to
him to aver in a Court of Justice that he was ignorant of the law of the land, and no
Court of Justice is at liberty to receive such a plea.32.
The maxim ignorantia juris non excusat, in its application to criminal offences, admits of
no exception, not even in the case of a foreigner who cannot reasonably be supposed
in fact to know the law of the land.33. The legal presumption that everyone knows the
law of the land is often untrue as a matter of fact. But then why such a presumption
subsists? The reason for this seems to be nothing but expediency; otherwise there is
no knowing of the extent to which the excuse of ignorance of law might be carried.

Indeed, it might be urged almost in every case.34. This rule of expediency has been put
to use even in a case where the accused could not have possibly known the law in the
circumstances in which he was placed. Thus, a person who was on the high seas and
as such could not have been cognizant of a recently passed law might be convicted for
contravening it.35.
Whenever the question of justiﬁcation of an offence either due to mistake of fact or
mistake of law arises, the guiding rules are: (1) that when an act is in itself plainly
criminal, and is more severely punishable if certain circumstances co-exist, ignorance
of the existence of such circumstances is no answer to a charge for the aggravated
offence. (2) That where an act is prima facie innocent and proper, unless certain

circumstances co-exist, then ignorance of such circumstances is an answer to the
charge. (3) That the state of the defendant's mind must amount to absolute ignorance
of the existence of the circumstance which alters the character of the act, or to a belief
in its non-existence. (4) Where an act which is in itself wrong is, under certain
circumstances, criminal, a person who does the wrong act cannot set up as a defence
that he was ignorant of the facts which turned the wrong into a crime. (5) Where a
statute makes it penal to do an act under certain circumstances, it is a question upon
the wording and object of the particular statute, whether the responsibility of
ascertaining that the circumstances exist is thrown upon the person who does the act
or not. In the former case his knowledge is immaterial.36.

[s 79.1] Ignorance of statute newly passed.—
Although a person commits an act which is made an offence for the ﬁrst time by a
statute so recently passed as to render it impossible that any notice of the passing of
the statute could have reached the place where the offence has been committed, yet
his ignorance of the statute will not save him from punishment.37. For an Indian law to
operate and be effective in the territory where it operates namely, the territory of India, it
is not necessary that it should either be published, or be made known outside the
country.38.
[s 79.2] Act of State.—
An act of State is an act injurious to the person or to the property of some person who
is not at the time of that act a subject of the Government; which act is done by any
representative of the Government's authority, civil or military, and is either previously

sanctioned or subsequently ratiﬁed by the Government. The doctrine as to acts of State
can apply only to acts which affect foreigners, and which are done by the orders or with
the ratiﬁcation of the Government. As between the State and its subjects there can be

no such thing as an act of State. Courts of law are established for the express purpose
of limiting public authority in its conduct towards individuals.
Persons carrying out an act of State under proper orders will be protected by the Penal
Code, in the same way as if they were carrying out a lawful order under the municipal
law. To support a plea of this nature two things are essential:—
(1) that the defendant had authority to act on behalf of the State in the matter; and
(2) that in so acting, he was professing to act as a matter of policy, outside the law,
and not as a matter of right within the law.
[s 79.3] Protection of private persons.—
Private persons acting under sections 38, 43, 72 and 73 of the Cr PC, 1973 will be
protected under this section.
[s 79.4] Fake Encounters. —
Unprovoked ﬁring by appellants who were police oﬃcials caused death of two persons
and grievous gun-shot injuries to another person. Seven police oﬃcers admitted ﬁring

into the vehicle. But the defence case was that they had done so only on the direction
of ACP, a superior oﬃcer. The Supreme Court held that it cannot, by any stretch of
imagination, be claimed by anybody that a case of murder would fall within the
expression 'colour of duty'.39.
[s 79.5] CASES.—Mistake of fact.—
Good Defence.—Where an accused owing to a defect in his vision and the effect of a
fall bona ﬁde believed that his son of whom he was very fond was a tiger and caused
fatal injuries to him with an axe in a moment of delusion, he was protected under this
section, and his act being done under a bona ﬁde mistake, he could not be convicted of
an offence of murder.40. Once the Board of Censors, acting within their jurisdiction and

on an application made and pursued in good faith, sanctions the public exhibition of a
ﬁlm, the producer and connected agencies enter the statutory harbour and are
protected because section 79 exonerates them in view of the bona ﬁde belief that the
certiﬁcate is justiﬁcatory.41.
[s 79.6] English case.—
The accused was convicted of bigamy, having gone through the ceremony of marriage
within seven years after she had been deserted by her husband. She believed in good
faith and on reasonable grounds that her husband was dead. It was held that a bona
ﬁde belief on reasonable grounds in the death of the husband at the time of the second
marriage afforded a good defence to the indictment, and that the conviction was
wrong.42. Where the question was whether the accused was to be held liable for

injuring a person whom he thought was belabouring another when in fact he was only
trying to immobilise a person who had attempted to rob a woman, the Court said that if
W was labouring under a mistake of fact as to the circumstances when he committed

the alleged offence, he was to be judged according to his mistaken view of the facts
regardless of whether his mistake was reasonable or unreasonable. The
reasonableness or otherwise of the belief was only material to the question of whether
the belief was in fact held by the defendant at all.43.
[s 79.7] Bad defence.—
Deceased attempted to steal coconut from the garden of which accused was a
watchman. Accused contended that, he while discharging his duties as a watchman in
good faith and under mistake of fact inﬂicted an injury which unfortunately resulted in
the death of the victim. Explaining the applicability of section 79, Supreme Court held

that there was no mistake of fact which could even if existed or found true could
warrant or justify in law, the imposition of such a serious injury as found inﬂicted on the
victim.44. A police-oﬃcer saw a horse tied up in B's premises and because it happened
to resemble one which his father had lost a short time previously, he jumped at once to
the conclusion that B had either stolen the horse himself, or purchased it from the thief,
and compelled B to account for his possession. The oﬃcer found that B had bought
the animal from one S; so he sent for S, charged him with the theft, and compelled him
to give bail whilst an investigation was pending. The oﬃcer never sent for the
supposed owner of the horse, or took the trouble of getting any credible information as

to whether it was his father's horse or not. It was held that the police-oﬃcer had not
acted in good faith, that is, with due care and attention and that this section did not
protect him.45. The accused struck a person with a full force lathi blow thinking that he
was a thief and he had to do so to safeguard his property. The incident took place
outside the house near a pond. The place was away from the house. There being no
occasion for private defence of property and the blow being given on the head with
severity, it was held that the accused was liable to be convicted under section 304 Part
II. He was sentenced to three years RI.46.
[s 79.8] English case.—
The accused took an unmarried girl under the age of 16 years out of the possession,
and against the will, of her father. The defence of the accused was that he was bona

ﬁde and reasonably believed that the girl was older than 16. It was held that the taking
of the girl was unlawful the defence was bad.47. This case may be distinguished from
Tolson's case, in which a woman married believing her husband to be dead. There the
conduct of the woman was not in the smallest degree immoral, but was, on the other
hand, perfectly natural and legitimate.

14.  1st Rep. section 114, p 219.
15.  Raj Kapoor v Laxman, AIR 1980 SC 605 [LNIND 1979 SC 492] : (1980) 2 SCC 175 [LNIND
1979 SC 492] : 1980 (2) SCR 512 [LNIND 1979 SC 492] : 1980 Cr LJ 436 ; Jayantilal K Katakia v P
Govindan Nair, AIR 1981 SC 1196 : (1981) 2 SCC 423 .
16.  State of AP v N Venugopal, AIR 1964 SC 33 [LNIND 1963 SC 159] .
17.  State of Maharashtra v Narhar Rao, AIR 1966 SC 1783 [LNIND 1966 SC 85] ; State of
Maharashtra v Atma Ram, AIR 1966 SC 1786 [LNIND 1978 SC 193] .
18.  Bhanuprasad Hariprasad Dave v State of Gujarat, AIR 1968 SC 1323 [LNIND 1968 SC 119] .
19.  Raj Kapoor v Laxman, AIR 1980 SC 605 [LNIND 1979 SC 492] : (1980) 2 SCC 175 [LNIND
1979 SC 492] : 1980 (2) SCR 512 [LNIND 1979 SC 492] : 1980 Cr LJ 436 .
20.  State of Orissa v Bhagaban Barik, AIR 1987 SC 1265 [LNIND 1987 SC 366] : (1987) 2 SCC
498 [LNIND 1987 SC 366] .
21.  Per Lord Esher, MR, in Barrow v Isaacs, (1891) 1 QB 417 , 420.

22.  Per Lord Russell, CJ, in Sandford v Beal, (1899) 65 LJQB 73 , 74, 73 LT 406.
23.  Per Cave, J, in Tolson, (1889) 23 QBD 168 , 181.
24.  Per Stephen, J, in Ibid., p 188.
25.  1 Hale PC pp 42, 43.
26.  Levett, (1839) Cro Car 538.
27.  State of Orissa v Khora Ghasi, 1978 Cr LJ 1305 (Ori).
28.  Keso Sahu v Saligram, 1977 Cr LJ 1725 (Ori).
29.  Rajkapoor v Laxman, 1980 Cr LJ 436 : AIR 1980 SC 605 [LNIND 1979 SC 492] .
30.  Tustipada Mandal, (1950) Cut 75.
31.  1 Hale PC 42.
32.  Fischer, (1891) 14 Mad 342, 354, FB.
33.  Esop, (1836) 7 C & P 456.
34.  Bilbie v Lumley, (1802) 2 East 469.
35.  Bailey v Bailey, (1800) Russ & Ry 1; C & J cases, see also State of Maharashtra v MH George,
1965 (1) Cr LJ 641 : AIR 1965 SC 722 [LNIND 1964 SC 208] .
36.  Tustipada Mandal, (1950) Cut. 75.
37.  Bailey's Case, (1800) Russ. & Ry 1.

38.  Mayer Hans George, (1964) 67 Bom LR, 583 : AIR 1965 SC 722 [LNIND 1964 SC 208] : (1965)
1 Cr LJ 641 .
39.  Satyavir Singh Rathi v State Thr. CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC
1 [LNIND 2011 SC 475] : 2011 Cr LJ 2908 : (2011) 2 SCC(Cr) 782 : (2011) 6 SCR 138 [LNIND
2011 SC 475] .
40.  Chirangi, (1952) Nag 348.
41.  Raj Kapoor v Laxman, AIR 1980 SC 605 [LNIND 1979 SC 492] : (1980) 2 SCC 175 [LNIND
42.  Tolson, (1889) 23 QBD 168 .
43.  R. v Williams, (1987) 3 All ER 411 Ch, following dictum of LAWTON LJ in R. v Kimber, (1983)
1 All ER 320 . See also Beckford v R, (1987) 3 All ER 425 PC, where the same test was applied in
a situation in which a person acted in self defence under a mistaken, but honestly held belief,
that the person whom he shot dead was a dangerous gunman.

44.  Pitchai v State, (2004) 13 SCC 579 : (2006) 1 SCC(Cr) 505 See also Nagraj v State of Mysore,
AIR 1964 SC 269 [LNIND 1963 SC 153] : 1964 (3) SCR 671 [LNIND 1963 SC 153] : 1964 Cr LJ
161 .

45.  Sheo Surun Sahai v. Mohomed Fazil Khan, (1868) 10 WR (Cr) 20.
46.  State of Orissa v Bhagbhan Barik, (1987) 2 SCC 498 [LNIND 1987 SC 366] : AIR 1987 SC
1265 [LNIND 1987 SC 366] : 1987 Cr LJ 1115 . The Court relied on Russel On Crimes, 76 (vol 1).
47.  Prince, (1875) LR 2 CCR 154.

[s 80] Accident in doing a lawful act.
Nothing is an offence which is done by accident 1 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.

A is at work with a hatchet; the head ﬂies off and kills a man who is standing by. Here, if
there was no want of proper caution on the part of A, his act is excusable and not an
offence.
COMMENT.—
This section exempts the doer of an innocent or lawful act in an innocent or lawful
manner and without any criminal intention or knowledge from any unforeseen evil
result that may ensue from accident or misfortune.48. To claim the beneﬁt of this
provision it has to be shown:
(1) that the act in question was without any criminal intention or knowledge;
(2) that the act was being done in a lawful manner by lawful means; and
(3) that act was being done with proper care and caution.49.
1. 'Accident'.—An effect is said to be accidental when the act by which it is caused is
not done with the intention of causing it, and when its occurrence as a consequence of
such act is not so probable that a person of ordinary prudence ought, under the

circumstances in which it is done, to take reasonable precautions against it.50. An
accident is something that happens out of the ordinary course of things.51. The idea of
something fortuitous and unexpected is involved in the word 'accident.'52. Where two
brothers were sleeping together and one of them while in a state of semi-sleep felt that
somebody was throttling him, picked up the dao, kept on the head of the bed, and
administered a blow which was received by his sleeping brother who died, there being
neither intention nor motive, the accused was let off under this section. His act was not
voluntary.53.
An injury is said to be accidentally caused whensoever it is neither wilfully nor
negligently caused.54. Where the accused ﬁred a shot at his assailant who escaped but

four other persons were injured and one of them unfortunately expired, it was held that
the accused was not liable for the fatal injury to an innocent person as his case fell
within the scope of section 80 read with sections 96 and 100, IPC, 1860.55. Shooting
with an unlicensed gun does not debar an accused from claiming immunity under this
section.56.
[s 80.1] Medical Negligence.—
To prosecute a medical professional for negligence under criminal law it must be
shown that the accused did something or failed to do something which in the given
facts and circumstances no medical professional in his ordinary senses and prudence
would have done or failed to do. The hazard taken by the accused doctor should be of
such a nature that the injury which resulted was most likely imminent.57. In Dr. Suresh

Gupta v Govt. of NCT of Delhi,58. the Apex Court held that where the medical practitioner
failed to take appropriate steps, viz., "not putting a cuffed endotracheal tube of proper
size" so as to prevent aspiration of blood blocking respiratory passage, the act
attributed to him may be described as negligent act but not so reckless as to make him
criminally liable. In Kusum Sharma v Batra Hospital and Medical Research Centre,59. the
Supreme Court reiterated the legal position after taking survey of catena of case law. In
the context of issue pertaining to criminal liability of a medical practitioner, it is laid

down that the prosecution of a medical practitioner would be liable to be quashed if the
evidence on record does not project substratum enough to infer gross or excessive
degree of negligence on his/her part. The criminal liability cannot be fastened on the
Medical Practitioner unless the negligence is so obvious and of such high degree that it
would be culpable by applying the settled norms.60.
[s 80.2] CASES.—
Deceased allegedly dashed by offending tractor and crushed by its wheels. The
Steering bolt of steering wheel was evidently broken all of a sudden. Offending vehicle
became free and was out of control. Incident was merely an accident and not an act of
rashness or negligence on the part of the accused.61. Where the act of the accused is
itself of criminal nature, the protection of this section cannot be availed. In this case,
the accused picked up his gun, unlocked it, loaded it with cartridges, aimed at the chest

of the victim from a close range of 4–5 feet and shot it. Quite naturally this section was
held to be not applicable. There could be no suggestion of an accident.62. Where the
Death is caused by shooting an arrow under bona ﬁde belief that object aimed at was
an animal, accused is entitled to the beneﬁt under sections 79 or 80.63. The accused
was attacked when he was asleep at night by his brother who tried to strangulate him.
Apprehending imminent death, the accused aimed a blow at his assailant brother with
a piece of bamboo on which he could lay hand and the blow accidentally struck the
head of his intervening father as a result of which he ultimately died. It was held that
the accused exercised his lawful right of self- defence and the blow fell on the head of

his father by accident and misfortune and he was fully protected by sections 80 and
106. His conviction under section 304 Part II was set aside.64.
[s 80.3] Burden of Proof.—
The prosecution alleges that the accused intentionally shot the deceased; but the
accused pleads that, though the shots emanated from his revolver and hit the
deceased, it was by accident, that is, the shots went off from the revolver in the course
of a struggle in the circumstances mentioned in section 80 of the IPC, 1860 and hit the
deceased resulting in his death. The Court then shall presume the absence of
circumstances bringing the case within the provisions of section 80 of the IPC, 1860,
that is, it shall presume that the shooting was not by accident, and that the other
circumstances bringing the case within the exception did not exist. But this

presumption may be rebutted by the accused by adducing evidence to support his plea
of accident in the circumstances mentioned therein. This presumption may also be
rebutted by admissions made or circumstances elicited by the evidence led by the
prosecution or by the combined effect of such circumstances and the evidence
adduced by the accused. But the section does not in any way affect the burden that lies
on the prosecution to prove all the ingredients of the offence with which the accused is
charged and that burden never shifts.65.

48.  Sukhdev Singh v Delhi State (Govt. of NCT of Delhi), (2003) 7 SCC 441 [LNIND 2003 SC 728] :
AIR 2003 SC 3716 [LNIND 2003 SC 728] , if either of these elements is missing, the act is not to
be excused on the ground of accident.
49.  Atmendra v State of Karnataka, 1998 Cr LJ 2838 : AIR 1998 SC 1985 [LNIND 1998 SC 386]
(SC).
50.  Stephen's Digest of Criminal Law, 9th Edn, Article 316.
51.  Fenwick v Schmalz, (1868) LR 3 CP 313, 316. Atmendra v State of Karnataka, 1998 Cr LJ
2838 : AIR 1998 SC 1985 [LNIND 1998 SC 386] (SC); Sita Ram v State of Rajasthan, 1998 Cr LJ

287 (Raj), the accused labourer was digging earth by spade, another labourer came close to him
to remove the soil and became the victim of one spade blow of which he died. It was held that
the act of the accused came neither within section 302 nor section 304. It fell within section
304A being an act of criminal negligence. Sentence imposed upon him was reduced to the
period already undergone.
52.  Per Lord Halsbury in Hamilton, Fraser & Co v Pandorf & Co, (1887) 12 AC 518 , 524.
53.  Patreswar Basumatary v State of Assam, 1989 Cr LJ 196 (Gau).
54.  10th Parl Rep 16.
55.  Raja Ram, 1977 Cr LJ NOC 85 (All); see also Khora Ghasi, 1978 Cr LJ 1305 (Ori) under
section 79 ante.
56.  Rangaswamy, (1952) Nag 93.
57.  Jacob Mathew v State of Punjab, AIR 2005 SC 3180 [LNIND 2005 SC 587] : 2005 (6) SCC 1

[LNIND 2005 SC 587] in this case SC issued guidelines regarding the prosecution of Doctors for
medical Negligence; See comments in section 304A.
58.  Dr. Suresh Gupta v Govt. of NCT of Delhi, (2004) 6 SCC 422 [LNIND 2004 SC 744] : 2004 AIR
SCW 4442 : AIR 2004 SC 4091 [LNIND 2004 SC 744] .
59.  Kusum Sharma v Batra Hospital and Medical Research Centre, 2010 (3) SCC 480 [LNIND
2010 SC 164] .
60.  Dr. Saroja Patil v State of Maharashtra, 2011 Cr LJ 1060 (Bom).
61.  Mahadev v State of MP, 2006 Cr LJ 4246 (MP).
62.  Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370]
: 2004 Cr LJ 1778 : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .
63.  State of Orissa, v Khora Ghasi, 1978 Cr LJ 1305 ; State of MP v Rangaswami 1952 Cr LJ 1191
.
64.  Girish Saikia v State of Assam, 1993 Cr LJ 3808 (Gau).

.
65.  K M Nanavati v State of Maharashtra, AIR 1962 SC 605 [LNIND 1961 SC 362] : 1962 (Supp1)
SCR 567 : 1962 Cr LJ 521 ; Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966
[LNIND 2004 SC 1370] : (2005) 9 SCC 71 [LNIND 2004 SC 1370] .

[s 81] Act likely to cause harm, but done without criminal intent, and to prevent
other harm.
Nothing is an offence merely by reason of its being done with the knowledge that it is
likely to cause harm, if it be done without any criminal intention1 to cause harm, and

in good faith for the purpose of preventing or avoiding other harm to person or
property.
Explanation.—It is a question of fact in such a case whether the harm to be prevented
or avoided was of such a nature and so imminent as to justify or excuse the risk of
doing the act with the knowledge that it was likely to cause harm.
(a) A, the captain of a steam vessel, suddenly and without any fault or negligence
on his part, ﬁnds himself in such a position that, before he can stop his vessel,
he must inevitably run down a boat B, with twenty or thirty passengers on board,
unless he changes the course of his vessel, and that, by changing his course, he
must incur risk of running down a boat C with only two passengers on board,
which he may possibly clear. Here, if A alters his course without any intention to
run down the boat C and in good faith for the purpose of avoiding the danger to
the passengers in the boat B, he is not guilty of an offence, though he may run

down the boat C by doing an act which he knew was likely to cause that effect, if
it be found as a matter of fact that the danger which he intended to avoid was
such as to excuse him in incurring the risk of running down the boat C.
(b) A, in a great ﬁre, pulls down houses in order to prevent the conﬂagration from
spreading. He does this with the intention in good faith of saving human life or
property. Here, if it be found that the harm to be prevented was of such a nature
and so imminent as to excuse A's act. A is not guilty of the offence.
COMMENT.—
An act which would otherwise be a crime may in some cases be excused if the person
accused can show that it was done only in order to avoid consequences which could
not otherwise be avoided, and which, if they had followed, would have inﬂicted upon

him or upon others whom he was bound to protect inevitable and irreparable evil, that
no more was done than was reasonably necessary for that purpose, and that the evil
inﬂicted by it was not disproportionate to the evil avoided.66. As in self-defence so in
the prevention of harm the accused is faced with two choices both resulting in some
harm and of sheer necessity to avoid a greater harm he has to commit an act which
would otherwise be an offence. The test really is like this: there must be a situation in
which the accused is confronted with a grave danger and he has no choice but to
commit the lesser harm may be even to an innocent person, in order to avoid the
greater harm. Here the choice is between the two evils and the accused rightly chooses
the lesser one.67.

1. 'Without any criminal intention'.—Under no circumstances can a person be justiﬁed
in intentionally causing harm; but if he causes the harm without any criminal intention,
and merely with the knowledge that it is likely to ensue, he will not be held responsible
for the result of his act, provided it be done in good faith to avoid or prevent other harm
to person or property.
'Criminal intention' simply means the purpose of design or doing an act forbidden by
the criminal law without just cause or excuse. An act is intentional if it exists in idea
before it exists in fact, the idea realizing itself in the fact because of the desire by which
it is accompanied. The motive for an act is not a suﬃcient test to determine its criminal
character. By a motive is meant anything that can contribute to give birth to, or even to

prevent, any kind of action. Motive may serve as a clue to the intention; but although
the motive is pure, the act done under it may be criminal. Purity of motive will not purge
an act of its criminal character.
Where an offence depends upon proof of intention the Court must have proof of facts
suﬃcient to justify in coming to the conclusion that the intention existed. No doubt one
has usually to infer intention from conduct, and one matter that has to be taken into
account is the probable effect of the conduct. But that is never conclusive.68.
Where the positive evidence against the accused is clear, cogent and reliable, the
question of motive is of no importance.69.
[s 81.1] Mens rea.—
It is a well settled principle of common law that mens rea is an essential ingredient of
criminal offence. A statute can exclude that element, but it is a sound rule of
construction adopted in England and also accepted in India to construe a statutory

provision creating an offence in conformity with the common law rather than against it
unless the statute expressly or by necessary implication excludes mens rea. There is a
presumption that mens rea is an essential ingredient of a statutory offence; but this
may be rebutted by the express words of a statute creating the offence or by necessary
implication. But the mere fact that the object of a statute is to promote welfare
activities or to eradicate grave social evils is in itself not decisive of the question
whether the element of guilty mind is excluded from the ingredients of the offence. It is
also necessary to enquire whether a statute by putting a person under strict liability
helps him to assist the State in the enforcement of the law; can he do anything to
promote the observance of the law? Mens rea by necessary implication can be

excluded from a statute only where it is absolutely clear that the implementation of the
object of a statute would otherwise be defeated and its exclusion enables those put
under strict liability by their act or omission to assist the promotion of the law. The
nature of mens rea that will be implied in a statute creating an offence depends upon
the object of the Act and the provisions thereof.70.
It is, however, held that mens rea is an essential ingredient in every offence except in
three cases:
(1) cases not criminal in any real sense but which in the public interest are
prohibited under a penalty;
(2) public nuisance; and
(3) cases criminal in form but which are really only a summary mode of enforcing a
civil right.
The maxim actus non facit reum, nisi mens sit rea has, however, no application in its

technical sense to the offences under the Penal Code, as the deﬁnitions of various
offences contain expressly a proposition as to the state of mind of the accused. In
other words, each offence under the Code except offences like waging war (section
121), sedition (section 124A), kidnapping and abduction (sections 359, 363) and
counterfeiting coins (section 232) prescribes a mens rea of a speciﬁc kind which is not
exactly the same as mens rea in the sense of being a guilty mind under the common
law. Thus, throughout the web of the IPC, 1860 the doctrine of mens rea runs as a
running thread in the form of "intentionally", "voluntarily", "knowingly", "fraudulently",
"dishonestly" and the like. It is, therefore, not entirely correct to say that the doctrine of

mens rea is inapplicable to the offence under the Penal Code. What the Code requires
is not negation of mens rea but mens rea of a speciﬁc kind and this may differ from
offence-to-offence.

In this section and in sections 87, 88, 89, 91, 92, 93, 95, 100, 104 and 106, 'harm' can
only mean physical injury.71.
As to the doctrine of compulsion and necessity, see comment on section 94, infra.
[s 81.2] CASES.—
Where a Chief Constable not in his uniform came to a ﬁre and wished to force his way
past the military sentries placed round it, was kicked by a sentry, it was held that as the
sentry did not know who he was, the kick was justiﬁable for the purpose of preventing
much greater harm under this section and as a means of acting up to the military
order.72. A person placed poison in his toddy pots, knowing that if taken by a human
being it would cause injury, but with the intention of thereby detecting an unknown thief
who was in the habit of stealing the toddy from his pots. The toddy was drunk by and
caused injury to some soldiers who purchased it from an unknown vendor. It was held
that the person was guilty under section 328, and that this section did not apply.73.

Where a Village Magistrate arrested a drunken person whose conduct was at the time a
grave danger to the public, it was held that he was not guilty of an offence by reason of
the provisions of this section or sections 96 or 105.74.
[s 81.3] English cases.—
A man who, in order to escape death from hunger, kills another for the purpose of
eating his ﬂesh, is guilty of murder; although at the time of the act he is in such
circumstances that he believes and has reasonable ground for believing that it affords
the only chance of preserving his life. At the trial of an indictment for murder it
appeared that the prisoners D and S, seamen, and the deceased, a boy between 17 and
18, were cast away in a storm on the high seas, and compelled to put into an open
boat; that the boat was drifting on the ocean and was probably more than 1,000 miles

from land; that on the 18th day, when they had been seven days without food and ﬁve
days without water, D proposed to S that lots should be cast who should be put to
death to save the rest, and that they afterwards thought it would be better to kill the boy
that their lives should be saved; that on the 20th day, D with the assent of S, killed the
boy, and both D and S fed on his ﬂesh for four days; that at the time of the act there
was no sail in sight nor any reasonable prospect of relief; that under these
circumstances there appeared to the prisoners every probability that unless they then
or very soon fed upon the boy, or one of themselves, they would die of starvation. It
was held that upon these facts there was no proof of any such necessity as could
justify the prisoners in killing the boy, and that they were guilty of murder.75. A and B,

swimming in the sea after shipwreck, get hold of a plank not large enough to support
both; A pushes off B, who is drowned. This, in the opinion of Sir James Stephen, is not a
crime as A thereby does B no direct bodily harm but leaves him to his chance of getting
another plank. According to Archbold this is not a law now. In R v Martin,76. the
defendant, charged with driving whilst disqualiﬁed, sought to raise necessity as a
defence but on the trial judge ruling, in effect, that necessity was no defence to an
'absolute' offence, he changed his plea to guilty. The circumstances on which the
defendant sought to rely were that his wife's son (the defendant's stepson) was late for
work and accordingly in danger of losing his job, and that this had made his wife so
distraught that she threatened to commit suicide unless he drove her son to work.

There was medical evidence available indicating that it was likely that his wife would
have attempted suicide had he not driven her son to work. The Court of Appeal,
quashing the conviction, held that the trial judge should have left the defence to the

66.  Stephen's Digest of Criminal Law, 9th Edn, Article 11.
67.  Southwark London Borough Council v Williams, (1971) Ch 734 , (1971) 2 All ER 175 ; Wood v
Richards (1971) RTR 201 .
68.  Ramchandra Gujar, (1937) 39 Bom LR 1184 , (1938) Bom 114.
69.  Gurcharan Singh v State of Punjab, AIR 1956 SC 460 : 1956 Cr LJ 827 . Kusta Balsu
Kandnekar v State of Goa, 1987 Cr LJ 89 Bom.
70.  Mayer Hans George, (1964) 67 Bom LR 583 , AIR 1965 SC 722 [LNIND 1964 SC 208] : (1965)
1 Cr LJ 641 . See also Nathulal, AIR 1966 SC 43 [LNIND 1965 SC 97] : 1966 Cr LJ 71 .

71.  Veeda Menezes v Yusuf Khan, 1966 Cr LJ 1489 : AIR 1966 SC 1773 [LNIND 1966 SC 107] :
68 Bom LR 629.
72.  Bostan, (1892) 17 Bom 626.
73.  Dhania Daji, (1868) 5 BHC (Cr C) 59.
74.  Gopal Naidu, (1922) 46 Mad 605 (FB).
75.  Dudley and Stephens, (1884) 14 QBD 273 .
76.  R v Martin, (1989) 1 All ER 652 CA.
77.  Reproduced from All ER Annual Review 1989.
jury. The authorities were now clear, said the Court, and established the following
principles. First, the law does recognise a defence of necessity whether arising from
wrongful threats of violence to another or from 'objective dangers' (conveniently called
duress of circumstances) threatening the defendant or others. Second, the defence is
available only if the defendant can be objectively said to be acting reasonably and

proportionately to avoid the threat of death or serious injury. Third, it is for the jury to
determine whether because of what the defendant reasonably believed he had good
cause to fear death or serious injury; and, if so, whether a person of reasonable
ﬁrmness, sharing the characteristics of the defendant, would have responded as the
defendant did.77.

[s 82] Act of a child under seven years of age.
Nothing is an offence which is done by a child under seven years of age.

78.  Lukhini Agradanini, (1874) 22 WR (Cr) 27, 28.
79.  Hiralal, 1977 Cr LJ 1921 : AIR 1977 SC 2236 [LNIND 1977 SC 254] .
80.  Makhulshah v State, (1886) 1 Weir 470.
COMMENT.—
Under the age of seven years no infant can be guilty of a crime; for, under that age an
infant is, by presumption of law, doli incapax, and cannot be endowed with any
discretion. If the accused were a child under seven years of age, the proof of that fact
would be ipso facto an answer to the prosecution.78. It is, therefore, desirable to bring
some evidence regarding the age of the accused on the record.79.

The accused purchased for one anna, from a child aged six years, two pieces of cloth
valued at 15 annas, which the child had taken from the house of a third person. It was
held that, assuming that a charge of an offence of dishonest reception of property
(section 411) could not be sustained owing to the incapacity of the child to commit an
offence, the accused was guilty of criminal misappropriation, if he knew that the
property belonged to the child's guardians and dishonestly appropriated it to his own
use.80.

[s 83] Act of a child above seven years of age and under twelve of immature
understanding.
Nothing is an offence which is done by a child above seven years of age and under
twelve, who has not attained suﬃcient maturity of understanding to judge of the
nature and consequences of his conduct on that occasion.

COMMENT.—
Where the accused is a child above seven years of age and under twelve, the incapacity
to commit an offence only arises when the child has not attained suﬃcient maturity of
understanding to judge of the nature and consequences of his conduct, and such non-
attainment would have apparently to be specially pleaded and proved, like the
incapacity of a person who, at the time of doing an act charged as an offence, was
alleged to have been of unsound mind under this section it has got to be shown that
the accused is not only under 12 but has not attained suﬃcient maturity of
understanding. If no evidence or circumstance is brought to the notice of the Court, it
will be presumed that the child accused intended to do what he really did. Thus, where
a child of 12 or so used a sharp sword in killing a person along with his two brothers
and no evidence either of age or immaturity of understanding was led on his behalf, it
was held that he committed an offence at least under section 326, IPC, 1860.81. The

Legislature is manifestly referring in this section to an exceptional immaturity of
intellect.82. What the section contemplates is that the child should not know the nature
and physical consequences of his conduct.83. The circumstances of a case may
disclose such a degree of malice as to justify the maxim malitia supplet octatem.84.
Where the accused, a boy over 11 years but below 12 years of age, picked up his knife
and advanced towards the deceased with a threatening gesture, saying that he would
cut him to bits, and did actually cut him, his entire action can only lead to one inference,
namely, that he did what he intended to do and that he knew all the time that a blow
inﬂicted with a kathi (knife) would effectuate his intention.85. In the prosecution of an

11-year-old child for throwing a brick at a police vehicle and then running away, the
Court said that the justices were not entitled to conclude from his appearance that he
was normal in respect of incurring criminal responsibility. The test is whether the child
knew that what he was doing was seriously wrong and went beyond childish mischief.
Running away was not by itself suﬃcient to rebut the presumption of doli incapax. A
naughty child would run away from a parent or teacher even if what he had done was
not criminal.86.
[s 83.1] CASE.—Theft by child.—
Where a child of nine years of age stole a necklace, worth Rs. 280, and immediately
afterwards sold it to the accused for ﬁve annas, the accused could be convicted of
receiving stolen property, because the act of the child in selling the necklace showed

that he had attained a suﬃcient maturity of understanding to judge of the nature and
consequences of his conduct on that occasion within the meaning of this section.87.
Section 83 provides that nothing is an offence which is done by a child above seven
years of age and under 12, who has not attained suﬃcient maturity of understanding to
judge of the nature and consequences of his conduct on that occasion. The IPC, 1860
provides no protection from culpable liability on ground of tender age to one who is
aged 12 years or more. In a child's life the period between seven and 12 years of age is
rather the twilight period of transition to a minimal workable level of understanding of
things in the ﬁrmament of worldly affairs. And that is why both the IPC, 1860 and the
Oaths Act have made special provisions for children below 12 years in respect of

matters dependent on a minimal power of understanding.88.
A claim of juvenility may be raised before any Court and it shall be recognised at any
stage, even after ﬁnal disposal of the case.89.

81.  Hiralal, Supra.
82.  Lukhini Agradanini, (1874) 22 WR (Cr) 27, 28.
83.  Ulla Mahapatra, (1950) Cut 293.
84.  Mussamut Aimona, (1864) 1 WR (Cr) 43.
85.  Ulla Mahapatra, Supra.
86.  A v DPP, (1991) COD 442 (DC).
87.  Krishna, (1883) 6 Mad 373.
88.  Santosh Roy v State of WB, 1992 Cr LJ 2493 : 1992 (1) Crimes 904 (Cal).
89.  Section 7A Juvenile Justice (Care and Protection of Children) Act, 2000. See also Amit
Singh v State of Maharashtra, 2011 (8) Scale 439 [LNIND 2011 SC 731] : (2011) 9 SCR 890
[LNIND 2011 SC 731] : (2011) 13 SCC 744 [LNIND 2011 SC 731] .

[s 84] Act of a person of unsound mind.
Nothing is an offence which is done by a person who, at the time of doing it, 1 by
reason of unsoundness of mind, 2 is incapable of knowing the nature of the act, or
that he is doing what is either wrong or contrary to law. 3

COMMENT.—
To commit a criminal offence, mens rea is generally taken to be an essential element of
crime. It is said furiosus nulla voluntus est. In other words, a person who is suffering
from a mental disorder cannot be said to have committed a crime as he does not know
what he is doing. For committing a crime, the intention and act both are taken to be the
constituents of the crime; actus non facit reum nisi mens sit rea. Every normal and sane
human being is expected to possess some degree of reason to be responsible for
his/her conduct and acts unless contrary is proved. But a person of unsound mind or a
person suffering from mental disorder cannot be said to possess this basic norm of
human behaviour.90.
[s 84.1] McNaughten Rule and the origin of Section 84 of IPC, 1860.—
Section 84 clearly gives statutory recognition to the defence of insanity as developed
by the Common Law of England in a decision of the House of Lords rendered in the

case of R v Daniel McNaughten.91. In that case, the House of Lords formulated the
famous Mc Naughten Rules on the basis of the ﬁve questions, which had been referred
to them with regard to the defence of insanity. The reference came to be made in a
case where Mc Naughten was charged with the murder by shooting of Edward
Drummond, who was the Pvt Secretary of the then Prime Minister of England Sir Robert
Peel. The accused Mc Naughten produced medical evidence to prove that, he was not,
at the time of committing the act, in a sound state of mind. He claimed that he was
suffering from an insane delusion that the Prime Minister was the only reason for all
his problems. He had also claimed that as a result of the insane delusion, he mistook
Drummond for the Prime Minister and committed his murder by shooting him. The plea

of insanity was accepted and Mc Naughten was found not guilty, on the ground of
insanity. The aforesaid verdict became the subject of debate in the House of Lords.
Therefore, it was determined to take the opinion of all the judges on the law governing
such cases. Five questions were subsequently put to the Law Lords. A comparison of
answers to question no. 2 and 3 and the provision contained in section 84 of the IPC,
1860 would clearly indicate that the section is modelled on that answers.92.
The essential elements of section 84 are as follows:
(i) The accused must, at the time of commission of the act be of unsound mind;
(ii) The unsoundness must be such as to make the accused at the time when he is
doing the act charged as offence, incapable of knowing the nature of the act or

that he is doing what is wrong or contrary to law.93. Where it is proved that the
accused has committed multiple murders while suffering from mental
derangement of some sort and it is found that there is (i) absence of any motive,
(ii) absence of secrecy, (iii) want of pre-arrangement, and (iv) want of
accomplices, it would be reasonable to hold that the circumstances are
suﬃcient to support the inference that the accused suffered from unsoundness
of mind.94.
Though the onus of proving unsoundness of mind is on the accused,95. yet it has been
held that where during the investigation previous history of insanity is revealed, it is the
duty of an honest investigator to subject the accused to a medical examination and
place that evidence before the Court and if this is not done, it creates a serious inﬁrmity

in the prosecution case and the beneﬁt of doubt has to be given to the accused.96.
Prosecution is duty bound to subject the accused to a medical examination
immediately.97. This onus may, however, be discharged by producing evidence as to the
conduct of the accused shortly prior to the offence and his conduct at the time or

immediately afterwards, also by evidence of his mental condition, his family history and
so forth.98. Every person is presumed to know the natural consequences of his act.
Similarly every person is also presumed to know the law. The prosecution has not to
establish these facts.99.
There are four kinds of persons who may be said to be non compos mentis (not of
sound mind): (1) an idiot; (2) one made non compos by illness; (3) a lunatic or a
madman; and (4) one who is drunk.
An idiot is one who is of non-sane memory from his birth, by a perpetual inﬁrmity,
without lucid intervals; and those are said to be idiots who cannot count twenty, or tell
the days of the week, or who do not know their fathers or mothers, or the like. A person
made non compos men-us by illness is excused in criminal cases from such acts as
are-committed while under the inﬂuence of his disorder. A lunatic is one who is aﬄicted
by mental disorder only at certain periods and vicissitudes, having intervals of reason.

Madness is permanent. Lunacy and madness are spoken of as acquired insanity, and
idiocy as natural insanity.100.
[s 84.2] Legal insanity v i s - a - v i s  Medical insanity.—
A distinction is to be made between legal insanity and medical insanity. A Court is
always concerned with legal insanity, and not with medical insanity. What sections 84,
IPC, 1860 provides is defence of legal insanity as distinguished from medical insanity.
A person is legally insane when he is incapable of knowing the nature of the act or that
what he was doing was wrong or contrary to law.101. Incapacity of the person on
account of insanity must be of the nature which attracts the operation of section 84
IPC, 1860.102. An accused who seeks exoneration from liability of an act under section

84 of the IPC, 1860 is to prove legal insanity and not medical insanity. Expression
"unsoundness of mind" has not been deﬁned in the IPC, 1860 and it has mainly been
treated as equivalent to insanity. But the term insanity carries different meaning in
different contexts and describes varying degrees of mental disorder. Every person who
is suffering from mental disease is not ipso facto exempted from criminal liability. The
mere fact that the accused is conceited, odd, irascible and his brain is not quite all
right, or that the physical and mental ailments from which he suffered had rendered his
intellect weak and affected his emotions or indulges in certain unusual acts, or had ﬁts
of insanity at short intervals or that he was subject to epileptic ﬁts and there was

abnormal behaviour or the behaviour is queer are not suﬃcient to attract the
application of section 84 of the IPC, 1860.103. The medical profession would
undoubtedly treat the accused as a mentally sick person. However, for the purposes of
claiming the beneﬁt of the defence of insanity in law, the appellant would have to prove
that his cognitive faculties were so impaired, at the time when the crime was
committed, as not to know the nature of the act.104. Only legal insanity is contemplated
under section 84 of IPC, 1860.105.
[s 84.3] 42nd Report of Law Commission of India.—
Law Commission of India re-visited section 84 of the IPC, 1860 in view of the criticism
to the M'Naughten Rules in various countries including Britain but came to the
conclusion that law of insanity under section 84 of the IPC, 1860 needs no changes in

Indian circumstances.106.

Section 84 lays down the legal test of responsibility in cases of alleged unsoundness of
mind. There is no deﬁnition of "unsoundness of mind" in the Penal Code. The Courts
have, however, mainly treated this expression as equivalent to insanity. But the term
"insanity" itself has no precise deﬁnition. It is a term used to describe varying degrees
of mental disorder. So, every person, who is mentally diseased, is not ipso facto
exempted from criminal responsibility. A distinction is to be made between legal
insanity and medical insanity. A Court is concerned with legal insanity, and not with
medical insanity.107. In this case, the accused was under medical treatment prior to the
occurrence. Evidence indicating that he remained mentally ﬁt for about four years after
treatment. During the trial also he was sent for treatment and his conduct was normal
thereafter. On such facts, it was held, that the accused was not entitled to protection

under section 84. The Court also added that where previous history of insanity of the
accused comes to light during investigation, the accused must be medically examined
and report placed before the Court. Any lapse in this respect would create inﬁrmity in
the prosecution case and the accused may become entitled to beneﬁt of doubt.
1. 'At the time of doing it'.—It must clearly be proved that at the time of the committing
of the act, the party accused was labouring under such a defect of reason, from
disease of the mind, as not to know the nature and quality of the act he was doing, or, if
he did know it, that he did not know he was doing what was wrong.108. If he did know it,
he is responsible.109.
In Sheralli Wali Mohammed v State of Maharashtra,110. it was held that:

... it must be proved clearly that, at the time of the commission of the acts, the appellant, by
reason of unsoundness of mind, was incapable of either knowing the nature of the act or
that the acts were either morally wrong or contrary to law. The question to be asked is, is
there evidence to show that, at the time of the commission of the offence, he was labouring
under any such incapacity? On this question, the state of his mind before and after the
commission of the offence is relevant.
The crucial point of time for deciding whether the beneﬁt of this section should be
given or not is the material time when the offence takes place. If at that moment a man
is found to be labouring under such a defect of reason as not to know the nature of the

act he was doing or that, even if he knew it, he did not know it was either wrong or
contrary to law then this section must be applied. In coming to that conclusion, the
relevant circumstances, like the behaviour of the accused before the commission of
the offence and his behaviour after the commission of the offence, should be taken
into consideration.111. The accused pushed a child of four years into ﬁre resulting in his
death but there was nothing to show that there was any deliberateness or preparation
to commit the crime. His act was accompanied by manifestations of unnatural brutality
and was committed openly. He neither concealed nor ran away nor tried to avoid
detection which showed that he was not conscious of his guilt. It was held that the
accused was entitled to beneﬁt of section 84 and his conviction under section 302 was

set aside.112. The accused, a young boy brought up by his grandfather, went abroad for
further studies. When his parents visited abroad they did not care to see him. His
grandfather's death was communicated to him much later. On return to India, he
committed offences of brutal nature at random. During the pendency of the session's
case, he again continued and completed his engineering course and started a printing
press and later he managed a garage and allied industries employing nearly 30
persons. His behaviour before and after the offences was that of a normal man. It was
held that he was insane at the time of the offence and was given beneﬁt of section
84.113. Where the accused was examined by two doctors who certiﬁed him to be
schizophrenic and his abnormal behaviour was also apparent from the evidence on the

record, the Supreme Court held that the acquittal of the accused by the High Court was
proper.114.

In other words, to get the beneﬁt of section 84 IPC, 1860, it must be shown that at the
time of the commission of the act the accused by reason of unsoundness of mind was
incapable of either knowing the nature of the act or that the act was either morally
wrong or contrary to law and for determining this his state of mind before and after the
commission of the offence is most relevant. It would be dangerous to admit the
defence of insanity upon arguments derived merely from the character of the crime.115.
Thus, the fact that the accused committed the murder over a triﬂing matter and made a
clean breast of his crime would not go to show that he was insane.116.
[s 84.4] Lucid intervals.—
A lucid interval of an insane person is not merely a cessation of the violent symptoms
of the disorder, but a restoration of the faculties of the mind suﬃciently to enable the
person soundly to judge the act; but the expression does not necessarily mean

complete or perfect restoration of the mental faculties to their original condition. So, if
there is such a restoration, the person concerned can do the act with such reason,
memory and judgment as to make it a legal act; merely a cessation of the violent
symptoms of the disorder is not suﬃcient.117.
2. 'Unsoundness of mind.'—Whether the want of capacity is temporary or permanent,
natural or supervening, whether it arises from disease, or exists from the time of birth,
it is included in this expression. It is only 'unsoundness of mind' which naturally impairs
the cognitive faculties of the mind that can form a ground of exemption from criminal
responsibility.118. The nature and extent of the unsoundness of mind required being
such as would make the offender incapable of knowing the nature of the act, or that he

is doing what is wrong or contrary to law.119. Thus, as Stephen says that if a person
cuts off the head of a sleeping man because 'it would be great fun to see him looking
for it when he woke up', it would obviously be a case where the perpetrator of the act
would be incapable of knowing the physical effects of his act.120. The accused had
killed his wife and his minor children and assaulted his neighbour and the police oﬃcer.
The evidence showed that he had a history of insanity with at random assault on
strangers but his relations with his wife were cordial. It was held that the accused was
a man of unsound mind and his conviction under sections 302, 332 and 323 was set
aside.121. The accused caught hold of the legs of a girl of two years of age on the road

and struck her on the ground. She sustained head injury and died in the hospital. On the
basis of the ocular evidence about the conduct of the accused at the time of the
offence and the opinion of the doctor about his state of mind, the accused was
acquitted on the ground of insanity.122. The accused, a labourer, killed his brother's wife
and attempted to kill his mother in a quarrel over money deposited with his mother.
Accused assaulted with axe on the vital parts of the victim's body, absconded for three
months and immediately after the incident worked as a labourer in another village for
15 days. It was held that the conduct of the accused immediately before, at the time of
and after the incident, was wholly inconsistent with the plea of insanity raised by him.

The history of earlier mental derangement was not by itself suﬃcient to bring the case
within section 84.123. Where on the day of the crime the accused was seen dancing
with a dog on his head and with a broken bottle, but the medical evidence showed that
he was a normal man, it was held that defence of insanity was an afterthought.124. The
mere fact that the accused attempted to escape from the scene of occurrence after
killing his wife, belied his plea of insanity.125. Where a father and his relatives sacriﬁced
a four-year-old son to propitiate the deity, the Supreme Court held that this does not by
itself constitute insanity. Such primitive and inhuman actions must be punished
severely so as to deter others from resorting to such barbaric practices.126.

[s 84.5] Partial delusion.—
Mere abnormality of mind or partial delusion affords no protection under section 84
IPC, 1860.127. Whether a person who, under an insane delusion as to the existing facts,
commits an offence in consequence thereof, is to be, therefore, excused depends upon
the nature of the delusion. If he labours under a partial delusion only, and is not in other
respects insane, he must be considered in the same situation as to responsibility as if
the facts, with respect to which the delusion exists, were real.128. If a person aﬄicted
with insane delusion, in respect of one or more particular subjects or persons, commits
a crime, knowing that he was acting contrary to law, but did the act complained of with
a view, under the inﬂuence of insane delusion, of redressing or revenging some
supposed grievance or injury, or of producing some public beneﬁt, he is nevertheless
punishable according to the nature of the crime committed.129. Where the accused

after killing his daughter tried to commit suicide and there was no evidence of
psychiatric treatment but only major depression, he was held liable to be convicted.130.
3. 'Nature of the act, or...what is either wrong or contrary to law.'—If the accused were
conscious that an act was done which he ought not to do and if the act was at the
same time contrary to the law of the land, he is punishable. His liability will not be
diminished if he did the act complained of with a view under the inﬂuence of insane
delusion of redressing or revenging some supposed grievance or injury or of producing
some public beneﬁt, if he knew that he was acting contrary to law.131. Where the
accused, a young man, took a girl of four years on a bicycle to a lonely place near a
canal, sexually assaulted her and threw her into the canal, it was held that it was a

carefully thought out action and not an act of an insane person.132.
Mere absence of motive for a crime, howsoever atrocious it may be, cannot, in the
absence of plea and proof of legal insanity, bring the case within this section.133. The
mere fact that an act of murder is committed by the accused on a sudden impulse and
there is no discoverable motive for the act will not generally afford the Court suﬃcient
basis for accepting the plea of insanity.134. Thus, in SW Mohammed's case the
Supreme Court held that the mere fact that no motive has been proved why the
accused murdered his wife and child or the fact that he made no attempt to run away
when the door was broken open would not indicate that he was insane or that he did
not have the necessary mens rea for the offence.135. In a Madras case, however, the

Madras High Court has held that where the accused was insane for some months prior
to occurrence and on cordial terms with his wife but suddenly killed the wife in the
open courtyard without any ostensible motive and did not even attempt to run away or
secret his crime, he had to be given the beneﬁt of section 84, IPC, 1860.136. This case
can, of course, be distinguished from the above mentioned Supreme Court case on the
ground that in the instant case the accused had previous history of insanity which was
not fully cured. Prior or subsequent treatment for schizophrenia coupled with the
evidence of the doctor that the accused was schizophrenic would entitle the accused
to the beneﬁt of section 84 in a charge of murder.137. But where the doctor in his
evidence merely said unsoundness of mind may have existed from before and that

evidence was contradicted by evidence of close relations about sanity of the accused
at the time of the occurrence, it was held that the accused could not get the beneﬁt of
section 84, IPC, 1860.138. There is a difference between medical insanity and legal
insanity. By medical insanity is meant the prisoner's consciousness of the bearing of
his act on those affected by it and by legal insanity is meant the prisoner's
consciousness in relation to himself.139. There can be no legal insanity unless the
cognitive faculties of the accused are as a result of unsoundness of mind completely
impaired. In order to constitute legal insanity unsoundness of mind must be such as to
make the offender incapable of knowing the nature of the act, or that he is doing what
is wrong or contrary to law.140. Thus, mere abnormality of mind or partial delusion,

irresistible impulse or compulsive behaviour of a psychopath affords no protection
under section 84 of the IPC, 1860 as the law contained in that section is still squarely
based on the outdated M'Naughten Rules of 19th Century England. Thus, in
Siddheswari's case141. where the accused killed her ailing child of three and there was
also some evidence elicited in cross-examination to show that the accused had
suffered from some mental derangement two years prior to the incident, it was held
that the mere fact the murder was committed on a sudden impulse or as a "mercy
killing" was no ground to give her the beneﬁt of section 84 IPC, 1860, even though both
euthanasia (mercy killing) and irresistible impulse would entitle the accused in England
to get the beneﬁt of diminished responsibility and her crime would be treated as
manslaughter (i.e. culpable homicide not amounting to murder). In a latter case too the
Gauhati High Court felt that where the accused has made out a prima facie case of

irresistible impulse the plea has to be taken into consideration in deciding the question
of giving beneﬁt of section 84, IPC, 1860, to the accused.142.
The position, however, has undergone a sea change in England where the right or
wrong test of the M'Naughten Rules no longer dominate this branch of criminal law to
the exclusion of mental abnormality falling short of complete insanity as a limited
defence establishing a claim to diminished responsibility. Thus, under section 2 of the
Homicide Act, 1957 if two Psychiatrists certify that the homicidal act of the accused
was inﬂuenced by abnormal condition of his mind though not amounting to legal
insanity within the meaning of M'Naughten Rules, still he cannot be convicted of
murder but his offence will be regarded only as a manslaughter which is equivalent to

culpable homicide not amounting to murder under the IPC, 1860. It is hoped that the
Indian law too would be changed on this score with due regard to the modern
developments in the ﬁeld of psychology of criminal behaviour.
[s 84.6] CASES.—
Accused, who was a mentally challenged person before the incident, killed three
persons and caused injuries to others with an axe. He did not know the implication of
his act and indiscriminately went on wielding axe blows, be it a child or a woman and
there after he did not even attempt to hide the weapon which he used for committing
crime. He was found of unsound mind in his medical examination. Case of accused
comes within the four corners of section 84 IPC, 1860.143. Where an accused, who was
suffering from fever which caused him while suffering from its paroxysms to be

bewildered and unconscious, killed his children at being annoyed at their crying, but he
was not delirious then, and there was no evidence to show that he was not conscious
of the nature of his act, it was held that he was not entitled to protection under this
section.144. But where the accused labouring under a delusion believed his two-month-
old infant child to be a devil and danger to himself, his family and to the whole world
and, therefore, killed the child with unusual ferocity almost reducing it to a pulp and
thereafter without making any attempt to escape told the police party that he had
removed a devil from the world, it was held that the accused did not know that what he
had done was wrong and as such was entitled to get protection of section 84, IPC,
1860, even when he did not plead insanity in his defence as the prosecution itself

disclosed that he was insane.145. IPC, 1860Allegation that accused appellant had cut
his son, aged about one and a half years, to death and he was intercepted while he was
preparing to bury the dead body by digging a pit. Medical evidence shows that the
accused was suffering from schizophrenia. Accused was reticent by nature and used
to keep himself indoors and interact only when he was compelled to do so. He was not
in a normal state of mind at the time of alleged crime. Appellant is entitled to the
beneﬁts under section 84 of IPC, 1860.146. The accused killed three persons and
caused injuries to others and there was no previous enmity or motive established. The

witnesses stated that he ran from one place to other and on his way he assaulted ﬁve
persons indiscriminately without any rhyme or reason. The evidence shows that
appellant had developed insanity since long and entitled to the beneﬁt of this
section.147. Accused chopped off his wife's head, with a chopper. After the occurrence,
in a very unusual and abnormal manner, holding the head and the chopper in each of
his hands, he walked down the road and ultimately reached the police station. Though
this, by itself, would not be suﬃcient to come to any conclusion but taken along with
the other circumstances of the case would clearly point to the validity of the defence
put forward on behalf of the accused.148.
[s 84.7] Epilepsy, Epileptic ﬁts and Section 84.—
Epilepsy usually occurs from early infancy, though it may occur at any period of life.
Individuals, who have had epileptic ﬁts for years, do not necessarily show any mental
aberration, but quite a few of them suffer from mental deterioration. Religiosity is a

marked feature in the commencement, but the feeling is only superﬁcial. Such patients
are peevish, impulsive and suspicious, and are easily provoked to anger on the slightest
cause. Epileptic psychosis is that which is associated with epileptic ﬁts. This may
occur before or after the ﬁts, or may replace them, and is known as pre- epileptic, post-
epileptic and masked or psychic phases (psychomotor epilepsy).149.
Where the accused committed the murder without any motive under the inﬂuence of an
epileptic ﬁts, he was entitled to get the beneﬁt under section 84, IPC, 1860.150. But if at
the time of the crime he was not acting under epileptic automatism, mere past history
of epilepsy will not absolve the accused from liability.151.
[s 84.8] Irresistible impulse.—
Mere abnormality of mind or partial delusion, irresistible impulse or compulsive

behaviour of a psychopath affords no protection under section 84 as the law contained
in that section is still squarely based on the outdated M'Naughten Rules of 19th
Century. The provisions of section 84 are in substance the same as those laid down in
the answers of the Judges to the questions put to them by the House of Lords, in
M'Naughten's case. Behaviour, antecedent, attendant and subsequent to the event, may
be relevant in ﬁnding the mental condition of the accused at the time of the event, but
not that remote in time.152.
[s 84.9] Nervousness.—
The fact that the accused became nervous after raping a six-year-old girl and in that
state of mind killed her, was held to be not suﬃcient to establish insanity. The Court
reduced the death sentence to life imprisonment and added that nervous psychosis

may become in circumstances a kind of insanity.153.
[s 84.10] Homicide by ' g a n j a  ' smoker.—
In a case of ganja addict before the Supreme Court, the accused had killed his wife and
children ranging one –16 years with knife. Death sentence was conﬁrmed by the High

Court. The accused had not raised the defence of unsoundness in Courts below. The
Supreme Court got the enquiry conducted by police after a plea was raised at the SLP
stage. The enquiry report and evidence of family members and other witnesses
revealed the addiction and on-going treatment. He was not allowed the beneﬁt of
section 84. The state of mind on the day of the incident is the crucial factor. The State
of mind on other days is relevant only if such evidence would help determining the
state of mind at the crucial moment.154.
[s 84.11] Insane delusion.—
The accused killed two women by cutting their necks with an axe without any reason.
Evidence showed that he suffered from similar attacks of disorder earlier too. After the
incident he was heard saying that he was haunted by a God to do what he did. The plea
of insanity was accepted and the accused was directed to be kept in a mental
hospital.155. The accused killed seven persons including his wife and two children with

an axe. He also killed the cattle which came his way. There was no provocation. It was
brutality simpliciter. The evidence on record showed that he was not of sound mind.
The death sentence awarded to him was set aside. He was acquitted under the beneﬁt
of this section.156. Mere abnormality or partial delusion, irresistible impulse or
compulsive behaviour of a psychopath affords no protection under section 84 of the
Penal Code.157.
[s 84.12] Paranoid schizophrenia.—
Paranoid schizophrenia, in the vast majority of cases, starts in the fourth decade and
develops insidiously. Suspiciousness is the characteristic symptom of the early stage.
Ideas of reference occur, which gradually develop into delusions of persecution.
Auditory hallucinations follow which in the beginning, start as sounds or noises in the

ears, but afterwards change into abuses or insults.158. In paranoid schizophrenia, the
person affected lives in a state of constant fear being haunted by the belief that he is
being poisoned, some noxious gases are blown into his room and that all are plotting
against him to ruin him. The patient gets very irritated and excited owing to equally
painful and disagreeable hallucinations and delusions.159. The accused was convicted
for having murdered his wife in a brutal manner. He raised the plea of insanity. It came
out from evidence that he was suffering from leprosy and insanity from sometime past.
The medical opinion was that he was suffering from paranoid schizophrenia which is a
form of paranoid psychosis. The plea was allowed. But he being not in a ﬁt state of

mind to judge his own welfare or take care of himself without medical aid, the Court
directed him to be detained in safe custody under medical supervision and not to be
released till medical evidence of social ﬁtness.160. The evidence on record shows that
on the day of the incident, when the appellant was examined by doctors, he was found
to be suffering from paranoid schizophrenia. He had delusions and persecutory ideas
with no insight in his illness. From this, an inference can reasonably be drawn that the
accused was under paranoid delusions at the time that he committed the offence.161.
[s 84.13] Burden of proof.—
The Supreme Court deﬁned the doctrine of burden of proof in the context of the plea of
insanity in the following propositions:-

"(1) The prosecution must prove beyond reasonable doubt that the appellant had
committed the offence with the requisite mens rea; and the burden of proving
that always rests on the prosecution from the beginning to the end of the trial.
(2) There is a rebuttable presumption that the appellant was not insane, when he
committed the crime, in the sense laid down by section 84 of the IPC, 1860: the
appellant may rebut it by placing before the court all the relevant evidence - oral,
documentary or circumstantial, but the burden of proof upon him is no higher
than that rests upon a party to civil proceedings.
(3) Even if the appellant was not able to establish conclusively that he was insane
at the time he committed the offence, the evidence placed before the court by
the appellant or by the prosecution may raise a reasonable doubt in the mind of
the court as regards one or more of the ingredients of the offence, including
mens rea of the appellant and in that case the court would be entitled to acquit

the appellant on the ground that the general burden of proof resting on the
prosecution was not discharged".162.
It has been held that merely because an injured witness, who may legitimately be
classiﬁed as an interested witness for obvious reasons, may have stated that the
appellant was not of unsound mind, cannot absolve the primary duty of the prosecution
to establish its case beyond all reasonable doubt explaining why the plea for
unsoundness of mind taken by the accused was untenable.163.
The burden of proving the existence of circumstances bringing the case within the
purview of section 84 lies upon the accused under section 105 of the Indian Evidence
Act. Under the said section, the Court shall presume the absence of such
circumstances.164. But the burden on the accused cannot be equivalent with the

burden of proof on the prosecution and cannot be rated higher than the burden on a
party to a civil proceeding where a ﬁnding can be based upon preponderance of
probabilities. There is no conﬂict between the general burden which is always on the
prosecution and which never shifts and the special burden which rests on the accused
to make out the defence of insanity.165. Sometimes the facts may in themselves be
suﬃcient to discharge the burden which lies on the accused. This possibility was
recognised by the Supreme Court in Ratan Lal v State of MP.166. The accused-appellant
was kept in police custody for ten days and only then it was felt that he needed medical
examination. There was no evidence on record to show what his condition was during
those ten days and why he was not examined earlier. This conduct on the part of the

police, neither to arrange his examination nor permit him to do so, brought about such
a gap of time between the incident and examination that his condition at the time of
the incident was no longer capable of being precisely determined. As against this
police inaction, the defence pointed towards the conduct of the accused before the
incident and some statements of witnesses which supported the instable condition of
the accused. This was held to be suﬃcient to discharge the burden which lies on the
accused and his acquittal was upheld by the Supreme Court. Going by this case in
Tukappa Tamanna Lingardi v State of Maharashtra,167. the Bombay High Court found
evidence of insanity from a narration of the facts themselves. Mere oral statements of
witnesses cannot give rise to an inference that the appellant was of unsound mind at

the time of commission of offence. Plea of the accused does not come within
exception contemplated under section 84 of IPC, 1860.168. IPC, 1860
Where there was no satisfactory evidence of the previous history of the accused or his
subsequent conduct and the only fact on record was that ghastly murders were
committed without motive, it was held that the burden of proof as to plea of insanity
was not discharged. However, because of the absence of motive, premeditation and
any weapon, killings being done with stone pieces, death sentence was converted into
life imprisonment.169. Where, on the other hand, a father killed his son and then danced

around, moving towards his house threatening others, facts spoke for themselves so
as to discharge the burden of proof as to insanity, the accused was acquitted and
ordered to be detained in a mental home.170.
Mere eccentric behaviour, like drowning one's own two and a half-year-old child to
death, does not discharge this burden which is essentially on the accused and requires
him to show all the ingredients of the defence to the extent at least of making them
probable at the time of the commission of the act. Previous history and subsequent
conduct are only relevant facts in the determination of the condition at the material
time.171.
The mere absence of motive is not suﬃcient to bring the case within the scope of
section 84.172.
[s 84.14] Sentencing.—
The accused was charged with offences under sections 427, 302, 307, 451, etc.
Medical evidence showed that he was a person of unsound mind at the time when the
offences were committed. The accused, therefore, could not be detained in prison. He

was directed to be put in a mental hospital. The authorities were further directed to
follow the procedure prescribed by section 335, Code of Criminal Procedure, 1973 (Cr
PC, 1973).173.
[s 84.15] Sentencing.—Battered woman syndrome.—
The accused woman pleaded guilty to manslaughter on an indictment for murder. She
was a young woman aged 20. She began a sexual relationship with the deceased when
she was 14 and began to live with him when she was 16. She had a miscarriage and on
two occasions took overdoses. The deceased became violent towards her two or three
times each week. She sought psychiatric help and on two occasions came to the
attention of the police. In 1998 she decided to end the relationship and there was an
argument which developed into a ﬁght. She picked up a knife and waved it at the

deceased, telling him to leave. There was a further struggle during the course of which
the deceased received a fatal knife wound to his back. She immediately shouted for
help and was found in an extremely distressed condition. When she was examined, she
was found to be extensively bruised. A psychiatrist who examined her found that she
exhibited a number of features of the "battered woman's syndrome", including chronic
depressive illness, a feeling of hopelessness and despair, and inability to act effectively
or to see an escape from her situation, and feelings of self-blame, shame and a poor
sense of self-worth. A second psychiatrist found a degree of clinical depression which
amounted to abnormality of mind. She was sentenced to four years' detention in a
young offender institution. Her appeal against the sentence was allowed. In the light of

the evidence, the Court reached the conclusion that there were in the present case
those exceptional circumstances which would allow the Court to take the unusual
course of passing a sentence other than custody. The accused woman had been
subject from a young age to persistent and prolonged violence from a man older than
herself who was domineering and demanding. Since her arrest she had made
remarkable progress, and a custodial sentence would be likely to damage and possibly
bring to an end that rehabilitation. She had served the equivalent of a sentence of 12
months and it was appropriate to give her the opportunity to continue her progress. The
Court accordingly quashed the sentence of four years' detention in a young offender
institution and substituted a probation order.174.

[s 84.16] CASES.—Defence not made out.—
Accused came to the house one day prior to the occurrence, demanded money and
threatened the deceased of grave consequences and on the next day, when the
demand was not fulﬁlled, he trespassed into the house, pushed away PWs 1 and 2,
bolted the door from inside and inﬂicted repeated aruval blows on the deceased that
resulted into her death. All these aspects also show that at the relevant time, he was
not insane as claimed by him.175. Accused committed murder of two persons
andcaused injuries to another. Testimony of witnesses was found cogent and reliable
and there was no material on the basis of which it could be inferred that at the time of
commission of offence the accused was of unsound mind to such an extent that by
reason of such unsoundness, he was incapable of knowing the nature of the act or
knowing that he was doing what was either wrong or contrary to law, plea of insanity
rejected.176. Mere taking treatment earlier in Mental Hospital itself is not suﬃcient

proof of total insanity of person.177.
The accused killed his wife and daughter with an axe. He attended Kirtan (rendering of
religious hymns) a night before. He carried the corpses in a hand-cart and made his
statement before the police. His confessional statement was recorded by a competent
judicial magistrate. He found no noticeable abnormality of mind or mental
disorderliness. Even on his examination under section 313, Cr PC, 1973, he showed a
soundness of mind. It was held that he was not entitled to the beneﬁt of section 84.178.
[s 84.17] When to be pleaded.—
The plea cannot be raised for the ﬁrst time before the Supreme Court for which no
foundation was established before.179.
[s 84.18] Investigation of offence vis-à-vis the general exceptions–
The duty cast upon the investigating oﬃcer to investigate into the mental condition of

the accused is very important. The Supreme Court held that, where during the
investigation previous history of insanity is revealed, it is the duty of an honest
investigator to subject the accused to a medical examination and place that evidence
before the Court and if this is not done, it creates a serious inﬁrmity in the prosecution
case and the beneﬁt of doubt has to be given to the accused.180. The Division Bench of
High Court of Kerala observed that even if all the acts constituting an offence as per
deﬁnition in IPC, 1860 are committed by a person, if an investigating oﬃcer ﬁnds on
investigation that by reason of unsoundness of mind, accused was incapable of
knowing the nature of the act, or that he was doing what is either wrong or contrary to

law, as stated in Section 84 IPC, 1860, he shall not ﬁle a charge sheet against such
person.181. The Court also held that the investigating oﬃcer is bound to investigate
and conﬁrm that despite what is contained in the "General Exceptions", acts committed
by accused shall constitute offence under IPC, 1860.182. But the Single Bench of the
High Court of Kerala, later, held that the ingredients of section 84 can only be taken as
a defence during trial and it is not possible to throw out the Final Report in a case on
the ground that the concerned accused was suffering from legal insanity.183.
[s 84.19] Procedure.—

90.  State of Rajasthan v Shera Ram, (2012) 1 SCC 602 [LNIND 2011 SC 1192] : AIR 2012 SC 1
[LNIND 2011 SC 1192] : (2012) 1 SCC (Cr) 406.
91.  R v Daniel McNaughten, 1843 RR 59 : 8ER 718 (HL).
92.  Sudhakaran v State of Kerala, (2010) 10 SCC 582 [LNIND 2010 SC 1046] : AIR 2011 SC 265
[LNIND 2010 SC 1046] : 2011 Cr LJ 292 .
93.  State of Maharashtra v Govind Mhatarba Shinde, 2010 Cr LJ 3586 (Bom).
94.  State of Orissa v Duleswar Barik, 2008 Cr LJ 1065 (Ori) relied on ShamaTudu v State, 1987 Cr
LJ 618 (Ori).
95.  Dahyabhai, 1964 (2) Cr LJ 472 (SC); Lonimohon Das, 1974 Cr LJ 1186 (Gau); Gunadhar

Mondal, 1979 Cr LJ NOC 178 (Cal); Kesheorao, 1979 Cr LJ 403 (Bom); Lala Sk., 1983 Cr LJ 1675
(Cal); Balu Ganpat, 1983 Cr LJ 1769 (Bom); Paramal Raman v State of Kerala, 1992 Cr LJ 176 Ker;
Bai Bamilaben v State of Gujarat, 1991 Cr LJ 2219 Guj; Shama Tudu v State, 1987 Cr LJ 618
Orissa; Sheralli Walli Md v State of Maharashtra, AIR 1972 SC 2443 : 1972 Cr LJ 1523 ; Qyami
Ayatu v State of MP, AIR 1974 SC 216 [LNIND 1973 SC 242] : 1974 Cr LJ 305 . In Shama Tudu v
State, 1987 Cr LJ 618 , the Orissa High Court cited the following cases in which the plea of
insanity was accepted : Mitu Khadia v State of Orissa, 1983 Cr LJ 385 : 1983 Cut LR (Cr) 108;
Khageshwar Pujari v State of Orissa, 1984 Cr LJ 1108 : 1984 (1) Ori LR 142 ; Sundar Bairagi v

State, 1984 Cr LJ 124 ; Bata v State, 1985 (2) Ori LR 398 . The plea was negatived in the
following cases; Nakul Chandra v State of Orissa, 1982 Cr LJ 2158 : (1982) 54 Cut LJ 195; Kusa
Majhi v State, (1985) 59 Cut LT 203 : 1985 (1) Crimes 520 : 1985 Cr LJ 1460 : AIR 1985 SC 1409
[LNIND 1985 SC 227] . State of MP v Digvijay Singh, AIR 1981 SC 1740 [LNIND 1978 SC 324] :
1981 Cr LJ 1278 , prosecution case proved.
96.  Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND 2008 SC 1992] : (2009) 1 SCC 124 [LNIND
2008 SC 1992] ; Sanna Eranna, 1983 Cr LJ 619 (Kant); M Parvaiah, 1985 Cr LJ 1824 (AP);
Kuttappan, 1986 Cr LJ 271 (Ker).
97.  State of Maharashtra v Govind Mhatarba Shinde, 2010 Cr LJ 3586 (Bom).
98.  State of Maharashtra v Govind Mhatarba Shinde, 2010 Cr LJ 3586 (Bom).

99.  Bhikari, AIR 1966 SC 1 [LNIND 1965 SC 57] . Absence of motive is one of the factors to be
taken into account. Subbigadu v Emperor, AIR 1925 Mad 1238 [LNIND 1925 MAD 157] : 1926
(27) Cr LJ 46 ; Ujagar Singh v State, AIR 1954 PEPSU 4 : 1953 Cr LJ 1859 . But this is only one
factor among others. See Amrit Bhushan Gupta v UOI, AIR 1977 SC 608 [LNIND 1976 SC 458] :
1977 Cr LJ 376 ; Ram Bharose v State of MP, 1974 Jab LJ 348 ; Peeru Singh v State of MP, 1987
Cr LJ 1781 MP.
Chapter XXV of Cr PC, 1973 deals with provisions as to accused persons of unsound
mind.184.

100.  Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : JT 2007 (9) SC 110 :
2007 AIR (SCW) 3808 : 2007 (7) SCR 917 [LNIND 2007 SC 774] : (2007) 8 Scale 455 [LNIND
2007 SC 774] : (2007) 3 SCC (Cr) 509.
101.  Kuttappan v State of Kerala, 1986 Cr LJ 271 (Ker).
102.  Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND 2008 SC 1992] : (2009) 1 SCC 124
[LNIND 2008 SC 1992] .
103.  Surendra Mishra v State of Jharkhand, AIR 2011 SC 67 : (2011) 11 SCC 495 [LNIND 2011 SC
27] : (2011) 3 SCC(Cr.) 232.
104.  Sudhakaran v State of Kerala, (2010) 10 SCC 582 [LNIND 2010 SC 1046] : AIR 2011 SC 265
105.  State of Maharashtra v Govind Mhatarba Shinde, 2010 Cr LJ 3586 (Bom).
106.  Available at : http://lawcommissionoﬁndia.nic.in/1-50/Report42.pdf (last accessed in July
2019).
107.  Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : (2007) 3 SCC (Cr) 509 :
(2007) 4 KLT 63 [LNIND 1985 KER 300] .

2019).
108.  Third question and answer in M'Naughton's case, (1843) 4 St Tr (NS) 847, 10 Cl & F 200;
Tola Ram, (1927) 8 Lah 684. Jaganath Das v State, 1991 Cr LJ (NOC) 32 Cal.
109.  Harka v State, (1906) 26 AWN 193. Hari Singh Gond v State of MP, (2008) 16 SCC 109
[LNIND 2008 SC 1728] : AIR 2009 SC 31 [LNIND 2008 SC 1728] : 2009 Cr LJ 346 : (2008) 3 KLT
969 [LNIND 2008 SC 1728] , Mere abnormality of mind, partial delusion, irresistable impulse or
compulsive psychopathic behaviour affords no protection under section 84. It is only
unsoundness of mind which naturally impairs the cognitive faculties of mind which can justify
exemption under section 84. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] ,
time factor, time of the offence is crucial.
110.  Sheralli Wali Mohammed v State of Maharashtra, (1973) 4 SCC 79 : 1972 Cr LJ 1523 .

111.  Govindaswami Padayachi, (1952) Mad 479; Ahmadullah, (1961) 3 SCR 583 [LNIND 1961 SC
29] : (1961) 2 Cr LJ 43 : AIR 1961 SC 998 [LNIND 1961 SC 29] ; Dahyabhai, AIR 1964 SC 1563
[LNIND 1964 SC 88] : 1964 (2) Cr LJ 472 ; followed in Narain v State, 1991 Cr LJ 1610 All, the
accused murdering the Imam of a masjid, acquitted because of proven insanity. AG Bhagwat v
UT Chandigarh, 1989 Cr LJ 214 P&H, no insanity at the time of attack.
112.  Ajaya Mahakud v State of Orissa, 1993 Cr LJ 1201 (Ori).
113.  S Sunil Sandeep v State of Karnataka, 1993 Cr LJ 2554 (Kant).
114.  State of Punjab v Mohinder Singh, (1983) 2 SCC 274 : 1983 SCC (Cr) 402 : 1983 Cr LR (SC)
187 . In a similar acquittal, the HP High Court ordered that the accused be conﬁned to mental
hospital so that he would pose no danger to public. Krishan Dutt v State of HP, 1992 Cr LJ 1065
HP.

HP.
115.  SW Mohammed, 1972 Cr LJ 1523 : AIR 1972 SC 2443 .
116.  Oyami Ayatu, 1974 Cr LJ 305 : AIR 1974 SC 216 [LNIND 1973 SC 242] . See also Gunadhar
Mondal, 1979 Cr LJ NOC 178 (Cal), Kesheorao 1979 Cr LJ 403 (Bom). Basanti v State, 1989 Cr LJ
415 (Ori), woman jumped into well with her children, rescued, voluntarily explaining her conduct,
no insanity. Parapuzha Thamban v State of Kerala, 1989 Cr LJ 1372 (Ker); Munilal Gupta v State,
1988 Cr LJ 627 (Del); Meh Ram v State, 1994 Cr LJ 1897 (Raj).
117.  Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : (2007) 3 SCC (Cr) 509 :
118.  Kader Hasyer Shah, (1896) 23 Cal 604 , 607; Kalicharan, (1947) Nag 226.
119.  Gedka Goala, (1937) 16 Pat 333.
120.  Stephen : History of the Criminal Law, vol II, p 166.

121.  Raghu Pradhan v State of Orissa, 1993 Cr LJ 1159 (Ori).
122.  Brushabha Digal v State of Orissa, 1993 Cr LJ 3149 (Ori).
123.  Ashok Dattatraya v State of Maharashtra, 1993 Cr LJ 3450 (Bom).
124.  Amruta v State of Maharashtra, 1996 Cr LJ 1416 (Bom).
125.  Tola Ram v State of Rajasthan, 1996 Cr LJ 8 (Raj). For a case of pretended insanity, see
Nathu Bapu Mhaskar v State of Maharashtra, 1996 Cr LJ 2121 (Bom).
126.  Paras Ram v State of Punjab, (1981) 2 SCC 508 : 1981 SCC (Cr) 516. Gulab Manik Surwase v
State of Maharashtra, 2001 Cr LJ 4302 (Bom) the conduct of assaulting his wife in broad day
light within the sight of his relatives and leaving behind the blood stained axe on the spot, the
Court said, was a sign of abnormalcy. The accused was given the beneﬁt of doubt. Laxmandas
Mangaldas Manikpuri v State of Maharashtra, 1997 Cr LJ 950 (Bom), no trace of insanity in the
conduct of the accused either before or after killing his wife. Defence under section 84 not
available.

127.  Marimuthu v State, 2009 Cr LJ 3633 (Mad).
128.  Fourth question and answer in M'Naughton's case (1843) 4 St Tr (NS) 847; Ghatu Pramanik,
(1901) 28 Cal 613 .
129.  First question and answer in M'Naughton's case, sup. Durga Domar v State of MP, (2002) 10
SCC 193 , the accused killed in ferocious manner 5 children belonging to his close relatives,
Courts below sentenced him to death, he could not engage a counsel. In this state of things, the
judicial conscience of the Supreme Court compelled it to seek medical opinion regarding the
mental condition of the accused.
130.  Madesh v State by The Inspector of Police, 2014 Cr LJ 96 (Mad).
131.  M'Naughton's case, (1843) 4 St Tr (NS) 847, 10 Cl & F 200.
132.  State of Maharashtra v Umesh Krishna Pawar, 1994 Cr LJ 774 (Bom).
133.  Kalicharan, (1947) Nag 226.

134.  Ganesh Shrawan, (1969) 71 Bom LR 643 .
135.  SW Mohammed, 1972 Cr LJ 1523 : AIR 1972 SC 2443 . See also Mitu Khadia, 1983 Cr LJ
1385 (Ori).
136.  In the matter of Lakshman, 1973 Cr LJ 110 (Mad).
137.  Prakash, 1985 Cr LJ 196 (Bom). Krishan Dutt v State of HP, 1992 Cr LJ 1065 (HP), medical
evidence and manner of commission showed insanity, acquittal.
138.  Velusamy, 1985 Cr LJ 981 (Mad).
139.  Baswant Rao, (1948) Nag 711.
140.  Sukru Sa, 1973 Cr LJ 1323 (Ori); Kesheorao, 1979 Cr LJ 403 (Bom); Lala Sk, 1983 Cr LJ
1675 (Cal); Rajan v State, 1984 Cr LJ 874 (Ker); Kusa Majhi, 1985 Cr LJ 1460 (Ori). Sudhir Ch
Biswas v State, 1987 Cr LJ 863 Cal.
141.  Siddheswari Bora, 1981 Cr LJ 1005 (Gau).
142.  State of Assam v Inush Ali, 1982 Cr LJ 1044 (Gau).

143.  Sita Ram v State, 2011 Cr LJ 1082 (All); Leena Balkrishna Nair v State of Maharashtra, 2010
Cr LJ 3292 (Bom).
144.  Lakshman Dagdu, (1886) 10 Bom 512.
145.  Nivrutti, 1985 Cr LJ 449 (Bom).
146.  Debeswar Bhuyan v State of Assam, 2012 Cr LJ 274 (Gau). See also Laxman Gagarai v State
of Orissa, 2012 Cr LJ 44 (Ori).
147.  State of Orissa v Kalia Alias Debabrata Maharana, 2008 Cr LJ 3107 (Ori).
148.  Kuttappan v State of Kerala, 1986 Cr LJ 271 (Ker).

149.  State of Rajasthan v Shera Ram, (2012) 1 SCC 602 [LNIND 2011 SC 1192] : AIR 2012 SC 1
[LNIND 2011 SC 1192] : (2012) 1 SCC (Cr) 406 relied on Modi, Medical Jurisprudence and
Toxicology, 24th Edn, 2011.
150.  Satwant Singh, 1975 Cr LJ 1605 (P & H). R v Sullivan, (1983) 2 All ER 673 , epilepsy is a
disease of the mind, but it is not that of madness, though the effect produced on the mind is the
same because it is diﬃcult to convict a person who is himself a victim of psychomotor epilepsy.
151.  State of MP v Ahamadulla, 1961 (2) Cr LJ 43 : AIR 1961 SC 998 [LNIND 1961 SC 29] .
152.  Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : JT 2007 (9) SC 110 :
2007 SC 774] : (2007) 3 SCC(Cr) 509; Lok Bahadur Dahal v State of Sikkim, 2012 Cr LJ 4996 (Sik);
Marimuthu v State, 2009 Cr LJ 3633 (Mad); Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND

2008 SC 1992] : (2009) 1 SCC 124 [LNIND 2008 SC 1992] ; Ramadhin v State of MP, 1995 Cr LJ
3708 (MP).
153.  Riyasat v State of UP, 1993 Cr LJ 2834 (All).
154.  Jagdish v State of MP, (2009) 9 SCC 495 [LNINDORD 2009 SC 210] : (2010) 1 SCC(Cr) 21 :
AIR 2010 SC (Supp) 373.
155.  Niman Sha v MP, 1996 Cr LJ 3395 (MP); Venugopalan Venu v Kerala, 1996 Cr LJ 3363 (Ker).
Raval Mohanbhatt v State, 1998 Cr LJ 4325 (Guj).
156.  State of Jharkhand v Madras Nayak, 2003 Cr LJ NOC 197 : 2003 AIR Jhar HCR 653.
157.  Siddhapal Kamala Yadav, AIR 2009 SC 97 [LNIND 2008 SC 1992] : (2009) 1 SCC 124
158.  Shrikant Anandrao Bhosale v State of Maharashtra, AIR 2002 SC 3399 [LNIND 2002 SC 606]
: (2002) 7 SCC 748 [LNIND 2002 SC 606] .
159.  Debeswar Bhuyan v State of Assam, 2012 Cr LJ 274 (Gau).

160.  Jagannath Das v State, 1991 Cr LJ (NOC) 32 (Cal). SK Nair v State of Punjab, AIR 1997 SC
1537 [LNIND 1996 SC 1829] : 1997 Cr LJ 772 : (1997) 1 SCC 141 [LNIND 1996 SC 1829] , the
plea of paranoid, facts established that he understood the implications of the acts at the time of
the incident plea not sustainable. Ram Swarup Thakur v State of Bihar, 2000 Cr LJ 426 (Pat), the
accused killed his own son of 3 years old for no reason. He was in mental hospital for two years,
not a normal man at the time. No evidence from prosecution as to his state of mind. Acquitted.
Shrikant Anandrao Bhosale v State of Maharashtra, AIR 2002 SC 3399 [LNIND 2002 SC 606] :
(2002) 7 SCC 748 [LNIND 2002 SC 606] , another case of paranoid schizophrenia, the accused

killed his wife in day light, made no attempt to hide or run away, mental unsoundness before or
after occurrence was proved. The beneﬁt of section 84 was granted. Also see Sudhakaran v
State of Kerala, (2010) 10 SCC 582 [LNIND 2010 SC 1046] : AIR 2011 SC 265 [LNIND 2010 SC
1046] : 2011 Cr LJ 292 .
161.  Tikaram Krishnalal Pandey v State of Maharashtra, 2013 Cr LJ 2410 (Bom).
162.  Dahyabhai Chhaganbhai Thakkar v State of Gujarat, AIR 1964 SC 1563 [LNIND 1964 SC 88] ;
Sudhakaran v State of Kerala, (2010) 10 SCC 582 [LNIND 2010 SC 1046] : AIR 2011 SC 265
[LNIND 2010 SC 1046] : 2011 Cr LJ 292 ; In State of H v Gian Chand, AIR 2001 SC 2075 [LNIND
2001 SC 1124] : (2001) 6 SCC 71 [LNIND 2001 SC 1124] : 2001 Cr LJ 2548 : (2001) 1 SCC(Cr)
980, the Supreme Court set aside the High Court Judgment by holding that the High Court

misapplied the Dahyabhai Judgment (Supra).
163.  Devidas Loka Rathod v State of Maharashtra, AIR 2018 SC 3093 [LNIND 2018 SC 311] .
164.  Gelsing Pida Pawar v State of Maharashtra. 2010 Cr LJ 4097 (Bom); Leena Balkrishna Nair v
State of Maharashtra, 2010 Cr LJ 3292 (Bom); Sarat Chandra Sahoo v State of Orissa, 2010 Cr LJ
3084 (Ori)].

165.  Shivraj Singh v State of MP, 1975 Cr LJ 1458 , the accused failed to make out his defence.
Similar observations occur in State v E Lemon, AIR 1970 Goa 1 : 1970 Cr LJ 36 ; Balagopal Re,
1976 Cr LJ 1978 ; Dulal Nayak v State of WB, 1987 Cr LJ 1561 Cal, striking twice on head with
the leg of cot, intention clear. Omkarlal v State of MP, 1987 Cr LJ 1289 MP. TN Lakshmaiah v
State of Karnataka, (2002) 1 SCC 219 [LNIND 2001 SC 2360] , the Court has to examine the
accused's claim having regard to his entire conduct up to commencement of the proceedings
before the trial Court. The accused murdered his wife and son and took the plea that he acted
under a spell of insanity. He led no evidence to that effect. Also his conduct was that of a fully
conscious man. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] , explanation
of the type of burden of proof which lies on the accused; Bihari Lal v State of HP, 2006 Cr LJ

3832 HP, the accused has to prove his mental condition of insanity. He cannot draw any beneﬁt
from adverse medical opinion.
166.  Ratan Lal v State of MP, AIR 1971 SC 778 [LNIND 1970 SC 487] : 1971 Cr LJ 654 .
167.  Tukappa Tamanna Lingardi v State of Maharashtra, 1991 Cr LJ 2375 (Bom).
168.  Kirtanram Mansai Uranv v State of MP, 2011 Cr LJ 4658 (Chh).
169.  Bhan Singh v State of MP, 1990 Cr LJ 1861 (MP).
170.  Elkari Shankari v State of AP, 1990 Cr LJ 97 AP. See also Uchhab Sahoo v State of Orissa,
1989 Cr LJ 168 (Ori), evidence created a doubt that the accused might have been under a spell
of madness.
171.  Narayan Chandra Dey v State, 1988 Cr LJ 387 (Cal). See also Santosh Kumar Sarkar v State,
1988 Cr LJ 1828 Cal.
172.  Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : (2007) 4 KLT 63 [LNIND

1985 KER 300] . There has to be absence of mens rea and not mere absence of motive.
173.  Chandrashekar v State, 1998 Cr LJ 2237 (Kant). See also Raval Mohanbhai Laxmanbhai v
State, 1998 Cr LJ 4325 .
174.  R v Feel (Taramary), (2000) 2 Cr App R (S) 464, [CA (Crim Div)].
175.  Mariappan vState of TN, 2013 Cr LJ 2334 (SC) : 2013 (6) Scale 18 .
176.  Turam Sundi v State of Jharkhand, 2011 Cr LJ 1872 (Jha); Madhusudan v State of
Karnataka, 2011 Cr LJ 215 (Kar); C T Raveenran v State of Kerala, 2011 Cr LJ 14089 (Ker).
177.  Nand Lal v State of Rajasthan, 2011 Cr LJ 3686 (Raj); Babasaheb Thombre v State of
Maharashtra, 2008 Cr LJ 2935 (Bom)].
178.  Dhaneswar Pradhan v State of Assam, 2003 Cr LJ 733 (Gau).
179.  PSVLN Sastry v Advocate General HC of AP, (2007) 15 SCC 271 .
180.  Apu @ Gajraj Singh v State of Rajasthan, (2007) 8 SCC 66 [LNIND 2007 SC 774] : 2007 (3)
RCR (Criminal) 343.

181.  Shibu v State of Kerala, 2013 (4) KLJ 300 : 2013 (4) KLT 323 [LNIND 2012 KER 968] (Ker
DB).
182.  Ibid.
183.  Ashok Kumar R v State of Kerala, 2016 Cr LJ 4765 (Ker) : 2016 (4) KHC 232 .
184.  Section 328-339.

[s 85] Act of a person incapable of judgment by reason of intoxication caused
against his will.
Nothing is an offence which is done by a person who, at the time of doing it, is, by
reason of intoxication, incapable of knowing the nature of the act, or that he is doing

what is either wrong, or contrary to law; provided that the thing which intoxicated him
was administered to him without his knowledge or against his will.
COMMENT.—
Under this section a person will be exonerated from liability for doing an act while in a
state of intoxication if he at the time of doing it, by reason of intoxication, was
(1) incapable of knowing the nature of the act, or
(2) that he was doing what was either wrong or contrary to law;
Provided that the thing which intoxicated him was administered to him without his
knowledge or against his will.185.
Voluntary drunkenness is no excuse for the commission of a crime.186. A person
cannot become himself drunk with liquor and commit an offence and then come and
say that he had consumed the liquor and, therefore, the beneﬁt of section 85 should be
given to him.187. The law pronounces that the obscuration and divestment of that
judgment and human feeling which in a sober state would have prevented the accused

from offending, shall not, when produced by his voluntary act, screen him from
punishment, although he be no longer capable of self-restraint.188. It is also no excuse
to say that because of it he failed to resist the impulse to act in a certain way189. or
that because of it he acted like an automaton.190.
[s 85.1] Voluntary drunkenness.—when an excuse.—
Nevertheless voluntary drunkenness is a factor which has to be taken into
consideration at least in two types of cases, viz.,
(i) where a speciﬁc intent is an essential element of an offence charged and the
evidence shows that the state of intoxication of the accused is such that he is
incapable of forming the speciﬁc intent essential to constitute the crime.191. In the
Indian context, for example, it would be intent to kill as in clauses 1, 2, and 3 of section

300, IPC, 1860. In such cases, however, even if the accused fails to actually form the
speciﬁc intent, section 86, IPC, 1860, would impute the necessary guilty knowledge to
him and he would, therefore, be liable for culpable homicide not amounting to murder
though not of murder.192. Thus, voluntary intoxication amounting to prove incapacity to
form the required speciﬁc intent would be a limited excuse to reduce an offence of
murder (section 302) to one of culpable homicide not amounting murder (section 304,
IPC, 1860). This is, however, a question of fact in each case.
In a case of wife-burning, her dying declaration disclosed that her husband consumed
liquor, scolded her and then set her aﬁre after pouring kerosene on her. She fought the
ﬁre and tried to run away but the accused again caught hold of her and again poured oil

and inﬂamed her. It was held that these circumstances showed that the mental
faculties of the accused were not impaired to such an extent that he was prevented
from forming the requisite intention to cause death. He was convicted under section
302 and not section 304, Part II.193.
(ii) where habitual drunkenness has resulted in such a diseased condition of the mind
that the accused is incapable of knowing the nature of the act or that he is doing what
is either wrong or contrary to law. In such a case M'Naughten Rules (section 84, IPC,

185.  Bablu v State of Rajasthan, (2006) 13 SCC 116 [LNIND 2006 SC 1134] : AIR 2007 SC 697
[LNIND 2006 SC 1134] : 2007 Cr LJ 1160 , the Court stated three propositions as to the scope of
the section:
(i) the insanity whether produced by drunkenness or otherwise is a defence to the crime
charged;
(ii) evidence of drunkenness which renders the accused incapable of forming the speciﬁc
intent essential to constitute the crime should be taken into account with the other facts
1860) would come into play and he would be absolved from liability.194. The most

common example of such an alcoholic disease is "Delirium Tremens" which is
produced by prolonged and habitual excessive drinking and results in loss of the
faculty of reasoning or serious defect of reasoning. In other words, "insanity, whether
produced by drunkenness or otherwise, is a defence to the crime charged."195.
Under this section if a man is made drunk through stratagem or the fraud of others, or
through ignorance, or through any other means causing intoxication without the man's
knowledge or against his will, he is excused.196.
[s 85.2] CASE.—
The accused ravished a girl of 13 years of age and, in furtherance of the act of rape,
placed his hand upon her mouth and his thumb upon her throat, thereby causing death
by suffocation. The sole defence was a plea of drunkenness. It was held that

drunkenness was no defence unless it could be established that the accused at the
time of committing rape was so drunk that he was incapable of forming the intent to
commit it (which was not alleged), inasmuch as the death resulted from a succession
of acts, the rape and the act of violence causing suffocation, which could not be
regarded independently of each other; and that the accused was guilty of murder.197.
Drink is an aggravating feature in the award of sentence. In reference to one of the
accused persons there was no evidence to establish that the effect of intoxication was
such as to cause him to lack the speciﬁc intent for murder, particularly in view of the
fact that, on his own admission, he was following instructions given by the other
accused and he was able to give the police a lucid account of his actions. The degree

of intoxication fell far below that which would preclude the formation of speciﬁc intent
required for murder.198.

proved in order to determine whether or not he had this intent; and
(iii) the evidence of drunkenness falling short of a proved incapacity in the accused to form
the intent necessary to constitute the crime and merely establishing that his mind is
affected by drink so that he more readily gave to some violent passion, does not rebut
the presumption that a man intends the natural consequences of his acts.
186.  Chet Ram vState, 1971 Cr LJ 1246 ; (HP) Bodhee Khan, (1866) 5 WR (Cr) 79; Boodh Dass,
(1866) PR No. 41 of 1866.
187.  Venkappa Kannappa Chowdari v State of Karnataka, 1996 Cr LJ 15 (Kar).
188.  Mobeni Minji, 1982 Cr LJ NOC 39 (Gau).
189.  Director of Public Prosecutions v Beard, (1920) AC 479 ; AG for Northern Ireland v Gallagher
(1963) AC 349 .
190.  Brathy v AG for Northern Ireland, (1963) AC 386 .
191.  Director of Public Prosecutions v Beard, (1920) AC 479 ; Ramsingh, (1938) Nag 305;
Samman Singh, (1941) 24 Lah 39; DPP v Majewski (1976) 2 All ER 142 ; Shankar Jaiswara v State

of WB, (2007) 9 SCC 360 [LNIND 2007 SC 651] : (2007) 3 SCC Cr 553, the appellant abused the
victim in a ﬁlthy language, and when told to leave, stabbed him seven times to his death with a
sharp weapon, so many wounds shows no loss of self control, witnesses did not testify to the
degree of intoxication, in such circumstances it could not be said that there was no intention on
the part of the appellant or that he was out of his senses on account of intoxication.
192.  Mathai Mathew, 1952 Cr LJ 1304 (TC); Basdev v State of PEPSU, 1956 Cr LJ 919 (2) : AIR
1956 SC 488 [LNIND 1956 SC 34] ; see also R. Deb, Principles of Criminology, Criminal Law and
Investigation, 2nd Edn, vol II, pp 604-605.
193.  Mavari Surya Satyanaraina v State of AP, (1995) 1 Cr LJ 689 .

194.  Davis (1881) 14 Cox cc 563; AG for Northern Ireland v Gallagher; DPP v Board, Supra.
195.  Basdev, 1956 Cr LJ 919 (at p 922-SC).
196.  1 Hale PC 32.
197.  Director of Public Prosecutions v Beard, (1920) AC 479 .
198.  Sooklal v Trinidad and Tobago, (1999) 1 WLR 2011 , [Lord Hope of Craighead, PC].

[s 86] Offence requiring a particular intent or knowledge committed by one
who is intoxicated.
In cases where an act done is not an offence unless done with a particular knowledge
or intent, a person who does the act in a state of intoxication shall be liable to be dealt
with as if he had the same knowledge as he would have had if he had not been

intoxicated, unless the thing which intoxicated him was administered to him without
his knowledge or against his will.
COMMENT.—
Offence requiring particular intent or knowledge.—By reading the above section, it is
clear that in the ﬁrst part of the section the words 'intention or knowledge' are
mentioned, but in the latter part of the section the word 'knowledge' is only mentioned
and the word 'intention' is omitted. In case of voluntary drunkenness, knowledge is to
be presumed in the same manner as if there was no drunkenness. If really the
Parliament wanted the word 'intention' also to be presumed even in the case of an act
done in a drunken state of mind, the said word could have been mentioned in the
Second part also, but the same is omitted. Therefore, whether the accused was having
intention or not while committing an act cannot be presumed as in case of
knowledge.199. As certain guilty knowledge or intention forms part of the deﬁnition of

many offences, this section is provided to meet those cases. It says that a person
voluntarily intoxicated will be deemed to have the same knowledge as he would have
had if he had not been intoxicated. There may be cases in which a particular knowledge
is an ingredient, and there may be other cases in which a particular intent is an
ingredient, the two not being necessarily always identical. The section does not say
that the accused shall be liable to be dealt with as if he had the same intention as
might have been presumed if he had not been intoxicated. Therefore, although there is
a presumption so far as knowledge is concerned, there is no such presumption with
regard to intention.200. Thus, this section attributes to a drunken man the knowledge of
a sober man when judging of his action but does not give him the same intention. This

knowledge is the result of a legal ﬁction and constructive intention cannot invariably be
raised.201. Drunkenness makes no difference to the knowledge with which a man is
credited and if a man knew what the natural consequences of his acts were, he must
be presumed to have intended to cause them.202. But this presumption may be
rebutted by his showing that at the time he did the act, his mind was so affected by the
drink he had taken that he was incapable of forming the intention requisite for making
his act the offence charged against him.203.
So far as knowledge is concerned the Court must attribute to the intoxicated man the
same knowledge as if he was quite sober but so far as intent or intention is concerned,
the Court must gather it from the attending general circumstances of the case paying

due regard to the degree of intoxication. If the man was beside his mind altogether for
the time being, it would not be possible to ﬁx him with the requisite intention. In other
words, where a man goes so deep into drinking that he becomes really incapable of
forming the requisite speciﬁc intent or knowledge for the offence, then in such a case
too section 86 of the Code would impute the requisite knowledge to the accused
though not the requisite intention. Thus, where the accused in a state of extreme
intoxication caused a fatal injury in the abdomen of his friend but by virtue of his highly
intoxicated state of mind was incapable of knowing then as to what he was doing far
less forming the requisite intent to kill as envisaged in section 300, IPC, 1860, he could

not be convicted under section 302 as he did not have the requisite intent to kill but he
could still be convicted under section 304 Part II, IPC, 1860, by virtue of imputed
knowledge under section 86, IPC, 1860.204. In this connection see also the discussion
under sub-head "voluntary drunkenness: when an excuse" under section 85, ante. But if
he had not gone so deep in drinking and from the facts it could be found that he knew
what he was about the Court will apply the rule that a man is presumed to intend the
natural consequences of his act or acts.205.

[s 86.1] CASES.—
Accused husband beating his wife and throwing burning lamp on her under inﬂuence of
liquor. Since he himself consumed the liquor he is not entitled to claim beneﬁt under
section 86 of IPC, 1860.206. Act of the accused of walking a distance to the house of a
witness and concealing the weapon and his wearing apparels showed that he was
conscious and capable of understanding of his act. No evidence as regards the degree
of intoxication or any evidence of any attending general circumstances to arrive at a
conclusion that accused was beside his mind altogether temporarily at time
incident.207. On the basis of evidence in this case, it cannot be said that the accused

was so much intoxicated at the time of the incident that he was beside his mind
altogether for the time being. He did set his wife on ﬁre, but as soon as her sari started
burning he realised the folly of his act and started extinguishing the ﬁre. It shows that
he was not so much intoxicated that he was besides his mind altogether. Therefore, the
rule that a man is presumed to intend the natural consequences of his act can be
applied to him also. Conviction under section 302 IPC, 1860 altered to one under
section 304(1) IPC, 1860.208.
[s 86.2] Sections 85 and 86.—
The reading of sections 85 and 86 together makes it clear that section 86 is an
exception to section 85. These provisions show that if the intoxication is induced
voluntarily, the act done is an offence even if the person is incapable of knowing the

nature of the act or that what he is doing is either wrong or contrary to law. This section
obviously covers all offences. That is why; it appears that it became necessary to enact
section 86 to take care of offences requiring a particular intent or knowledge on the
part of the intoxicated offender. The section takes care of such offences and states
that if intoxication is involuntary, neither knowledge nor intention in committing the
offence will be presumed. If however, it is voluntary only knowledge of the offence on
the part of the offender will be presumed but not intention in committing it. What
section 86 means and no more as compared to section 85. The degree of intoxication
demanded by both sections, however, remains the same. In fact, it is instructive to note

that section 84 which exempts persons of unsoundness of mind also expects the
degree of unsoundness to the same extent, viz., incapability of knowing the nature of
the act or of the knowledge that what is being done either wrong or contrary to law.
Hence, the conclusion is inescapable that to avail of the exception under section 86,
the degree of intoxication of the offender must be such that he is incapable of knowing
the nature of the act or that he is doing what is either wrong or contrary to law.
Intoxication short of this degree will not entitle the offender to the beneﬁt of the
exception.209.

199.  Mavari Surya Satyanaraina v State of AP, 1995 Cr LJ 689 (AP).
200.  Dil Mohammad, (1941) 21 Pat 250; Basdev v State of PEPSU, 1956 Cr LJ 919 (2) : AIR 1956
SC 488 [LNIND 1956 SC 34] .
201.  Pal Singh, (1917) PR No. 28 of 1917.
202.  Judagi Malah, (1929) 8 Pat 911.
203.  Samman Singh, (1941) 24 Lah 39.
204.  Enrique F Rio v State, 1975 Cr LJ 1337 (Goa).
205.  Basdev v State of Pepsu, (1956) SCR 363 [LNIND 1956 SC 34] : AIR 1956 SC 488 [LNIND
1956 SC 34] .
206.  Gautam Bhila Ahire v State of Maharashtra,. 2010 Cr LJ 4073 (Bom); Pidika Janu v State of
Orissa, 1989 Cr LJ (NOC) 104 ,
207.  Shankar Jaiswara v State of WB, (2007) 9 SCC 360 [LNIND 2007 SC 651] : (2007) 3 SCC
(Cr) 553.
208.  Babu Sadashiv Jadhav v State of Maharashtra, 1984 Cr LJ 739 (Bom).
209.  State of Maharashtra v Ashok Yashwant, 1987 Cr LJ 1416 (Bom).

[s 87] Act not intended and not known to be likely to cause death or grievous
hurt, done by consent.
Nothing which is not intended to cause death, or grievous hurt, and which is not
known by the doer to be likely to cause death or grievous hurt, is an offence by reason
of any harm which it may cause, or be intended by the doer to cause, to any person,

above eighteen years of age, who has given consent, whether express or implied, to
suffer that harm; or by reason of any harm which it may be known by the doer to be
likely to cause to any such person who has consented to take the risk of that harm.
A and Z agrees 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 be
caused without foul play; and if A, while playing fairly, hurts Z, A commits no offence.
COMMENT.—
Consent.—This section protects a person who causes injury to another person above
18 years of age who has given his consent by doing an act not intended and not known
to be likely to cause death or grievous hurt. It appears to proceed upon the maxim
volenti non ﬁt injuria. He who consents suffers no injury. This rule is founded upon two
very simple propositions: (1) that every person is the best judge of his own interest and

(2) that no man will consent to what he thinks hurtful to himself. Every man is free to
inﬂict any suffering or damage he chooses on his own person and property; and if,
instead of doing this himself, he consents to its being done by another, the doer
commits no offence. A man may give away his property, and so another who takes it by
his permission does not commit theft. He may inﬂict self-torture or he may consent to
suffer torture at the hands of another.
The section does not permit a man to give his consent to anything intended, or known
to be likely to cause his own death or grievous hurt.
[s 87.1] Sado-masochistic desires.—
In the absence of a good reason, the victim's consent is no defence and the
satisfaction of sado-masochistic desires does not constitute such a good reason. A

group of sado-masochistics participated in consensual acts of violence against each
other for sexual gratiﬁcation. They were charged with various offences. They were
convicted for causing harm to one member. It is not in public interest that a person
should wound or cause actual bodily harm to another for no good reason and without
such a reason the victim's consent afforded no defence.210.
[s 87.2] Injection of heroin on request resulting in death.—
The accused appealed against a sentence of ﬁve years' imprisonment for
manslaughter. The deceased, visited him, at his ﬂat. He had previously drunk a
signiﬁcant quantity of alcohol. He took some heroin and demanded more. At his
request the accused injected him with more heroin, resulting in his death. The accused

contended that weight should have been given to his admission of responsibility and
his guilty plea, the fact that the deceased had insisted upon more heroin, that there was
no commercial motive involved in the supply and that he had co-operated in naming the
supplier of the heroin.
It was held that it was necessary to take into consideration accused's co-operation in
naming the supplier of the heroin and other mitigating factors. The sentence for
manslaughter was reduced to three years' imprisonment and the sentence for
supplying a Class A drug, from three years' imprisonment to two years.211.

210.  R v Laskey, (1993) 2 WLR 556 (HL).
211.  R v Powell (Jason Wayne), (2002) EWCA Crim 661 : (2002) 2 Cr App R (S) 117, [CA (Crim
Div)].
212.  Deepa v SI of Police, 1985 Cr LJ 1120 (Ker).
Sections 87 and 88 of the IPC, 1860 do not come into play in the cases where interest
of the Society is involved.212.

[s 88] Act not intended to cause death, done by consent in good faith for
person's beneﬁt.
Nothing which is not intended to cause death, is an offence by reason of any harm
which it may cause, or be intended by the doer to cause, or be known by the doer to be
likely to cause, to any person for whose beneﬁt it is done in good faith, and who has

given a consent, whether express or implied, to suffer that harm, or to take the risk of
that harm.
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 Z's death and intending in
good faith, Z's beneﬁt performs that operation on Z, with Z's consent. A has committed
no offence.
COMMENT.—
The preceding section allows any harm to be inﬂicted short of death or grievous hurt.
This section sanctions the inﬂiction of any harm if it is for the beneﬁt of the person to
whom it is caused. No consent can justify an intentional causing of death. But a person
for whose beneﬁt a thing is done may consent that another shall do that thing, even if
death may probably ensue. If a person gives his free and intelligent consent to take the
risk of an operation which, in a large proportion of cases, has proved fatal, the surgeon
who operates cannot be punished even if death ensues.213. Again; if a person attacked

by a wild beast should call out to his friends to ﬁre, though with imminent hazard to
himself, and they were to obey the call, we do not conceive that it would be expedient
to punish them, though they might by ﬁring cause his death, and though when they ﬁred
they knew themselves to be likely to cause his death.214.
This section differs from the last section in two particulars—(1) under it any harm
except death may be inﬂicted; (2) the age of the person consenting is not mentioned
(but see section 90 under which the age of the consenting party must at least be 12
years).
Persons not qualiﬁed as medical practitioners cannot claim the beneﬁt of this section
as they can hardly be deemed to act in 'good faith' as that expression is deﬁned in
section 52.215.
[s 88.1] Criminal liability on doctor or surgeon.—

Prosecution has to come out with a case of high degree of negligence on part of
doctor. Thus, when a patient agrees to go for medical treatment or surgical operation,
every careless act of the medical man cannot be termed as 'criminal.' It can be termed
'criminal' only when the medical man exhibits a gross lack of competence or inaction
and wanton indifference to his patient's safety and which is found to have arisen from
gross ignorance or gross negligence. Where a patient's death results merely from error
of judgment or an accident, no criminal liability should be attached to it. Mere
inadvertence or some degree of want of adequate care and caution might create civil
liability but would not suﬃce to hold him criminally liable.216. Even if the surgery was
done without the consent of the patient or his/her guardian, if it is for the beneﬁt of the

patient he is not liable. Section 98 deals with harm caused with the consent of the
person injured or someone competent under law to give such consent on his behalf
excludes causing of such harm from the category of offence. Here the complainant has
given her consent. Section 88 IPC, 1860 provides that harm done for the beneﬁt of the
person injured and with his consent will not make the person causing harm liable for
criminal offence.217.

213.  RP Dhanda (Dr.) v Bhurelal, 1987 Cr LJ 1316 MP, eye-operation for cataract by qualiﬁed
doctor with patient's consent resulting in loss of sight.
214.  The Works of Lord Macaulay-On the Chapter of General Exceptions Note B.
215.  Juggankhan, (1963) 1 Cr LJ 296 (MP).
216.  Suresh Gupta v Govt. of NCT of Delhi, AIR 2004 SC 4091 [LNIND 2004 SC 744] : (2004) 6
SCC 422 [LNIND 2004 SC 744] ; Jacob Mathew v State of Punjab, AIR 2005 SC 3180 [LNIND 2005
SC 587] : 2005 (6) SCC 1 [LNIND 2005 SC 587] .
217.  Dr. Gopinatha Pillai T M v State of Kerala, 2000 Cr LJ 3682 (Ker); Katcherla Venkata Sunil v

Vanguri Seshumamba, 2008 Cr LJ 853 (AP).

[s 89] Act done in good faith for beneﬁt of child or insane person, by or by
consent of guardian.
Nothing which is done in good faith for the beneﬁt of a person under twelve years of
age, or of unsound mind, by or by consent, either express or implied, of the guardian
or other person having lawful charge of that person, is an offence by reason of any

harm which it may cause, or be intended by the doer to cause or be known by the doer
to be likely to cause to that person:
Provided—
Provisos.
First.—That this exception shall not extend to the intentional causing of death, or
to the attempting to cause death;
Secondly.—That this exception shall not extend to the doing of anything which the
person doing it knows to be likely to cause death, for any purpose other than the
preventing of death or grievous hurt, or the curing of any grievous disease or
inﬁrmity; Thirdly.—That this exception shall not extend to the voluntary causing of
grievous hurt, or to the attempting to cause grievous hurt, unless it be for the
purpose of preventing death or grievous hurt, or the curing of any grievous
disease or inﬁrmity;
Fourthly.—That this exception shall not extend to the abetment of any offence, to
the committing of which offence it would not extend.
A, in good faith, for his child's beneﬁt without his child's consent, has his child cut

for the stone by a surgeon. Knowing it to be likely that the operation will cause the
child's death, but not intending to cause the child's death. A is within the exception,
inasmuch as his object was the cure of the child.
COMMENT.—
This section empowers the guardian of an infant under 12 years or an insane person to
consent to the inﬂiction of harm to the infant or the insane person, provided it is done
in good faith and is done for his beneﬁt. Persons above 12 years are considered to be
capable of giving consent under section 88. The consent of the guardian of a sufferer,
who is an infant or who is of unsound mind, shall have the same effect which the
consent of the sufferer himself would have, if the sufferer were of ripe age and sound
mind.
[s 89.1] Corporal punishment to children.—

mind.
Corporal punishment to child, in present days, is not recognized by law. It is an archaic
notion that to maintain discipline, child can be punished physically by the teaching staff
because of implied consent by the parents or guardian. Now it is recognized social
principle that even parents of the child are made to understand the basic human rights
of the child and instead of corporal punishment, correctional methods are recognized
in law.218. But the applicability of sections 88 and 89, IPC, 1860 and administering of
corporal punishments on students by the teachers for their beneﬁt, came up for
consideration in M Natesan v State of Madras.219. It was a case where a boy of 15 years
was sent with the progress report to get the signature of his parents in it. But he
returned it with a thumb impression of another person, stating that the said thumb

impression was that of his mother, which was proved to be wrong. The teacher got
agitated and he beat the boy on his right palm with a stick. He did not cry. He, therefore,
beat him again, asking him why he did not cry. This resulted in causing three injuries,
two superﬁcial and one contusion. The Madras High Court held that:

218.  Hasmukhbhai Gokaldas Shah v State of Gujarat, 2009 Cr LJ 2919 (Guj).
219.  M Natesan v State of Madras, AIR 1962 Madras 216 [LNIND 1961 MAD 136] : 1962 (1) Cr
LJ 727 .
220.  Also see Ganesh Chandra Saha v. Jiw Raj Somani, AIR 1965 Calcutta 32 : (1965 (1) Cr LJ
24) .
221.  K A Abdul Vahid v State of Kerala, 2004 Cr LJ 2054 (Ker).
It cannot be denied that having regard to the peculiar position of a school teacher he must
in the nature of things have authority to enforce discipline and correct a pupil put in his
charge. To deny that authority would amount to a denial of all that is desirable and

necessary for the welfare, discipline and education of the pupil concerned. It can therefore
be assumed that when a parent entrusted a child to a teacher, he on his behalf impliedly
consents for the teacher to exercise over the pupil such authority. Of course, the person of
the pupil is certainly protected by the penal provisions of the Indian Penal Code. But the
same code has recognised exceptions in the form of ss. 88 and 89. Where a teacher
exceeds the authority and inﬂicts such harm to the pupil as may be considered to be
unreasonable and immoderate, he would naturally lose the beneﬁt of the exceptions.
Whether he is entitled to the beneﬁt of the exceptions or not in a given case will depend
upon the particular nature, extent and severity of the punishment inﬂicted.

220.In K A Abdul Vahid v State of Kerala,221. the Kerala High Court considered the
question when a school teacher, beats a student with a cane, who created commotion
in the school or showed disobedience to the Rules, whether he could be proceeded
against under the provisions of the IPC, 1860 and found that the teacher has acted
within the exception conferred on him, under section 88 of IPC, 1860.

[s 90] Consent known to be given under fear or misconception.
A consent is not such a consent as is intended by any section of this Code, if the
consent is given by a person under fear of injury, or under a misconception of fact, 1

and if the person doing the act knows, or has reason to believe, that the consent was
given in consequence of such fear or misconception; or
Consent of insane person.
if the consent is given by a person who, from unsoundness of mind, or
intoxication, is unable to understand the nature and consequence of that to which
he gives his consent; or
Consent of child.
unless the contrary appears from the context, if the consent is given by a person
who is under twelve years of age.
COMMENT.—
This section does not deﬁne 'consent' but describes what not consent is.
This section says that consent is not a true consent if it is given—
(1) by a person under fear of injury; and the person obtaining the consent knows or
has reason to believe this.
(2) by a person under a misconception of fact;
(3) by a person of unsound mind; and who is unable to understand the nature
(4) by a person who is intoxicated; and consequence of that to which he gives his
consent.
(5) by a person under 12 years of age

consent.
Consent is an act of reason, accompanied with deliberation, the mind weighing as in
balance, the good and evil on each side.222. Consent means an active will in the mind
of a person to permit the doing of the act complained of, and knowledge of what is to
be done, or of the nature of the act that is being done, is essential to consent to an
act.223. An act of helplessness on the face of inevitable compulsions is not consent in
law.224. It requires voluntary participation by victim not only after exercise of
intelligence based on knowledge of signiﬁcance and moral quality of act, but after
having fully exercised the choice between resistance and assent.225. A mere act of
helpless resignation in the face of inevitable compulsion, non-resistance and passive
giving in cannot be deemed to be consent.226. The Supreme Court in a long line of

cases has given wider meaning to the word 'consent' in the context of sexual offences
as explained in various judicial dictionaries. In Jowitt's Dictionary of English Law
(Second Edn), vol (1) 1977 at p 422 the word 'consent' has been explained as an act of
reason accompanied with deliberation, the mind weighing, as in a balance, the good or
evil on either side. It is further stated that consent supposes three things–a physical
power, a mental power, and a free and serious use of them and if consent be obtained
by intimidation, force, meditated imposition, circumvention, surprise, or undue
inﬂuence, it is to be treated as a delusion, and not as a deliberate and free act of the
mind.227. Section 90 cannot be considered as an exhaustive deﬁnition of consent for
the purposes of IPC, 1860. The normal connotation and concept of consent is not

intended to be excluded.228. For determining whether consent given by the prosecutrix
was voluntary or under a misconception of fact, no straitjacket formula can be laid
down.229.

The factors set out in the ﬁrst part are from the point of view of the victim. The second
part enacts the corresponding provision from the point of view of the accused. It
envisages that the accused too has the knowledge or reason to believe that the
consent was given by the victim in consequence of fear of injury or misconception of
fact. The requirements of both the parts have to be cumulatively satisﬁed.230.
Submission of the body under the fear of terror cannot be construed as a consented
sexual act. Consent for the purpose of section 375 requires voluntary participation not
only after the exercise of intelligence based on the knowledge of the signiﬁcance and
moral quality of the act but after having fully exercised the choice between resistance
and assent. Whether there was consent or not, is to be ascertained only on a careful
study of all relevant circumstances.231. Consent can be obtained under various
methods and always necessarily need not be a one which is given voluntarily. For

example, if a victim is intoxicated without her knowledge or consent and if the rape is
committed while the victim was intoxicated or drunken, it cannot be said that she had
voluntarily given the consent. Therefore, such passive consent cannot be treated as a
consent as contemplated by section 90 of IPC, 1860.232. Obtaining consent by
exercising deceit cannot be legitimate defence to exculpate an accused.233.
[s 90.1] Submission to Rape.—
An act of submission does not involve consent- Consent cannot be equated to inability
to resist or helplessness.234. Every consent involves a submission, but every
submission is not consent and the mere fact that a woman had submitted to the
promise of the accused does not necessarily indicate that her consent existed unless
the evidence on record establishes that the sexual act, which the prosecutrix had

allowed, was accompanied with deliberation after the mind had weighed, as in a
balance, the good and the evil on each side with the existing capacity and power to
withdraw the assent according to one's will or pleasure.235. Where, the accused had
sexual intercourse with the prosecutrix by giving false assurance to her that he would
marry her and when she became pregnant, he refused to do so, it was evident that he
never intended to marry her and procured her consent only for the reason of having
sexual relations with her, therefore, the act of the accused fell squarely under the
deﬁnition of rape as her consent was obtained under a misconception of fact.236.
1. 'Misconception of fact'.—The expression "under a misconception of fact" is broad
enough to include all cases where the consent is obtained by misrepresentation; the

misrepresentation should be regarded as leading to a misconception of the facts with
reference to which the consent is given. In section 3 of the Evidence Act Illustration (d)
states that a person has a certain intention is treated as a fact. So, here the fact about
which the second and third prosecution witnesses were made to entertain a
misconception was the fact that the second accused intended to get the girl married...
"thus... if the consent of the person from whose possession the girl is taken is obtained
by fraud, the taking is deemed to be against the will of such a person…" Although in
cases of contracts a consent obtained by coercion or fraud is only voidable by the party
affected by it, the effect of section 90 IPC, 1860 is that such consent cannot, under the

criminal law, be availed of to justify what would otherwise be an offence.237. Consent
may be express or implied, coerced or misguided, obtained willingly or through deceit.
Consent is an act of reason, accompanied by deliberation, the mind weighing, as in a
balance, the good and evil on each side. There is a clear distinction between rape and
consensual sex and in a case like this, the Court must very carefully examine whether
the accused had actually wanted to marry the victim, or had mala ﬁde motives, and had
made a false promise to this effect only to satisfy his lust, as the latter falls within the
ambit of cheating or deception. There is a distinction between the mere breach of a
promise, and not fulﬁlling a false promise. Thus, the Court must examine whether there

was made, at an early stage a false promise of marriage by the accused; and whether
the consent involved was given after wholly, understanding the nature and

consequences of sexual indulgence. There may be a case where the prosecutrix agrees
to have sexual intercourse on account of her love and passion for the accused, and not
solely on account of misrepresentation made to her by the accused, or where an
accused on account of circumstances which he could not have foreseen, or which were
beyond his control, was unable to marry her, despite having every intention to do so.
Such cases must be treated differently. An accused can be convicted for rape only if
the Court reaches a conclusion that the intention of the accused was mala ﬁde, and
that he had clandestine motives.238. In order to come within the meaning of
misconception of fact, the fact must have an immediate relevance. If a fully grown-up
girl consents to the act of sexual intercourse on a promise of marriage and continues
to indulge in such activity until she becomes pregnant, it is an act of promiscuity on her
part and not an act induced by misconception of fact and it was held that section 90

IPC, 1860 cannot be invoked unless the Court can be assured that from the inception
the accused never intended to marry her. Therefore, it depends on case to case that
what is the evidence led in the matter. If it is a fully grown-up girl who gave the consent
then it is a different case but a girl whose age is very tender and she is giving a consent
after persuasion of three months on the promise that the accused will marry her which
he never intended to fulﬁl right from the beginning which is apparent from the conduct
of the accused, in our opinion, section 90 can be invoked.239. A promise to marry
without anything more will not give rise to "misconception of fact" within the meaning
of section 90, it needs to be clariﬁed that a representation deliberately made by the

accused with a view to elicit the assent of the victim without having the intention or
inclination to marry her, will vitiate the consent. If on the facts it is established that at
the very inception of the making of promise, the accused did not really entertain the
intention of marrying her and the promise to marry held out by him was a mere hoax,
the consent ostensibly given by the victim will be of no avail to the accused to
exculpate him from the ambit of section 375 clause second.240.
[s 90.2] CASES.—
The prosecutrix had sexual intercourse with the accused on the representation made
by the accused that he would marry her. This was a false promise held out by the
accused. Had this promise not been given perhaps, she would not have permitted the
accused to have sexual intercourse. It appears that the intention of the accused was,

right from the beginning, not honest and he kept on promising that he will marry her, till
she became pregnant. This kind of consent obtained by the accused cannot be said to
be any consent because she was under a misconception of fact that the accused
intends to marry her, therefore, she had submitted to sexual intercourse with him.241. In
Uday v State of Karnataka,242. the Court considered the following facts: (i) where a girl
was of 19 years of age and had suﬃcient intelligence to understand the signiﬁcance
and moral quality of the act she was consenting to; (ii) she was conscious of the fact
that her marriage was diﬃcult on account of caste considerations; (iii) it was diﬃcult to
impute to the appellant, knowledge that the prosecutrix had consented in consequence

of a misconception of the fact arising from his promise; and (iv) there was no evidence
to prove conclusively that the appellant never intended to marry the prosecutrix. On the
basis of the above factors, Court held that it did not feel persuaded to hold that consent
was obtained by misconception of facts on the part of the victim.
In a case, the prosecutrix had left her home voluntarily, of her own free will to get
married to the accused. She was 19 years of age at the relevant time and was, hence,
capable of understanding the complications and issues surrounding her marriage to
the appellant. According to the version of events provided by her, the prosecutrix had
called the accused on a number given to her by him, to ask him why he had not met her
at the place that had been pre-decided by them. She also waited for him for a long time,

222.  Story, section 222.
223.  Lock, (1872) LR 2 CCR 10, 11.
224.  Satpal Singh v State of Haryana, 2010 AIR (SCW) 4951 : (2010) 8 SCC 714 [LNIND 2010 SC
666] : 2010 Cr LJ 4283 .
225.  Md. Jakir Ali v The State of Assam, 2007 Cr LJ 1615 (Gau).
226.  Re, ( AIR 1960 Madras 308 ), Gopi Shanker v State of Rajasthan, ( AIR 1967 Rajasthan 159 ),
Bhimrao v State of Maharashtra, ( 1975 Mah. LJ 660 ) and Vijayan Pillai v State of Kerala, (1989
(2) KLJ 234) quoted from R v Day, (173 ER 1026) in 1841 approved in Pradeep Kumar v State of
Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] : (2007) 7 SCC 413 [LNIND 2007 SC 965] : 2007

Cr LJ 4333 : (2007) 3 SCC(Cr) 407.
227.  State of UP v Chhoteylal, AIR 2011 SC 697 [LNIND 2011 SC 73] : (2011) 2 SCC 550 [LNIND
2011 SC 73] in this case, SC elaborately discussed the meaning of consent and quoted from
various Indian and foreign authorities.
228.  Pradeep Kumar v State of Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] : (2007) 7 SCC 413
[LNIND 2007 SC 965] : 2007 Cr LJ 4333 : (2007) 3 SCC(Cr) 407.
229.  Uday v State of Karnataka AIR 2003 SC 1639 [LNIND 2003 SC 228] : (2003) 4 SCC 46
[LNIND 2003 SC 228] : 2003 SCC (Cr) 775.
230.  Deelip Singh v State of Bihar, (2005) 1 SCC 88 [LNIND 2004 SC 1123] : AIR 2005 SC 203
[LNIND 2004 SC 1123] .
231.  State of HP v Mango Ram, (2000 (7) SCC 224 [LNIND 2000 SC 1144] : 2000 Cr LJ 4027
(SC).
232.  KCPeter v State of Kerala, 2011 Cr LJ 3488 (Ker).

(SC).
233.  Karthi @ Karthick v State, 2013 Cr LJ 3765 (SC).
234.  Laddoo Singh Alias Harjit Singh v State of Punjab, 2008 Cr LJ 2885 (PH).
and when he ﬁnally arrived she went with him to the Karna Lake where they indulged in
sexual intercourse. She did not raise any objection at this stage and made no
complaints to anyone. Thereafter, she also went to Kurukshetra with the accused,
where she lived with his relatives. Here to, the prosecutrix voluntarily became intimate
with the accused. She then, for some reason, went to live in the hostel at Kurukshetra
University illegally, and once again came into contact with the accused at the Birla
Mandir. Thereafter, she even proceeded with the accused to the old bus-stand in
Kurukshetra, to leave for Ambala so that the two of them could get married. However,

they were apprehended by the police. If the prosecutrix was in fact going to Ambala to
marry the accused, as stands fully established from the evidence on record, the
Supreme Court held it fails to understand on what basis the allegation of "false
promise of marriage" has been raised by the prosecutrix.243.

235.  Bipul Medhi v State of Assam, 2008 Cr LJ 1099 (Gau).
236.  State of UP v Naushad, 2014 Cr LJ 540 .
237.  Pradeep Kumar v State of Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] : (2007) 7 SCC 413
[LNIND 2007 SC 965] : 2007 Cr LJ 4333 : (2007) 3 SCC(Cr) 407 relied on N Jaladu, Re ( ILR
(1913) 36 Madras 453 .
238.  Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : 2013 (7) Scale
383 [LNIND 2013 SC 533] .
239.  Jayanti Rani Panda v State of WB, 1984 Cr LJ 1535 (Cal).
240.  Pradeep Kumar v State of Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] : (2007) 7 SCC 413
(1913) 36 Madras 453 ).
241.  Yedla Srinivasa Rao v State of AP, (2006) 11 SCC 615 [LNIND 2006 SC 785] : (2007) 1
SCC(Cr) 557; Bipul Medhi v State of Assam, 2008 Cr LJ 1099 (Gau); Abhoy Pradhan v State of WB,
1999 Cr LJ 3534 (Cal).
242.  Uday v State of Karnataka, AIR 2003 SC 1639 [LNIND 2003 SC 228] : (2003) 4 SCC 46

243.  Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : 2013 (7) Scale
383 [LNIND 2013 SC 533] . See also Swapan Chatterjee v State of WB, 2009 Cr LJ 16 (Cal); Karthi
@ Karthick v State, 2013 Cr LJ 3765 (SC); Ravi v State, 2010 Cr LJ 3493 (Mad); Vinod Mangilal v
State of MP, 2009 Cr LJ 1204 (MP).

[s 91] Exclusion of acts which are offences independently of harm caused.
The exceptions in sections 87, 88 and 89 do not extend to acts which are offences
independently of any harm which they may cause, or be intended to cause, or be
known to be likely to cause, to the person giving the consent, or on whose behalf the
consent is given.

Causing miscarriage (unless caused in good faith for the purpose of saving the life of
the woman) is an offence independently of any harm which it may cause or be intended
to cause to the woman. Therefore, it is not an offence "by reason of such harm"; and
the consent of the woman or of her guardian to the causing of such miscarriage does
not justify the act.
COMMENT.—
The section serves as a corollary to sections 87, 88 and 89. It says in explicit terms that
consent will only condone the act causing harm to the person giving the consent which

COMMENT.—
will otherwise be an offence. Acts which are offences independently of any harm which
they may cause will not be covered by consent given under sections 87, 88 and 89, e.g.,
causing miscarriage, public nuisance, offences against public safety, morals, etc. It
may be stated here that the illustration given under this section has become somewhat
inappropriate as pregnancy can now be terminated under section 3 of Medical
Termination of Pregnancy Act, 1971, on a number of grounds and not only on the
ground of saving the life of the woman.

[s 92] Act done in good faith for beneﬁt of a person without consent.
Nothing is an offence by reason of any harm which it may cause to a person for whose
beneﬁt it is done in good faith, even without that person's consent, if the
circumstances are such that it is impossible for that person to signify consent, or if
that person is incapable of giving consent, and has no guardian or other person in

lawful charge of him from whom it is possible to obtain consent in time for the thing
to be done with beneﬁt: Provided—
Provisos.
the attempting to cause death;
inﬁrmity;
Thirdly.—That this exception shall not extend to the voluntary causing of hurt, or
to the attempting to cause hurt, for any purpose other than the preventing of
death or hurt;
(a) Z is thrown from his horse, and is insensible. A, a surgeon, ﬁnds that Z
requires to be trepanned. A, not intending Z's death, but in good faith, for Z's

beneﬁt, performs the trepan before Z recovers his power of judging for
himself. A has committed no offence.
(b) Z is carried off by a tiger. A ﬁres at the tiger knowing it to be likely that the
shot may kill Z, but not intending to kill Z, and in good faith intending Z's
beneﬁt. A's ball gives Z a mortal wound. A has committed no offence.
(c) A, a surgeon, sees a child suffer an accident which is likely to prove fatal
unless an operation be immediately performed. There is no time to apply to
the child's guardian. A performs the operation in spite of the entreaties of
the child, intending, in good faith, the child's beneﬁt. A has committed no
offence.
(d) A is in a house which is on ﬁre, with Z, a child. People below hold out a
blanket. A drops the child from the house-top, knowing it to be likely that the

offence.
fall may kill the child, but not intending to kill the child, and intending, in
good faith, the child's beneﬁt. Here, even if the child is killed by the fall, A
has committed no offence.
Explanation.—Mere pecuniary beneﬁt is not beneﬁt within the meaning of
sections 88, 89 and 92.
COMMENT.—
Acts done in good faith.—This section is designed to meet those cases which do not
come either under section 88 or under section 89. The principal object of sections 88,
89 and 92 is protection of medical practitioners. Illustrations (a) and (b) exemplify
cases in which it is impossible to give consent; illustrations (c) and (d), where legal
capacity to consent is wanting.
The author of the Code observes:

244.  The Works of Lord Macaulay- 'On the Chapter of General Exceptions', Note B.
There yet remains a kindred class of cases which are by no means of rare occurrence. For
example, a person falls down in an apoplectic ﬁt. Bleeding alone can save him, and he is
unable to signify his consent to be bled. The surgeon who bleeds him commits an act falling
under the deﬁnition of an offence. The surgeon is not the patient's guardian, and has no
authority from any such guardian, yet it is evident that the surgeon ought not to be
punished. Again, a house is on ﬁre. A person snatches up a child too young to understand

the danger, and ﬂings it from the house-top, with a faint hope that it may be caught on a
blanket below, but with the knowledge that it is highly probable that it will be dashed to
pieces. Here, though the child may be killed by the fall though the person who threw it down
knew that it would very probably be killed, and though he was not the child's parent or
guardian, he ought not to be punished.
In these examples there is what may be called a temporary guardianship justiﬁed by the
exigency of the case and by the humanity of the motive. This temporary guardianship bears
a considerable analogy to that temporary magistracy with which the law invests every
person who is present when a great crime is committed, or when the public peace is
concerned. To acts done in the exercise of this temporary guardianship, we extend by

clause 72 a protection very similar to that which we have given to the acts of regular
guardians.244.
This section speaks of 'hurt', whereas section 89 speaks of 'grievous hurt', otherwise
the terminology of both the sections is almost identical.

[s 93] Communication made in good faith.
No communication made in good faith is an offence by reason of any harm1 to the
person to whom it is made, if it is made for the beneﬁt of that person.

A, a surgeon, in good faith, communicates to a patient his opinion that he cannot live.
The patient dies in consequence of the shock. A has committed no offence, though he
knew it to be likely that the communication might cause the patient's death.
245.  Veeda Menezes v Yusuf Khan, 1966 Cr LJ 1489 : AIR 1966 SC 1773 [LNIND 1966 SC 107] :
COMMENT.—
This section protects the innocent without unduly cloaking the guilty.
The communication under this section must be
(1) made in good faith; and
(2) for the beneﬁt of the person to whom it is made.

The illustration to this section does not say, however, whether the communication was
made to the patient for his beneﬁt.
1. 'Harm'.—In this section 'harm' means an injurious mental reaction.245.

[s 94] Act to which a person is compelled by threats.
Except murder, and offences against the State punishable with death, nothing is an
offence which is done by a person who is compelled to do it by threats, which, at the
time of doing it, reasonably cause the apprehension that instant death to that person
will otherwise be the consequence : Provided the person doing the act did not of his

own accord, or from a reasonable apprehension of harm to himself short of instant
death, place himself in the situation by which he became subject to such constraint.
Explanation 1.—A person who, of his own accord, or by reason of a threat of being
beaten, joins a gang of dacoits, knowing their character, is not entitled to the beneﬁt
of this exception, on the ground of his having been compelled by his associates to do
anything that is an offence by law.
Explanation 2.—A person seized by a gang of dacoits, and forced, by threat of instant
death, to do a thing which is an offence by law; for example, a smith compelled to take
his tools and to force the door of a house for the dacoits to enter and plunder it, is
entitled to the beneﬁt of this exception.
COMMENT.—
By this section a person is excused from the consequences of any act, except (1)
murder and (2) offences against the State punishable with death, done under fear of

COMMENT.—
instant death; but fear of hurt or even of grievous hurt is not a suﬃcient justiﬁcation.
Mere menace of future death will not be suﬃcient.
Murder committed under a threat of instant death is not excused under this section.
But 'murder' does not include abetment of murder and such abetment will be
excused.246. Abetment of murder and of the offence of causing disappearance of the
evidence of murder was excused under this section when it was done under fear of
instant death at the hands of the murderers.247.
[s 94.1] Doctrine of compulsion and necessity.—
No one can plead the excuse of necessity or compulsion as a defence of an act
otherwise penal, except as provided in this section. No man from a fear of
consequences to himself has a right to make himself a party to committing mischief
on mankind.248.

Except where unsoundness of mind is proved or real fear of instant death is proved, the
burden of proof being on the prisoner, pressure of temptation is not an excuse for
breaking the law.249. Under the English law the defence of duress is available not only
in case of fear of instant death but also in case of serious bodily harm.250.
Furthermore, such a threat need not be always against the person of the accused.251.
This defence was not allowed to a person who voluntarily joined a criminal
organisation or gang with knowledge that the gang used loaded ﬁrearms to carry out
robberies on sub-post oﬃces and also that the leader of the gang might bring pressure
upon him to participate in such offences. He had accordingly to participate in a robbery
under pressure in which the leader shot dead the sub-post master. His appeal against

conviction for man slaughter was rejected.252.

246.  Umadasi Dasi, (1924) 52 Cal 112 : Karu, (1937) Nag 524. But see R v Howe, (1987) 1 All ER
770 HL, where it was noted that the defence of duress is not available to a person charged with
murder whether as a principal in the ﬁrst degree (the actual killer) or as principal in the second
degree (the aider and abettor).
247.  Bachchan Lal, 1957 Cr LJ 344 .
248.  Maganlal and Motilal, (1889) 14 Bom 115.
249.  Devji Govindji, (1895) 20 Bom 215, 222, 223.
250.  Director of Public Prosecutions for Northern Ireland v Lynch, (1975) 1 All ER 913 -Per House
of Lords.
251.  Hurley (1967) VR 526.

of Lords.
252.  R v Sharp, (1987) 3 All ER 103 CA. Following Lynch v DPP for Northern Ireland, (1975) 1 All
ER 913 : (1975) AC 653 .

[s 95] Act causing slight harm.
Nothing is an offence by reason that it causes, or that it is intended to cause, or that it
is known to be likely to cause, any harm, if that harm is so slight that no person of
ordinary sense and temper would complain of such harm.

COMMENT.—
slight harm or triﬂes.—The maxim de minimis non curat lex (the law takes no account
of triﬂes) is the foundation of this section. The authors of the Code observe:
Clause 73 [this section] is intended to provide for those cases which, though, from the
imperfections of language, fall within the letter of the penal law, are yet not within its spirit,
and are all over the world considered by the public, and for the most part dealt with by the
tribunals, as innocent. As our deﬁnitions are framed, it is theft to dip a pen in another man's
ink, mischief to crumble one of his wafers, an assault to cover him with a cloud of dust by
riding past him, hurt to incommode him by pressing against him in getting into a carriage.
There are innumerable acts without performing which men cannot live together in society,
acts which all men constantly do and suffer in turn, and which it is desirable that they
should do and suffer in turn, yet which differ only in degree from crimes. That these acts

ought not to be treated as crimes is evident, and we think it far better expressly to except
them from the penal clauses of the Code than to leave it to the judges to except them in
practice.253.
The expression 'harm' has been used in this section in a wide sense including physical
injury and hence, this section applies in cases of actual physical injury also. This
section applies not only to acts which are accidental but also to deliberate acts which
cause harm or are intended to cause harm or known to be likely to cause harm.254. In a
campaign by Sarvodaya workers to educate people about the evil of alcohol, liquor
shops were picketed to prevent people from going there even if it was at the cost of
slight harm; their prosecution under section 341 for causing wrongful restraint was

quashed.255. Where the accused locked the complainant inside the factory by pulling
down the shutter, it was held that ingredients of the offence under section 342
(wrongful conﬁnement) were established but as the complainant regained his freedom
within a very short time and only a minimal harm was caused, the case was clearly
covered by section 95.256.
[s 95.1] CASES.—Acts regarded as trivial.—
This section was applied where a person was convicted for taking pods, almost
valueless, from a tree standing on Government waste land;257. where the accused
committed theft of a cheque of no value258. and where the plaintiff complained of the
harm caused to his reputation by the imputation that he was travelling with a wrong
ticket.259. So also an offence of misbranding260. and the conduct of a lawyer in using

ﬁlthy language in course of cross-examination261. were treated as trivial.
Where the record of the trial Court showed that the injury caused was very simple,
being in the nature of a scratch, the Court said that the act was so trivial that no person
of a sound common sense would regard it as an offence. The prayer of the
complainant for conviction of the accused for causing simple hurt under section 323
was liable to be rejected.262.
[s 95.2] Acts not regarded as trivial.—
The top most oﬃcial of the State Police, indecently behaved with a senior lady IAS
Oﬃcer, in the presence of gentry and in spite of her raising objections continued with
such behaviour. The Supreme Court observed that if it is held, on the face of such
allegations that, the ignominy and trauma to which, she was subjected to was so slight

that the lady IAS Oﬃcer, as a person of ordinary sense and temper, would not complain
about the same, sagacity will be the ﬁrst casualty. In that view of the matter section 95,
IPC, 1860 cannot have any manner of application to an offence relating to modesty of
woman as under no circumstances can it be trivial.263. Where the Accused caused the

253.  The Works of Lord Macaulay- 'On the Chapter of General Exceptions', Note B, pp. 109, 110.
254.  Veeda Menezes v Yusuf Khan, 1966 Cr LJ 1489 : AIR 1966 SC 1773 [LNIND 1966 SC 107] :
255.  Narayanan v State of Kerala, 1987 Cr LJ 741 Ker; following Attappa Re, AIR 1951 Mad 759
[LNIND 1950 MAD 178] : 1951 (2) Cr LJ 716 , where it was observed that even if obstruction is
caused, if the harm caused is slight, section 95 would apply.
256.  Anoop Krishan Sharma v State of Maharashtra, 1992 Cr LJ 1861 (Bom).
257.  Kasyabin Ravji, (1868) 5 BHC (Cr C) 35.
258.  Ethirajan, 1955 Cr LJ 816 .

259.  South Indian Railway Co v Ramakrishna, (1889) 13 Mad 34.
260.  Public Prosecutor v K Satyanarayana, 1975 Cr LJ 1127 (AP).
261.  Bheema, 1964 (2) Cr LJ 692 (AP).
262.  State of Karnataka v M Babu, 2002 Cr LJ 2604 (Kant), the Court discussed the doctrine of
triviality.
263.  Rupan Deol Bajaj v Kanwar Pal Singh Gill, AIR 1996 SC 309 [LNIND 1995 SC 981] : (1995) 6
SCC 194 [LNIND 1995 SC 981] : JT 1995 (7) SC 299 [LNIND 1995 SC 981] : (1995) 5 Scale 670 :
1996 Cr LJ 381 .
264.  Athai v State of MP 2010 Cr LJ 995 (MP).
265.  Sheo Gholam Lalla, (1875) 24 WR (Cr) 67.
266.  Ramasami v State, (1888) 12 Mad 148.
267.  Shoshi Bhusan Mukerjee v Walmsley, (1897) 1 CWN.
268.  Dist Food Inspector v Kedarnath, 1981 Cr LJ 904 (Gau).; State of Kerala v Vasudevan Nair
(Ker) (FB) 1975 FAJ 36 : ( 1975 Cr LJ 97 ); M/s. Razak Rice And Oil Mills v Bharat Narayan

Patnaik, Food Inspector, Berhampur Municipality 1989 Cr LJ 648 (Ori).
deceased to fall down and co-accused threw down a heavy stone on head of deceased,
act attributed to accused formed part of a joint yet a murderous assault on deceased.
Hence, it is not covered by exception in section 95.264. Where a blow was given across
the chest with an umbrella by a dismissed policeman to a District Superintendent of
Police because his application to reconsider his case was rejected;265. where the
accused tore up a paper which showed a money debt due from him to the prosecutor
though it was unstamped, and therefore, not a legal security;266. and where a
respectable man was taken by the ear,267. it was held that this section did not apply. An
offence under Prevention of Food Adulteration Act, 1954 cannot be regarded as
trivial.268.

Of the Right of Private Defence
[s 96] Things done in private defence.
Nothing is an offence which is done in the exercise of the right of private defence.

COMMENT.—
In a civilised society the defence of person and property of every member thereof is the
responsibility of the State. Consequently, there is a duty cast on every person faced
with apprehension of imminent danger of his person or property to seek the aid of the
machinery provided by the State but if immediately such aid is not available, he has the
right of private defence. Right to private defence is a very valuable right and it has been
recognized in all civilized and democratic societies within certain reasonable limits.
Sections 96–106 of IPC, 1860 codify the entire law relating to right of private defence
of person and property including the extent of and the limitation to exercise of such
right. When enacting sections 96 to 106 of the IPC, 1860, excepting from its penal
provisions, certain classes of acts, done in good faith for the purpose of repelling
unlawful aggressions, the Legislature clearly intended to arouse and encourage the

manly spirit of self-defence amongst the citizens, when faced with grave danger.269.
[s 96.1] Principle.—
The basic principle underlying the doctrine of the right of private defence is that when
an individual or his property is faced with a danger and immediate aid from the State
machinery is not readily available, that individual is entitled to protect himself and his
property.270. The right of private defence is available only to one who is suddenly
confronted with the necessity of averting an impending danger not of self-creation.
That being so, the necessary corollary is that the violence which the citizen defending
himself or his property is entitled to use must not be unduly disproportionate to the
injury which is sought to be averted or which is reasonably apprehended and should

not exceed its legitimate purpose. The law does not require a law abiding citizen to
behave like a coward when confronted with an imminent unlawful aggression. There is
nothing more degrading to the human spirit than to run away in face of danger. The
right of private defence is thus, designed to serve a social purpose and deserves to be
fostered within the prescribed limits. The IPC, 1860 deﬁnes homicide in self-defence as
a form of substantive right, and therefore, save and except the restrictions imposed on
the right of the Code itself, it seems that the special rule of English Law as to the duty
of retreating will have no application to this country where there is a real need for
defending oneself against deadly assaults. The right to protect one's own person and

property against the unlawful aggressions of others is a right inherent in man. The duty
of protecting the person and property of others is a duty which man owes to society of
which he is a member and the preservation of which is both his interest and duty. It is,
indeed, a duty which ﬂows from human sympathy.
As Bentham said:
It is a noble movement of the heart, that indignation which kindles at the sight of the feeble
injured by the strong. It is noble movement which makes us forget our danger at the ﬁrst cry
of distress..... It concerns the public safety that every honest man should consider himself
as the natural protector of every other.
But such protection must not be extended beyond the necessities of the case;
otherwise it will encourage a spirit or lawlessness and disorder. The right has,

therefore, been restricted to offences against the human body and those relating to
aggression on property. Right of private defence of person and property is recognized
in all free, civilised, democratic societies within certain reasonable limits. Those limits
are dictated by two considerations: (1) that the same right is claimed by all other
members of the society and (2) that it is the State which generally undertakes the
responsibility for the maintenance of law and order. The citizens, as a general rule, are
neither expected to run away for safety when faced with grave and imminent danger to
their person or property as a result of unlawful aggression, nor are they expected, by

use of force, to right the wrong done to them or to punish the wrong doer of
commission of offences.271.
[s 96.2] Scope.—
Section 96 IPC, 1860 provides that nothing is an offence which is done in the exercise
of the right of private defence. The section does not deﬁne the expression "right of
private defence". It merely indicates that nothing is an offence which is done in the
exercise of such right.272. While providing for exercise of the right, care has been taken
in IPC, 1860 not to provide and has not devised a mechanism whereby an attack may
be a pretence for killing. A right to defend does not include a right to launch an
offensive, particularly when the need to defend no longer survived.273. Just because
one circumstance exists amongst the various factors, which appears to favour the
person claiming right of self-defence, does not mean that he gets the right to cause the
death of the other person. Even the right of self-defence has to be exercised directly in
proportion to the extent of aggression.274.

[s 96.3] Test.—
Whether in a particular set of circumstances, a person legitimately acted in the
exercise of the right of private defence is a question of fact to be determined on the
facts and circumstances of each case. No test in the abstract for determining such a
question can be laid down. In determining this question of fact, the Court must
consider all the surrounding circumstances. It is not necessary for the accused to
plead in so many words that he acted in self-defence. If the circumstances show that
the right of private defence was legitimately exercised, it is open to the Court to
consider such a plea.275. The means and the force a threatened person adopts at the
spur of the moment to ward off the danger and to save himself or his property cannot
be weighed in golden scales. It is neither possible nor prudent to lay down abstract

parameters which can be applied to determine as to whether the means and force
adopted by the threatened person was proper or not. Answer to such a question
depends upon host of factors like the prevailing circumstances at the spot; his feelings
at the relevant time; the confusion and the excitement depending on the nature of
assault on him etc. Nonetheless, the exercise of the right of private defence can never
be vindictive or malicious. It would be repugnant to the very concept of private
defence.276. A person who is apprehending death or bodily injury cannot weigh in
golden scales in the spur of moment and in the heat of circumstances, the number of
injuries required to disarm the assailants who were armed with weapons. In moments
of excitement and disturbed mental equilibrium it is often diﬃcult to expect the parties

to preserve composure and use exactly only so much force in retaliation
commensurate with the danger apprehended to him where assault is imminent by use
of force, it would be lawful to repel the force in self-defence and the right of private
defence commences, as soon as the threat becomes so imminent. Such situations
have to be pragmatically viewed and not with high powered spectacles or microscopes
to detect slight or even marginal overstepping. Due weightage has to be given to, and
hyper technical approach has to be avoided in considering what happens on the spur of
the moment on the spot and keeping in view normal human reaction and conduct,
where self-preservation is the paramount consideration. But, if the fact situation shows
that in the guise of self-preservation, what really has been done is to assault the

original aggressor, even after the cause of reasonable apprehension has disappeared,
the plea of right of private defence can legitimately be negatived. The Court dealing
with the plea has to weigh the material to conclude whether the plea is acceptable. It is

essentially, as noted above, a ﬁnding of fact.277. Situations have to be judged from the
subjective point of view of the accused concerned in the surrounding excitement and
confusion of the moment, confronted with a situation of peril and not by any
microscopic and pedantic scrutiny. In adjudging the question as to whether more force
than was necessary was used in the prevailing circumstances on the spot it would be
inappropriate, as held by this Court, to adopt tests by detached objectivity which would
be so natural in a Court room, or that which would seem absolutely necessary to a
perfectly cool bystander. The person facing a reasonable apprehension of threat to
himself cannot be expected to modulate his defence step-by-step with any arithmetical
exactitude of only that much which is required in the thinking of a man in ordinary
times or under normal circumstances.278.
Mere use of abusive language does not give rise to private defence. Thus, where the

deceased about a month before the murder had tried to outrage the modesty of the
wife of the accused and thereafter on the day of the incident cut a rustic joke enquiring
whether the accused had not kept buffaloes for drinking milk which lead the accused
to beat the deceased mercilessly resulting in his death, it was held that giving the most
charitable interpretation one could not ﬁnd a single circumstance which will give the
accused the beneﬁt of the right of private defence and the interval between the attempt
to outrage the modesty of the accused's wife and the murder being too long he was
also not entitled to get the beneﬁt of grave and sudden provocation within the meaning
of exception 1 to section 300, IPC, 1860.279. Giving a general view of all the provisions
on this right in Munney Khan v State,280. the Supreme Court observed:

The right of private defence is codiﬁed in sections 96 to 106, IPC, which have all to be
read together in order to have a proper grasp of the scope and limitations of this right.
By enacting the sections the authors of the Code wanted to except from the operation
of its penal clauses acts done in good faith for the purpose of repelling unlawful
aggression.281.
Summary of Principles regarding Private defence
(i) Self-preservation is the basic human instinct and is duly recognized by the
criminal jurisprudence of all civilized countries. All free, democratic and civilized
countries recognize the right of private defence within certain reasonable limits.
(ii) The right of private defence is available only to one who is suddenly confronted
with the necessity of averting an impending danger and not of self-creation.

(iii) A mere reasonable apprehension is enough to put the right of self-defence into
operation. In other words, it is not necessary that there should be an actual
commission of the offence in order to give rise to the right of private defence. It
is enough if the accused apprehended that such an offence is contemplated
and it is likely to be committed if the right of private defence is not exercised.
(iv) The right of private defence commences as soon as a reasonable apprehension
arises and it is co-terminus with the duration of such apprehension.
(v) It is unrealistic to expect a person under assault to modulate his defence step by
step with any arithmetical exactitude.
(vi) In private defence the force used by the accused ought not to be wholly
disproportionate or much greater than necessary for protection of the person or
property.

property.
(vii) It is well settled that even if the accused does not plead self-defence, it is open
to consider such a plea if the same arises from the material on record.
(viii) The accused need not prove the existence of the right of private defence

beyond reasonable doubt.
(ix) The IPC, 1860 confers the right of private defence only when that unlawful or
wrongful act is an offence.
(x) A person who is in imminent and reasonable danger of losing his life or limb
may in exercise of self-defence inﬂict any harm even extending to death on his
assailant either when the assault is attempted or directly threatened.
[Darshan Singh v State of Punjab.282.]
All the sections would have to be read together to ascertain whether in the facts and
circumstances of the case the accused were entitled to the defence or they exceeded
it. Only then one can get a comprehensive view of the scope and limitations of the
right.283.
1. Availability or Non-availability of private defence.—Factors to be kept in view.— In
order to ﬁnd whether right of private defence is available or not, the entire incident
must be examined with care and viewed in its proper setting. The injuries received by
the accused, the imminence of threat to his safety, the injuries caused by the accused

and the circumstances whether the accused had time to have recourse to public
authorities are all relevant factors to be considered on a plea of private defence.284.
The right of private defence is a defence right. It is neither a right of aggression nor a
right of reprisal. There is no right of private defence where there is no apprehension of
danger. Right of private defence is available only to one who is suddenly confronted
with the necessity of averting an impending danger not of self-creation. The necessity
must be a present necessity whether real or only apparent.285. It remains a question of
fact whether the right has been legitimately exercised.286. Thus, running to house,
fetching a sword and assaulting the deceased are by no means a matter of chance.

These acts bear stamp of a design to kill and take the case out of the purview of
private defence.287. But where the accused was dispossessed of his land by a party of
men and he ran to his residence from where he fetched his gun and came back within
15 minutes to ﬁre at and injure them, he was held to be within his rights, but when he
went further still and chased and injured a person who was just standing by there and
who died, in reference to him the accused had no right of private defence.288. Along
with the above factors one has also to remember the following limitations on the right
of private defence of person or property:
(i) that if there is suﬃcient time for recourse to public authorities, the right are not
available;
(ii) that more harm than that is necessary should not be caused;

(iii) that there must be a reasonable apprehension of death or grievous hurt or hurt
to the person or damage to the property concerned.289. Where on account of
some incident, the accused was confronted by three persons; it was held that
the superiority in numbers in itself could in all probability have been construed
by the accused as an imminent danger to himself thus, giving him the signal to
act in exercise of the right of private defence.290.
The need to act must not have been created by the conduct of the accused in the
immediate context of the incident which was likely or intended to give rise to that
need.291. The Supreme Court reiterated the various principles governing the law of
private defence and observed that it was essentially a defensive right and did not

include the right to launch an offensive attack, particularly when the need for defence
no longer existed.292. A right of private defence given by the Penal Code is essentially

one of defence or self-protection and not a right of reprisal or punishment. It is subject
to the restrictions indicated in section 99 which are as important as the right itself.293.
[s 96.4] CASES.—Plea of Private Defence rejected.—
After inﬂicting injuries on person of ﬁrst deceased, accused persons ran towards
second deceased, who was standing ten steps away from place of incident. Further
after seeing incident relating to death of ﬁrst deceased, second deceased started
running towards Durga-ki-Dhani and was chased by accused persons and they inﬂicted
lathi blows on his person. Accused had no right to invoke right of self-defence by
chasing second deceased and to cause fatal injuries upon him.294. Where the accused
were in fact the aggressors and being members of the aggressors party none of the
accused can claim right of self-defence.295. Merely because there was a quarrel and
some of the accused person sustained injuries, that does not confer a right of private

defence extending to the extent of causing death. It has to be established that the
accused person were under such grave apprehension about the safety of their life and
property that retaliation to the extent done was absolutely necessary. Right of private
defence has been rightly discarded.296.
The defence claimed that the place of occurrence was the house of the accused and,
therefore, they had acted in self-defence but that was not proved through any leading
evidence despite the examination of the accused under section 313 of the Cr PC, 1973,
it was held that the right of self-defence was not available to them.297.
[s 96.5] Social nature of defence.—
The right of private defence is not restricted to the particular person who is under
attack. It extends to the society as a whole. It is available to any member of the society

who rises to the occasion. But it is wholly a social obligation without any legal
overtones.298.
[s 96.6] Material that accused may rely on.—
An accused entitled to rely for constructing his private defence on the material on
record brought by the prosecution.299. Without formally taking a plea of self-defence,
the accused has a right to probabilise such defence on the basis of the prosecution
evidence and if he succeeds in his effort, the Court can give him such a beneﬁt.300.
2. Duty to retreat, if any.—It is now well settled that the rule of retreat which Common
Law Courts espoused is not relevant under the IPC, 1860. If a man's property is in
imminent danger of being impaired or attacked he has the right to resort to such
measures as would be reasonably necessary to thwart the attempt to protect his

property.301. Under the common law the doctrine of necessity permitted one to defend
one's person or property or the person or property of others against an unjustiﬁed
attack by the use of reasonable force. In determining what was reasonable force, which
in the Indian context means minimum force under section 99, IPC, 1860, the common
law Courts always insisted if the accused could prevent the commission of crime
against him by retreating. On this rule of retreat one would like to ask: if a person is
attacked by an armed burglar in his own room, he is expected to run away leaving the
burglar to act as he liked.302. In Jaidev's case303. Gajendragadkar, J, as he then was,

speciﬁcally held that in India there is no rule which expects a man ﬁrst to run away or at
least try to do so before he can exercise his right of private defence. Rather he has
every right to stand his own ground and defend himself if there is no time to have
recourse to oﬃcial help. Law does not expect a citizen to be a rank coward or leave his
own house at the mercy of the burglar.304. In spite of this clear exposition of the law in
Jaidev's case Sarkaria, J, held in Yogendra Morarji's case305. that one must ﬁrst try to
avoid the attack by retreating otherwise one would not be entitled to get the beneﬁt of
private defence. It appears that Jaidev's case was not canvassed before the learned
judges who decided the latter case. It is submitted with utmost respect that the former
view as held in Jaidev's case, appears to be more reasonable and has to be preferred.
3. No Private defence in a free ﬁght.—Where both sides can be convicted for their

individual acts, normally no right of private defence is available to either party and they
will be guilty of their respective acts.306. Where two parties come armed with
determination to measure their strength and to settle a dispute by force and in the
ensuing ﬁght both sides receive injuries, no question of right of private defence arises.
In such a case of free ﬁght both parties are aggressors and none of them can claim
right of private defence.307. In a free ﬁght between two groups resulting in the death of
one and injuries to several others both grievous and simple, all the accused
participated in the ﬁght. The plea of one of the accused that he joined the ﬁght later
and acted in defence of other co-accused was held to be not tenable. The Court
observed that his case could not be separated by giving him right of private defence

under the beneﬁt of doubt.308. In a sudden ﬁght between two groups in heat of passion
death of a man was caused and several others on both the sides were injured. The
deceased opened the assault ﬁrst. It was held that in such ﬁghts the question that
which party opened attack ﬁrst is immaterial. Plea of right of self-defence was not
allowed to the accused.309. Where two groups forming an unlawful assembly over the
possession of land in dispute which was in peaceful possession of neither group,
indulged in free ﬁght resulting in the death of two persons of a group, it was held that
right of private defence was not available to either group.310.
The right to voluntary causing of death or any other harm is available against the
assailant and not against any other person.311.
4. Injury to accused.—If makes out private defence.—Number of injuries on the

accused by itself may not be suﬃcient to establish the right of private defence.312. The
number of injuries is not always considered to be a safe criterion for determining who
the aggressor was. It can also not be laid down as an unqualiﬁed proposition of law
that whenever injuries are on the body of the accused person, the presumption must
necessarily be raised that the accused person had caused injuries in exercise of the
right of private defence. The defence has to further establish that the injury so caused
on the accused probabilise the version of the right of private defence.313. Non-
explanation of injuries on the person of the accused is a factor of great importance and
this fact may induce the Court in judging the veracity of prosecution witnesses with
considerable care.314. The right of private defence cannot justiﬁably be raised by

showing that one of the accused had suffered some minor injuries and the prosecution
had not explained the same.315. In a given case it may strengthen the plea of private
defence set up by the accused or may create genuine doubt regarding the prosecution
case. At the same time it cannot be laid down as an invariable proposition of law that
as soon as it is found that the accused had received injuries in the same transaction in
which the complainant party was assaulted, the plea of private defence would stand
prima facie established and burden would shift on to the prosecution to prove that
those injuries were caused to the accused in self-defence by the complainant party.316.
When the accused turned back from the house of the deceased whom they had visited,
the deceased followed them along with his brother and mother and tried to attack them

from behind. The accused turned back and shot at him causing death. It was held that
the conduct of the accused was justiﬁable. His acquittal was not interfered with.317.
Where the deceased along with his father was putting up a fence which was protested
by the accused resulting in an altercation, and the accused suddenly dealt a lathi blow
on the head of the deceased which proved fatal, it was held that since the accused
received injuries as a result of assault by the deceased and his father, the accused had
justiﬁably exercised his right of private defence.318. In a case of murder some of the
serious injuries found on the person of the accused were not explained and some of
the prosecution witnesses also were injured, it was held that it could be said that the
accused party had acted in exercise of right of private defence and conﬁrmation of the
acquittal of all the accused but one by the High Court was not proper.319. Where

serious injuries inﬂicted on the person of the accused could not be explained by the
prosecution, the accused could be said to be entitled to the right of private defence.
Their conviction under section 300 was held to be not proper.320.
In State of UP v Mukunde,321. the Supreme Court observed that merely on the ground
that the prosecution witnesses have not explained the injuries on the accused, their
evidence ought not to be rejected if the Court ﬁnds it probable that the accused might
have acted in exercise of the right of private defence. The Supreme Court also
observed in a subsequent case322. that:
it cannot be held as a matter of law or invariably a rule that whenever an accused sustained
an injury in the same occurrence the prosecution is obliged to explain the injury and on the

failure of the prosecution to do so, the prosecution case should be disbelieved. Before non-
explanation of injuries on the person of the accused by the prosecution witnesses may
affect the prosecution case, the court has to be satisﬁed of the existence of two conditions:
(1) that the injuries on the person of the accused were of a serious nature and (ii) such
injuries must have been received at the time of the occurrence in question. Non-explanation
of injuries assumes greater signiﬁcance when the evidence consists of interested or
partisan witnesses or where the defence gives a version which completes in probability with
that of the prosecution.323.
These rulings were followed in Kashi Ram v State of MP324. The accused persons were
alleged to have assaulted the prosecution party, but the prosecution witnesses failed to

explain serious injuries including injuries on the vital parts of the body sustained by one
of the accused in the same incident. The Court said that this could not be a ground for
discarding the prosecution story and for acquittal of all accused persons.
Where the accused had some trivial injuries on non-vital parts but the victim had
suffered as many as 19 injuries including some on vital parts which resulted in his
death, it could not be believed that the accused had acted in self-defence especially
when he was arrested ﬁve or six days after the incident but in the intervening time did
not care to get himself medically examined. A plea of private defence cannot be based
on surmises and speculation.325.
The Supreme Court has also observed that merely because there was a quarrel and the

accused persons also sustained injuries, it did not confer a right of private defence to
the extent of causing death. Though such right cannot be weighed in golden scales, it
has at least to be shown that the accused persons were under such grave
apprehension about the safety of their life and property and that the retaliation to the
extent actually done was absolutely necessary.326.
The number of injuries is not always a safe criterion for determining as to who was the
aggressor. It cannot be stated as a universal rule that whenever injuries are on the body
of the accused person, a presumption must necessarily be raised that the accused
persons had caused injuries in the exercise of the right of private defence. The defence
has further to show that injuries on the accused probabilise the version of the right of
private defence.327. In moments of excitement and disturbed mental equilibrium,

parties cannot be expected to preserve composure and use exactly only so much in

retaliation as is commensurate with the apprehended danger. Due weightage has to be
given to what happened at the spur of the moment at the spot. Things have to be
judged pragmatically keeping in view, the normal human reactions and behaviour, self-
preservation being the paramount consideration. Microscopic and pedantic scrutiny
has to be avoided.328.
[s 96.7] Retaliation.—
The Supreme Court observed:
From a plain reading of the sections (Ss. 96–106) it is manifest that such a right can be
exercised only to repel unlawful aggression and not to retaliate. To put it differently, the right
is one of defence and not of requital or reprisal. Such being the nature of the right, the High
Court could not have exonerated the accused persons of the charges levelled against them
by bestowing on them the right to retaliate and attack the complainant party.329.
[s 96.8] Where private defence not pleaded.—
If circumstances show that the right of private defence was legitimately exercised, it is

open to the Court to consider such a plea, even if accused had not taken it. A right of
private defence need not speciﬁcally be taken and in the event the Court on the basis of
the materials placed on record is in a position to come to such a conclusion, the Court
may act thereupon.330. Where the right of private defence was not pleaded by the
accused, but it appeared that the complainant was the aggressor, the Bombay High
Court held that the beneﬁt of such defence could still be given to the accused.331. Fact
that accused pleaded alibi-itself will not preclude the Court from giving him also the
right of private defence if on proper appraisal of evidence and other material on
records, Court ﬁnds it to be available to him.332. The right of private defence cannot be
denied merely because the accused adopted a different line of defence particularly

when the evidence adduced by the prosecution would indicate that they were put under
a situation where they could reasonably have apprehended grievous hurt even to one of
them.333. The Supreme Court endorsed this principle by saying that it is not necessary
that the plea of private defence must always be taken by the accused person. Even if
the accused does not do so, the Court can consider it if the circumstances show that
the right of private defence was legitimately exercised.334.
The accused has not to plead self-defence by examining some witnesses or by making
any statement. But there has to be some material available on record to indicate that
the accused had attacked the deceased in exercise of the right of self-defence.335.
[s 96.9] In appeal.—
It is permissible for accused to raise that plea at the stage of appeal as the settled

legal position is that even if the accused does not plead self-defence, it is open to
consider such a plea if the same arises from the material on record.336.

269.  Darshan Singh v. State of Punjab, (2010) 2 SCC 333 [LNIND 2010 SC 70] : (2010) 1 SCR 642
[LNIND 2010 SC 70] : AIR 2010 SC 1212 [LNIND 2010 SC 70] : 2010 Cr LJ 1393 : (2010) 2
SCC(Cr) 1037.
270.  Dharam v State of Haryana. JT 2007 (1) SC 299 [LNIND 2006 SC 1108] : AIR 2007 SC 397
[LNIND 2006 SC 1108] : 2006 AIR SCW 6298.
271.  Darshan Singh v State of Punjab, (2010) 2 SCC 333 : (2010) 1 SCR 642 [LNIND 2010 SC 70]
: AIR 2010 SC 1212 [LNIND 2010 SC 70] : 2010 Cr LJ 1393 : (2010) 2 SCC(Cr) 1037.
272.  V Subramani v State of TN, (2005) 10 SCC 358 [LNIND 2005 SC 224] : AIR 2005 SC 1983
[LNIND 2005 SC 224] .

273.  Babulal Bhagwan Khandare v State of Maharashtra, AIR 2005 SC 1460 [LNIND 2004 SC
274.  Mano Dutt v State of UP, JT 2012 (2) SC 573 : 2012 (3) Scale 219 [LNIND 2012 SC 160] :
(2012) 4 SCC 79 [LNIND 2012 SC 160] .
275.  V Subramani v State of TN, (2005) 10 SCC 358 [LNIND 2005 SC 224] : AIR 2005 SC 1983
276.  Dharam v State of Haryana. JT 2007 (1) SC 299 [LNIND 2006 SC 1108] : AIR 2007 SC 397
277.  Buta Singh v The State of Punjab, 1991 (2) SCC 612 [LNIND 1991 SC 177] : 1991 SCC (Cr)
494 : AIR 1991 SC 1316 [LNIND 1991 SC 177] : 1991 Cr LJ 1464 ; Satya Narain Yadav v Gajanand,
(2008) 16 SCC 609 [LNIND 2008 SC 2782] : (2008) 10 Scale 728 [LNIND 2008 SC 2782] .

278.  Babulal Bhagwan Khandare v State of Maharashtra, AIR 2005 SC 1460 [LNIND 2004 SC
279.  Dattu Genu, 1974 Cr LJ 446 : AIR 1974 SC 387 [LNIND 1973 SC 357] .
280.  Munney Khan v State, AIR 1971 SC 1491 [LNIND 1970 SC 338] : (1970) 2 SCC 480 [LNIND
1970 SC 338] . On the same point, Narasimha Raju v State, 1971 Cr LJ 1066 : (1970) 3 SCC 481 :
AIR 1971 SC 1232 ; Mohammad Hameed v State, AIR 1980 SC 108 : 1980 Cr LJ 192 : (1979) 4
SCC 708 . An illustrative situation is Jagdish Chandra v State of Rajasthan, 1987 Cr LJ 649 Raj, in
consequence of enimical terms and intemperate nature, one ﬁred at the other, the other
returning the ﬁre resulting in death. In the prosecution of the other, this defence was allowed.

281.  Plea of self-defence was rejected where the evidence showed that the deceased was
unarmed and was not the aggressor. Kuduvakuzinyil Sudhakaran v State, (1995) 1 Cr LJ 721
(Ker). Defence that a stab wound causing death was inﬂicted on the chest of the deceased with
a pen-knife was found to be apparently false because such instrument would not have caused
that kind of wound, plea of self defence rejected, Sellamuthu v State of TN, (1995) 2 Cr LJ 2143
(Mad). Hakim Singh v State of MP, (1994) 2 Cr LJ 2463 (MP), the deceased was unarmed when
ﬁred at, he caused injury only after receiving the gun-shot wound, right of private defence in
shooting at him not available. Hukam Chand v State of Haryana, AIR 2002 SC 3671 [LNIND 2002
SC 652] , theory of self-defence, not supported by facts. Jham Singh v State of MP, 2003 Cr LJ

2847 , no injury found on the person of the accused, nor any report made. The plea of private
defence was rejected.
282.  Darshan Singh v State of Punjab, (2010) 2 SCC 333 : (2010) 1 SCR 642 [LNIND 2010 SC 70]

283.  Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187] : (2008) 1 SCC (Cr)
608 : AIR 2008 SC 1172 [LNIND 2008 SC 187] . Narain Singh v State of Haryana, (2008) 11 SCC
540 [LNIND 2008 SC 864] : AIR 2008 SC 2006 [LNIND 2008 SC 864] : 2008 Cr LJ 2613 ,
principles imbibed in sections 96-106 restated. Manubhai Atabhai v State of Gujarat, (2007) 10
SCC 358 [LNIND 2007 SC 822] : AIR 2007 SC 2437 [LNIND 2007 SC 822] , once the right of
private defence is established, conviction is not permissible.
284.  Sikandar Singh v State of Bihar, (2010) 7 SCC 477 [LNIND 2010 SC 603] : (2010) 8 SCR 373
: AIR 2010 SC 44023 : 2010 Cr LJ 3854 : (2010) 3 SCC (Cr) 417.
285.  Bhanwar Singh v State of MP, (2008) 16 SCC 657 [LNIND 2008 SC 1246] : AIR 2009 SC 768
[LNIND 2008 SC 1246] : (2008) 67 AIC 133 . Dharam v State of Haryana, (2007) 15 SCC 241
[LNIND 2006 SC 1108] , nature and scope of the right explained. Haren Das v State of Assam,
2012 Cr LJ 1467 (Gau).
286.  Thankachan v State of Kerala, (2008) 17 SCC 760 .

287.  Biran Singh, 1975 Cr LJ 44 : AIR 1975 SC 87 .
288.  Krishanlal v State, 1988 Cr LJ 990 (J&K).
289.  Puran Singh, 1975 Cr LJ 1479 : AIR 1975 SC 1674 [LNIND 1975 SC 174] .
290.  Shivappa Laxman Savadi v State, 1992 Cr LJ 2845 (Kant). Hari Singh v State of Rajasthan,
AIR 1997 SC 1505 [LNIND 1996 SC 1592] : 1997 Cr LJ 733 ; State of Haryana v Mewa Singh, AIR
1997 SC 1407 : 1997 Cr LJ 1906 ; Ram Dhani v State, 1997 Cr LJ 2286 (All); Rizwan v State of
Chhatisgarh, AIR 2003 SC 976 [LNIND 2003 SC 72] : 2003 Cr LJ 1226 : (2003) 2 SCC 661 [LNIND
2003 SC 72] .
291.  Triloki Nath v State of UP, AIR 2006 SC 321 [LNIND 2005 SC 867] : (2005) 13 SCC 323
[LNIND 2005 SC 867] .
292.  Shajahan v State of Kerala, (2007) 12 SCC 96 [LNIND 2007 SC 243] : (2008) 2 SCC (Cr) 234
: 2007 Cr LJ 229 , extreme enmity between parties result in attacks.

293.  Bathu Singh v State of MP, AIR 2004 SC 4279 [LNIND 2004 SC 835] : (2004) 7 SCC 206 .
294.  Gopal vState of Rajasthan, 2013 Cr LJ 1297 , JT 2013 (1) SC 639 [LNIND 2013 SC 37] ,
2013 (1) MLJ (Crl) 617 [LNIND 2013 SC 37] , 2013 (1) Scale 445 [LNIND 2013 SC 37] , (2013) 2
SCC 188 [LNIND 2013 SC 37] ; Mukesh Rathore v State of Chhattisgarh, 2010 Cr LJ 1289 (Chh);
State of Rajasthan v Brijlal, 2010 Cr LJ 1000 (Raj).
295.  Sikandar Singh v State of Bihar (2010) 7 SCC 477 [LNIND 2010 SC 603] : AIR 2010 SC
44023 : (2010) 3 SCC(Cr) 417.
296.  Raj Pal v State of Haryana, (2006) 9 SCC 678 [LNIND 2006 SC 282] : (2006) 3 SCC(Cr) 361.
297.  Raj Singh v State of Haryana, 2015 Cr LJ 2803 : (2015) 6 SCC 268 [LNIND 2015 SC 283] :
2015 (5) Scale 492 [LNIND 2015 SC 283] .

298.  Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187] : (2008) 1 SCC (Cr)
608 : AIR 2008 SC 1172 [LNIND 2008 SC 187] .
299.  Ravishwar Manjhi v State of Jharkhand, (2008) 16 SCC 261 : AIR 2009 SC 1262 [LNIND
2008 SC 2423] .
300.  Janardan Singh v State of Bihar, (2009) 16 SCC 269 : (2010) 3 SCC (Cr) 253.
301.  Mahabir Choudhary v State of Bihar, 1996 AIR(SC) 1998, 1996 Cr LJ 2860 : 1996 (5) SCC
107 [LNIND 1996 SC 891] .
302.  Glanville Williams : Text book on Criminal Law, 1979 Edn, p 460.
303.  Jaidev, 1963 (1) Cr LJ 495 : AIR 1963 SC 612 [LNIND 1962 SC 249] .
304.  Jaidev, Supra; see also Mohd Khan, 1972 Cr LJ 661 : (1971) 3 SCC 683 [LNIND 1971 SC
540] ; Puran Singh, 1975 Cr LJ 1479 : AIR 1975 SC 1674 [LNIND 1975 SC 174] .

305.  Yogendra Morarji, 1980 Cr LJ 459 : AIR 1980 SC 660 . This case is against all previous
authorities and is wrongly decided (MH Editor).
306.  Dr. Mohammad Khalil Chisti v State of Rajasthan, 2013 Cr LJ 637 (SC) : 2013 (1) MLJ (Crl)
198 [LNIND 2012 SC 801] : (2013) 2 SCC 541 [LNIND 2012 SC 801] ; Gopal v State of Rajasthan,
(2013) 2 SCC 188 [LNIND 2013 SC 37] : 2013 Cr LJ 1297 .
307.  Onkarnath Singh v State of UP, 1974 Cr LJ 1015 : AIR 1974 SC 1550 [LNIND 1974 SC 154] ;
Vishvas v State, 1978 Cr LJ 484 : AIR 1978 SC 414 [LNIND 1978 SC 17] ; Sikhar Behera, 1982 Cr
LJ 1167 (Orissa); Munir Ahmad v State of Rajasthan, AIR 1989 SC 705 : 1989 Cr LJ 845 : (1989)
26 ACC 115 : 1989 Supp SCC 377 ; reiterated by the Supreme Court in Paras Nath Singh v State
of Bihar, and Hari Krishna Singh v State of Bihar, AIR 1988 SC 863 [LNIND 1988 SC 139] : (1988) 2
SCC 95 [LNIND 1988 SC 139] : 1988 Cr LJ 925 . Gajanand v State, 1954 Cr LJ 1746 , AIR 1954 SC

695 , followed, Abdul Hamid v State of UP, 1991 Cr LJ 431 . See also State of Assam v Upendra
Das, 1991 Cr LJ 2930 Gau, relying upon Lakshmisingh v State of Bihar, AIR 1976 SC 2263 : 1976
Cr LJ 1736 . For other cases of free ﬁght and, therefore, acquittal. See Ram Nath v State, 1991 Cr
LJ 1825 All; Sonpal v State of UP, 1991 Cr LJ 1597 All, prosecution not explaining how the event
sparked off and how the accused suffered injuries. Nityanand Pasayat v State, 1989 Cr LJ 1547
(Ori), quarrel between two groups. Amir Ali v State of Assam, 1989 Cr LJ 1512 , a case of mutual
ﬁght over possession of land in which both sides were injured. The Court added that if a group
of 5 assembles in private defence, they are not an unlawful assembly; but if they persist in use

of force even after their right is over, they become an unlawful assembly. Chandrasekharan v
State of Kerala, 1987 Cr LJ 1715 (Ker); State of Rajasthan v. Sughad Singh, AIR 1994 SC 1593 :
1994 Cr LJ 2188 .
308.  Amrik Singh v State of Punjab, 1993 Cr LJ 2857 : 1993 AIR SCW 2482 : 1994 Supp (1) SCC
320.
309.  Rohtash v State of Haryana, 1993 Cr LJ 3303 (P&H).
310.  Sikhar Behera v State of Orissa, 1993 Cr LJ 3664 : 1993 AIR SCW 3162 : 1994 Supp (1) SCC
493. Amerika Rai v State of Bihar, AIR 2011 SC 1379 [LNIND 2011 SC 220] : (2011) 3 SCR 176
[LNIND 2011 SC 220] : (2011) 2 SCC(Cr) 429 : (2011) 4 SCC 677 [LNIND 2011 SC 220] Ram
Kumar v State of Haryana, AIR 1998 SC 1437 [LNIND 1998 SC 231] : 1998 Cr LJ 2049 ; Pammi v
Govt. of MP, AIR 1998 SC 1185 [LNIND 1998 SC 200] : 1998 Cr LJ 1617 ; Periasami v State of TN,

1997 Cr LJ 219 : (1996) 6 SCC 457 [LNIND 1996 SC 1552] .
311.  Mohammad Iqbal v State of MP, 2012 Cr LJ 337 (Chh).
312.  Ranbir Singh v State of Haryana, 2009 Cr LJ 3051 (SC) : (2009) 16 SCC 193 [LNIND 2009 SC
1053] .
313.  Sikandar Singh v State of Bihar (2010) 7 SCC 477 [LNIND 2010 SC 603] : (2010) 8 SCR 373 :
AIR 2010 SC 44023 : 2010 Cr LJ 3854 : (2010) 3 SCC(Cr) 417; Dashrath Singh v State of UP,
(2004) 7 SCC 408 [LNIND 2004 SC 798] ; Bishna v State of WB, AIR 2006 SC 302 [LNIND 2005 SC
873] : (2005) 12 SCC 657 [LNIND 2005 SC 873] , Shriram v State of MP, (2004) 9 SCC 292 [LNIND
2003 SC 1026] .
314.  Lacchiram v State of MP, 1990 Cr LJ 2229 MP, unexplained injuries on the person of the
accused. But such injuries do not by themselves afford a defence. Govardhan v State, 1987 Cr LJ

541 (Raj). Ram Kumar v State of Haryana, 1994 Cr LJ 1450 P&H, dispute over water course,
accused entered ﬁeld to divert water, caused innumerable injuries to those who objected and
also himself received a few injuries, he was held to be an aggressor having no right of private
defence; Velummei v State, 1994 Cr LJ 1738 (Ker), a person entering the house of another for
crime is an aggressor, he has no right of private defence. Man Bharan Singh v State of MP, 1996
Cr LJ 2707 (MP), every minor injury on the person of the accused does not require explanation.

315.  State of Punjab v Gurlabh Singh, (2009) 13 SCC 556 [LNIND 2009 SC 1262] : AIR 2009 SC
2469 [LNIND 2009 SC 1262] ; Radhe v State of Chhattisgarh, (2008) 11 SCC 785 [LNIND 2008 SC
1333] : AIR 2008 SC 2878 [LNIND 2008 SC 1333] : 2008 Cr LJ 3520 , the mere fact of a quarrel
and the accused sustaining injuries does not in itself create the right of self-defence to the
extent of causing death, there has to be an attack creating apprehension of fatal injury. Such
was not the case here.
316.  Onkarnath, supra. Injuries to the accused not caused during the course of the same
incident, no right of private defence, Munna v State of UP, AIR 1992 SC 278 : 1993 Cr LJ 45 : 1993
Supp (2) SCC 757 ; State of Kerala v Mavila Thamban Nambiar, 1993 Cr LJ 1817 (Ker), the
accused fell off during the course of struggle and injured himself, those injuries could not give
him the right of killing in private defence.
317.  State of Punjab v Sohan Singh, AIR 1992 SC 1247 : 1992 Cr LJ 2514 : 1993 Supp (1) SCC
312 .

312 .
318.  Sridhar Das v State of Orissa, 1992 Cr LJ 2907 (Ori).
319.  Makwana Takhat Singh Ratan Singh v State of Gujarat, AIR 1992 SC 1989 : 1992 Cr LJ 3596
. No explanation of injuries on the person of the accused made, no difference to the acceptance
of their plea of self-defence, Hardeep Singh v State, 1996 Cr LJ 3091 (Raj).
320.  Arjun v State of MP, 1995 Cr LJ 3797 (MP).
321.  State of UP v Mukunde, (1994) 2 SCC 191 [LNIND 1994 SC 71] : 1994 SCC (Cr) 473. Also to
the same effect Kasam Abdulla v State of Maharashtra, 1998 Cr LJ 1422 : AIR 1998 SC 1013
[LNIND 1998 SC 157] , injuries on the person of a accused explained.
322.  Thakhaji Hiraji v Thakore Kuber Singh Chaman Singh, (2001) 6 SCC 145 [LNIND 2001 SC
1150] : AIR 2001 SC 2326 : 2001 AIR SCW 2077.
323.  The Court also noted the decision in Chandu v State of Maharashtra, (2001) 4 Scale 590

[LNIND 2009 NGP 319] : (2001) 5 Supreme 672; Dev Raj v State of HP, AIR 1994 SC 523 : 1993
AIR SCW 3966 : (1994) Supp 2 SCC 552, such injuries cannot be lightly ignored; Tara Chand v
State of Haryana, AIR 1971 SC 1891 : 1971 Cr LJ 1411, the circumstance can also be taken into
account in the mitigation of sentence.
324.  Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] . See also State of
Rajasthan v Pura, 2000 Cr LJ 2615 (Raj); Dharminder v State of HP, AIR 2002 SC 3097 [LNIND
2002 SC 537] ; Jesu Asir Singh v State, AIR (2007) SC 3015 [LNIND 2007 SC 977] : (2007) Cr LJ
4310 : (2007) 12 SCC 19 [LNIND 2007 SC 977] : (2008) 2 SCC (Cr) 192.
325.  Poosaram, 1984 Cr LJ 1848 (Raj); See also State of Gujarat v Bai Fatima, 1975 Cr LJ 1079 :
AIR SC 1478; Rizwan v State of Chhatisgarh, AIR 2003 SC 976 [LNIND 2003 SC 72] , non-

explanation of injuries on the accused persons was not taken by itself to give them the beneﬁt
of the right of private defence. The Court considered the factors to be taken into account for
examining whether the right of private defence must have existed.
326.  Radhe v State of Chhatisgarh, (2008) 11 SCC 785 [LNIND 2008 SC 1333] : AIR 2008 SC
2878 [LNIND 2008 SC 1333] .
327.  Laxman Singh v Poonam Singh, (2004) 10 SCC 94 [LNIND 2003 SC 767] : (2004) 1 MPLJ 93
: (2004) 1 Mah LJ 317 . James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097]
: (2004) 1 KLT 513 [LNIND 2003 SC 1097] : (2004) 2 MPLJ 231 : 2004 Mah LJ 358 . Shriram v
State of MP, (2004) 9 SCC 292 [LNIND 2003 SC 1026] : AIR 2004 SC 491 [LNIND 2003 SC 1026] :
2004 Cr LJ 610 .
328.  James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] .

329.  Rajesh Kumar v Dharmavir, AIR 1997 SC 3769 [LNIND 1997 SC 445]: 1997 Cr LJ 2242.
330.  Ranveer Singh v State of MP (2009) 3 SCC 384 [LNIND 2009 SC 123] : AIR 2009 SC 1658
[LNIND 2009 SC 123] ; Bishna Alias Bhiswadeb Mahato v State of WB, (2005) 12 SCC 657 [LNIND

2005 SC 873] Also see Ravishwar Manjhi v State of Jharkhand, AIR 2009 SC 1262 [LNIND 2008
SC 2423] : (2008) 16 SCC 561 [LNIND 2008 SC 2423] .
331.  State v Tanaji Dagadu Chawan, 1998 Cr LJ 4515 (Bom).
332.  State of Rajasthan v Shiv Singh Haren Das v State of Assam, 2011 Cr LJ 580 (Raj).
333.  Moti Singh v State of Maharashtra, (2002) 9 SCC 494 .
334.  V Subramani v State of TN, 2005 Cr LJ 1727 SC : AIR 2005 SC 1983 [LNIND 2005 SC 224] :
(2005) 10 SCC 358 [LNIND 2005 SC 224] .
335.  Nagaraj v State, 2006 Cr LJ 3724 (Mad—DB).
336.  Mehi Lal v State of UP, 2011 Cr LJ 1440 (All).

[s 97] Right of private defence of the body and of property.

Every person has a right, subject to the restrictions contained in section 99, to defend
—
First.—His own body, and the body of any other person, against any offence affecting
the human body;
Secondly.—The property, whether movable or immovable, of himself or of any other
person, against any act which is an offence falling under the deﬁnition of theft,
robbery, mischief or criminal trespass, or which is an attempt to commit theft,
robbery, mischief or criminal trespass.
COMMENT.—
This section broadly speciﬁes the offences against which the right of private defence
can be exercised. Section 99 provides the limitations. These two sections combined
together lay down the principles of the right of private defence.
The ﬁrst clause of this section provides for the defence of body against any offence
affecting the human body. The second provides for the defence of property against an
act which amounts to the commission of certain offences.

There is no obligation upon a person entitled to exercise the right of private defence
and to defend his person or property, to retire merely because his assailant threatens
him with violence.337.
Explaining the genesis of the rule, the Supreme Court has observed:338.
"It is important to bear in mind that self-preservation of one's life is the necessary
concomitant of the right of life enshrined in Art. 21 of the Constitution of India, fundamental
in nature, sacred, precious and inviolable. The importance and validity of the duty and right
to self-preservation has a species in the right of self-defence in criminal law. Centuries ago
thinkers of this great land conceived of such right and recognised it."
[s 97.1] Aggressor has no right of private defence.—
The right to defend does not include a right to launch an offensive or aggression.339.

The right of private defence does not arise where the accused were the aggressors and
the question of exceeding such right also does not arise.340. The Supreme Court
added, in this case, that the right of self-defence arises when there is unexpected
apprehension and one is taken unawares, or the accused happens to kill accidentally
while using reasonable force private defence can be used to ward off unlawful force, or
to prevent it, to avoid unlawful detention and to escape from such detention.341.
When the father of the accused was trying to forcibly remove the gate of the thrashing
ground of the deceased which was situated on the land of the deceased, his act
amounted to an offence of 'mischief'. And, if the deceased while protecting his own
property assaulted the father of the accused with a lathi, and the accused killed him in

return, the accused could not claim the right of private defence of body of his
father.342. In another case of the same kind the father of the accused was trying to pull
out the gate of the deceased thrashing mill and on the deceased assaulting him in
protection, the accused struck him dead. The right of private defence was not available
in the circumstances.343. Where the parties went away from the property over which
they were ﬁghting, the death caused at that shifted place was not a justiﬁable exercise
of the right of private defence.344. Where the accused succeeded in establishing their
right to the property in dispute through the Court and then went to the ﬁeld with a view

to ask the other party to vacate the premises, it was held that it by itself did not render
them to be aggressors for the purpose of denying them the beneﬁt of right of self-
defence.345.
Number of injuries is not always the safe criterion for determining who the aggressor
is. The fact of injuries on the body of the accused does not by itself create the
presumption that the accused was entitled to the right of private defence.346.
[s 97.2] Unlawful assembly.—
So long as an assembly of persons is acting in exercise of the right of private defence it
cannot be an unlawful assembly. An assembly though lawful to begin with, may in the
course of events become unlawful. So long as the accused persons were acting in
exercise of right of private defence, their object was not unlawful and so there was no
unlawful assembly but once they exceeded the right, the assembly ceased to be lawful
and became an unlawful assembly. There too only such of the members of the

assembly who shared the object of doing anything in excess of the exercise of right of
private defence, alone would be liable to be punished for the acts committed in
prosecution of the common object or for their individual unlawful acts.347.
[s 97.3] Right of private defence to be pleaded.—
In a Supreme Court case it is stated,
It is well settled that even if an accused does not plead self-defence, it is open to the Court
to consider such a plea if the same arises from materials on record.348.
But if no plea was entered on behalf of the accused and there were also no
circumstances to show that the accused had probably the right of private defence,
such a right could not be presumed on behalf of the accused on mere conjectures and
surmises.349. A mere bald assertion without any evidence of facts and circumstances

does not make out a case of private defence.350. The accused can, however, make out
his plea by mere preponderance of probabilities from materials already on record and
need not prove it to the hilt.351. Where by preponderance of probabilities the plea of
private defence of the accused is plausible, beneﬁt should be extended to the
accused.352. Failure on the part of the prosecution to prove that the injuries on the
person of the accused were not caused in self-defence, makes the defence of the
accused probable and he is entitled to its beneﬁt because he has not to prove his
defence beyond reasonable doubt.353. Where the accused set up the plea of self-
defence only during trial and not during investigation, it was held that this was not a
ground for rejecting the plea.354. The accused on the observation of the High Court

that the deceased was stabbed by the appellant, not in pursuance of any pre-planned
attack, but being under the impression that the deceased was coming to attack him.
The said observation cannot be read out of context to make out a case that the
accused acted in self-defence. Such a plea is neither put forth in the statement under
section 313 nor brought out in the cross examination of any of the prosecution
witnesses.355. It is true that the right of private defence need not speciﬁcally be taken
and in the event the Court on the basis of the materials on record is in a position to
come to such a conclusion, despite some other plea having been raised, that such a
case had been made out, it may act thereupon.356.

[s 97.4] CASES.—Defence of person.—
Under circumstances which might have induced the belief that a man was cutting the
throat of his wife, their son shot and killed his father. It was held that if the son had
reasonable ground for believing and honestly believed that his act was necessary for
the defence of his mother, the homicide was excusable.357. Where a girl was being
sexually molested and her father hit the assailant resulting in consequential death, it
was held that the father was entitled to the right of private defence irrespective of the
fact whether the affair was with or without consent because of the girl being a
minor.358. Where a man found his wife in compromising position with a person who
sprang at the husband and caused him multiple injuries, some of them grievous, the
husband thereafter gave a chopper blow resulting in the death of that person, it was
held that the husband had not exceeded his right of private defence and was entitled to

acquittal.359. Where the father of the accused was being given lathi blows by the
complainant party, the accused ﬁred from the licensed gun of his father to defend his
father, it was held that he had acted in the exercise of the right of private defence
whether the injuries caused to his father were simple or grievous.360. Trespassers on
the property of another cannot get any beneﬁt of right of private defence if they are
attacked by the person in possession of the property.361. However no one including the
true owner has a right to dispossess the trespasser by force if the trespasser is in
settled possession of the land and in such a case unless he is evicted in due course of
law, he is entitled to defend his possession even against the rightful owner. Such
possession of the trespasser must extend over a suﬃciently long period and

acquiesced in by the true owner.362. Though law permits even a trespasser in settled
possession to defend his possession but, it does not permit a person to take the law in
his own hand to take forcible possession merely because he has obtained a favourable
order under section 145 Cr PC, 1973. Such a person cannot claim private defence.363.
Settled possession means such clear and effective physical possession that under the
criminal law he, even if he is a trespasser, gets the right to defend his possession of the
property against an attack even by the true owner.364. If no party is proved to be in
settled possession, the question of exercise of right of private defence does not
arise.365. Where the accused were in possession of the property and had grown the
paddy, they were entitled to defend their possession by using reasonable force which in

the instant case went up to causing of death as the party in possession was attacked
and grievous blows were given to them.366. Where the prosecution party attacked the
accused, his brothers and others with sharp edged weapons and lathis and when they
tried to enter the latter's house, the accused ﬁred at the crowd resulting in the death of
a man and injuries to others, it was held that the accused had acted only in the exercise
of the right of private defence and he was entitled to complete acquittal.367. Where the
accused was ﬁred at to dispel his party from attempting to rescue their friend from
illegal police detention and an informer accompanying the police who tried to prevent
them from snatching the police gun received fatal injuries, it was held that they were

entitled to the right of private defence.368. Where a fatal injury was caused in
consequence of hot exchange of words, the right of private defence was held to be not
available.369. The Supreme Court has suggested that the number and nature of injuries
sustained by the accused and the deceased in any case, may furnish good evidence to
consider whether the accused was acting in private defence and, if so, whether he had
exceeded his right. In the state of the evidence on record in that case and the number
of injuries suffered by the accused, the Court did not accede to the contention that the
right was not properly exercised.370.
[s 97.5] Defence of another person.—

The right of private defence need not necessarily be exercised for the defence of one's
own person; it can be exercised for the defence of the person of another one.371.
[s 97.6] Defence of property.—
Every person in possession of land is entitled to defend his possession against anyone
who tries to eject him by force,372. or to steal from it;373. or to do an act which will have
the effect of causing injury to it, e.g., cutting of a bund.374. Even if a trespass has been
committed, in certain situations, right of private defence can be used to eject the
trespassers.375. Where the accused had no right, title, interest or possession of the
land in issue, right of private defence of property did not vest in him.376.
Where the complainant party was about 300 feet away from the disputed land and it
was further found that the accused had not shown that there was any injury on the
person of the accused, it was held that no right of private defence arose in favour of the
accused. 377.
[s 97.7] Open space.—

Though private defence is available in respect of criminal trespass or mischief as
against the property owned by himself or of any other person, but criminal trespass is
not enumerated as one of the offences under section 103 IPC, 1860. Therefore, the
right of private defence of property will not extend to the causing of death of the
person who committed such acts, if the act of trespass is in respect of an open land.
Only a house-trespass committed under such circumstances as may reasonably cause
apprehension that death or grievous hurt would be the consequence is enumerated as
one of the offences under section 103.378. But in another judgment Supreme Court
held that there is no law that right of self-defence cannot be exercised in relation to a
dispute over an open space.379. Where the trespasser was in settled possession of the

ﬁeld in question, and the party who claimed ownership started ploughing the ﬁeld, it
was held that the trespasser (accused) had the right of private defence of his
possession over property and offer resistance, but that he exceeded that right in
causing death. His act fell under exception 2 to section 300 and punishable under
section 304, Part I.380. Where a goat of the accused entered the ﬁeld of another and he
was trying to take it way, the other struck him with lathi blows and also his companion
who came to his rescue. Only then the accused retaliated with lathi blows resulting in
death. Supreme Court upheld the acquittal.381. The right is subject to restrictions
imposed by section 99, the accused party was in possession of the land, the deceased
party wanted to enter into possession forcibly. One of the aggressors was killed and

another grievously hurt. The accused that caused the death was held to be guilty of
exceeding the right of private defence. The acquittal of the person who caused
grievous hurt with a spear was held to be not proper. He was liable to be convicted
under section 326.382. Accused having not been in settled possession had no right to
self-defence to defend the possession of the property.383. Occurrence took place on
the land which was in possession of deceased. Accused cannot take the plea of private
defence.384. No right of private defence of property to a person who was not in
possession of the property.385.
Where the accused to a certain stage acted in defence of their property but exceeded it
in breaking into the room of their victim, striking him with a lathi blow and also his wife

and daughter who were also there in the room, the victim subsequently dying, their

conviction was shifted from under section 302 to that under section 304 Part 1.386.
The right of private defence of property (share in land) was held to have been exceeded
when the deceased's side being armed with lathis only, the accused party ﬁred at them
with a gun, killing one and injuring others. The right of private defence was not available
to them.387.
Where the ﬁnding of the Courts below was that the accused and his companions were
aggressors because they assaulted the victim and his children when they came out to
protest against cutting of their by the accused, it was held that the beneﬁt of the right
of private defence was not available to the accused.388.
Defence of property may create circumstances ripening into the right of defence of
person. This is so because even in defending property, the attack and counter-attack is
likely to be on person. This was the situation in a case in which the accused while
defending land over which they had possession; they became the victim of attack on

person with sharp cutting weapons. It became their right to repel the danger of
grievous hurt or even death and to use for that purpose reasonably appropriate force.
Their right extended to cause death of the aggressors if that could be the only way of
saving themselves.389.
[s 97.8] CASES.—Exceeding private defence.—
The father of the accused was attacked by the deceased with a lathi and suffered a
simple injury on his head, whereupon the accused in order to protect his father
administered a fatal blow on the chest of the deceased with a ballam. It was held that
though the accused had the right of private defence, he had obviously exceeded it and
was, therefore, liable under section 304-Part I, IPC, 1860.390. A somewhat contrary view
has, however, been taken by the Supreme Court in a later case where too the accused

had exercised his right of private defence against a lathi blow on the head. Thus, in Deo
Narain's case it has been held that the accused was justiﬁed in using his spear though
the other party had aimed only a lathi blow on the head, which being a vulnerable part
even a lathi blow could prove dangerous.391. It thus, appears that the part of the body
against which the attack is directed is more important than the weapon used. Where
the deceased attacked the accused with a stick and the accused retaliated by stabbing
the former to death his offence fell under section 304-Part I, IPC, 1860, as he had
exceeded the right of private defence.392. Evidence on record showed that accused had
received many injuries on his person, and exercised right of private defence of person

in good faith. He had sustained four injuries on various parts of his body including on
vital parts, thus, case would be covered by Exception 2 to section 300 of IPC, 1860. The
nature of weapon used, circumstances in which incident took place, injuries on body of
accused as well as deceased, showed that there was no premeditation. He had
exercised his right of self-defence but having regard to the injuries inﬂicted by him on
deceased, he exceeded same.393. Where the accused, a person with only one hand was
attacked with a bamboo and sustained several injuries and then to ward off further
attack gave only one blow with a pen-knife on the aggressor which unfortunately fell on
a vital part resulting in his death, it could not be said that he had exceeded his right of

private defence. For the accused it was a case of life or death struggle and his case,
therefore, squarely fell within the ambit of clauses (1) and (2) of section 100, IPC, 1860,
and he could not be held guilty of any offence.394. In a sudden group clash over a
house both sides received injuries and one person was killed. There was no prior
enmity between two groups and the whole incident developed suddenly. Accused
persons received quite a number of injuries, some on vital parts, and the prosecution
was not able to explain those injuries. It was held that the accused could not be said to
have exceeded the right of private defence. Their conviction was set aside.395. Two

armed bullies of a locality raided a ﬂat in a drunken state and demanded money from
the inmates with the use of force. This amounted to the crime of extortion giving the
inmates the right to defend themselves against the raiders. Both the raiders met their
death in the process of the ensuing scuﬄe, it being not known nor capable of being
ascertained who played what roll in the combat. The Supreme Court held that it could
not be said of any one of them that he exceeded the right of private defence. Hence,
they could not be convicted under section 302 read with section 34.396. The accused
using his licenced gun ﬁred only one shot after receiving a severe blow on his head
fracturing his skull. It was held that he did not exceed his right of self-defence.397. A
person had a lurking suspicion about illicit relations between his elder brother's wife
and the accused and he caught hold of the accused when the latter visited their house

to meet her. The accused inﬂicted knife injuries on him to extricate himself but did not
inﬂict any further injury after freeing himself. It was held that the accused had not
exceeded the right of private defence and was not guilty under section 307 for
attempted murder.398. Where the accused ﬁred a single gunshot at the deceased party
to save his uncle who had received serious injuries in the attack made by the deceased
party, the gun shot unfortunately proved fatal, the accused could not be said to have
exceeded his right of self- defence.399. Where in a murder case over obstruction of
water course, the victim assaulted the accused twice and injured him whereupon the
accused inﬂicted a blow on him which proved fatal, the accused could not be said to
have exceeded his right of private defence.400.

A police party was looking for the accused to affect their arrest. The complainant party
was helping the police. On being located, the accused party opened ﬁre. The police
withdrew after receiving injuries. Two members of the complainant party were killed.
Even a runaway complainant was shot down. This showed that the attack continued
even when all danger to the accused party had ceased. Thus, they exceeded the right of
private defence. Conviction for murder was upheld.401.
Where the death occurred due to the ﬁring resorted to as part of the self-defence, the
same would amount to 'culpable homicide not amounting to murder', which was
committed without any pre-meditation in a sudden ﬁght, in the heat of passion and
upon a sudden quarrel and that the offender could not be said to have taken undue
advantage or acted in a cruel or unusual manner, which would normally fall under

Exception 4 of section 300 IPC, 1860.402.
[s 97.9] Burden on accused to probablise his defence.—
It is for the accused to establish the plea of private defence. He is not required to prove
it beyond reasonable doubt. The Court has only to examine probabilities in appreciating
the plea. In the present case, the accused had miserably failed to establish or even to
probablise his defence. The deceased persons had merely asked them why they had
cut the mature crop, when they became the victim of attack. They were unarmed.403.
The accused need not take the plea of private defence explicitly. He can succeed in his
plea if he is able to bring out from the evidence of the prosecution witness or other
evidence of the prosecution witness or other evidence that the apparent criminal act

was committed by him in exercise of private defence. The burden on the accused is not
as onerous as that which lies on the prosecution. While the prosecution is required to
prove its case beyond a reasonable doubt, the accused can discharge his onus by
establishing preponderance of probabilities.404.

337.  Nareshi Singh, (1923) 2 Pat 595.
338.  Surjit Singh v State of Punjab, 1996 (2) SCC 336 [LNIND 1996 SC 233] at 342 : AIR 1996 SC
1388 [LNIND 1996 SC 233] .
339.  Sikandar Singh v State of Bihar, (2010) 7 SCC 477 [LNIND 2010 SC 603] : AIR 2010 SC
340.  Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187] : AIR 2008 SC 1172
[LNIND 2008 SC 187] .
341.  Ibid, See also Narain Singh v State of Haryana, (2008) 11 SCC 540 [LNIND 2008 SC 864] :
AIR 2008 SC 2006 [LNIND 2008 SC 864] : 2008 Cr LJ 2613 , for restatement of principles.

342.  State of MP v Mohandas, 1992 Cr LJ 101 (MP).
343.  State of MP v Mohandas, 1991 Cr LJ 101 (MP).
344.  Bhagat Singh v The State, 1992 Cr LJ 221 (All).
345.  Jarnail Singh v State of Punjab, AIR 1993 SC 72 : 1992 Cr LJ 3863 : 1993 Supp (1) SCC 588
. See also Jaipal v State of Haryana, AIR 2000 SC 1271 [LNIND 2000 SC 448] : 2000 Cr LJ 1778 ;
Murali v State of TN, 2001 Cr LJ 470 (SC).
346.  V Subramani v State of TN, 2005 Cr LJ 1727 SC : AIR 2005 SC 1983 [LNIND 2005 SC 224] :
347.  Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] : (2002) 1 SCC 71
[LNIND 2001 SC 2369] .
348.  Munshi Ram v Delhi Administration, AIR 1968 SC 702 [LNIND 1967 SC 347]: 1968 Cr LJ 806;
Rajanikant, (1970) 2 SCC 866 [LNIND 1970 SC 401] : 1970 SCC (Cr) 575 ; State of Rajasthan v

Manoj Kumar, 2014 Cr LJ 2420.
349.  State of Gujarat v Bai Fatima, 1975 Cr LJ 1079 : AIR 1975 SC 1478 [LNIND 1975 SC 130] .
350.  Raza Pasha, 1983 Cr LJ 977 : AIR 1983 SC 575 [LNIND 1983 SC 79] . Sekar v State of TN,
2003 Cr LJ 93 : AIR 2002 SC 3667 [LNIND 2002 SC 628] , the plea of self-defence cannot be
based upon surmises and speculation. The Court noted the relevant factors in order to ﬁnd out
whether the right is available or not.
351.  Salim Zia, 1979 Cr LJ 323 : AIR 1979 SC 319 ; Yogendra Morarji, 1980 Cr LJ 459 : AIR 1980
SC 660 . Mohd. Ramzani v State of Delhi, 1980 Cr LJ 1010 : 1980 SCC (Cr) 907 : AIR 1980 SC
1341 . The burden is on the accused. The Court does not presume the existence of the
circumstances which entitle the accused to his defence. Subodh Tewari v State of Assam, 1988

Cr LJ 223 Gau. To the same effect, Savita Kumari v UOI, 1993 AIR SCW 1174 : 1993 Cr LJ 1590 :
(1993) 2 SCC 357 [LNIND 1993 SC 87] .
352.  Jharmal v State of Haryana, 1995 Cr LJ 3212 : 1994 (2) SCC 551 [LNIND 1994 SC 256] ;
Rizwan v State of Chhatisgarh, AIR 2003 SC 976 [LNIND 2003 SC 72] , burden of proof is on the
accused is to establish his plea. It is discharged by showing preponderance of probabilities in
favour of his plea.

353.  Debraj v State of UP, (1993) Supp 2 SCC 552 followed in Maskandar Ali v Assam, (1995) 2
Cr LJ 1900 Gau. Where the Court said that the burden is on the accused to prove his plea. But
he has not to establish his right beyond all doubt. It is enough that he is able to show on a
preponderance of probability that he acted in private defence. Also to the same effect, Dwarka
Pd. v State of UP, (1993) AIR SCW 1122 : (1993) Supp. 3 SCC 141.
354.  Bahadur Singh v State of Punjab, AIR 1992 SC 70 : 1992 Cr LJ 3709 : (1992) 4 SCC 503 .
355.  Pulicherla Nagaraju v State of Andhra Pradesh, AIR 2006 SC 3010 [LNIND 2006 SC 621] :
(2006) 11 SCC 444 [LNIND 2006 SC 621] .
356.  Haﬁz v State of UP, (2005) 12 SCC 599 [LNIND 2005 SC 773] .
357.  Rose, (1884) 15 Cox 540. Kashiram v State of MP, (2002) 1 SCC 71 [LNIND 2001 SC 2369] ,
incident of gun shot injuries took place near the house of the accused persons. One of them
sustained gun shot and other wounds. This created an apprehension of further grievious hurt

being caused to the victims. This entitled them to exercise private defence even to the extent of
causing death.
358.  Yeshwant Rao v State of MP, AIR 1992 SC 1633 : 1992 Cr LJ 2779 .
359.  Raghavan Achari v State of Kerala, AIR 1993 SC 203 : 1992 Cr LJ 3857 : 1993 Supp (1) SCC
719 .
360.  Bhagwan Swaroop v State of MP, AIR 1992 SC 675 [LNIND 1992 SC 112] : 1992 Cr LJ 777 :
(1992) 2 SCC 406 [LNIND 1992 SC 112] .
361.  Hukam Singh, (1961) 2 Cr LJ 711 : AIR 1961 SC 1541 [LNIND 1961 SC 136] .
362.  Munshi Ram, AIR 1968 SC 702 [LNIND 1967 SC 347] : 1968 Cr LJ 806 .
363.  Buduka Kalita, 1972 Cr LJ 1627 (Gau).
364.  Puran Singh, 1975 Cr LJ 1479 : AIR 1975 SC 1674 [LNIND 1975 SC 174] .
365.  State of Orissa v Bhagabat, 1978 Cr LJ 1566 (Orissa).

366.  Abdul Kadir v State of Assam, 1985 Cr LJ 1898 : AIR 1986 SC 305 : 1985 SCC (Cr) 501. See
also Mehruddin Sheikh v State of WB, 1985 SCC (Cr) 241 : (1985) 2 SCC 448 where the Court
said that a factual study of the respective position of the parties is necessary.
367.  Nagendra Pal Singh v State of UP, AIR 1993 SC 950 : 1993 Cr LJ 190 : (1993) Supp (3) SCC
197 .
368.  State of UP v Niyamat, (1987) 3 SCC 434 [LNIND 1987 SC 391] : AIR 1987 SC 1652 [LNIND
1987 SC 391] : 1987 Cr LJ 1881 .
369.  Ramesh Laxman Pardesi v State of Maharashtra, 1987 SCC (Cr ) 615 : 1987 Supp SCC 1 .
370.  Patori Devi v Amar Nath, (1988) 1 SCC 610 : AIR 1988 SC 560 : 1988 Cr LJ 836 .
371.  Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] : (2002) 1 SCC 71

[LNIND 2001 SC 2369] Also see B Parichhat v State of MP, AIR 1972 SC 535 : (1972) 4 SCC 694 :
1972 Cr LJ 322 .
372.  Sachee, (1867) 7 WR (Cr) 76 (112). Mohinder Singh v State of Punjab, (1995) 1 Cr LJ 244
(P&H) an attempt to take forcible possession of land resisted, resistance held justiﬁed, the
Court explained when the right of resistance can extend to causing death. Tanaji Govind Misal v
State of Maharashtra, AIR 1998 SC 174 [LNIND 1997 SC 1211] : 1998 Cr LJ 340 , evidence
showed that the property belonged to the complainant party and not to attackers, the owners
suffered 51 wounds whereas the attackers received 15 wounds, which were also insigniﬁcant.
The Court held that the conviction of the accused could not be altered from under section 300
to section 304. Pohap Singh v State of Haryana, 1998 Cr LJ 1564 : AIR 1998 SC 1554 [LNIND

1997 SC 1658] , the accused party received more injuries than those suffered by the deceased's
party. The Court said that not the accused but the deceased was the aggressor and the accused
acted in self defence.

373.  Mokee, (1869) 12 WR (Cr) 15.
374.  Birjoo Singh v Khub Lall, (1873) 19 WR (Cr) 66.
375.  Triloki Nath v State of UP AIR 2006 SC 321 [LNIND 2005 SC 867] : (2005) 13 SCC 323
[LNIND 2005 SC 867] ; in this case, occurrence took place 300 paces away from the disputed
plot - Plea of self defence against property held not available to the accused.
376.  AR Yelve v State of Maharashtra, 1996 Cr LJ 1718 : AIR 1996 SC 2945 [LNIND 1996 SC 336]
; Ram Pal v State of Haryana, (2009) 7 SCC 614 [LNIND 2009 SC 1264] : AIR 2009 SC 2847
[LNIND 2009 SC 1264] , appellants were not in settled possession of property and as such had
no right of private defence to defend possession of that property. They were aggressors coming
to place of occurrence fully armed, reversal of acquittal of accused by the High Court was
upheld.
377.  Panna Lal v State of MP, 2015 Cr LJ 3286 .
378.  Jassa Singh v State of Haryana, AIR 2002 SC 520 [LNIND 2002 SC 13] : (2002) 2 SCC 481
[LNIND 2002 SC 13] .

upheld.
379.  Kishan Chand v State of UP, (2007) 14 SCC 737 [LNIND 2007 SC 1190] : AIR 2008 SC 133
[LNIND 2007 SC 1190] .
380.  Adhimoolam v State, 1995 Cr LJ 1051 (Mad) following Puran Singh v State of Punjab, AIR
1975 SC 1674 [LNIND 1975 SC 174] : (1975) Cr LJ 1479 (SC) where the court cited AIR 1968 SC
702 [LNIND 1967 SC 347] : 1968 Cr LJ 806 as deﬁning the concept of settled possession.
381.  Satya Narain Yadav v Gajanand, (2008) 16 SCC 609 [LNIND 2008 SC 2782] : AIR 2008 SC
3284 [LNIND 2008 SC 2782] .
382.  State of Haryana v Sher Singh, AIR 2002 SC 3223 [LNIND 2002 SC 1215] .
383.  Ram Pat v State of Haryana, (2009) 7 SCC 614 [LNIND 2009 SC 1264] : (2009) 8 SCR 1115
[LNIND 2009 SC 1264] : AIR 2009 SC 2847 [LNIND 2009 SC 1264] .
384.  Ashok Kumar v State of TN, AIR 2006 SC 2419 [LNIND 2006 SC 360] : (2006) 10 SCC 157
[LNIND 2006 SC 360] .

385.  Daulat Trimbak Shewale v State of Maharashtra, (2004) 10 SCC 715 [LNIND 2004 SC 586] :
AIR 2004 SC 3140 [LNIND 2004 SC 586] : 2004 Cr LJ 2825 .
386.  Madam v State of MP, (2008) 11 SCC 657 [LNIND 2008 SC 1390] : AIR 2008 SC 3083
[LNIND 2008 SC 1390] : 2008 Cr LJ 3950 .
387.  Narain Singh v State of Haryana, (2008) 11 SCC 540 [LNIND 2008 SC 864] : AIR 2008 SC
2006 [LNIND 2008 SC 864] : 2008 Cr LJ 2613 . Following principles stated in James Martin v
State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] : (2004) 1 KLT 513 [LNIND 2003 SC
1097] . Salim v State of Haryana, (2008) 12 SCC 705 [LNIND 2008 SC 1613] : (2008) Cr LJ 4327 ,
ﬁnding that one of the parties used force and ﬁre causing death to take possession of land,
private defence not available. The Court said that even if the right was there, it was exceeded.

388.  AC Gangadhar v State of Karnataka, (2009) 14 SCC 710 [LNIND 1998 SC 506] : AIR 1998 SC
2381 [LNIND 1998 SC 506] .
389.  Vajrapu Sambayya Naidu v. State of A.P., (2004) 10 SCC 152 [LNIND 2003 SC 176] : AIR
2003 SC 3706 [LNIND 2003 SC 176] .
390.  Parichhat, 1972 Cr LJ 322 : AIR 1972 SC 535 . Dilip Singh v State of Rajasthan, (1994) 2 Cr
LJ 2439 (Raj) in a dispute over possession of property, one party tried to take forcible
possession by committing criminal trespass, they possessed only an agricultural implement,
not capable of causing apprehension of death but even so the other party ﬁred at them killing
one, held, they exceeded private defence, punishable under section 304-I. Telantle v State of AP,
(1994) 2 Cr LJ 2302 (AP) number of injuries (18 in this case caused by son on his father)

indicated excess of the right of private defence. Thomas George v State of Kerala, AIR 2000 SC
3497 : 2000 Cr LJ 3475 , right of private defence of person, punishment altered from under

section 302 to that under section 304, Part II. Sekar v State of TN, 2003 Cr LJ 53 (SC) quarrel
over sheeping damaging crop of the victim, owner of the sheep struck him, he fell down and
was struck in the neck even after that. Right of private defence exceeded; Madan v State of MP,
(2008) 11 SCC 657 [LNIND 2008 SC 1390] : AIR 2008 SC 3083 [LNIND 2008 SC 1390] : 2008 Cr
LJ 3950 , accused persons forced open the wooden door and entered the place where the wife
and daughter of one of them were sleeping. They caught hands of the householder and
assaulted him with lathis. He later died. The wife and daughter were also assaulted when they
tried to intervene. The attackers were also injured to a certain extent and therefore, had the right
of private but they exceeded it. Their punishment was altered from under section 302 to section
304 Pt. I.
391.  Deo Narain, 1973 Cr LJ 677 (SC) : (1973) 3 SCR 57 [LNIND 1972 SC 572] : AIR 1973 SC 473

304 Pt. I.
[LNIND 1972 SC 572] . See further Laxman Sahu v State of Orissa, 1988 Cr LJ 188 : AIR 1988 SC
83 : 1986 Supp SCC 555 : 1987 SCC (Cr) 173 where a lathi blow inﬂicted on the forehead caused
death without any apparent need for it, the accused was convicted under section 304 part I and
the above case was distinguished.See also Sukumar Roy v State of WB, AIR 2006 SC 3406
[LNIND 2006 SC 882] : (2006) 10 SCC 635 [LNIND 2006 SC 882] .
392.  Raﬁq, 1979 Cr LJ 706 : AIR 1979 SC 1179 ; Yogendra Morarji, 1980 Cr LJ 459 : AIR 1980 SC
660 ; see also VC Cheriyan v State, 1982 Cr LJ 2071 (Ker). The accused receiving gun shot
injuries, opened ﬁre at the other party killing two persons, entitled to right of private defence but
exceeded, convicted under scetion 304 Part I and not for murder Jagtar Singh v State of Punjab,
AIR 1993 SC 2448 [LNIND 1993 SC 11] : 1993 Cr LJ 306 . See also Jasbir Singh v State of Punjab,

AIR 1993 SC 968 : 1993 Cr LJ 301 : (1993) Supp (2) SCC 760 , diversion of ﬂow of tubewell
water by the deceased, accused ﬁred killing him on the spot.
393.  Beersingh Jagatsingh v State of Maharashtra, 2013Cr LJ2248 (Bom).
394.  Bayadas Bawri, 1982 Cr LJ 213 (Gau).
395.  Ram Phal v State of Haryana, AIR 1993 SC 1979 : 1993 Cr LJ 2603 : 1993 Supp (3) SCC 740
. Contra : see Kulwant Singh v State of Punjab, AIR 1994 SC 1271 : 1994 Cr LJ 1109 , group clash,
injuries on both sides, one died, circumstances did not entitle the exercise of right of self-
defence to the accused.
396.  Kishore Shambudatta Mishra v State of Maharashtra, AIR 1989 SC 1173 : 1989 Cr LJ 1149 :
1989 Supp (1) SCC 399 .
397.  Kamal Singh v State of MP, (1995) 2 Cr LJ 1834 MP.
398.  Krushna Chandra Bisoi v State of Orissa, 1992 Cr LJ 1766 (Ori).

399.  Sukhdev Singh v State of Punjab, 1995 Cr LJ 3227 (SC).
400.  Gurdev Singh v State of Rajasthan, 1996 Cr LJ 1270 (Raj). State v Bhuri, 1997 Cr LJ 708
(Raj), mother of accused attacked and an injury caused with a sharp weapon, the accused hit
back with grand force a lathi blow which fell on the head of the aggressor causing his death,
right of private defence exceeded.
401.  Ram Avtar v State of UP, 2003 Cr LJ 480 (SC).
402.  Rajinder Singh v State of Haryana, 2015 Cr LJ 1330 .
403.  Abid v State of UP, (2009) 14 SCC 701 [LNIND 2009 SC 1395] .
404.  Krishnan v State of TN, AIR 2006 SC 3037 [LNIND 2006 SC 612] : (2006) 11 SCC 304
[LNIND 2006 SC 612] .

[s 98] Right of private defence against the act of a person of unsound mind,
etc.

When an act, which would otherwise be a certain offence, is not that offence, by
reason of the youth, the want of maturity of understanding, the unsoundness of mind
or the intoxication of the person doing that act, or by reason of any misconception on
the part of that person, every person has the same right of private defence against
that act which he would have if the act were that offence.
(a) Z, under the inﬂuence of madness, attempts to kill A; Z is guilty of no offence. But A
has the same right of private defence which he would have if Z were sane.
(b) A enters by night a house which he is legally entitled to enter Z, in good faith, taking
A for a house-breaker, attacks A. Here Z, by attacking A under this misconception,
commits no offence. But A has the same right of private defence against Z, which he
would have if Z were not acting under that misconception.

COMMENT.—
The right of private defence would have lost most of its value if it was not allowed to be
exercised against persons suffering from the incapacities mentioned in this section.

[s 99] Acts against which there is no right of private defence.

There is no right of private defence against an act which does not reasonably cause
the apprehension of death or of grievous hurt, if done, or attempted to be done, by a
public servant acting in good faith under colour of his oﬃce, though that act, may not
be strictly justiﬁable by law.
the apprehension of death or of grievous hurt, if done, or attempted to be done, by the
direction of a public servant acting in good faith under colour of his oﬃce, though that
direction may not be strictly justiﬁable by law.
There is no right of private defence in cases in which there is time to have recourse to
the protection of the public authorities.
Extent to which the right may be exercised.
The right of private defence in no case extends to the inﬂicting of more harm than
it is necessary to inﬂict for the purpose of defence.
Explanation 1.—A person is not deprived of the right of private defence against an

act done, or attempted to be done, by a public servant, as such, unless he knows
or has reason to believe, that the person doing the act is such public servant.
Explanation 2.—A person is not deprived of the right of private defence against an
act done, or attempted to be done, by the direction of a public servant, unless he
knows, or has reason to believe, that the person doing the act is acting by such
direction, or unless such person states the authority under which he acts, or if he
has authority in writing, unless he produces such authority, if demanded.
COMMENT.—
This section indicates the limits within which the right of private defence should be
exercised.
[s 99.1] First clause.—
This clause applies to those cases in which the public servant is acting in good faith
under colour of his oﬃce, though the particular act being done by him may not be

justiﬁable by law.405. Where oﬃcers of Delhi Municipal Corporation acting in good faith
by virtue of powers delegated to them by the Commissioner attempted to seize the
buffalo of the accused with a view to recover arrears of milk tax, the mere fact that no
prior notice was issued to the accused as required by the Municipal Act would not
make their act entirely outside the law and as such accused had no private defence
under section 99 of the Code. The oﬃcers had merely erred in exercise of their
powers.406. The clause applies to a case where an oﬃcial has done wrongly, what he
might have done rightly, but not to cases where the act could not have been done
rightly at all by the oﬃcial concerned.407. The clause applies where a public servant

acts irregularly in the exercise of his powers, and not where he acts outside the scope
of his powers.408. Where a police oﬃcer acting bona ﬁde under colour of his oﬃce
arrests a person but without authority, the person so arrested has no right of self-
defence against the oﬃcer.409. If the act of a public servant is ultra vires the right of
private defence may be exercised against him.410. A police-oﬃcer, holding a search,
without a written authority, cannot be said to be acting 'under colour of his oﬃce'.411.

[s 99.2] CASES.—Resistance to oﬃcer acting without warrant.—
A police-oﬃcer attempted without a search-warrant to enter a house in search of
property alleged to have been stolen and was obstructed and resisted. It was held that,
even though the oﬃcer was not strictly justiﬁed in searching the house without a
warrant, the person obstructing and resisting could not set up the illegality of the
oﬃcer's proceeding as a justiﬁcation of his obstruction, as it was not shown that the
oﬃcer was acting otherwise than in good faith and without malice.412. Where a raiding
party organized by the oﬃcial of the Municipal Corporation to round up stray cattle
within the limits of the Corporation, was attacked when it had rounded up some cattle
and was leading the cattle to the cattle pound, it was held that the act of the raiding
party was fully justiﬁable by law and that the accused had no right of private
defence.413. Where a party was ﬁred at to dispel them from their attempt to rescue

their friend from an illegal police detention, it was held that this was suﬃcient to cause
reasonable apprehension in their mind of death or grievous injury.414.
[s 99.3] Illegal attachment does not justify resistance.—
Where articles protected from attachment were attached, it was held that this act did
not justify resistance.415. Where the property of a person was wrongfully attached as
the property of certain absconders, it was held that the rightful owner had no right of
private defence of his property, as the police-oﬃcer was acting in good faith under
colour of his oﬃce, and that even supposing the order of attachment might not have
been properly made, that would in itself not be suﬃcient ground for such a defence.416.
[s 99.4] Second clause.—
The ﬁrst clause speaks of acts done by a public servant, this clause, of acts done under

the direction of a public servant. It is not necessary that the doer should be a public
servant. Explanation 2 must be read conjointly with this clause.
[s 99.5] CASE.—Resistance to execution of warrant.—
Where a police-oﬃcer attempted to execute a warrant the issue of which was illegal, it
was held that the accused were justiﬁed in their resistance.417.
[s 99.6] Third clause.—
The third clause of this section must be read with the ﬁrst clause of section 105.418. It
places an important restriction on the exercise of the right of defence. The right of
private defence being granted for defence only, it must not and cannot legally be
exercised when there is time to have recourse to the protection of public authorities.
The right of private defence does not take the place of the functions of those public
servants who are especially charged with the protection of life and property and the

apprehension of offenders, and where the assistance of the public authorities can be
procured, the right cannot be lawfully exercised. But the law does not intend that a
person must run away to have recourse to the protection of public authorities when he
is attacked instead of defending himself.419. A person in possession cannot be

expected to leave his property at the mercy of armed trespassers. Where there is
imminent danger to the property and the person in possession apprehends substantial
damage thereto, he is entitled to raise his own arms in defence and retaliate to keep
away the attack without applying for State aid.420. Where the accused was in rightful
possession of the property by virtue of a Court order; under section 145 Cr PC, 1973, he
had every right to throw out the complainant party from the land and demolish the
construction stealthily put up thereon.421. The important considerations which always
arise in order to determine whether the action of the accused is covered by the right of
private defence are, ﬁrst, what is the nature of the apprehended danger, and, second,
whether there was time to have recourse to the police authorities, always remembering
that when both the parties are determined to ﬁght and go up to the land fully armed in

full expectation of an armed conﬂict in order to have a trial of strength the right of
private defence disappears.422.
[s 99.7] CASES.—Time to obtain protection of public authorities.—
The accused received information one evening that the complainants intended to go on
his land on the following day, and uproot the corn sown in it. At about three o'clock next
morning he was informed that the complainants had entered on his land and were
ploughing up the corn. Thereupon he at once proceeded to the spot, followed by the
remaining accused, and remonstrated with the complainants, who commenced an
attack on the accused. In the ﬁght which ensued, both sides received serious injuries,
and the leader of the complainants' party was killed. It was held that the complainants

being the aggressors, the accused had the right of private defence and that they were
not bound to act on the information received on the previous evening and seek the
protection of the public authorities, as they had no reason to apprehend a night attack
on their property.423. In a case involving an old land dispute, one party (accused)
offered resistance to prevent the other from ploughing the land and on refusal went up
to the place where the other was sitting without arms and inﬂicted stick blows causing
death, it was held that the accused was rightly convicted. The Court said that a rightful
owner can defend his possession against any attempt to dislodge him, but that once a
trespasser has established his foothold; resort should be had to public authorities.424.

The right of private defence does not extend to inﬂicting of more harm than necessary
for the purpose of defence. The prosecution party, in this case, had gone to plough the
land which was in the possession of the accused (appellant). The latter had time to go
and report the matter to appropriate authorities constituted under the law. But instead
of so doing, they brutally attacked the other party resulting in the death of three
persons. Thus, there was no right of private defence. It was held that there was no
warrant for converting the conviction from u/section 302 to section 304 Part II.425.
[s 99.8] Fourth clause.—
The right of private defence is restricted to not inﬂicting more harm than it is necessary
to inﬂict for the purpose of defence. The amount of force necessarily depends on the

circumstances of the case, and there is no protection if the harm is caused by
excessive violence quite unnecessary to the case.426. For example, a person set by his
master to watch a garden or yard is not at all justiﬁed in shooting at, or injuring in any
way, persons who may come into those premises, even in the night. He ought ﬁrst to
see whether he could not take measures for their apprehension.427. The measure of
self-defence must always be proportionate to the quantum of force used by the
attacker and which it is necessary to repel.428. In dealing with the question as to

whether more force is used than is necessary or than was justiﬁed by the prevailing
circumstances, it would be inappropriate to adopt tests of detached objectivity of a
Court room. The means which a threatened person adopts or the force which he uses
should not be weighed in golden scales.429. Though a person exercising his right of
private defence is not expected to modulate his defence step by step or tier by tier, yet
it is necessary to see that it is not totally disproportionate to the injury sought to be
averted, e.g., to ward off a slap one cannot ﬁre a gun. Thus, where the father of the
accused was allegedly assaulted with lathis which resulted in simple injuries, the
accused was not justiﬁed in ﬁring his gun and thereby killing the attacker. In such a
case it could not be said that there was a reasonable apprehension of death or
grievous hurt within the meaning of clause (1) of section 100, IPC, 1860.430. But at the
same time it should also be remembered that if a man has real justiﬁcation to exercise

his right of private defence, he cannot be held liable if he slightly exceeds his right of
private defence, e.g., where face to face with a murderous attack he ﬁres two shots in
quick succession, for these things cannot be weighed in golden scales.431. The right of
private defence should not be allowed to be pleaded or availed of as pretext for a
vindictive, aggressive or retributive purpose.432.
[s 99.9] CASES.—Justiﬁable harm.—
A party attempted to rescue a friend from unlawful police detention. Three rounds were
ﬁred to dispel them. This caused in their mind a reasonable apprehension of death or
injury. They tried to snatch the police gun. A police informer intervened and died of
injuries received in the process. The right of private defence was held to be not

exceeded.433. In another case the Supreme Court accepted the defence version that
there were four assailants who had come well prepared to assault at the door of their
house. In such a situation accused persons could have a reasonable apprehension of
death or at least of grievous hurt. It was a case of single gunshot which was not
repeated. Therefore, it cannot be said that the accused persons had exceeded their
right of private defence in any manner.434.
In view of the fact that the accused was pursued, that he only picked up the weapon
when he was chased and that he used it only once, his sentence was reduced to three
years and nine months.435.
[s 99.10] Attack on unarmed persons.—
No right of private defence can exist against an unarmed and unoffending
individual;436. where the injury was caused to the victim on the vital parts of the body

even though he and the witnesses present at the spot were all unarmed, it was held
that the question of acting in self-defence did not arise.437.
[s 99.11] Sudden quarrel.—
The right of private defence was held to be not available where the incident of lathi
blows causing death took place in the course of a sudden ﬁght.438.
[s 99.12] More harm caused than necessary.—

405.  Dalip, (1896) 18 All 246 , 252.
406.  Kesho Ram, 1974 Cr LJ 814 : AIR 1974 SC 1158 [LNIND 1974 SC 130] .
407.  Bhairo v State, 1941 Kar 324 ; Pagla Baba, (1957) Cr LJ 769 ; Ouseph Varkey, (1964) 1 Cr LJ
592 .
408.  Deoman Shamji, (1958) 61 Bom LR 30 .
409.  Mohamed Ismail v State, (1935) 13 Ran 754.
410.  Jogendra Nath Mukerjee, (1897) 24 Cal 320 ; Tulsiram v State, (1888) 13 Bom 168; Haq Dad,
(1925) 6 Lah 392; Achhru Ram, (1925) 7 Lah 104.
411.  Ram Parves, (1944) 23 Pat 328.
412.  Pukot Kotu, (1896) 19 Mad 349.
Where a person killed a weak old woman found stealing at night,439. where a person

caught a thief in his house at night and deliberately killed him with a pick-axe to prevent
his escape;440. where a number of persons apprehending a thief committing house-
breaking strangled him and subjected him to gross maltreatment when he was fully in
their power,441. and where a heavy and mechanically propelled vehicle like a jeep was
used as a means or weapon for the exercise of the right of private defence,442. the right
of private defence was negatived.443. Where the injuries suffered by the accused were
of simple nature than those caused by him to the deceased persons and he went even
to the extent of preventing a witness from carrying the victim to a hospital, it was held
that the accused was an aggressor and was, therefore, not entitled to the right of
private defence.444. Where, on the other hand, two drunk and armed raiders demanded

money from the residents of a ﬂat and in face to face with the inmates who resisted
them, lost their lives, it being not known which inmate played what role, the Supreme
Court held that it could not be said that more harm was caused than was
necessary.445. Where the accused caused death in order to repel an attack by a party
armed with lethal weapons and which had already caused injuries to the accused, it
was held that the accused did not exceed his rights as it was not possible for him to
have weighed in golden scales in the heat of the moment the number of injuries
required to overcome the attack.446. Where the accused continued to assault the
deceased even after he fell to the ground, the possibility of causing injuries in exercise
of his right of private defence was ruled out.447.

Where the accused received an injury on his neck ﬁrst, the right of private defence was
held to have arisen. But it was shown that three injuries were caused in return one of
them entering deep into the chest and causing death. The right of private defence was
held to have been exceeded. The conviction was modiﬁed to one under section
304(1).448.

413.  Kanwar Singh, (1965) 2 Cr LJ 1 : AIR 1965 SC 871 [LNIND 1964 SC 194] .
414.  State of UP v Niyamat, 1987 3 SCC 434 [LNIND 1987 SC 391] : AIR 1987 SC 1652 [LNIND
1987 SC 391] : 1989 Cr LJ 1881 . See also Ramji Lal v State of Rajasthan, 1990 Cr LJ 392 Raj,
police party arriving at a village at night to recover a woman and to hand her over to her father,
the act being illegal and without jurisdiction, this section did not give protection to the police
against resistance by villagers.
415.  Poomalai Udayan, (1898) 21 Mad 296.
416.  Bhai Lal Chowdhry, (1902) 29 Cal 417 .
417.  Jogendra Nath Mukerjee, (1897) 24 Cal 320 .
418.  Narsang Pathabhai, (1890) 14 Bom 441.
419.  Alingal Kunhinayan, (1905) 28 Mad 454.
420.  State of Orissa v Rabindranath, 1973 Cr LJ 1686 (FB-Ori).
421.  Akonti Bora, 1980 Cr LJ 138 (Gau).
422.  Satnarain Das, (1938) 17 Pat 607.
423.  Narsang Pathabhai, (1890) 14 Bom 441; Pachkauri, (1897) 24 Cal 686 .

424.  Maguni Charan Pradhan v State of Orissa, (1991) 71 Cut LT 710 : (1991) 3 SCC 352 [LNIND
1991 SC 191] : 1991 SCC (Cr) 580 : 1991 Cr LR (SC) 463 .
425.  Ritaram Besra v State of Bihar, (2007) 15 SCC 383 .
426.  Gokool Bowree, (1866) 5 WR (Cr) 33.
427.  John Scutty v State, (1824) 1 C & P 319.
428.  Ram Prasad Mahton, (1919) 4 PLJ 289 , 20 Cr LJ 375.
429.  Jai Dev, (1963) 1 Cr LJ 495 : AIR 1963 SC 612 [LNIND 1962 SC 249] ; Amjad Khan, 1952 Cr
LJ 648 : AIR 1952 SC 165 [LNIND 1952 SC 20] ; Puran Singh; 1975 Cr LJ 1479 : AIR 1975 SC
1674 [LNIND 1975 SC 174] ; followed in Pattu v State of MP, (1995) 2 Cr LJ 1970 MP, father and
son were entitled to ward off an attack on them while they were digging a water channel on their
ground. Hira, 1972 Cr LJ 225 : AIR 1972 SC 244 .

430.  State of UP. v Ram Swarup, 1974 Cr LJ 1035 : AIR 1974 SC 1570 [LNIND 1974 SC 472] .
Where both parties raised guns in a quarrel but one of them lowered his gun, even so the other
ﬁred at him. No occasion for private defence. Conviction for murder upheld, Mohd. Yusuf v State
of UP, AIR 1994 SC 1542 [LNIND 1994 SC 126] : (1994) 1 Cr LJ 1631 : 1994 Supp (2) SCC 32 .
431.  Amjad Khan, supra; See also Jaidev, supra and Yogendra Morarji, 1980 Cr LJ 459 : AIR 1980
SC 660 .
432.  Munney Khan, (1970) 2 SCC 480 [LNIND 1970 SC 338] : AIR 1971 SC 1491 [LNIND 1970 SC
338] .
433.  State of UP v Nyama, (1987) 3 SCC 434 [LNIND 1987 SC 391] . State of MP v Mishrilal, 2003
Cr LJ 2312 (SC) : (2003) 9 SCC 426 [LNIND 2003 SC 390] , the prosecution party and the
accused party cause to be engaged in ﬁring against each other. The father, who was one of the

accused, received ﬁve injuries dangerous to life. The ﬁring accused apprehended danger to the
life of his father and ﬁred in self-defence. The accused did not exceed the right of private
defence.
434.  State of UP v Gajey Singh, 2009 Cr LJ 2274 : (2009) 11 SCC 414 [LNIND 2009 SC 437] :
(2009) 3 SCC(Cr) 1412.
435.  R v Thompson, (2001) 1 Cr App R (S) 72 [CA (Crim Div)].
436.  Gurbachan Singh, 1974 Cr LJ 463 : AIR 1974 SC 496 .
437.  Baitullah v State of UP, AIR 1997 SC 3946 [LNIND 1997 SC 1322] : 1997 Cr LJ 4644 , Rukma
v Jala, AIR 1997 SC 3207 : 1997 Cr LJ 4641 , a case which hanged on appreciation of evidence.
Mavila Thamban Nambiar v State of Kerala, AIR 1997 SC 687 [LNIND 1997 SC 24] : (1997) 1 JT

367 private defence not available because the deceased was unarmed, accused persons armed
with a pair of scissors. Vishal Singh v State of MP, 1998 Cr LJ 505 : AIR 1998 SC 308 [LNIND
1997 SC 1362] , land dispute, revenue record not clear, accused in possession were fully armed,
others came in wholly unarmed and became the victim of attack, private defence not allowed to
accused.
438.  Bihari Rai v State of Bihar, (2008) 15 SCC 778 [LNIND 2008 SC 1927] : AIR 2009 SC 18
[LNIND 2008 SC 1927] : 2009 Cr LJ 340 .
439.  Gokool Bowree, (1866) 5 WR (Cr) 33.
440.  Durwan Geer, (1866) 5 WR (Cr) 73. See Bag, (1902) PR No. 29 of 1902; Mammun, (1916)
PR No. 35 of 1916.
441.  Dhununjai Poly, (1870) 14 WR (Cr) 68.
442.  Marudevi Avva, 1958 Cr LJ 33 .
443.  See also Madan Mohan Pandey v State of UP, AIR 1991 SC 769 ; 1991 Cr LJ 467 : 1991
Supp (2) SCC 603 , where the Supreme Court emphasised that the nature of the weapon and the
number of shots ﬁred are helpful circumstances in determining excessive use of the right of

private defence. Indiscriminate ﬁring here, held right exceeded. For a general study of the
subject see, Stanley Meng Heong Yeo, Rethinking Goodfaith in Excessive Private Defence, (1988)
JILI 443.
444.  Kanhiyalal v State of Rajasthan, AIR 1989 SC 1515 : 1989 Supp. 2 SCC 263 : 1989 Cr LJ
1482 : 1989 BBCJ 117 : 1990 SCC (Cr) 168.
445.  Kishore Shambudatta Mishra v State of Maharashtra, AIR 1989 SC 1173 : 1989 Cr LJ 1149 :
1989 SCC (Cr) 464.
446.  Buta Singh v State of Punjab, AIR 1991 SC 1316 [LNIND 1991 SC 177] : 1991 Cr LJ 1464 :
(1991) 2 SCC 612 [LNIND 1991 SC 177] . Vidya Saran Sharma v Sudarshan Lal, AIR 1993 SC 2476
: 1993 Cr LJ 3135 (SC), accused injured by the deceased, apprehending further danger he hit
back with a single blow which proved fatal, acquittal on the ground of private defence; Thakarda

Hamirji Gajuji v State of Gujarat, 1992 Cr LJ 3966 (Guj).
447.  Harabailu Kariappa v State of Karnataka, 1996 Cr LJ 321 (Kant). Man Bharan Singh v State
of MP, 1996 Cr LJ 2707 (MP) injuries disproportionately severe as against minor injuries, right
exceeded, conviction under section 304 Pt. I. Naranjan Singh v Kuldip Singh, 1998 Cr LJ 845 : AIR
1998 SC 1490 [LNIND 1997 SC 1574] , the accused was not shown to be present on the spot
and, therefore, the question of his exceeding the right of private defence did not arise. Achhaibar
Prasad v State, 1997 Cr LJ 2666 : 1997 All LJ 705, the accused attacked and ﬁred at a police
constable in his bid to arrest him. Right of private defence not available to him.
448.  Udaikumar Pandharinath Jadhav v State of Maharashtra, (2008) 5 SCC 214 [LNIND 2008 SC

1007] : AIR 2008 SC 2064 [LNIND 2008 SC 1007] : 2008 Cr LJ 2627 .

[s 100] When the right of private defence of the body extends to causing death.

The right of private defence of the body extends, under the restrictions mentioned in
the last preceding section, to the voluntary causing of death or of any other harm to
the assailant, if the offence which occasions the exercise of the right be of any of the
descriptions hereinafter enumerated, namely:—
First.—Such an assault as may reasonably cause the apprehension that death will
otherwise be the consequence of such assault;
Secondly.—Such an assault as may reasonably cause the apprehension that grievous
hurt will otherwise be the consequence of such assault;
Thirdly.—An assault with the intention of committing rape;
Fourthly.—An assault with the intention of gratifying unnatural lust;
Fifthly.—An assault with the intention of kidnapping or abducting;
Sixthly.—An assault with the intention of wrongfully conﬁning a person, under
circumstances which may reasonably cause him to apprehend that he will be unable
to have recourse to the public authorities for his release.

449.[Seventhly.—An act of throwing or administering acid or an attempt to throw or
administer acid which may reasonably cause the apprehension that grievous hurt will
otherwise be the consequence of such act.]
COMMENT.—
The law authorizes a man who is under a reasonable apprehension that his life is in
danger or his body in risk of grievous hurt to inﬂict death upon his assailant either
when the assault is attempted or directly threatened, but the apprehension must be
reasonable and the violence inﬂicted must not be greater than is reasonably necessary
for the purpose of self-defence. It must be proportionate to and commensurate with
the quality and character of the act it is intended to meet and what is done in excess is
not protected. Where the accused was attacked by three persons and sustained an

injury on the forehead, a vital part, he had reasonable apprehension of some hurt to be
caused to him and had the right of self-defence but had exceeded by causing more
harm to his assailants than needed. He was liable under section 304, Part I, and not
under section 302.450. Where after receiving nine injuries, two on vital parts, the
accused ﬁred one shot from his gun which hit fatally an innocent person, the right of
private defence extending to cause death was still available to the accused. His
conviction under section 304, Part I was set aside.451. Where the complainant's party
had deliberately gathered near the house of the accused and scolded them and caused
injuries to his father, the accused was held justiﬁed in exercising the right of private
defence to defend his father and his conviction under section 300 was set aside.452. It

is the reasonable apprehension of death or grievous hurt that gives rise to the right of
private defence under clauses (1) and (2) of section 100, IPC, 1860., and it has got
nothing to do with the actual injury that the person exercising the right of private
defence has suffered, which may or may not be grievous.453. Where the accused fails
to make out a case of reasonable apprehension, he cannot claim the right of private
defence.454. Where the life of the accused was not endangered by the ladies armed
with broom sticks and 'chappals', the accused was not entitled to stab one of the ladies
to death in exercise of right of private defence.455.

The extended right of private defence to the extent of causing death of the assailant
arises only if the offence which occasions the exercise of the right is of one of the
kinds mentioned in this section.456. Following some earlier rulings, the Supreme Court
has re-emphasised that the mere fact of the accused sustaining some injuries in the
course of the same transaction does not make it out conclusively that the accused had
the occasion to cause death in private defence.457. Where the attacking party chanced
to get at the wife of the accused and the latter pounced upon them with a weapon
attacking one of them which was warded off, another came forward and the accused
successfully struck him and he died, the accused was held to be within his rights.458.
As against this where two were ﬁghting with lathis and the brother of one of them, who
was outside the danger, struck a lathi blow to the other killing him, he was held to be
guilty under section 304-I.459. In a communal tension, both sides pelted stones. The

accused ﬁred a gun shot causing death of a person of the other group though no one
had sustained any injury as a result of pelting of stones by the other group. It was held
that the accused had no occasion to act under the right of private defence.460.
In order to justify the act of causing death of assailant, the accused has simply to
satisfy the Court that there was reasonable apprehension of death or grievous hurt.
Question whether the apprehension was reasonable or not is a question of fact
depending upon the facts and circumstances of each case and no straitjacket formula
can be prescribed in this regard. Weapon used, the manner and nature of assault and
other surrounding circumstances should be taken into account while evaluating
whether the apprehension was justiﬁed or not. In the instant case, accused G was

assaulted on head by a sharp-edged weapon which caused a bone-deep injury. As per
the defence version there were four assailants who had come well prepared at the door
of accused's house to commit assault. Reasonable apprehension of death or at least of
grievous hurt, therefore, could not be ruled out. In such a situation, if single gunshot
was ﬁred it could not be said that the accused persons had exceeded their right of
private defence in any manner.461.
[s 100.1] 'Abducting'.—
On a plain reading of clause ﬁfth of this section, there does not seem to be any reason
for holding that the word 'abducting' used in the clause means anything more than
what is deﬁned as "abduction" in section 362. All that the clause requires is that there
should be an assault which is an offence against the human body and that assault

should be with the intention of abducting, and whenever these elements are present the
clause will be applicable.462. Thus, a woman could not be taken away by force even by
her own husband from a paramour's house and if in these circumstances the paramour
and his brother killed the husband to prevent her abduction by the husband, they would
be protected by sub-clause (5) of section 100 of the Penal Code.463. Here law seems to
be contrary to our social conscience, but this interpretation is perfectly in accord with
the language of section 100, IPC, 1860, and the decision of the Supreme Court in
Viswanath's case464. where too the husband was put to death by a clean stab by his
brother-in-law as he was trying to take away his wife by force from his father-in-law's
house and in the process had merely dragged his unwilling wife to some distance.

[s 100.2] Rescuing woman-folk from attack on modesty.—
The accused heard the cries for help of his widowed sister-in-law. He ran to her house
with gandasa. He found the attacker grappling with her and trying to outrage her
modesty. The accused saved her from his clutches and inﬂicted a gandasa blow while
he was going to run away. The act of the accused was held to have been done in the
exercise of the right of private defence. The accused was acquitted.465.

[s 100.3] CASES.—Exceeding the right.—
The accused was being chased. He assaulted the chaser. The latter died. The injuries
found on the person of the deceased were more grievous than those on the body of the
accused. It was held that the accused exceeded his right of private defence his
conviction was altered from under section 300 to one under section 304, Part I.466.
Whenever accused-party sustains injuries in the same occurrence and when the
injuries are grievous in nature it is incumbent upon the prosecution to explain the
injuries on the person of the accused.467. Where the accused might have acted on self-
defence in the beginning, but once the deceased was. The prosecution party consisted
of four members. They carried blunt weapons. They assembled in front of the house of
the accused. They came as aggressors. The accused suffered a bone deep injury on
his head. The accused ﬁred a single gunshot which caused death of one of the

members on the prosecution side. The Court held that the right of private defence was
not exceeded. The accused was given the beneﬁt of doubt.468.
Where the victim was throwing broken bricks at the accused who received simple
injuries and the accused ﬁred at him with his gun, it was held that he exceeded the right
of private defence. There was no justiﬁcation for using the gun in such as to cause
death. Conviction under section 304 Part I was restored.469. The right of private
defence was not allowed to be claimed merely on the ground that there was a quarrel
and the accused sustained injuries in the course of it.470.
[s 100.4] No danger.—
Two friends were sitting together and consuming liquor. They quarrelled and
exchanged blows. One of them inﬂicted two knife wounds on vital parts of the body of

the other. The victim had posed no danger to the attacker, nor did he have any weapons
with him. The plea of self-defence was held to be not available. The accused was
convicted for murder.471. The deceased came to his land and asked the accused party
to get the land measured and also tried to dislodge a pole ﬁxed by them. There was no
imminent danger to person on property from any act of the deceased. No injuries
caused to anybody. It was held that there was no right of self-defence in the exercise of
which the deceased could have been killed.472.
[s 100.5] Private defence.—
The accused was without any arms when the quarrel started. His action of picking up a
stick lying on the ground and hitting the deceased on his head with it showed that he
was trying to save himself from the attack by the deceased and his son. The accused

was acquitted because the circumstances made it obvious that he was acting in self-
defence.473.
[s 100.6] Burden of proof.—
The right of private defence is a plea which is available to the accused by the burden of
proving the same is on him.474. Proof by preponderance of probabilities is
suﬃcient.475. The burden of proving the right of private defence is not as onerous as
that of the prosecution to prove its case. Preponderance of probabilities in favour of
the defence is enough to discharge the burden.476. While the prosecution is required to

449.  Ins. by Act 13 of 2013, section 2 (w.r.e.f. 3-2-2013).
450.  Scaria v State of Kerala, AIR 1995 SC 2342 : 1995 Cr LJ 3990 .
451.  Wassan Singh v State of Punjab, 1996 Cr LJ 878 : (1996) 1 SCC 458 [LNIND 1995 SC 1195] ;
Ghurey Lal v State of UP, (2008) 10 SCC 450 [LNIND 2008 SC 1535] ; Dattu Shamrao Valake v
State of Maharashtra, 2005 Cr LJ 2555 : AIR 2005 SC 2331 [LNIND 2005 SC 383] : (2005) 11 SCC
261 [LNIND 2005 SC 383] .
452.  Shive Chand v State of UP, 1995 Cr LJ 3869 (All).
prove its case beyond reasonable doubt, the accused need not establish his plea of

self-defence to the hilt and may discharge onus by showing preponderance of
probabilities in favour of that plea on basis of material on record, injuries received by an
accused, imminence of threat to his safety, injuries caused by accused and
circumstances whether accused had time to have recourse to public authorities were
held to relevant factors. But number of injuries is not always considered to be a safe
criterion for determining who the aggressor was. Whenever injuries are on the body of
the accused person, presumption need not necessarily be raised that accused person
had caused injuries in his defence. Defence has to further to show that injuries so
caused on accused probabilise version of private defence. Non-explanation of injuries
sustained by the accused at about the time of occurrence or in course of the

altercation is a very important circumstance but mere non-explanation may not affect
prosecution case in all cases.477.
The burden stands discharged by showing preponderance of probabilities in favour of
the plea of the accused either by himself adducing positive evidence or by referring to
circumstances transpiring from prosecution evidence itself. Proof beyond reasonable
doubt is not required. The Court can consider the plea even if not taken by the accused
if the material on record makes it available for consideration.478.
[s 100.7] Acid Attack (Clause 7).—
section 99, to the voluntary causing of death or of any other harm to the assailant if the
offence which occasions the exercise of the right against an act of throwing or

administering acid or an attempt to throw or administer acid which may reasonably
cause the apprehension that grievous hurt will otherwise be the consequence of such
act. This new category of offence (acid attacks) to which a right to private defence is
inserted by the Criminal Law (Amendment) Act, 2013479. on the recommendation of
Justice Verma Committee.

453.  Raja Ram, 1977 Cr LJ NOC 85 (All); See also Abdul Kadir v State of Assam, 1985 Cr LJ 1898
: AIR 1986 SC 305 : 1985 Supp SCC 603 .
454.  Vishvas v State, 1978 Cr LJ 484 : AIR 1978 SC 414 [LNIND 1978 SC 17] . Where there is no
right of private defence, e.g. causing death of a person in order to prevent him from exercising
lawful rights on lawfully held land, it would be punishable as murder, Asha Ram v State of
Rajasthan, (1994) 2 Cr LJ 2431 (Raj).
455.  Vishnu Narayan Moger v State of Karnataka, 1996 Cr LJ 1121 (Kant). Right of self-defence
not available where the accused came prepared for ﬁght and attack on unarmed victim, Baj
Singh v State of Punjab, AIR 1995 SC 1953 : 1995 Cr LJ 3605 .
456.  Ram Saiya, (1948) All 165 . See also Kishore Shambudatta Mishra v State of Maharashtra,
AIR 1989 SC 1173 : 1989 Cr LJ 1149 : 1989 Supp (1) SCC 399 , discussed under the preceding
section. Also Raza Pasha v State of Maharashtra, AIR 1984 SC 1793 [LNIND 1984 SC 255] :

(1984) 4 SCC 441 [LNIND 1984 SC 255] : 1984 SCC (Cr) 605, the person shot at from house top
and killed was outside the house at that time, held that there was no occasion for private
defence, conviction under section 302. Wassan Singh vState of Punjab, (1996) 1 SCC 458 [LNIND
1995 SC 1195] : 1996 Cr LJ 878 , the accused surrounded by a number of assailants who were
all inﬂicting injuries on him, he shot at them hitting an innocent person who died, right of private
defence not lost thereby.
457.  Paras Nath Singh v State of Bihar and Hare Krishna Singh v State of Bihar, 1988 Cr LJ 925 :
AIR 1988 SC 863 [LNIND 1988 SC 139] : (1988) 2 SCC 95 [LNIND 1988 SC 139] , relying on
Onkar Nath Singh v State of UP, AIR 1974 SC 1550 [LNIND 1974 SC 154] : 1974 Cr LJ 1015 :

(1975) 3 SCC 276 [LNIND 1974 SC 154] : 1975 SCC (Cr) 884. But injuries suffered by the
accused must be explained to be not caused in the same episode and if the information as to
injuries on the accused is suppressed by the prosecution, the case becomes doubtful. Prem
Singh v State of HP, 1989 Cr LJ 1903 HP. Dispute over turn for irrigation, both sides injured, the
fact of injuries on the accused suppressed and FIR also ﬁled after delay, acquittal, Desa Singh v
Punjab, 1996 Cr LJ 3381 (P&H). Another similar dispute and death in mutual ﬁght, State of
Haryana v Karan Singh, 1996 Cr LJ 3698 (P&H).
458.  Purna Chandra Barik v State of Orissa, 1988 Cr LJ 731 Orissa. Where the ﬁnding of the High
Court was that the accused, a police sub-inspector, was assaulted by the deceased and his

companions and he used ﬁrearms causing death under the apprehension that otherwise he
would be killed, this ﬁnding was held by the Supreme Court to be neither perverse nor palpably
erroneous, State of Punjab v Ajaib Singh, AIR 1995 SC 975 [LNIND 1995 SC 136] : (1995) 2 Cr LJ
1456 : (1995) 2 SCC 486 [LNIND 1995 SC 136] . Warding off two successive attacks by the
complainant party, clause 'ﬁrstly' and 'secondly' were held to be attracted, Raj Singh v State of
Punjab, (1995) 1 Cr LJ 680 P&H.
459.  Sudhir Mahanta v State of Orissa, 1980 Cr LJ 1918 Orissa. Kesha v State of Rajasthan, AIR
1993 SC 2651 : 1993 Cr LJ 3674 : 1995 Supp (3) SCC 743 , accused causing death without any
reasonable apprehension of death or grievous hurt to himself, punishment for exceeding the

right of private defence. Baijnath Mahton v State of Bihar, 1993 Cr LJ 2833 : AIR 1993 SC 2323 :
1993 Supp (3) SCC 1 , right of private defence exceeded in a group clash. Dular Mahto v State of
Bihar, AIR 1993 SC 927 : 1993 Cr LJ 165 : 1993 Supp (3) SCC 467 , excesses in a group clash.
Babu Ram v State of Haryana, 1993 Cr LJ 3788 (P&H), the case is of doubtful validity because
aggressors were given the beneﬁt of the right of private defence.
460.  Parshottam Lal Ji Waghela v State of Gujarat, 1992 Cr LJ 2521 : 1992 Supp (3) SCC 194 . In
a direct confrontation, there was the possibility of the accused becoming apprehensive of
danger to himself and his family, he ﬁred only one round, plea of private defence sustained,
Harish Kumar v MP, 1996 Cr LJ 3511 : AIR 1996 SC 3433 [LNIND 1996 SC 1027] .

461.  State of UP v Gajey Singh, (2009) 11 SCC 414 [LNIND 2009 SC 437] : 2009 Cr LJ 2274 :
(2009) 3 All LJ 647.
462.  Vishwanath v State of UP, 1960 Cr LJ 154 , (1960) 1 SCR 646 [LNIND 1959 SC 150] : AIR
1960 SC 67 [LNIND 1959 SC 150] .
463.  Nankau v State, 1977 Cr LJ NOC 116 (All).
464.  Vishwanath, supra.
465.  Bhadar Ram v State of Rajasthan, 2000 Cr LJ 1174 (Raj). Badan Nath v State of Rajasthan,
1999 Cr LJ 2268 (Raj), causing injury to save daughter from being raped.
466.  Suresh Singh v State of Haryana, AIR 1999 SC 1773 [LNIND 1999 SC 324] : 1999 Cr LJ 2585
; Shankar Balu Patil v State of Maharashtra, (2007) 12 SCC 450 : (2008) 2 SCC (Cr) 591, the
nature of injuries upon the accused and those upon the deceased clearly showed that the
accused exceeded the right of private defence. Conviction under section 304 Pt. I and seven
years imprisonment justiﬁed.
467.  Manphool Singh v State of Haryana, AIR 2018 SC 3995 .

468.  Gajey Singh v State of UP, 2001 Cr LJ 2838 (All); State of UP v Laeeq, 1999 Cr LJ 2877 at p
2879 : AIR 1999 SC 1742 [LNIND 1999 SC 476] , no allegation of any fear, no right of private
defence. Ram Dhani v State, 1997 Cr LJ 2286 (All), the accused exceeded the right of private
defence in causing death in circumstances in which justiﬁcation for causing death was not
available to him.
469.  Shingara Singh v State of Haryana, (2003) 12 SCC 758 [LNIND 2003 SC 945] : AIR 2004 SC
124 [LNIND 2003 SC 945] : 2004 Cr LJ 828 . Anil Kumar v State of UP, 2004 All LJ 3779 : 2005
SCC (Cr) 178, the accused receiving minor injuries ﬁred at the deceased to cause death, private
defence exceeded.
470.  Chacko v State of Kerala, (2004) 12 SCC 269 [LNIND 2004 SC 86] : AIR 2004 SC 2688
[LNIND 2004 SC 86] : (2004) 1 KLT 884 [LNIND 2004 SC 86] .

471.  Inacio Manual Miranda v State of Goa, 1999 Cr LJ 422 (Bom); State of MP v Ramesh, 2005
Cr LJ 652 SC : AIR 2006 SC 204 [LNIND 2005 SC 881] : (2005) 13 SCC 247 [LNIND 2005 SC 881]
, the plea of private defence cannot be based on surmises and conjectures, and guess work.
Father asked his son to get his gun and shoot because they were irresponsive, death and
injuries caused, conviction for murder because there was no danger which could create the right
of private offence.
472.  Dhaneswar Mahakud v State of Orissa, 2006 Cr LJ 2113 SC : AIR 2006 SC 1727 [LNIND
2006 SC 252] : (2006) 9 SCC 307 [LNIND 2006 SC 252] .
473.  Krishanan v State of TN, 2006 Cr LJ 3907 : AIR 2006 SC 3037 [LNIND 2006 SC 612] : (2006)
11 SCC 304 [LNIND 2006 SC 612] .
474.  Kishan Chand v State of UP, (2007) 14 SCC 737 [LNIND 2007 SC 1190] : AIR 2008 SC 133

[LNIND 2007 SC 1190] : (2007) 6 All LJ 658.
475.  V Subramani v State of TN, 2005 Cr LJ 1727 : AIR 2005 SC 1983 [LNIND 2005 SC 224] :
476.  Dharminder v State of HP, AIR 2002 SC 3097 [LNIND 2002 SC 537] .
477.  Dharam v State of Haryana, (2007) 15 SCC 241 [LNIND 2006 SC 1108] . Raghbir Singh v
State of Haryana, (2008) 16 SCC 33 [LNIND 2008 SC 2228] : AIR 2009 SC 1223 [LNIND 2008 SC
2228] : (2009) 73 AIC 93 , right of private defence not made out on facts.
478.  James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] , Laxman Singh v
Poonam Singh, (2004) 10 SCC 94 [LNIND 2003 SC 767] : AIR 2003 SC 3204 [LNIND 2003 SC 767]
, Kulwant Singh v State of Punjab, (2004) 9 SCC 257 [LNIND 2004 SC 105] : AIR 2004 SC 2875
[LNIND 2004 SC 105] , right of private defence could not be proved. Bagdi Ram v State of MP,

(2004) 12 SCC 302 [LNIND 2003 SC 1047] : AIR 2004 SC 387 [LNIND 2003 SC 1047] : 2004 Cr LJ

632 , no right of private defence to use dangerous arms when the other side was absolutely
unarmed.
479.  Act 13 of 2013, section 2 (w.e.f. 3-2-2013).

[s 101] When such right extends to causing any harm other than death.

If the offence be not of any of the descriptions enumerated in the last preceding
section, the right of private defence of the body does not extend to the voluntary
causing of death to the assailant, but does extend, under the restrictions mentioned in
section 99, to the voluntary causing to the assailant of any harm other than death.
480.  Mahinder Paul v State, 1979 Cr LJ 584 : AIR 1979 SC 577 [LNIND 1978 SC 389] ; See also
Yogendra Morarij, 1980 Cr LJ 459 : AIR 1980 SC 660 .
481.  State of J&K v Hazara Singh, 1980 Cr LJ 1501 : 1981 SCC (Cr) 537 : AIR 1981 SC 451 .

482.  Ghunnu v State of UP, 1980 Cr LJ (NOC) 15 : AIR 1980 SC 864 : 1980 All LJ 397 : 1979 SCC
(Cr) 438. See also Chuhar Singh v State of Punjab, AIR 1991 SC 1052 : 1991 Supp (2) SCC 455 :
1991 SCC (Cr) 1066, where the circumstances did not justify causing death by gun shot injuries.
Bandlamuddi Atchuta Ramaiah v State of AP, AIR 1997 SC 496 : 1996 Cr LJ 4463 death of
COMMENT.—
Any harm short of death can be inﬂicted in exercising the right of private defence in any
case which does not fall within the provisions of section 100. Thus, where only some
mischief was caused to the factory and some brickbats were thrown by agitating
workers, the owner of the factory was not justiﬁed in killing a worker by ﬁring a shot
from his revolver. As there was no apprehension of death or grievous hurt to his person,

the accused could not get the beneﬁt of clauses (1) and (2) of section 100 or section
103, IPC, 1860. He had only a limited right of private defence to cause any other harm
than death within the meaning of section 101, IPC, 1860, and as such having exercised
his right of private defence he was liable to be convicted under section 304-Part I, IPC,
1860.480. The accused was hit by a single brickbat or a stone piece and suffered a
simple head-injury. After sometime he ﬁred at the unarmed assailant causing grievous
injury to his abdomen. The Supreme Court held that keeping in mind his simple hurt
and the time gap between that and the gunshot wound caused by him, his action was a
retaliation rather than act of private defence. His conviction under section 326 was

accordingly upheld.481. The right of private defence was held to have been exceeded
where a member of the opposite side was killed after snatching his pistol.482. The
person who died came along with his brothers to stage a ﬁght with the accused
because of an earlier act of insult on the part of the accused. A single stab wound was
administered to him, which fell upon his lower abdomen, of which he died. The accused
and his wife were also injured in the process. It was held that the accused had not
exceeded his right of private defence.483.
When dealing with questions relating to right of private defence of the body this section
and section 100 should be read together.

neighbour caused at a time when there was no apprehension of loss of life or property. Right
exceeded. Conviction under section 304 Part I.
483.  Ramchandran v State, 1994 Cr LJ 2741 (Mad); Sri Kumar Sharma v State of Bihar, 2003 Cr
LJ 2258 (Pat), right of private defence found justiﬁed, hence, acquittal.

[s 102] Commencement and continuance of the right of private defence of the
body.

The right of private defence of the body commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit the
offence though the offence may not have been committed; and it continues as long as
such apprehension of danger to the body continues.
COMMENT.—
This section indicates when the right of private defence of the body commences and
till what time it continues. The right commences as soon as a reasonable apprehension
of danger to the body arises from an attempt, or threat, or commit the offence,
although the offence may not have been committed, but not until that there is that
reasonable apprehension. The right lasts so long as the reasonable apprehension of
the danger to the body continues.484. It commences and continues as long as danger

to body lasts. The extent to which the exercise of the right will be justiﬁed will depend
not on the actual danger but on whether there was reasonable apprehension of such
danger. There must be an attempt or threat and consequent thereon an apprehension
of danger; but it is not a mere idle threat, or every apprehension of a rash or timid mind,
that will justify the exercise of the right. Reasonable ground for the apprehension is
requisite. Suppose the threat to proceed from a woman or child and to be addressed to
a strong man, in such a case there could hardly be a reasonable apprehension. Present
and imminent danger seems to be meant.485. The person exercising a right of private
defence must consider whether the threat to his person or his property is real and
immediate. If he reaches the conclusion reasonably that the threat is immediate and

real, he is entitled to exercise his right. In the exercise of his right, he must use force
necessary for the purpose and he must stop using the force as soon as the threat has
disappeared. So long as the threat lasts and the right of private defence can be
legitimately exercised; if the danger is continuing, the right is there; if the danger or the
apprehension about it has ceased to exist there is no longer the right of private
defence.486. Right commences, as soon as a reasonable apprehension of danger to the
body arises from an attempt, or threat, or commit the offence, although the offence
may not have been committed but not until that there is that reasonable apprehension.
The right lasts so long as the reasonable apprehension of the danger to the body

continues.487. There is no right to inﬂict punishment on the wrong-doer for his past act
after the apprehension has ceased to exist. The right of defence ends with the
necessity for it. So where the deceased was ﬂeeing for his life, there was no
justiﬁcation to shoot him down. This would be a sheer case of murder and nothing
else.488. Where the testimony of the independent witness showed that the accused
chased one of the deceased who ﬂed away from the scene of occurrence and killed
him, they could not be said to have right of private defence as regards the killing of
such deceased.489. Though the nature of apprehension depends upon the nature of
weapon intended to be used or used, it cannot be said that as the complainant's party
had only used lathis, the accused was not justiﬁed in using his spear especially when a

blow with a lathi was aimed at a vulnerable part like the head.490.

484.  Sekar v State, AIR 2002 SC 3667 [LNIND 2002 SC 628] : (2002) 8 SCC 354 [LNIND 2002 SC
628] .
485.  M&M 78; James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] : (2004)
1 KLT 513 [LNIND 2003 SC 1097] , explanation of the starting point of the right and its end point.
486.  Jai Dev v State of Punjab, 1963 (1) Cr LJ 495 : AIR 1963 SC 612 [LNIND 1962 SC 249] .
487.  Laxman Singh v Poonam Singh, AIR 2003 SC 3204 [LNIND 2003 SC 767] : (2004) 10 SCC 94
[LNIND 2003 SC 767] ; Bishna v State of WB, AIR 2006 SC 302 [LNIND 2005 SC 873] : (2005) 12
SCC 657 [LNIND 2005 SC 873] ; Babulal Bhagwan Khandare v State of Maharashtra, AIR 2005 SC
1460 [LNIND 2004 SC 1203] : (2005) 10 SCC 404 [LNIND 2004 SC 1203] .
488.  State of UP v Ramswarup, 1974 Cr LJ 1035 : AIR 1974 SC 1570 [LNIND 1974 SC 472] ;

Onkarnath, 1974 Cr LJ 1015 : AIR 1974 SC 1550 [LNIND 1974 SC 154] .
489.  State of UP v Roop Singh, AIR 1996 SC 215 : 1996 Cr LJ 410 .
490.  Deo Narain, 1973 Cr LJ 677 : AIR 1973 SC 473 [LNIND 1972 SC 572] . See also Sarejerac
Sahadeo Gaikwad v State, 1997 Cr LJ 3839 (Bom).

[s 103] When the right of private defence of property extends to causing death.

The right of private defence of property extends, under the restrictions mentioned in
section 99, to the voluntary causing of death or of any other harm to the wrong-doer, if
the offence, the committing of which, or the attempting to commit which, occasions
the exercise of the right, be an offence of any of the descriptions hereinafter
enumerated, namely:—
First.—Robbery;
Secondly.—House-breaking by night;
Thirdly.—Mischief by ﬁre committed on any building, tent or vessel, which building,
tent or vessel is used as a human dwelling, or as a place for the custody of property;
Fourthly.—Theft, mischief, or house-trespass, under such circumstances as may
reasonably cause apprehension that death or grievous hurt will be the consequence, if
such right of private defence is not exercised.
State Amendments
Karnataka.—The following amendments were made by Karnataka Act No. 8 of 1972, s. 2
(w.e.f. 7-10-1972).
In its application to the State of Karnataka in s. 103(1) in clause Thirdly—

(i) after the words "mischief by ﬁre", insert the words "or any explosive substance";
(ii) after the words "as a human dwelling, or", insert the words "as a place of worship
or".
(2) after clause Fourthly, insert the following clause, namely:—
Fifthly.—Mischief by ﬁre or any explosive substance committed on any property used or
intended to be used for the purpose of Government or any local authority, statutory
body or company owned or controlled by Government or railway or any vehicle used or
adapted to be used for the carriage of passengers for hire or reward.
Maharashtra.—The following amendments were made by Maharashtra Act No. 19 of
1971, s. 26 (w.e.f. 31-12-1971).
In its application to the State of Maharashtra, In section 103, add the following at the
end, namely:—

"Fifthly.—Mischief by ﬁre or any explosive substance committed on any property used
or intended to be used for the purposes of Government or any local authority, statutory
body, company owned or controlled by Government, railway or tramway, or on any
vehicle used or adapted to be used, for the carriage of passengers for hire or reward."
Uttar Pradesh.—The following amendments were made by U.P. Act No. 29 of 1970, s. 2,
w.e.f. 17-7-1970.
In its application to the State of Uttar Pradesh, In section 103, after clause Fourthly, add
the following clause, namely:—
Fifthly.—Mischief by ﬁre or any explosive substance committed on—
(a) Any property used or intended to be used for the purpose of Government, or any
local authority or other corporation owned or controlled by the Government, or
(b) any railway as deﬁned in clause (4) of section 3 of the Indian Railways Act, 1890 or

railways stores as deﬁned in the Railways Stores (Unlawful Possession) Act, 1955;,or

(c) any transport vehicle as deﬁned in clause (33) of section 2 of the Motor Vehicles
Act, 1939.
COMMENT.—
Death caused in defence of property.—Section 100 enumerates the cases in which the
right of private defence of the body extends to the causing of death; this section
enumerates the cases in which it extends to the causing of death in defence of
property.
A person employed to guard the property of his employer is protected by sections 97,
99, 103 and 105 if he causes death in safeguarding his employer's property when there
is reason to apprehend that the person whose death has been caused was about to
commit one of the offences mentioned in this section or to attempt to commit one of
those offences. A person whose duty it is to guard a public building is in the same
position, that is to say, it is his duty to protect the property of his employer and he may
take such steps for this purpose as the law permits. The fact that the property to be

guarded is public property does not extend the protection given to a guard. Therefore, a
police constable on guard duty at a magazine or other public building is not entitled to
ﬁre at a person merely because the latter does not answer his challenge.491. The
deceased, none of whom was in possession of any dangerous weapons, were
harvesting crop on a plot of land with peaceful intention under the protection of police.
The accused who claimed the crops did not approach the authorities for redress,
although they had time to do so, sent away the police constables by a ruse and then
attacked the deceased with guns and other dangerous weapons and shot them down
at close range. It was held by the Supreme Court that the acts of the deceased did not
amount to robbery and that the accused had no right of private defence of property.492.

The accused was in possession of the plots which were under litigation. Finding his
opponent, a blind man, getting the plots ploughed, the accused asked him to stop
ploughing. On this, 8–10 persons armed with spears and 'lathis' proceeded towards
him. The accused ﬁred a shot from his gun causing death of his opponent, the blind
man. The Court observed that a blind villager could not be thought of going to take
possession of the plots without mobilising enough man power to deal with resistance
likely to be put up by his adversary. It was held that in the circumstances the right of
private defence of the person became available to the accused.493.
In the words of the Supreme Court, the High Court committed an error in relation to the
plea of self-defence raised on behalf of the accused to the effect that the incident took

place at an open space. There is no law that the right of self-defence cannot be
exercised in relation to an open space.494. Reasonable force may be used in defence of
property. It would not in general be reasonable to kill in defence of property alone.495.
[s 103.1] Trespasser.—
The right of private defence of property extending to causing of death is not available in
cases of trespass on open land.496.
[s 103.2] Causing death while on patrol duty.—
The accused constable killed his head constable. The accused was doing his patrolling
duty at the time on a bridge. He claimed to have ﬁred at somebody whom he saw with
ﬁrearm near the value tower, which was neither used for human dwelling nor for

491.  Jamuna Singh, (1944) 23 Pat 908.
492.  Gurdatta Mal, AIR 1965 SC 257 [LNIND 1964 SC 30] : (1965) 1 Cr LJ 242 . Champer v State
of Orissa, 1988 Cr LJ 1882 Orissa, wherein a land dispute, death was caused in excess of the
right of private defence. Mahabir Choudhary v State of Bihar, AIR 1996 SC 1998 [LNIND 1996 SC
891] : 1996 Cr LJ 2860 , causing death in response to mischief to property, there being no fear
of death or grievous hurt, held right exceeded. Ram Bilas Yadav v State of Bihar, AIR 2002 SC 530
[LNIND 2001 SC 2789] , irrigation dispute, appellants came with pre-determination and also

more armed and did more harm than necessary. They were not entitled to any beneﬁt under the
section or to the beneﬁt of section 300, exception 2.
493.  Chandra Shekhar Tiwari v State, 1993 Cr LJ 2159 (All).
494.  Kishan Chand v State of UP, (2007) 14 SCC 737 [LNIND 2007 SC 1190] : AIR 2008 SC 133
495.  Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187] : AIR 2008 SC 1172
496.  Jassa Singh v State of Haryana, AIR 2002 SC 520 [LNIND 2002 SC 13] : 2002 Cr LJ 563 ;
Puttan v State of TN, AIR 2000 SC 3405 (2) : 2000 SCC (Cr) 1504, the circumstances showed
that the accused were entitled to private defence of property. But procurement of a lethal
weapon, and the number of injuries inﬂicted by him showed that the accused crossed all

frontiers of private defence. Conviction was altered to one under section 304 Part I. Gokula v
State of Rajasthan, 1998 Cr LJ 4053 : AIR 1998 SC 3016 [LNIND 1998 SC 743] , two persons
seen on the land were not shown to be trespassers, there was no question of any justiﬁcation
for casuing their death in defence of property. The accused convicted for murder. Another
custody of property. He did not plead that he entertained apprehension of death or
grievous hurt. The Court said that the plea of private defence extending to the causing
of death was not tenable.497.
[s 103.3] CASES.—
The accused did not close his ﬂour mill on the day of "Bharat Bandh", organized by
some political parties. The activists entered the mill and demanded closure. They were
armed with sharp-edged weapons. They threatened and assaulted the person who was

operating the mill. He ﬁred at them resulting in death of two persons and also injuring
some innocent people. His property was set on ﬁre. It was held that the acts of the
accused were within the reasonable limits of the right of private defence. His
conviction was set aside.498.

similar case, Jotram v State of Rajasthan, 1998 Cr LJ 1492 (Raj); Arjunan v State of TN, 1997 Cr
LJ 2327 (Mad), in a sudden quarrel over the right to cut a tree, the accused gave a blow of the
wooden reaper on the head of the deceased causing death, the tree stood on the land of the
deceased and was in his actual physical possession, the right of private defence not available to
the accused. See also Govind Singh v State of Rajsthan, 1997 Cr LJ 1562 (Raj), no proof of
trespassing cattle, yet attack and killing, conviction under section 304, Part II.
497.  Bhupendra Singh A Chudasama v State of Gujarat, AIR 1997 SC 3790 [LNIND 1997 SC 1378]
: 1998 Cr LJ 57 .
498.  James Martin v State of Kerala, (2004) 2 SCC 203 [LNIND 2003 SC 1097] .

[s 104] When such right extends to causing any harm other than death.

If the offence, the committing of which, or the attempting to commit which, occasions
the exercise of the right of private defence, be theft, mischief, or criminal trespass,
not of any of the descriptions enumerated in the last preceding section, that right
does not extend to the voluntary causing of death, but does extend, subject to the
restrictions mentioned in section 99, to the voluntary causing to the wrong-doer of
any harm other than death.
499.  Ramram Mahton, (1947) 26 Pat 550.
500.  Jai Bhagwan v State of Haryana, AIR 1999 SC 1083 [LNIND 1999 SC 116] : 1999 Cr LJ 1634

accused party was in possession of the land into which the other party entered for tilling it. The
mother of the accused exhorted them and they murderously assaulted the deceased. The act
amounted to criminal trespass within the meaning of section 411. The right of self-defence to
the extent of causing death did not exist. The offence of murder was made out. State of UP v
Laeeq, AIR 1999 SC 1942 [LNIND 1999 SC 447] : 1999 Cr LJ 2879 exceeding the right of private
defence, punishment under section 304.
COMMENT.—
This section applies in cases where an injury (but not death) is inﬂicted on the offender
in the course of his committing the offences of theft, mischief, or criminal trespass by
the person exercising the right of private defence. But the section does not apply to a

case where death has been caused in exercise of the supposed right of private
defence.499. Even so where the accused had killed a person by exceeding his right of
private defence of property under this section, his case would fall within the ambit of
Exception-II to section 300 IPC, 1860, and his offence would amount to culpable
homicide not amounting to murder. He could not, therefore, be punished with a
sentence of death. In the instant case the sentence was altered to one of life
imprisonment.500.
Sections 101 and 104 restrict the right of private defence in certain cases to voluntarily
causing hurt or grievous hurt. Section 101 is a corollary to section 100, and this section
tosection 103.

[s 105] Commencement and continuance of the right of private defence of
property.

The right of private defence of property commences when a reasonable apprehension
of danger to the property commences.
The right of private defence of property against theft continues till the offender has
effected his retreat with the property or either
the assistance of the public authorities is obtained, or the property has been
recovered.
The right of private defence of property against robbery continues as long as the
offender causes or attempts to cause to any person death or hurt or wrongful restraint
or as long as the fear of instant death or of instant hurt or of instant personal restraint
continues.
The right of private defence of property against criminal trespass or mischief
continues as long as the offender continues in the commission of criminal trespass or
mischief.
The right of private defence of property against house-breaking by night continues as
long as the house-trespass which has been begun by such house-breaking continues.
COMMENT.—

mischief.
COMMENT.—
This section indicates when the right of defence of property commences and till what
period it continues. It is similar to section 102.
[s 105.1] First clause.—
of danger to property commences. Before such apprehension commences the owner
of the property is not called upon to apply for protection to the public authorities. The
right commences not when the actual danger to the property commences but when
there is reasonable apprehension of danger.501.
[s 105.2] Second clause.—
The right of private defence of property against theft continues till (1) the offender has
affected his retreat with the property, or (2) the assistance of public authorities is
obtained, or (3) the property has been recovered.502. An offender is to be considered as

having affected his retreat when he has once got off having escaped immediate pursuit
not having been made. A recapture of the plundered property, while it is in course of
being carried away, is authorized, for the taking and retaking is one transaction. But
when the offence has been committed and the property removed, a recapture after an
interval of time by the owner or by other persons on his behalf, however justiﬁable,
cannot be deemed an exercise of the right of defence of property. The recovery which
the section contemplates seems to be a recovery either immediate or made before the
offender has reached his ﬁnal retreat.503. Where the appellants followed up tracks
purporting to be those of their stolen cattle, and prior to the arrival of the police (for

whose assistance one of their party had ridden away) proceeded to the complainants'
village and ﬁred at them, it was held that the appellants' right of private defence of their
property had been put an end to by the successful retreat of the thieves, and that their

501.  Chakradhar, (1964) 2 Cr LJ 696 .
502.  Punjabrao, (1945) Nag 881.
503.  M & M 81; Amar Singh, AIR 1968 Raj 11 [LNIND 1966 RAJ 160] .
504.  Mir Dad, (1925) 7 Lah 21.
alleged rediscovery of the cattle in the complainants' possession could not revive that
right.504.
[s 105.3] Third clause.—
A rightful owner in peaceful possession of his land is entitled to defend his property
against any person or persons who threaten to dispossess him. The law does not
expect any cowardice on his part when there is real and imminent danger to his
property from outside sources. Thus, a rightful owner is entitled to throw out, by using

such force as would in the circumstances of the case appear to be reasonable
necessary, any person who tries to invade his right to peaceful possession of his
properly. But if the trespasser has settled in the possession of the property, the
recourse which the rightful person must adopt. is to recover possession in accordance
with law and not by force. In such a case the trespasser would be entitled to defend his
possession even against a rightful owner if the latter tries to evict him by use of force.
But no hard and fast rule can be laid down in this behalf because much would depend
on the facts of each case.505.
[s 105.4] Fourth clause.—
In the case of criminal trespass and mischief the right of private defence ceases to
exist as soon as the commission of these offences ceases.506.
[s 105.5] Fifth clause.—

The right of private defence against house-breaking continues only so long as the
house-trespass continues; hence, where a person followed a thief and killed him in the
open, after the house-trespass had ceased, it was held that he could not plead the right
of private defence.507.

505.  Maguni Charan Pradhan v State of Orissa, (1991) 3 SCC 352 [LNIND 1991 SC 191] : 1991 (2)
Crimes 261 (SC).
506.  Rajesh Kumar v Dharamvi, 1997 Cr LJ 2242 : AIR 1997 SC 3769 [LNIND 1997 SC 445] , the
accused came to the place of occurrence and attacked the complainant after the latter had
already damaged the outer door of the house. It was held that the accused had no right of
private defence.
507.  Balakee Jolahed, (1868) 10 WR (Cr) 9; Gulbadan v State, (1885) PR No. 25 of 1885.

[s 106] Right of private defence against deadly assault when there is risk of
harm to innocent person.

If in the exercise of the right of private defence against an assault which reasonably
causes the apprehension of death, the defender be so situated that he cannot
effectually exercise that right without risk of harm to an innocent person, his right of
private defence extends to the running of that risk.
A is attacked by a mob who attempt to murder him. He cannot effectually exercise his
right of private defence without ﬁring on the mob, and he cannot ﬁre without risk of
harming young children who are mingled with the mob. A commits no offence if by so
ﬁring he harms any of the children.

508.  State of Karnataka v Madesha, (2007) 7 SCC 35 [LNIND 2007 SC 918] : AIR 2007 SC 2917
[LNIND 2007 SC 921] , risk of harm to an innocent person in the exercise of the right of private
defence. The court examined whether the right could be available to a person who caused the
death of a man who had no role to play in the dispute.
COMMENT.—
This section should be read in the light of section 100. Injury to innocent persons in the
exercise of the right of defence is excusable under it.508.

CHAPTER V OF ABETMENT
[s 107] Abetment of a thing.
A person abets the doing of a thing, who—
First.—Instigates any person to do that thing; or
Secondly.—Engages with one or more other person or persons in any conspiracy for
the doing of that thing, if an act or illegal omission takes place in pursuance of that
conspiracy, and in order to the doing of that thing; or
Thirdly.—Intentionally aids, by any act or illegal omission, the doing of that thing.
Explanation 1.—A person who, by wilful misrepresentation, or by wilful concealment of
a material fact which he is bound to disclose, voluntarily causes or procures, or
attempts to cause or procure, a thing to be done, is said to instigate the doing of that
thing.
A, a public oﬃcer is authorised by a warrant from a Court of Justice to apprehend Z. B,
knowing that fact and also that C is not Z, wilfully represents to A that C is Z, and
thereby intentionally causes A to apprehend C. Here B abets by instigation the
apprehension of C.

Explanation 2.—Whoever, either prior to or at the time of the commission of an act,
does anything in order to facilitate the commission of that act, and thereby facilitates
the commission thereof, is said to aid the doing of that act.
COMMENTS.—
In common parlance, the word 'abet' means assistance, co-operation and
encouragement and includes wrongful purpose. In Corpus Juris Secundum, vol I at p
306, the meaning of the word 'abet' is given as follows:
'To abet' has been deﬁned as meaning to aid; to assist or to give aid; to command, to
procure, or to counsel; to countenance; to encourage, counsel, induce, or assist; to
encourage or to set another on to commit.
Used with 'aid'. The word 'abet' is generally used with the word 'aid' and similar words.

In order to bring a person abetting the doing of a thing, under any one of the clauses
enumerated under section 107, it is not only necessary to prove that the person who
has abetted has taken part in the steps of the transactions but also in some way or
other he has been connected with those steps of the transactions which are criminal.
The offence of abetment depends upon the intention of the person who abets, and not
upon the act which is actually done by the person whom he abets.1.
For the purposes of the ﬁrst two clauses of this section it is immaterial whether the
person instigated commits the offence or not or the persons conspiring together

actually carry out the object of the conspiracy.2. It is only in the case of a person
abetting an offence by intentionally aiding another to commit that offence that the
charge of abetment against him would be expected to fail when the person alleged to
have committed the offence is acquitted of that offence.3. The Court noted that in
Faguna Kanta Nath v State of Assam4. the appellant was tried for an offence under
section 165A for having abetted the commission of an offence by an oﬃcer, who was
acquitted, and it was held that the appellant's conviction for abetment was also not
maintainable. But subsequently in Jamuna Singh v State of Bihar,5. it was considered
not desirable to hold that an abettor cannot be punished if the person actually
committing the offence is acquitted. The Court said that the abettor's guilt depends
upon the nature of the offence abetted and the manner of abetment. It is only in cases
of intentional aiding that the abettor would have to be acquitted with the principal

offender.6. Following this state of the rulings the Supreme Court ordered the acquittal
of the single abettor when the main offender as also all other abettors already stood
acquitted.
The Supreme Court has reiterated that before anybody can be punished for abetment
of suicide, it must be proved that the death in question was a suicidal death.7.
The Supreme Court held that the offence of abetment is a separate and independent
offence. Where the offence is committed in consequence of the abetment but there is
no provision for punishment of such abetment, the abettor is to be punished along with
the offender for the original offence.8.
Abetment is constituted by:
(1) instigating a person to commit an offence; or
(2) engaging in a conspiracy to commit it; or
(3) intentionally aiding a person to commit it.

The offence of abetment by instigation depends upon the intention of the person who
abets and not upon the act which is done by the person who has abetted. The
abetment may be by instigation, conspiracy or intentional aid as provided under section
107, Indian Penal Code (IPC), 1860. However, the words uttered in a ﬁt of anger or
omission without any intention cannot be termed as instigation.9.
[s 107.1] Mens rea.—
In order to proceed against a person for criminal offence under section 107,
prosecution must prove the element of mens rea. Negligence or carelessness or the
facilitation cannot be termed to be abetment so as to punish the guilty as per the
provision of penal laws.10. In order to constitute abetment, the abettor must be shown
to have "intentionally" aided to commission of the crime. Mere proof, that the crime

charged could not have been committed without involvement and/or interposition of
the alleged abettor is not enough compliance with the requirements of section 107. It is
not enough that an act on the part of the alleged abettor happens to facilitate the
commission of the crime. Intentional aiding and therefore active complicity is the gist
of the offence of abetment under the third paragraph of section 107.11.
[s 107.2] Sting operation, mens rea and abetment.—

In typical sting operations, though the operation is carried in the public interest, the
same is generally done by instigating the accused. Hence the victim, who is otherwise
innocent, is lured into committing a crime on the assurance of absolute secrecy and
conﬁdentiality of the transaction raising the potential question as to how such a victim
can be held responsible for the crime which he would not have committed but for the
enticement. In such circumstances, should the individual, i.e., the sting operator be held
criminally liable for commission of the offence that is inherent and inseparable from
the process by which commission of another offence is sought to be established?
What about the operator who has mens rea or guilty intention to commit the offence?
These are puzzling questions when there is an allegation that the sting operator is
alleged to have committed the abetment of the offence. The Supreme Court in Rajat
Prasad v CBI,12. observed that a crime does not stand obliterated or extinguished

merely because its commission is claimed to be in public interest. At the same time,
the criminal intent (mens rea) behind the commission of the act will have to be
established before the liability of the person charged with the commission of crime can
be adjudged. The Court held that the questions whether the sting operation is a
journalistic exercise and any criminal intent can be imputed are to be answered by the
evidence of the parties.
(1) Abetment by instigation.—First clause.—A person is said to 'instigate' another to an
act, when he actively suggests or stimulates him to the act by any means of language,
direct or indirect, whether it takes the form of express solicitation, or of hints,
insinuation or encouragement.13.
[s 107.3] "Instigate" Meaning.—
Instigation is to goad, urge forward, provoke, incite or encourage to do "an act". To

satisfy the requirement of "instigation", though it is not necessary that actual words
must be used to that effect or what constitutes "instigation" must necessarily and
speciﬁcally be suggestive of the consequence. Yet a reasonable certainty to incite the
consequence must be capable of being spelt out. Where the accused had, by his acts
or omission or by a continued course of conduct, created such circumstances that the
deceased was left with no other option except to commit suicide, in which case,
"instigation" may have to be inferred. A word uttered in a ﬁt of anger or emotion without
intending the consequences to actually follow, cannot be said to be instigation. Thus, to
constitute 'instigation', a person who instigates another has to provoke, incite, urge or
encourage the doing of an act by the other by "goading" or 'urging forward'. The

dictionary meaning of the word "goad" is "a thing that stimulates someone into action;
provoke to action or reaction … to keep irritating or annoying somebody until he
reacts".14. The word "instigate" literally means to provoke, incite, urge on or bring about
by persuasion to do anything. The abetment may be by instigation, conspiracy or
intentional aid as provided in the three clauses of the section.15. Instigate means the
active role played by a person with a view to stimulate another person to do the thing.
In order to hold a person guilty of abetting it must be established that he had
intentionally done something which amounted to instigating another to do a thing.16.
Instigation may be of an unknown person.17. A mere acquiescence or permission does
not amount to instigation.18.
[s 107.4] Wilful misrepresentation or wilful concealment.—

Explanation 1 to this section says that a person who (1) by wilful misrepresentation, or
(2) by wilful concealment of a material fact which he is bound to disclose, voluntarily

causes or procures, or attempts to cause or procure a thing to be done, is said to
instigate the doing of that thing. The illustration is an example of instigation by 'wilful
misrepresentation'. Instigation by 'wilful concealment' is where some duty exists which
obliges a person to disclose a fact. The explanation to section 107 says that any wilful
misrepresentation or wilful concealment of a material fact which he is bound to
disclose, may also come within the contours of "abetment".19.
[s 107.5] CASES.—Direct instigation.—
Where, of several persons constituting an unlawful assembly, some only were armed
with sticks, and A, one of them, was not so armed, but picked up a stick and used it, B
(the master of A), who gave a general order to beat, was held guilty of abetting the
assault made by them.20.
[s 107.6] Suicide.—
Abetment involves a mental process of instigating a person or intentionally aiding a
person in doing a thing. Without a positive act on the part of the accused to instigate or

aid in committing suicide, conviction cannot be sustained.21. Deceased committed
suicide by hanging himself because of alleged illicit relationship between his wife and
the accused. Accused took the wife of deceased away from the house of her brother
and kept her with him for four days. There is deﬁnitely a proximity and nexus between
the conduct and behaviour of the accused and wife of deceased with that of suicide
committed by the deceased.22. Where a married girl committed suicide by burning
herself in her in-law's house, her in-laws were held guilty of abetment because they
were persistently torturing her for inadequate dowry and had gone to the extent of
accusing her of illegitimate pregnancy.23. "All these tortures and taunts", Ray J said,24.

"Caused depression in her mind and drove her to take the extreme step of putting an
end to her life by sprinkling kerosene oil on her person and setting it aﬁre." In another
case of the same kind a husband persistently demanded more money from his wife,
quarrelling with her everyday. On the fateful day when she happened to say that death
would have been better than this, she heard only this in reply that her husband would
feel relieved if she ended her life. Immediately thereafter she set herself on ﬁre. The
husband was held guilty of instigating her to commit suicide.25. Mere harassment of
wife by husband due to differences per se does not attract section 306 read with
section 107, IPC, 1860.26.
Demand of loan amount by accused from deceased itself does not come within the

scope of abetment as deﬁned under section 107.27. Goading and intimidating a debtor
with a view to pressurising him for repayment of the loan which brought about a
suicide by the debtor immediately thereafter, was held as not amounting to abetment
of suicide and, therefore, no case under section 306 read with section 34 was made
out.28.
The accused told the other person "to go and die". It was held that this would not in
itself satisfy the ingredients of instigation. Instigation has to be with mens rea. The
suicide was committed two days after the quarrel between the accused and the
deceased. This also showed that the suicide was not the direct result of the quarrel.
The suicide note indicated that her husband was a frustrated man and given to drinking
and suffered from great stress and depression.29.

The accused, a Motor Vehicle Inspector, beat up and abused a driver for not being able
to produce necessary papers. The driver committed suicide. The Court said that it was
not shown that he was guilty of any act of abetment within the meaning of section 107.
The charge against him under section 107 was quashed.30.
[s 107.7] Proof.—
In Chitresh Kumar Chopra v State (Govt. of NCT of Delhi),31. the Supreme Court
reiterated the legal position laid down in its earlier three judge bench judgment in the
case of Ramesh Kumar v State of Chhattisgarh,32. and held that where the accused by
his acts or continued course of conduct creates such circumstances that the deceased
was left with no other option except to commit suicide, an instigation may be inferred.
In order to prove that the accused abetted commission of suicide by a person, it has to
be established that:
(i) the accused kept on irritating or annoying the deceased by words, deeds or wilful

omission or conduct which may even be a wilful silence until the deceased
reacted or pushed or forced the deceased by his deeds, words or wilful omission
or conduct to make the deceased move forward more quickly in a forward
direction; and
(ii) that the accused had the intention to provoke urge or encourage the deceased
to commit suicide while acting in the manner noted above. Undoubtedly,
presence of mens rea is the necessary concomitant of instigation.33.
[s 107.8] Threats.—
Mere threats of involving the family in a false and frivolous case cannot be held to
tantamount to instigation. By such threats it cannot be held that the accused instigated
the deceased to commit suicide.34.
[s 107.9] Test.—
No straight-jacket formula can be laid down to ﬁnd out as to whether in a particular

case there has been instigation which force the person to commit suicide. In a
particular case, there may not be direct evidence in regard to instigation which may
have direct nexus to suicide. Therefore, in such a case, an inference has to be drawn
from the circumstances and it is to be determined whether circumstances had been
such which in fact had created the situation that a person felt totally frustrated and
committed suicide.35.
(2) Abetment by conspiracy.—Second clause.—'Conspiracy' consists in the agreement
of two or more [persons] to do an unlawful act or to do a lawful act by unlawful means.
So long as such a design rests in intention only, it is not indictable. When two agree to
carry it into effect, the very plot is an act in itself, and the act of each of the parties,
promise against promise, actus contra actum, capable of being enforced, if lawful, is

punishable if for a criminal object or for the use of criminal means.36. It is not
necessary that the abettor should concert the offence with the person who commits it.
It is suﬃcient if he engages in the conspiracy in pursuance of which the offence is
committed.37. Where parties concert together, and have a common object, the act of

one of the parties, done in furtherance of the common object and in pursuance of the
concerted plan, is the act of all.38.
Before the introduction of Chapter V-A, conspiracy, except in cases provided for by
sections 121A, 311, 400, 401 and 402 of the Code, was a mere species of abetment
when an act or an illegal omission took place in pursuance of that conspiracy, and
amounted to a distinct offence for each distinct offence abetted by conspiracy.39. For
an offence under the second clause of this section a mere combination of persons or
agreement is not enough; an act or illegal omission must take place in pursuance of
the conspiracy. But for an offence under section 120A a mere agreement is enough if
the agreement is to commit an offence.40.
[s 107.10] Abetment and Conspiracy-Difference between.—
Criminal conspiracy postulates an agreement between two or more persons to do, or
cause to be done, an illegal act or an act which is not illegal, by illegal, means. It differs

from other offences because mere agreement is made an offence even if no step is
taken to carry out that agreement. Though there is close association of conspiracy with
incitement and abetment the substantive offence of criminal conspiracy is somewhat
wider in amplitude than abetment by conspiracy as contemplated under section 107,
IPC, 1860.41. There is no analogy between section 120B and section 109, IPC, 1860.
There may be an element of abetment in a conspiracy, but conspiracy is something
more than an abetment. Offences created by sections 109 and 120B, iPC, 1860 are
quite distinct and there is no warrant for limiting the prosecution to only one element of
conspiracy, that is, abetment when the allegation is that what a person did was
something over and above that.42.

(3) Abetment by aid.—Third clause.—By act.—A person, it is trite, abets by aiding, when
by any act done either prior to, or at the time of the commission of an act, he intends to
facilitate and does in fact facilitate the commission thereof, would attract the third
clause of section 107 of the IPC, 1860. Doing something for the offender is not
abetment. Doing something with knowledge so as to facilitate him to commit the crime
or otherwise would constitute abetment.43. In order to constitute abetment by aiding
within the meaning of the third paragraph of section 107, IPC, 1860 the abettor must be
shown to have intentionally aided the commission of the crime. A person may invite
another casually or for a friendly purpose and that may facilitate the murder of the
invitee. But unless it is shown that the invitation was extended with a view to facilitate

the commission of the murder, it cannot be said that the person extending the
invitation had abetted the murder. The language used in the section is "intentionally
aids" and therefore, active complicity is the gist of the offence of abetment under the
third paragraph of section 107, IPC, 1860.44. Abetment includes instigating any person
to do a thing or engaging with one or more persons in any conspiracy for the doing of a
thing, if an act or illegal omission takes place in pursuance of that conspiracy and in
order to the doing of that thing, or intentional aid by any act or illegal omission to the
doing of that thing. On facts held, in the instant case, there was no direct evidence to
establish that the appellant either aided or instigated the deceased to commit suicide

or entered into any conspiracy to aid her in committing suicide.45. Where the principal
offender killed the victim with a knife provided by the defendant who later claimed that
he thought the knife would be used only to threaten, the defendant's conviction for
murder was upheld, the Court of Appeal saying that the trial judge was correct to direct
the jury that the defendant could be so convicted if he contemplated that the principal
offender might kill or cause serious bodily harm to the victim as part of their joint
enterprise.46. It is not necessary that the abettor should be present at the place of the
occurrence. It is also not necessary to show that the secondary party to a conspiracy to

murder intended the victim to be killed provided it is proved that he contemplated or
foresaw the event as a real or substantial risk. Mere absence from the scene of the
crime cannot amount to unequivocal communication of withdrawal from the
enterprise. The accused was recruited with certain others by a person to kill his wife. At
a predetermined time she was taken to the agreed place and killed. The accused was
not present when the killing took place. It was held that he was rightly convicted in that
he had lent encouragement and assistance before the commission of the crime.47.
[s 107.11] By illegal omission.—
The deﬁnition of abetment as given in section 107, IPC, 1860 not only includes
instigation but also intentional aiding by an illegal omission.48. A lady advocate was
attending the chamber of her senior advocate, the accused. On the day of the incident
she was talking with the accused at her residence. At that moment in his presence, she

poured kerosene on her and set herself on ﬁre. The accused did nothing to save her. It
was held that this did not amount to "illegal omission". He was held not guilty of
abetment of suicide.49.
[s 107.12] Abetment of offences under other laws.—
The offence of aiding and abetting is applicable to all statutory offences unless
speciﬁcally excluded by statute and accordingly it was held to apply to offences
created by the [English] Public Order Act, 1986.50. An abetment of an offence under the
Prevention of Corruption Act, 1988 can be made by a non-public servant. Abettors are
to be prosecuted through trial under the Prevention of Corruption Act.51.
[s 107.13] CASES.—By act.—Presence at bigamous marriage.—
Mere presence at the scene of a bigamous marriage without any evidence of

instigation aiding or conspiring would not amount to abetment.52. Where the accused
held the antarpat (screen) during the performance of a marriage which he knew was a
void marriage under section 494, it was held that his act amounted to an act of
intentional aid and fell within the purview of the explanation.53.
[s 107.14] Presence at exhibition of blue ﬁlm.—
While entering into the parlour the accused was not aware of the type of ﬁlm under
exhibition. Immediately after his entry, the police raided the parlour and charge-sheeted
him as an abettor of offences under sections 292, 293 and 294 because blue ﬁlms
were under exhibition. Following the Supreme Court decision in Shri Ram v State of
UP,54. the Court held that something more must be shown than mere presence.
[s 107.15] Rape-Abetment.—
In a case of custodial rape, husband and wife, taken into police custody, were kept in

separate rooms. The wife was raped by the head constable while the accused

1.  Kartar Singh v State of Punjab, (1994) 3 SCC 569 : 1994 Cr LJ 3139 : (1994) 1 SCC (Cr) 899.
2.  Faguna Kanto, 1959 Cr LJ 917 : AIR 1959 SC 673 [LNIND 1959 SC 2] .
3.  Jamuna Singh v State of of Bihar, AIR 1967 SC 553 [LNIND 1966 SC 202] : 1967 Cr LJ 541 .
4.  Faguna Kanta Nath v State of Assam, AIR 1959 SC 673 [LNIND 1959 SC 2] : 1959 Supp 2 SCR
1 : 1959 Cr LJ 917 .
5.  Jamuna Singh v State of Bihar, AIR 1967 SC 553 [LNIND 1966 SC 202] : 1967 Cr LJ 541 .
6.  Citing Madan Raj Bhandari v State of Rajasthan, AIR 1970 SC 436 [LNIND 1969 SC 230] : 1970
Cr LJ 519 where the abettor of inducing miscarriage was acquitted when the person causing
miscarriage was acquitted. In Ex-Sepoy Haradhan Chakrabarty v UOI, AIR 1990 SC 1210 [LNIND
1990 SC 57] : (1990) 2 SCC 143 [LNIND 1990 SC 57] , it was held that abetment fails when
substantive offence is not established against the principal offender.
7.  Wazir Chand v State of Haryana, AIR 1989 SC 378 [LNIND 1988 SC 569] : 1989 Cr LJ 809 :

(1989) 1 SCC 244 [LNIND 1988 SC 569] .
constable kept watch over the husband and did nothing hearing the shrieks of the
victim wife. Conviction of the accused constable for abetting commission of rape was
upheld.55.
[s 107.16] Humiliation.—
The accused persons caused constant humiliation to the deceased by accusing him of
theft of things belonging to relatives at a marriage occasion. He committed suicide
after returning from marriage. The humiliation caused by the accused was held to be
not such as to amount to instigation which could have induced the deceased to
commit suicide.56.
[s 107.17] Attempt.—
Merely because the section opens with the words "if any person commits suicide" it
cannot be held that in a case of unsuccessful suicide there is no attempt to abet the
commission of suicide. Suicide and its attempt on the one hand and abetment of

commission of suicide and its attempt on the other are treated differently by law and
therefore, the one who abets the commission of an unsuccessful attempt to commit
suicide cannot be held to be punishable merely under section 309 read with section
116, IPC, 1860. To implement the scheme of law he has got to be held to be punishable
under section 306 read with section 511, IPC, 1860. The Supreme Court has never laid
down in Satvir Singh57. that under no circumstance an offence under section 306 read
with section 511, IPC, 1860 can be committed. The Supreme Court did not have
occasion to consider whether a conviction for an offence of attempt to abet the
commission of suicide is punishable under section 306 read with section 511, IPC,
1860.58.

8.  Kishori Lal v State of MP, (2007) 10 SCC 797 [LNIND 2007 SC 800] : AIR 2007 SC 2457
[LNIND 2007 SC 800] : (2007) 3 Ker LT 259 .
9.  State of Punjab v Iqbal Singh, AIR 1991 SC 1532 [LNIND 1991 SC 279] ; Surender v State of
Hayana, (2006) 12 SCC 375 [LNIND 2006 SC 1015] ; Kishori Lal v State of MP, AIR 2007 SC 2457
[LNIND 2007 SC 800] ; and Sonti Rama Krishna v Sonti Shanti Sree, AIR 2009 SC 923 [LNIND
2008 SC 2319] .
10.  B Ammu v State of TN, 2009 Cr LJ 866 (Mad); Chitresh Kumar Chopra v State (Government of
NCT of Delhi), AIR 2010 SC 1446 [LNIND 2009 SC 1663] .
11.  Shri Ram v State of UP, AIR 1975 SC 175 [LNIND 1974 SC 349] : 1975 Cr LJ 240 (SC) quoted
in Jasobant Narayan Mohapatra v State of Orissa, 2009 Cr LJ 1043 (Ori); Benupani Behera v State,
1992 (1) Ori LR 571 .
12.  Rajat Prasad v CBI, 2014 Cr LJ 2941 : 2014 (5) Scale 574 [LNIND 2014 SC 467] .
13.  Amiruddin, (1922) 24 Bom LR 534 [LNIND 1922 BOM 98] , 542.

14.  Chitresh Kumar Chopra v State (Government of NCT of Delhi), AIR 2010 SC 1446 [LNIND 2009
SC 1663] ; Kishangiri Mangalgiri Goswami v State of Gujarat, (2009) 4 SCC 52 [LNIND 2009 SC
193] : (2009) 1 SCR 672 [LNIND 2009 SC 193] : AIR 2009 SC 1808 2009 Cr LJ 1720.
15.  Goura Venkata Reddy v State of AP, (2003) 12 SCC 469 [LNIND 2003 SC 1004] .
16.  Rajib Neog v State of Assam, 2011 Cr LJ 399 (Gau).
17.  Ganesh D Savarkar, (1909) 12 Bom LR 105 .
18.  Ram Singh v State, 1997 Cr LJ 1406 (P&H), the complainant (wife) alleged that her in-laws
incited her husband to marry over again. There was no evidence to show that they negotiated or
arranged the second marriage, nor of their presence at the time of performance of second
marriage. Complaint quashed. See also Darbar Singh v State of Chhattisgarh, 2013 Cr LJ 1612
(Chh).

(Chh).
19.  Netai Dutta v State of WB, AIR 2005 SC 1775 [LNIND 2005 SC 208] : (2005) 2 SCC 659
[LNIND 2005 SC 208] ; Amit Kapoor v Ramesh Chander, JT 2012 (9) SC 312 [LNIND 2012 SC 564]
: 2012 (9) Scale 58 [LNIND 2012 SC 564] : (2012) 9 SCC 460 [LNIND 2012 SC 564] .
20.  Rasookoollah, (1869) 12 WR (Cr) 51. Where the accused had instigated three persons to
commit murder, his conviction under sections 307/109 was upheld. Hemant Kumar Mondal v
State of WB, 1993 Cr LJ 82 (Cal).
21.  M Mohan v State, Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626
[LNIND 2011 SC 246] : 2011 (3) Scale 78 [LNIND 2011 SC 246] : AIR 2011 SC 1238 [LNIND 2011
SC 246] : 2011 Cr LJ 1900 ; Amalendu Pal v State of WB, (2010) 1 SCC 707 [LNIND 2009 SC
1978] ; Rakesh Kumar v State of Chhattisgarh, (2001) 9 SCC 618 [LNIND 2001 SC 2368] , Gangula

Mohan Reddy v State of AP, (2010) 1 SCC 750 [LNIND 2010 SC 3] ; Thanu Ram v State of MP,
2010 (10) Scale 557 [LNIND 2010 SC 962] : (2010) 10 SCC 353 [LNIND 2010 SC 962] : (2010) 3
SCC (Cr) 1502; SS Chheena v Vijay Kumar Mahajan, (2010) 12 SCC 190 [LNIND 2010 SC 746] :
(2010 AIR SCW 4938); Sohan Raj Sharma v State of Haryana, AIR 2008 SC 2108 [LNIND 2008 SC
845] : (2008) 11 SCC 215 [LNIND 2008 SC 845] .
22.  Dammu Sreenu v State of AP, AIR 2009 SC 3728 : (2009) 14 SCC 249 [LNIND 2009 SC 1356]
.
23.  Gurbachan Singh v Satpal Singh, (1990) 1 SCC 445 [LNIND 1989 SC 475] : AIR 1990 SC 209
[LNIND 1989 SC 475] : 1990 Cr LJ 562 .
24.  Ibid, (1990) 1 SCC 445 [LNIND 1989 SC 475] at p 458 : AIR 1990 SC 209 [LNIND 1989 SC
475] : 1990 Cr LJ 562 .
25.  Brijlal v Prem Chand, AIR 1989 SC 1661 [LNIND 1989 SC 243] : (1989) Supp 2 SCC 680. But

where there was no evidence of dowry demands, self immolation by the married woman within

two years of marriage was held to be her personal act. Padmabai v State of MP, 1987 Cr LJ 1573
(MP).
26.  Bhagwan Das v Kartar Singh, AIR 2007 SC 2045 [LNIND 2007 SC 650] ; Dayalan Babu v State,
2011 Cr LJ 359 (Mad).
27.  Paramjeetsingh Chawala v State of MP, 2007 Cr Lj 3343 (MP).
28.  Vedprakash Bhaiji v State of MP, 1995 Cr LJ 893 (MP). Netai Dutta v State of WB, 2005 Cr LJ
1737 , no averment that the employer had withheld salary, or of aiding or instigating suicide,
proceedings against employer to be quashed.
29.  Sanju v State of MP, 2002 Cr LJ 2796 : AIR 2002 SC 1998 [LNIND 2002 SC 357] (Supp).
30.  Bura Manohar v State of AP, 2002 Cr LJ 3322 (AP); Central Bureau of Investigation v VC
Shukla, 1998 Cr LJ 1905 : AIR 1998 SC 1406 [LNIND 1998 SC 272] ; Bapurao v State of
Maharashtra, 2003 Cr LJ 2181 (Bom).
31.  Chitresh Kumar Chopra v State (Govt. of NCT of Delhi), 2009 (16) SCC 605 [LNIND 2009 SC
1663] : AIR 2010 SC 1446 [LNIND 2009 SC 1663] .

32.  Ramesh Kumar v State of Chhattisgarh, AIR 2001 SC 3837 [LNIND 2001 SC 2368] : (2001) Cr
LJ 4724 .
33.  State of MP v Shrideen Chhatri Prasad Suryawanshi, 2012 Cr LJ 2106 (MP); Jetha Ram v
State of Rajasthan, 2012 Cr LJ 2459 (Raj); Kailash Baburao Pandit v State of Maharashtra, 2011 Cr
LJ 4044 (Bom).
34.  Vijay Kumar Rastogi v State of Rajasthan, 2012 Cr LJ 2342 (Raj).
35.  Praveen Pradhan v State of Uttaranchal, (2012) 9 SCC 734 [LNIND 2012 SC 612] : 2012 (9)
Scale 745 : 2012 Cr LJ 4925 .
36.  Per Willes J, in Mulcahy, (1868) LR 3 HL 306, 317. See Quinn v Leathem, (1901) AC 495 ,
529.
37.  Explanation 5 to section 108; Kalil Munda, (1901) 28 Cal 797 .
38.  Ameer Khan, (1871) 17 WR (Cr) 15.
39.  Tirumal Reddi, (1901) 24 Mad 523, 546.
40.  Pramatha Nath v Saroj Ranjan, AIR 1962 SC 876 [LNIND 1961 SC 400] : 1962 (1) Cr LJ 770 .

See CBI v VC Shukla, AIR 1998 SC 1406 [LNIND 1998 SC 272] : (1998) 3 SCC 410 [LNIND 1998
SC 272] ; Abetment by conspiracy not made out.
41.  Noor Mohammad Mohd. Yusuf Momin v State of Maharashtra, AIR 1971 SC 885 [LNIND 1970
SC 155] : (1970) 1 SCC 696 [LNIND 1970 SC 155] .
42.  State of AP v Kandimalla Subbaiah, AIR 1961 SC 1241 [LNIND 1961 SC 95] : 1962 (1) SCR
194 [LNIND 1961 SC 95] .
43.  State of MP v Mukesh, (2006) 13 SCC 197 [LNIND 2006 SC 844] : (2007) 2 SCC (Cr) 680.
44.  Shri Ram, 1975 Cr LJ 240 : AIR 1975 SC 175 [LNIND 1974 SC 349] ; See also Trilokchand,
1977 Cr LJ 254 : AIR 1977 SC 666 [LNIND 1975 SC 278] .
45.  Rajbabu v State of MP, (2008) 17 SCC 526 [LNIND 2008 SC 1499] : AIR 2008 SC 3212
[LNIND 2008 SC 1499] : 2008 Cr LJ 4301 : (2008) 69 AIC 65 .

46.  R v State, (1989) 3 All ER 90 CA. The Court considered the decisions in Chan Wing Sui v R,
(1984) 3 All ER 877 and Hyam v DPP, (1974) 2 All ER 41 . Krishan Lal v UOI, 1994 Cr LJ 3472 ,
intentional aiding.
47.  R v Rook, (1993) 1 WLR 1005 (CA).
48.  Jamnalal Pande v State of MP, 2010 Cr LJ 538 (MP).
49.  Surendra Agnihotri v State of MP, 1998 Cr LJ 4443 (MP).
50.  R v Jefferson, The Times, 22 June 1993 (CA).
51.  P Nallammal v State, AIR 1999 SC 2556 [LNIND 1999 SC 660] : 1999 Cr LJ 3967 .

52.  Muthammal, 1981 Cr LJ 833 (Mad) : 1981 Mad LW (Cr) 80 ; Karuppiah v Nagawalli, 1982
Mad LJ (Cr) 19 : 1982 Cr LJ 1362 : 2004 Cr LJ 4272 (Kar).
53.  Malan, (1957) 60 Bom LR 428 .
54.  Shri Ram v State of UP, AIR 1975 SC 175 [LNIND 1974 SC 349] : 1975 Cr LJ 240 .
55.  Ram Kumar v State of HP, AIR 1995 SC 1965 : 1995 Cr LJ 3621 : 1995 Supp (4) SCC 67 .
56.  Neelam v State of AP, 2003 Cr LJ (NOC) 160 (AP) : (2002) 2 Andh LT (Cr) 186 .
57.  Satvir Singh v State of Punjab, AIR 2001 SC 2828 [LNIND 2001 SC 2168] : (2001) 8 SCC 633
[LNIND 2001 SC 2168] .
58.  Berin P Varghese v State, 2008 Cr LJ 1759 .

[s 108] Abettor.
A person abets an offence, who abets either the commission of an offence, or the
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.—The abetment of the illegal omission of an act may amount to an
offence although the abettor may not himself be bound to do that act.
Explanation 2.—To constitute the offence of abetment it is not necessary that the act
abetted should be committed, or that the effect requisite to constitute the offence
should be caused.
(a) A instigates B to murder C. B refuses to do so. A is guilty of abetting B to
commit murder.
(b) A instigates B to murder D. B in pursuance of the instigation stabs D. D recovers
from the wound. A is guilty of instigating B to commit murder.
Explanation 3.—It is not necessary that the person abetted should be capable by law

of committing an offence, or that he should have the same guilty intention or
knowledge as that of the abettor, or any guilty intention or knowledge.
(a) A, with a guilty intention, abets a child or a lunatic to commit an act which would
be an offence, if committed by a person capable by law of committing an
offence, and having the same intention as A. Here A, whether the act be
committed or not, is guilty of abetting an offence.
(b) A, with the intention of murdering Z, instigates B, a child under seven years of
age, to do an act which causes Z's death. B, in consequence of the abetment,
does the act in the absence of A and thereby causes Z's death. Here though B
was not capable by law of committing an offence, A is liable to be punished in
the same manner as if B had been capable by law of committing an offence, and

had committed murder, and he is therefore subject to the punishment of death.
(c) A instigates B to set ﬁre to a dwelling-house. B, in consequence of the
unsoundness of his mind, being incapable of knowing the nature of the act, or
that he is doing what is wrong or contrary to law, sets ﬁre to the house in
consequence of A's instigation. B has committed no offence, but A is guilty of
abetting the offence of setting ﬁre to a dwelling-house, and is liable to the
punishment provided for that offence.
(d) A, intending to cause a theft to be committed, instigates B to take property

belonging to Z out of Z's possession. A induces B to believe that the property
belongs to A. B takes the property out of Z's possession, in good faith, believing
it to be A's property. B, acting under this misconception, does not take
dishonestly, and therefore does not commit theft. But A is guilty of abetting
theft, and is liable to the same punishment as if B had committed theft.
Explanation 4.—The abetment of an offence being an offence, the abetment of such
an abetment is also an offence.
A instigates B to instigate C to murder Z. B accordingly instigates C to murder Z, and C
commits that offence in consequence of B's instigation. B is liable to be punished for
his offence with the punishment for murder; and, as A instigated B to commit the
offence, A is also liable to the same punishment.
Explanation 5.—It is not necessary to the commission of the offence of abetment by
conspiracy that the abettor should concert the offence with the person who commits

it. It is suﬃcient if he engages in the conspiracy in pursuance of which the offence is
committed.
A concerts with B a plan for poisoning Z. It is agreed that A shall administer the poison.
B then explains the plan to C mentioning that a third person is to administer the poison,
but without mentioning A's name. C agrees to procure the poison, and procures and
delivers it to B for the purpose of its being used in the manner explained. A administers
the poison; Z dies in consequence. Here, though A and C have not conspired together,
yet C has been engaged in the conspiracy in pursuance of which Z has been murdered.
C has therefore committed the offence deﬁned in this section and is liable to the
punishment for murder.
Abetment under the IPC, 1860 involves active complicity on the part of the abettor at a

point of time prior to the actual commission of the offence,59. and it is of the essence
of the crime of abetment that the abettor should substantially assist the principal
culprit towards the commission of the offence. Nowhere, concurrence in the criminal
acts of another without such participation therein as helps to give effect to the criminal
act or purpose, is punishable under the Code.
'Abettor', under this section, means the person who abets (1) the commission of an
offence, or (2) the commission of an act, which would be an offence if committed by a
person not suffering from any physical or mental incapacity. In the light of the
preceding section he must be an instigator or a conspirator or an intentional helper.
Merely because the accused's brother was carrying on criminal activities in her house,
the appellant cannot be held guilty unless there is some material to show her

complicity.60.
Explanation 1.—If a public servant is guilty of an illegal omission of duty made
punishable by the Code, and a private person instigates him, then he abets the offence
of which such public servant is guilty, though the abettor, being a private person, could
not himself have been guilty of that offence.

Explanation 2.—The question regarding abettor's guilt depends on the nature of the act
abetted and the manner in which abetment was made. Commission of the act abetted
is not necessary for the offence of abetment.61. The offence of abetment is complete
notwithstanding that the person abetted refuses to do the thing, or fails involuntarily in
doing it, or does it and the expected result does not follow. The offence of abetment by
instigation depends upon the intention of the person who abets, and not upon the act
which is actually done by the person whom he abets.
Explanation 3.—This explanation makes it clear that the person abetted need not have
any guilty intention in committing the act abetted. It applies to abetment generally and
there is nothing to indicate that it applies only to abetment by instigation and not to
other kinds of abetment.62. The offence of abetment depends upon the intention of the
person who abets and not upon the knowledge or intention of the person he employs to
act for him.

Explanation 4.—This Explanation is to be read as follows: "When the abetment of an
offence is an offence the abetment of such an abetment is also an offence". In view of
Explanation 4 appended under section 108 of the IPC, 1860 the contention of accused
that there cannot be any abetment of an abetment and it is unknown to criminal
jurisprudence, holds no water and merits no consideration.63.
[s 108.1] Abetment of attempt to commit suicide.—
Section 306 prescribes punishment for abetment of suicide while section 309 punishes
attempt to commit suicide. Abetment of attempt to commit suicide is outside the
purview of section 306 and it is punishable only under section 309 and read with
section 107, IPC, 1860.64.
[s 108.2] Euthanasia.—
Assisted suicide and assisted attempt to commit suicide are made punishable for

cogent reasons in the interest of society. Such a provision is considered desirable to
also prevent the danger inherent in the absence of such a penal provision.65. But in
Aruna Ramchandra Shanbaug v UOI,66. the Supreme Court held that passive euthanasia
can be allowed under exceptional circumstances under the strict monitoring of the
Court. In March 2018, a ﬁve-judge Constitution Bench of the Supreme Court gave legal
sanction to passive euthanasia, permitting 'living will' by patients.67.
[s 108.3] Political murder.—
The accused were poor villagers who were brainwashed and became tools for
committing crimes. The leaders who called for revenge were not charge sheeted and
they got off scot-free. Even their names were not revealed as they were political head-
weight. Such leaders who prompt the followers to commit crimes should be charge
sheeted for abetment of offence for murder.

[s 108.4] Abetment is substantive offence.—
The offence of abetment is a substantive one and the conviction of an abettor is,
therefore, in no way dependent on the conviction of the principal.68. It cannot be held in

59.  Molazim Tewari, (1961) 2 Cr LJ 266 .
60.  Marry Perara Lilly v State, (1987) Supp1 SCC 182 : (1988) 1 SCC (Cr) 56.
61.  Sundar v State of UP, 1995 Cr LJ 3481 (All), relying on Sukh Ram v State of MP., 1989 SCC
(Cr) 357 : AIR 1989 SC 772 [LNIND 2016 MP 593] .
62.  Chaube Dinkar Rao, (1933) 55 All 654 .
63.  Gundala Reddeppa Naidu v State of AP, 2005 Cr LJ 4702 (AP).
64.  Gian Kaur v State of Punjab, AIR 1996 SC 946 [LNIND 1996 SC 653] : (1996) 2 SCC 648
65.  The Constitution Bench Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC 653]
held that both euthanasia and assisted suicide are not lawful in India which overruled the two
Judge Bench decision of the Supreme Court in P Rathinam v UOI, AIR 1994 SC 1844 [LNIND
1994 SC 1533] : 1994 (3) SCC 394 [LNIND 1994 SC 1533] . The Court held that the right to life
under Article 21 of the Constitution does not include the right to die.
66.  Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC

67.  Common Cause (A Registered Society) v UOI, (2018) 5 SCC 1 [LNIND 2018 SC 87] .
68.  Gallu Saheb v State of Bihar, AIR 1958 SC 813 [LNIND 1958 SC 76] ; Maruti Dada, (1875) 1
Bom 15; Sahib Ditta, (1885) PR No. 20 of 1885.
69.  Jamuna Singh v State of Bihar, AIR 1967 SC 553 [LNIND 1966 SC 202] : 1967 Cr LJ 541 .
law that a person cannot ever be convicted of abetting a certain offence when the
person alleged to have committed that offence in consequence of the abetment has
been acquitted. The question of the abettor's guilt depends on the nature of the act
abetted and the manner in which the abetment was made. Under section 107, IPC,
1860 a person abets the doing of an act in either of three ways which can be:
instigating any person to do an act; or engaging with one or more person in any

conspiracy for the doing of that act; or intentionally aiding the doing of that act. If a
person instigates another or engages with another in a conspiracy for the doing of an
act which is an offence, he abets such an offence and would be guilty of abetment
under section 115 or section 116, IPC, 1860 even if the offence abetted is not
committed in consequence of the abetment. The offence of abetment is complete
when the alleged abettor has instigated another or engaged with another in a
conspiracy to commit the offence. It is not necessary for the offence of abetment that
the act abetted must be committed. This is clear from Explanation 2 and illustration (a)
thereto, to section 108, IPC, 1860. It is only in the case of a person abetting an offence
by intentionally aiding another to commit that offence that the charge of abetment

against him would be expected to fail when the person alleged to have committed the
offence is acquitted of that offence.69.

70.[s 108A] Abetment in India of offences outside India.
A person abets an offence within the meaning of this Code who, in 71.[India], abets the
commission of any act without and beyond 72.[India] which would constitute an
offence if committed in 73.[India].
ILLUSTRATION74.
A, in 75.[India], instigates B, a foreigner in Goa, to commit a murder in Goa. A is guilty of
abetting murder.]
70.  Added by Act 4 of 1898, section 3.
71.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
Act 3 of 1951, section 3 and Sch. (w.e.f. 1–4–1951), to read as above.
72.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
73.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.

74.  This Illustration is inappropriate as Goa, which was a Portuguese colony at the time of the
British imperial enactment now forms part of the Union Territory.—Ed.
75.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
This section makes an abetment in India by a citizen of India of an act committed in a
foreign territory an offence punishable under the IPC, 1860 if it would constitute an
offence if committed in India. This illustration has become somewhat obsolete as Goa
is now a part of Indian territory and not a foreign country as it was when this illustration
was formulated.

[s 109] Punishment of abetment if the act abetted is committed in
consequence and where no express provision is made for its punishment.
Whoever abets any offence shall, if the act abetted is committed in consequence of
the abetment, and no express provision is made by this Code for the punishment of
such abetment, be punished with the punishment provided for the offence.
Explanation.—An act or offence is said to be committed in consequence of abetment,
when it is committed in consequence of the instigation, or in pursuance of the
conspiracy, or with the aid which constitutes the abetment.
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour in
the exercise of B's oﬃcial functions. B accepts the bribe. A has abetted the
offence deﬁned in section 161.
(b) A instigates B to give false evidence. B, in consequence of the instigation,
commits that offence. A is guilty of abetting that offence, and is liable to the

same punishment as B.
(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures the
poison and delivers it to B in order that he may administer it to Z. B, in pursuance
of the conspiracy, administers the poison to Z in A's absence and thereby causes
Z's death. Here B is guilty of murder. A is guilty of abetting that offence by
conspiracy, and is liable to the punishment for murder.
Under this section the abettor is liable to the same punishment as that which may be
inﬂicted on the principal offender, (1) if the act of the latter is committed in
consequence of the abetment, and (2) no express provision is made in the Code for the
punishment of such an abetment. Section 109, IPC, 1860 becomes applicable even if

the abettor is not present when the offence abetted is committed provided that he has
instigated the commission of the offence or has engaged with one or more other
persons in a conspiracy to commit an offence and pursuant to that conspiracy some
act or illegal omission takes place or has intentionally aided the commission of an
offence by an act or illegal omission.76.
[s 109.1] Scope.—
This section lays down nothing more than that if the IPC, 1860 has not separately
provided for the punishment of abetment as such then it is punishable with the
punishment provided for the original offence. Law does not require instigation to be in
a particular form or that it should only be in words. The instigation may be by conduct.
Whether there was instigation or not, is a question to be decided on the facts of each

case. It is not necessary in law for the prosecution to prove that the actual operative
cause in the mind of the person abetting was instigation and nothing else, so long as
there was instigation and the offence has been committed or the offence would have
been committed if the person committing the act had the same knowledge and
intention as the abettor. The instigation must be with reference to the thing that was
done and not to the thing that was likely to have been done by the person who is
instigated. It is only if this condition is fulﬁlled that a person can be guilty of abetment
by instigation. Further, the act abetted should be committed in consequence of the
abetment or in pursuance of the conspiracy as provided in the Explanation to section
109. Under the Explanation an act or offence is said to be committed in pursuance of
abetment if it is done in consequence of (a) instigation (b) conspiracy or (c) with the
aid constituting abetment. Instigation may be in any form and the extent of the

inﬂuence which the instigation produced in the mind of the accused would vary and
depend upon facts of each case. The offence of conspiracy created under section
120A is bare agreement to commit an offence. It has been made punishable under
section 120B. The offence of abetment created under the second clause of section 107
requires that there must be something more than mere conspiracy. There must be
some act or illegal omission in pursuance of that conspiracy. That would be evident by
section 107 (second), "engages in any conspiracy … for the doing of that thing, if an act
or omission took place in pursuance of that conspiracy". The punishment for these two
categories of crimes is also quite different. Section 109, IPC, 1860 is concerned only
with the punishment of abetment for which no express provision has been made in the

IPC, 1860. The charge under section 109 should, therefore, be along with charge for
murder which is the offence committed in consequence of abetment. An offence of
criminal conspiracy is, on the other hand, an independent offence. It is made
punishable under section 120B for which a charge under section 109 is unnecessary
and inappropriate.77. Section 109 provides that if the act abetted is committed in
consequence of abetment and there is no provision for the punishment of such
abetment then the offender is to be punished with the punishment provided for the
original offence. "Act abetted" in section 109 means the speciﬁc offence abetted.
Therefore, the offence for the abetment of which a person is charged with the
abetment is normally linked with the proved offence.78. The commission of the offence

of rape in a hut then in possession of the accused was held to be not suﬃcient in itself
to show that the accused abetted the offence.79.
[s 109.2] Distinct offence.—
Section 109 is by itself creative of an offence though it is punishable in the context of
other offences. The accused was charged under sections 300 and 149. The Court said
that he could not be convicted under section 300 with the aid of section 109. That
would cause great prejudice to the accused in his defence.80. The offence for the
abetment of which a person is charged with the abetment is normally linked with the
proved offence.81. A plain reading of sections 107–109 of the IPC, 1860 would show
that act complained of in order to amount to abetment has to be committed either prior
to or at the time of commission of the offences.82.

Where the appellant, the wife of a co-accused asked the prosecutrix, aged 15 years to
go to the house of the accused and to bring lassi, and when the prosecutrix reached
there, the co-accused, who were two in number, bolted the house from inside and
committed rape on her, it was held that the appellant was guilty of the offence of
abetment. 83.

[s 109.3] Failure to prevent is not abetment.—
It has been held by the Supreme Court that a failure to prevent the commission of an
offence is not an abetment of that offence. The Court said:
Where a person aids and abets the perpetrator of a crime at the very time when the crime is
committed, he is a principal of the second degree and section 109 applies. But mere failure
to prevent the commission of an offence is not by itself an abetment of that offence.
Considering the deﬁnition in section 109 strictly, the instigation must have reference to the
thing that was done and not to the thing that was likely to have been done by the person
who is instigated. It is only if this condition is fulﬁlled that a person can be guilty of
abetment by instigation. Section 109 is attracted even if the abettor is not present when the
offence abetted is committed provided that he had instigated the commission of the
offence or had engaged with one or more other persons in a conspiracy to commit an

offence and pursuant to the conspiracy some act or illegal omission takes place or
intentionally induced the commission of an offence by an act or illegal omission. In the
absence of direct involvement, conviction for abetment is not sustainable. Section 109
provides that if the act abetted is committed in consequence of abetment and there is no
provision for the punishment of such abetment then the offender is to be punished with the
punishment provided for the original offence. Section 109 applies even where the abettor is
not present. Active abetment at the time of committing the offence is covered by section
109.
The words 'act abetted' as used in section 109 means the speciﬁc offence abetted. Mere
help in the preparation for the commission of an offence which is not ultimately committed

109.
is not abetment within the meaning of section 109. 'Any offence' in section 109 means
offence punishable under IPC or any special or local law. The abetment of an offence under
the special or local law, therefore, is punishable under section 109. For constituting offence
of abetment, intentional and active participation by the abettor is necessary.84.
When a person is charged with the abetment of an offence, it is normally linked with an
offence which has been proved.85.
[s 109.4] Procedure.—Failure to frame Charge.—
Section 109, IPC, 1860 is a distinct offence. Accused having faced trial for being a
member of an unlawful assembly which achieved the common object of killing the
deceased, could in no event be substitutedly convicted for offence under section 302,

IPC, 1860 with the aid of section 109, IPC, 1860. There was obviously thus, not only a
legal ﬂaw but also a great prejudice to the appellant in projecting his defence.86.
Section 109, IPC, 1860 is by itself an offence though punishable in the context of other
offences.87.
[s 109.5] Sentence.—
When the act abetted is committed as a consequence of abetment, the abettor should
be punished with the punishment provided for the main offence with the help of section
109, IPC, 1860 and even if a charge under section 120B, IPC, 1860 had been framed, no
separate sentence under that section is called for.88. No distinction should be made in
the quantum of sentence to be awarded to the principal offender and that awarded to
the abettor.89.
[s 109.6] Compoundable.—
When an offence is compoundable under section 320 of the Cr PC, 1973, the abetment

of such may be compounded in like manner.90.

76.  NMMY Momin, 1971 Cr LJ 793 : AIR 1971 SC 885 [LNIND 1970 SC 155] . Where the accused
suffered trial for the substantive offences of causing hurt under sections 328 and 272 by mixing
ethyl and methyl alcohol but his direct involvement was not established, section 109 was not
permitted to be pushed into service for convicting him for abetment; Joseph v State of Kerala,
AIR 1994 SC 34 : 1994 Cr LJ 21 : 1995 SCC (Cr) 165.
77.  Arjun Singh v State of HP, AIR 2009 SC 1568 [LNIND 2009 SC 252] : (2009) 4 SCC 18 [LNIND
2009 SC 252] : (2009) 1 SCR 983 [LNIND 2009 SC 252] : 2009 (2) Scale 302 [LNIND 2009 SC
252] : 2009 Cr LJ 1332 . See Kehar Singh v The State (Delhi Admn.), AIR 1988 SC 1883 [LNIND
1988 SC 887] ; Kulwant Singh v State of Bihar, (2007) 15 SCC 670 [LNIND 2007 SC 820] .
78.  Amit Kapoor v Ramesh Chander, JT 2012 (9) SC 312 [LNIND 2012 SC 564] : 2012 (9) Scale
58 [LNIND 2012 SC 564] : (2012) 9 SCC 460 [LNIND 2012 SC 564] .

79.  Ashok Nivruti Desai v State of Maharashtra, 1995 Cr LJ 826 (Bom). Jag Narain Prasad v State
of Bihar, 1998 Cr LJ 2553 : AIR 1998 SC 2879 [LNIND 1998 SC 387] , the accused charged with
exhorting his son to kill the victim. The court said that it was not believable that an aged person
would involve his son into crime for a trivial reason. Mere presence at the spot is not suﬃcient
to involve all the family members who were there. See also Manjula v Muni, 1998 Cr LJ 1476
(Mad).
80.  Wakil Yadav v State of Bihar, 1999 Cr LJ 5000 (SC). Arjun Singh v State of HP, (2009) 4 SCC
18 [LNIND 2009 SC 252] : AIR 2009 SC 1568 [LNIND 2009 SC 252] : 2009 Cr LJ 1332 ,
ingredients restated, the offence was not made out in this case.
81.  Amit Kapoor v Ramesh Chander, JT 2012 (9) SC 312 [LNIND 2012 SC 564] : 2012 (9) Scale

58 [LNIND 2012 SC 564] : (2012) 9 SCC 460 [LNIND 2012 SC 564] ; Kishangiri Mangalgiri Swami
v State of Gujarat, 2009 (4) SCC 52 [LNIND 2009 SC 193] .
82.  Jasobant Narayan Mohapatra v State of Orissa, 2009 Cr LJ 1043 (Ori).
[s 109.7] CASES.—
Where the accused instigated others to assault with deadly weapons and not to kill, he
should be convicted under section 324 read with section 109, IPC, 1860 and not under
section 307 read with section 109, IPC, 1860.91. Where the accused did not participate
in the act of rape but kept watch while others were committing the offence, and thereby
aided and abetted the commission of the crime instead of preventing it, he was held
liable to be convicted under section 376 read with this section and not under section
376 read with section 34.92.
[s 109.8] Distinction between sections 109 and 114.—

There is a distinction between section 109 and section 114. Section 114 applies where
a criminal ﬁrst abets an offence to be committed by another person, and is
subsequently present at its commission. Active abetment at the time of committing the
offence is covered by section 109 and section 114 is clearly intended for an abetment
previous to the actual commission of the crime, that is, before the ﬁrst steps have been
taken to commit it.93.

83.  Om Prakash v State of Haryana, 2015 Cr LJ 586 : (2015) 2 SCC 84 [LNIND 2014 SC 887] .
84.  Kulwant Singh v State of Punjab, (2007) 15 SCC 670 [LNIND 2007 SC 820] .
85.  Goura Venkata Reddy v State of AP, (2003) 12 SCC 469 [LNIND 2003 SC 1004] , the appellant
(accused) who instigated the other accused was convicted under section 304/109 and not
under section 302/109.
86.  Wakil Yadav v State of Bihar, (2000) 10 SCC 500 : 1999 AIR SCW 4694.
87.  Joseph Kurian Philip Jose v State, (1994) 6 SCC 535 [LNIND 1994 SC 927] : AIR 1995 SC 4
[LNIND 1994 SC 927] : 1995 Cr LJ 502 .
88.  State of TN v Savithri, 1976 Cr LJ 37 (Mad).
89.  Ashok Nivruti Desai v State of Maharashtra, (1995) 1 Cr LJ 826 (Bom). Vinit v State of
Maharashtra, (1994) 2 Cr LJ 1791 (Bom).
90.  Section 320(3) Code of Criminal Procedure, 1973.
91.  Jai Narain, 1972 Cr LJ 469 : AIR 1972 SC 1764 .
92.  Nawabkhan v State of MP, 1990 Cr LJ 1179 MP; Jai Chand v State of HP, 2002 Cr LJ 2301

(HP); Munuswamy v State of TN, 2002 Cr LJ 3916 (SC) : AIR 2002 SC 2994 [LNIND 2002 SC 500]
.
93.  Kulwant Singh v State of Bihar, (2007) 15 SCC 670 [LNIND 2007 SC 820] ; Mathurala Adi
Reddy v State of Hyderabad, AIR 1956 SC 177 : 1956 Cr LJ 341 .

[s 110] Punishment of abetment if person abetted does act with different
intention from that of abettor.
Whoever abets the commission of an offence shall, if the person abetted does the act
with a different intention or knowledge from that of the abettor, be punished with the
punishment provided for the offence which would have been committed if the act had
been done with the intention or knowledge of the abettor and with no other.
This section provides that though the person abetted commits the offence with a
different intention or knowledge yet the abettor will be punished with the punishment
provided for the offence abetted. The liability of the person abetted is not affected by
this section.
Explanation 3 to section 108 should be read in conjunction with this section. See
illustration (d) to that section.

[s 111] Liability of abettor when one act abetted and different act done.
When an act is abetted and a different act is done, the abettor is liable for the act
done, in the same manner and to the same extent as if he had directly abetted it:
Proviso.
P r o v i d e d  the act done was a probable consequence of the abetment, and was
committed under the inﬂuence of the instigation, or with the aid or in pursuance
of the conspiracy which constituted the abetment.
(a) A instigates a child to put poison into the food of Z, and gives him poison
for that purpose. The child, in consequence of the instigation, by mistake
puts the poison into the food of Y, which is by the side of that of Z. Here, if
the child was acting under the inﬂuence of A's instigation, and the act done
was under the circumstances a probable consequence of the abetment, A is
liable in the same manner and to the same extent as if he had instigated the

child to put the poison into the food of Y.
(b) A instigates B to burn Z's house. B sets ﬁre to the house and at the same
time commits theft of property there. A, though guilty of abetting the
burning of the house, is not guilty of abetting the theft; for the theft was a
distinct act, and not a probable consequence of the burning.
(c) A instigates B and C to break into an inhabited house at midnight for the
purpose of robbery, and provides them with arms for that purpose. B and C
break into the house, and being resisted by Z, one of the inmates, murder Z.
Here, if that murder was the probable consequence of the abetment, A is
liable to the punishment provided for murder.
Liability of abettor when different act done.—This section proceeds on the maxim
"every man is presumed to intend the natural consequences of his act". If one man

instigates another to perpetrate a particular crime, and that other, in pursuance of such
instigation, not only perpetrates that crime, but, in the course of doing so, commits
another crime in furtherance of it, the former is criminally responsible as an abettor in
respect of such last-mentioned crime, if it is one which, as a reasonable man, he must,
at the time of the instigation, have known would, in the ordinary course of things,
probably have to be committed in order to carry out the original crime. B and C
instigated A to rob the deceased on his return to home after receiving a sum of money;
whereupon A killed the deceased. A was convicted of murder and B and C of offences
under sections 109, 302.94. Where the act contemplated and instigated was no more

than a thrashing with a lathi, but one of the assailants suddenly took out a spearhead

94.  Mathura Das, (1884) 6 All 491 , 494.
95.  Girja Prasad, (1934) 57 All 717 .
from his pocket and fatally stabbed the person who was to be thrashed, the others
were not held liable for murder or abetment of murder.95.

[s 112] Abettor when liable to cumulative punishment for act abetted and for
act done.
If the act for which the abettor is liable under the last preceding section is committed
in addition to the act abetted, and constitutes a distinct offence, the abettor is liable
to punishment for each of the offences.
A instigates B to resist by force a distress made by a public servant. B, in consequence,
resists that distress. In offering the resistance, B voluntarily causes grievous hurt to the
oﬃcer executing the distress. As B has committed both the offences of resisting the
distress, and the offence of voluntarily causing grievous hurt, B is liable to punishment
for both these offences; and, if A knew that B was likely voluntarily to cause grievous
hurt in resisting the distress A will also be liable to punishment for each of the
offences.
96.  Re Irala Palle Ramiah, 1957 Cr LJ 815 (AP).

offences.
This section extends the principle enunciated in the preceding section. Under it the
abettor is punished for the offence abetted as well as the offence committed. A joint
reading of sections 111, 112 and 133 make it abundantly clear that if a person abets
another in the commission of an offence and the principal goes further thereafter and
does something more which has a different result from that intended by the abettor
and makes the offence an aggravated one, the abettor is liable for the consequences of
the acts of his principal. The crux of the problem in an enquiry of this sort is whether
the abettor as reasonable man at the time of his instigation or intentionally aiding the
principal would have foreseen the probable consequences of his abetment.96.

[s 113] Liability of abettor for an effect caused by the act abetted different
from that intended by the abettor.
When an act is abetted with the intention on the part of the abettor of causing a
particular effect, and an act for which the abettor is liable in consequence of the
abetment, caused a different effect from that intended by the abettor, the abettor is
liable for the effect caused, in the same manner and to the same extent as if he had
abetted the act with the intention of causing that effect, provided he knew that the act
abetted was likely to cause that effect.
A instigates B to cause grievous hurt to Z. B, in consequence of the instigation causes
grievous hurt to Z. Z dies in consequence. Here, if A knew that the grievous hurt
abetted was likely to cause death, A is liable to be punished with the punishment
provided for murder.
This section should be read in conjunction with section 111. Section 111 provides for

the doing of an act different from the one abetted, whereas this section deals with the
case when the act done is the same as the act abetted but its effect is different.

[s 114] Abettor present when offence is committed.
Whenever any person who if absent would be liable to be punished as an abettor, is
present when the act or offence for which he would be punishable in consequence of
the abetment is committed, he shall be deemed to have committed such act or
offence.
This section:
is only brought into operation when circumstances amounting to abetment of a particular
crime have ﬁrst been proved, and then the presence of the accused at the commission of
that crime is proved in addition … Section 114 deals with the case, where there has been the
crime of abetment, but where also there has been actual commission of the crime abetted
and the abettor has been present thereat, and the way in which it deals with such a case is
this. Instead of the crime being still abetment with circumstances of aggravation, the crime
becomes the very crime abetted. The section is evidently not punitory. Because

participation de facto. … may sometimes be obscure in detail, it is established by the
presumption Juris et de jure that actual presence plus prior abetment can mean nothing else
but participation. The presumption raised by s. 114 brings the case within the ambit of s.
34.97.
The meaning of this section is that if the nature of the act done constitutes abetment,
then, if present, the abettor is to be deemed to have committed the offence, though in
point of fact another actually committed it. The abetment must be complete apart from
the mere presence of the abettor.98. The words "who if absent would be liable to be
punished as an abettor" clearly show that abetment must be one prior to the
commission of the offence and complete by itself.99. Where, for instance, a blow is

struck by A, in the presence of, and by the order of, B, both are principals in the
transaction. If A instigates B to murder, he commits abetment; if absent, he is
punishable as an abettor, and if the offence is committed, then under section 109; if
present, he is by this section deemed to have committed the offence and is punishable
as a principal. This section applies to cases where a person abets the commission of
the offence sometime before at a different place and also remains present at the time
the offence is committed.100. But where a person is charged with abetment under this
section for aiding in the Commission of an offence, e.g., section 300 IPC, 1860 and the
person charged as the principal offender is acquitted on the ground that he had not
committed the offence in question, no further question arises regarding abettor's
liability.101.

Section 114 is not applicable in every case in which the abettor is present at the
commission of the offence abetted. While section 109 is a section dealing generally
with abetment, section 114 applies to those cases only in which not only is the abettor
present at the time of the commission of the offence but abetment has been
committed prior to and independently of his presence.102.
[s 114.1] Sections 34 and 114.—

97.  Barendra Kumar Ghosh, (1924) 52 IA 40 , 53 : 27 Bom LR 148, 159 : 52 Cal 197.
98.  Krishnaswami Naidu, (1927) 51 Mad 263. See Malanrama v State of Maharashtra, ILR 1958
Bom 700 [LNIND 1957 BOM 189] : 1960 Cr LJ 1189 where it was held in the circumstances of
the case that the mere presence of the accused at the ceremony knowing that the offence of
bigamy was being committed and the throwing the holy rice over the couple did not amount to
abetment of bigamy notwithstanding that one of the accused persons distributed pan after the
ceremony. Followed in CS Vardachari v CS Shanti, 1987 Cr LJ 1048 over similar facts.
99.  Sital, (1935) 11 Luck 384 .
100.  Nanboo v Kedar, AIR 1962 MP 91 [LNIND 1961 MP 109] .
101.  Mahommed Jasimuddin, 1982 Cr LJ 1510 (Gau). See also State v Naroshbhai Haribhai
Tandel, 1997 Cr LJ 2783 (Guj).
102.  Kulwant Singh v State of Bihar, (2007) 15 SCC 670 [LNIND 2007 SC 820] .
103.  Jan Mahomed, (1864) 1 WR (Cr) 49; Nga Po Kyone, (1933) 11 Ran 354.

The distinction between sections 34 and 114 is a very ﬁne one. According to section
34, where a criminal act is done by several persons, in furtherance of the common
intention of all, each of them is liable as if it were done by himself alone; so that if two
or more persons are present, aiding and abetting in the commission of a murder each
will be tried and convicted as a principal, though it might not be proved which of them
actually committed the act. Section 114 refers to the case where a person by abetment,
previous to the commission of the act, renders himself liable as an abettor, is present
when the act is committed, but takes no active part in the doing of it.103. A mere
direction from one person to another and the carrying out of that direction by the other

may be only instigation of the latter's act and may not be a case of a joint act falling
under section 34.104. Accused provided an axe to his son who assaulted the victim
leading to his death. It was not a pre-meditated action on the part of main accused and
appellant supplied axe instantaneously without considering its pros and cons.
Conviction of appellant on charge of abetment (section 114) is not maintainable.105.
1. 'Present'.—It is not necessary that the party should be actually present, an ear or eye
witness of the transaction; he is, in construction of law, present, aiding and abetting, if,
with the intention of giving assistance, he be near enough to afford it, should occasion
arise. A conspirator, who, while his friends enter into a house and loot it, stands and

watches outside in pursuance of the common design, does not escape liability under
the section.106. Where, therefore, a person watched at the door of a house while a
murder was being committed inside he would be guilty of murder.107.
[s 114.2] Section 376 read with Section 114.—
In order to bring home such conviction under section 376, IPC, 1860 read with section
114, IPC, 1860 there must be evidence on record to show: (a) that there was abetment
of rape to be committed; (b) that the abettors have factually abetted the commission of
rape; and (c) that they were present at the time when the commission of rape took
place.108.

104.  MA Reddy v State, AIR 1956 SC 177 : 1956 Cr LJ 341 .
105.  Muklesur Rahaman v State, 2010 Cr LJ 4488 . Also see, Kalubhai Maganbhai Vaghela v State
of Gujarat, 2009 Cr LJ 2317 (Guj).
106.  Khandu v State, (1899) 1 Bom LR 351 , 355.
107.  Sidharth v State of Bihar, AIR 2005 SC 4352 [LNIND 2005 SC 752] : (2005) 12 SCC 545
[LNIND 2005 SC 752] : 2005 Cr LJ 4499 : (2006) 1 SCC (Cr) 175. Also see Mukati Prasad Rai
alias Mukti Rai v State IR, 2005 SC 1271 : (2004) 13 SCC 144 : (2005) 1 SCC (Cr) 69; Awadh
Mahto v State of Bihar, 2007 Cr LJ 342 (Pat).
108.  Mangiya v State of Rajasthan, 2000 Cr LJ 4814 (Raj).

[s 115] Abetment of offence punishable with death or imprisonment for life—if
offence not committed.
Whoever abets the commission of an offence punishable with death or 109.
[imprisonment for life] shall, if that offence be not committed in consequence of the
abetment, and no express provision1 is made by this Code for the punishment of such
abetmnt,2 be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to ﬁne;
If act causing harm be done in consequence.
and if any act for which the abettor is liable in consequence of the abetment, and
which causes hurt to any person, is done, the abettor shall be liable to
imprisonment of either description for a term which may extend to fourteen
years, and shall also be liable to ﬁne.
A instigates B to murder Z. The offence is not committed. If B had murdered Z, he
would have been subject to the punishment of death or 110.[imprisonment for life].

Therefore A is liable to imprisonment for a term which may extend to seven years
and also to a ﬁne; and if any hurt be done to Z in consequence of the abetment, he
will be liable to imprisonment for a term which may extend to fourteen years, and
to ﬁne.
COMMENT.—
This section punishes the abetment of certain offences which are either not committed
at all, or not committed in consequence of abetment or only in part committed.
When more than ten persons are instigated to commit an offence punishable with
death, the offence comes under this section as well as under section 117. Abetment
under this section need not necessarily be abetment of the commission of an offence
by a particular person against a particular person.111.
1. 'Express provision'.—This refers to sections in which speciﬁc cases of abetment of

offences punishable with death or imprisonment for life are dealt with.112.
2. 'Such abetment'.—These words refer to the abetment of the offence speciﬁed in the
section itself, namely an offence punishable with death or imprisonment for life, and
only sections 121 and 131 provide for the punishment of the abetment of such
offence.113.

109.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
110.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
111.  Dwarkanath Goswami, (1932) 60 Cal 427 ; Lavji Mandan v State, (1939) 41 Bom LR 980 .
112.  Ibid.
113.  Lavji Mandan, (1939) 41 Bom LR 980 .

[s 116] Abetment of offence punishable with imprisonment— if offence be not
Whoever abets an offence punishable with imprisonment shall, if that offence be not
committed in consequence of the abetment, and no express provision is made by this
Code for the punishment of such abetment, be punished with imprisonment of any
description provided for that offence for a term which may extend to one-fourth part
of the longest term provided for that offence, or with such ﬁne as is provided for that
offence, or with both;
If abettor or person abetted be a public servant whose duty it is to prevent
offence.
and if the abettor or the person abetted is a public servant, whose duty it is to
prevent the commission of such offence, the abettor shall be punished with
imprisonment of any description provided for that offence, for a term which may
extend to one-half of the longest term provided for that offence, or with such ﬁne
as is provided for the offence, or with both.

(a) A offers a bribe to B, a public servant, as a reward for showing A some
favour in the exercise of B's oﬃcial functions. B refuses to accept the bribe.
A is punishable under this section.
(b) A instigates B to give false evidence. Here, if B does not give false evidence,
A has nevertheless committed the offence deﬁned in this section, and is
punishable accordingly.
(c) A, a police-oﬃcer, whose duty it is to prevent robbery, abets the commission
of robbery. Here, though the robbery be not committed, A is liable to one-
half of the longest term of imprisonment provided for that offence, and also
to ﬁne.
(d) B abets the commission of a robbery by A, a police-oﬃcer, whose duty it is
to prevent that offence. Here, though the robbery be not committed, B is
liable to one-half of the longest term of imprisonment provided for the
offence of robbery, and also to ﬁne.

COMMENT—
Where abetted offence not committed.—This section provides for the abetment of an
offence punishable with imprisonment. There is no corresponding provision in the
Code relating to abetment of an offence punishable with ﬁne only.
Three different states of fact may arise after an abetment—

114.  Satvir Singh v State of Punjab, AIR 2001 SC 2828 [LNIND 2001 SC 2168] : (2001) 8 SCC 633
[LNIND 2001 SC 2168] : 2001 Cr LJ 4625 : (2002) 1 SCC (Cr) 48.
115.  Supra.
116.  Berin P Varghese v State, 2008 Cr LJ 1759 (Ker).
(1) No offence may be committed. In this case the offender is punishable under
sections 115 and 116 for the mere abetment to commit a crime.
(2) The very act at which the abetment aims may be committed, and will be punishable
under sections 109 and 110.
(3) Some act different but naturally ﬂowing from the act abetted may be perpetrated, in
which case the abettor will fall under the penalties of sections 111, 112 and 113.
[s 116.1] Section 116 and Section 306.—
Section 116, IPC, 1860 is "abetment of offence punishable with imprisonment if
offence be not committed". But the crux of the offence under section 306 itself is
abetment. In other words, if there is no abetment there is no question of the offence
under section 306 coming into play. It is inconceivable to have abetment of an

abetment. Hence, there cannot be an offence under section 116 read with section 306,
IPC, 1860.114. The Supreme Court has never laid down in Satvir Singh115. that under no
circumstance an offence under section 306 read with section 511 IPC, 1860 can be
committed. The Supreme Court did not have occasion to consider whether a conviction
for an offence of attempt to abet the commission of suicide is punishable under
section 306 read with section 511, IPC, 1860. Merely because the section opens with
the words "if any person commits suicide" it cannot be held that in a case of
unsuccessful suicide there is no attempt to abet the commission of suicide. Suicide
and its attempt on the one hand and abetment of commission of suicide and its
attempt on the other are treated differently by law and, therefore, the one who abets the

commission of an unsuccessful attempt to commit suicide cannot be held to be
punishable merely under section 309 read with section 116, IPC, 1860. To implement
the scheme of law he has got to be held to be punishable under section 306 read with
section 511, IPC, 1860.116.

[s 117] Abetting commission of offence by the public or by more than ten
persons.
Whoever abets the commission of an offence by the public generally or by any
number or class of persons exceeding ten, shall be punished with imprisonment of
either description for a term which may extend to three years, or with ﬁne, or with
both.
A aﬃxes in a public place a placard instigating a sect consisting of more than ten
members to meet at a certain time and place, for the purpose of attacking the
members of an adverse sect, while engaged in a procession. A has committed the
offence deﬁned in this section.
COMMENT—
Abetting by public or more than ten persons.—Abetment has a reference both to the
person or persons abetted, and to the offence or offences the commission of which is
abetted. This section deals with former, whatever may be the nature of the offence
abetted, while section 115 deals with the latter without having regard to the person or

persons abetted.117.
Under this section it will be suﬃcient to show any instigation or other mode of
abetment, though neither the effect intended, nor any other effect follows from it. The
gravamen of a charge under this section is the abetment itself, the instigation to
general lawlessness, not the particular offence of which the commission is
instigated.118. The section covers all offences and is a general provision for abetment
of any number of persons exceeding ten. When more than ten persons are instigated to
commit an offence punishable with death, the offence comes under section 115 as
well as this section.119. Abetment of the commission of murder, whether by a single
individual or by a class of persons exceeding ten, falls under section 115. In the latter

case, it may fall under this section also, but as this section prescribes a lesser
punishment, section 115 is the more appropriate provision for such an offence.
Although both the sections are applicable, there cannot be separate sentences under
the two sections for the same criminal act, and the conviction should properly be under
that section which inﬂicts the higher punishment.120.
[s 117.1] Instigation is essential.—
A mere intention or preparation to instigate is neither instigation nor abetment. In order
to constitute an offence under this section by pasting leaﬂets it is necessary that either
the public should have read the leaﬂets or they should have been exposed to public
gaze.121.

117.  Lavji Mandan v State, (1939) 41 Bom LR 980 .
118.  Konda Satyavtamma v State, (1931) 55 Mad 90.
119.  Dwarkanath Goswami, (1932) 60 Cal 427 .
120.  Lavji Mandan, (1939) 41 Bom LR 980 .
121.  Parimal Chatterji, (1932) 60 Cal 327 .

[s 118] Concealing design to commit offence punishable with death or
imprisonment for life.
Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate
the commission of an offence punishable with death or 122.[imprisonment for life],
123.[voluntarily conceals by any act or omission or by the use of encryption or any
other information hiding tool, the existence of a design] to commit such offence or
makes any representation which he knows to be false respecting such design,
If offence be committed — if offence be not committed.
shall, if that offence be committed, be punished with imprisonment of either
description for a term which may extend to seven years, or, if the offence be not
committed, with imprisonment of either description for a term which may extend
to three years; and in either case shall also be liable to ﬁne.
A, knowing that dacoity is about to be committed at B, falsely informs the Magistrate

that a dacoity is about to be committed at C, a place in an opposite direction, and
thereby misleads the Magistrate with intent to facilitate the commission of the offence.
The dacoity is committed at B in pursuance of the design. A is punishable under this
section.
122.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
123.  Subs. by the Information Technology (Amendment) Act, 2008 (10 of 2009), section 51
(w.e.f. 27 October 2009).
COMMENT—
Concealing design to commit offence.—Sections 118, 119 and 120 all contemplate the
concealment of a design by persons other than the accused to commit the offence
charged. These sections apply to the concealment of all offences except those which
are merely punishable with ﬁne. Under section 107 concealment of a design to commit

an offence constitutes an abetment. There must be an obligation on the person
concealing the offence to disclose.124. The Cr PC, 1973 creates such obligation in
respect of several offences of a serious nature (sections 39 and 40 Cr PC, 1973). The
concealment to be criminal must be intentional or at least with knowledge that it will
facilitate the commission of an offence.

[s 119] Public servant concealing design to commit offence which it is his duty
to prevent.
Whoever, being a public servant, intending to facilitate or knowing it to be likely that
he will thereby facilitate the commission of an offence which it is his duty as such
public servant to prevent;
125.[voluntarily conceals by any act or omission or by the use of encryption or any
other information hiding tool, the existence of a design] to commit such offence, or
makes any representation which he knows to be false respecting such design;
If offence be committed.
shall, if the offence be committed, be punished with imprisonment of any
description provided for the offence, for a term which may extend to one-half of
the longest term of such imprisonment, or with such ﬁne as is provided for that
If offence be punishable with death, etc.
or, if the offence be punishable with death or 126.[imprisonment for life], with

imprisonment of either description for a term which may extend to ten years;
If offence be not committed.
or if the offence be not committed, shall be punished with imprisonment of any
description provided for the offence, for a term which may extend to one-fourth
part of the longest term of such imprisonment or with such ﬁne as is provided for
the offence, or with both.
A, an oﬃcer of police, being legally bound to give information of all designs to commit
robbery which may come to his knowledge, and knowing that B designs to commit
robbery, omits to give such information, with intent to so facilitate the commission of
that offence. Here A has by an illegal omission concealed the existence of B's design,
and is liable to punishment according to the provisions of this section.
COMMENT—

COMMENT—
Public servant concealing design to commit offence.—Section 118 deals with persons
who are not public servants. In this section the same principle is extended to public
servants but with severe penalty.

125.  Subs. by the Information Technology (Amendment) Act, 2008 (10 of 2009), section 51
126.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).

[s 120] Concealing design to commit offence punishable with imprisonment.
Whoever, intending to facilitate or knowing it to be likely that he will thereby facilitate
the commission of an offence punishable with imprisonment,
If offence be committed—if offence be not committed.
voluntarily conceals, by any act or illegal omission, the existence of a design to
commit such offence, or makes any representation which he knows to be false
respecting such design,
shall, if the offence be committed, be punished with imprisonment of the
description provided for the offence, for a term which may extend to one-fourth,
and, if the offence be not committed, to one-eighth, of the longest term for such
imprisonment, or with such ﬁne as is provided for the offence, or with both.
COMMENT—
Punishment for concealing design.—The basic principle of this section and section
118 is one and the same. Section 118 deals with offences punishable with death or

COMMENT—
imprisonment for life; this section deals with offences punishable with imprisonment.
All offences except those punishable only with ﬁne are included in these two sections.

1.CHAPTER V-A CRIMINAL CONSPIRACY
[s 120A] Deﬁnition of criminal conspiracy.
When two or more persons agree to do, or cause to be done,—
(1) an illegal act, or
(2) an act which is not illegal by illegal means, such an agreement is designated a
criminal conspiracy:
Providedthat no agreement except an agreement to commit an offence shall
amount to a criminal conspiracy unless some act besides the agreement is
done by one or more parties to such agreement in pursuance thereof.
Explanation.—It is immaterial whether the illegal act is the ultimate object of such
agreement, or is merely incidental to that object.
COMMENT—
Criminal conspiracy.—This chapter has introduced into the criminal law of India a new
offence, viz., the offence of criminal conspiracy. It came into existence by the
Criminal Law (Amendment) Act, 1913. Offence of criminal conspiracy is an exception
to the general law where intent alone does not constitute crime. It is intention to

commit crime and joining hands with persons having the same intention.2. Law
making conspiracy a crime is designed to curb immoderate power to do mischief
which is gained by a combination of the means. The encouragement and support
which co-conspirators give to one another rendering enterprises possible which, if left
to individual effort, would have been impossible, furnish the ground for visiting
conspirators and abettors with condign punishment. The conspiracy is held to be
continued and renewed as to all its members wherever and whenever any member of
the conspiracy acts in furtherance of the common design. Offence of criminal
conspiracy has its foundation in an agreement to commit an offence. A conspiracy
consists not merely in the intention of two or more, but in the agreement of two or

more to do an unlawful act by unlawful means.3. A criminal conspiracy must be put to
action inasmuch as so long a crime is generated in the mind of an accused, it does
not become punishable. What is necessary is not thoughts, which may even be
criminal in character, often involuntary, but offence would be said to have been
committed thereunder only when that take concrete shape of an agreement to do or
cause to be done an illegal act or an act which although not illegal by illegal means
and then if nothing further is done the agreement would give rise to a criminal
conspiracy.4.
[s 120A.1] Ingredients.—
The ingredients of this offence are—

(1) that there must be an agreement between the persons who are alleged to
conspire; and
(2) that the agreement should be
(i) for doing of an illegal act, or
(ii) for doing by illegal means an act which may not itself be illegal.5.
Meeting of minds of two or more persons for doing or causing to be done
an illegal act or an act by illegal means is sine qua non of criminal
conspiracy.6.
The most important ingredient of the offence being, the agreement between two or
more persons to do an illegal act. In a case where criminal conspiracy is alleged, the
court must inquire whether the two persons are independently pursuing the same end
or they have come together to pursue the unlawful object. The former does not render
them as conspirators but the latter does. For the offence of conspiracy some kind of
physical manifestation of agreement is required to be established. The express
agreement need not be proved. The evidence as to the transmission of thoughts

sharing the unlawful act is not suﬃcient. A conspiracy is a continuing offence which
continues to subsist till it is executed or rescinded or frustrated by choice of necessity.
During its subsistence whenever any one of the conspirators does an act or series of
acts, he would be held guilty under section 120-B of the Indian Penal Code, 1860 (IPC,
1860).7.
[s 120A.2] Elements of Criminal Conspiracy.—
(a) an object to be accomplished,
(b) a plan or scheme embodying means to accomplish that object,
(c) an agreement or understanding between two or more of the accused persons
whereby, they become deﬁnitely committed to cooperate for the
accomplishment of the object by the means embodied in the agreement, or by
any effectual means, and
(d) in the jurisdiction where the statute required an overt act.8.

1. Two or more persons needed.—To constitute the offence of conspiracy there must
be an agreement of two or more persons to do an act which is illegal or which is to be
done by illegal means for one cannot conspire with oneself. In Topandas v State of
Bombay,9. which has been cited by the Supreme Court with approval in Haradhan
Chakrabarty v UOI,10. it was laid down that "two or more persons must be parties to
such an agreement and one person alone can never be held guilty of criminal
conspiracy for the simple reason that one cannot conspire with oneself." The question
of a single person being convicted for an offence of conspiracy was considered in
Bimbadhar Pradhan v The State of Orissa,11.,12. and held that It is not essential that
more than one person should be convicted of the offence of criminal conspiracy. It is

enough if the court is in a position to ﬁnd that two or more persons were actually
concerned in the criminal conspiracy. In the Red fort Attack Case13. the Supreme Court
found that it was nothing but a well-planned conspiracy, in which apart from sole
appellant, some others were also involved and convicted the sole appellant for criminal
conspiracy.14. Under the common law since husband and wife constitute one person
there cannot be any conspiracy to commit an offence if husband and wife are the only
parties to an agreement.15. "It seems rather odd that though husband and wife by

themselves alone cannot be convicted of an offence of conspiracy for agreeing to
commit an offence but if two of them commit the self-same substantive offence they
can be convicted of that offence".16. Fortunately this state of law does not exist in
India, where husband and wife by themselves alone can be parties to a criminal
conspiracy. Where the husband is a party with some others in a conspiracy and his wife
joined him in that with knowledge that he was involved with others to commit an
unlawful act, she would be guilty of the conspiracy.17. Since conspiracy requires at
least two persons, where two or more named persons only were charged and all but
one of them were acquitted, the remaining accused could not be convicted under
section 120B, IPC, 1860, as he could not have conspired with himself.18. In a similar
case before the Supreme Court, a military major was tried for theft of military goods
along with nine others who were supposed to have abetted him. He was found guilty

along with one more accused and the rest were acquitted. On his appeal, the High
Court quashed the judgment of the Court martial because there was no proof that he
had removed the wheel drums. He was reinstated. In view of the acquittal and
reinstatement of the main accused, the matter of his co-accused came before the
Supreme Court. He too was ordered to be acquitted and reinstated.19. The same rule
obtained under the English common law provided two named persons were tried
together.20. This rule has now been abolished by section 5(8) of the Criminal Law Act,
1977 which provides that unless conviction of one becomes inconsistent with the
acquittal of the other even one of the two conspirators can be convicted, e.g., where
one was acquitted for want of sanction or on ground of being an exempted person. The

Bombay High Court has taken the same view in a case. Thus, where of the two accused
one was a public servant and he had to be acquitted as he was prosecuted without
obtaining sanction under section 197, Code of Criminal Procedure, 1973 (Cr PC, 1973),
the other could still be convicted on a charge of conspiracy as the acquittal of the other
accused was not on facts but on technical ground and in spite of evidence establishing
the factum of conspiracy.21.
The circumstances in which a single person can be tried and convicted have been thus,
stated in Kenny:22. "But though there must be plurality of conspirators, it is not
necessary that all should be brought to trial together. One person may be indicted,
alone, for conspiring with other persons who are not in custody, or who are even

unknown to the indictors. Indeed, some of the conspirators may be unknown to the
rest, provided all are acting under the directions of one leader. There need not be
communication between each conspirator and every other, provided there be a design
common to all."23. Thus, a wife knowing that her husband was involved with others in a
conspiracy, agreed with him that she would join the conspiracy and play her part, it was
held that she thereby became guilty of conspiracy notwithstanding that the only person
with whom she actually concluded the agreement was her husband.24.
2. Agreement is gist of the offence.—The gist of the offence is the bare engagement
and association to break the law, whether any act be done in pursuance thereof by the
conspirators or not.25. Meeting of minds is essential. Mere knowledge or discussion is

not suﬃcient.26. It is intention to commit crime and joining hands with persons having
the same intention. Not only the intention but the presence of an agreement to carry
out the object of the intention, is an offence. The question for consideration in a case is
did all the accused had the intention and did they agree that the crime be committed. It
would not be enough for the offence of conspiracy when some of the accused merely
entertained a wish, howsoever, horrendous it may be, that offence be committed.27. In
the absence of an agreement, a mere thought to commit a crime does not constitute
the offence.28. The offence of conspiracy is a substantive offence. It renders the mere
agreement to commit an offence punishable even if no offence takes place pursuant to

the illegal agreement.29. The object in view or the methods employed should be illegal,
as deﬁned in section 43, (supra). A distinction is drawn between an agreement to

commit an offence and an agreement of which either the object or the methods
employed are illegal but do not constitute an offence. In the case of the former, the
criminal conspiracy is completed by the act of agreement; in the case of the latter,
there must be some act done by one or more of the parties to the agreement to give
effect to the object thereof, that is, there must be an overt act. An express agreement
need not be proved. Evidence relating to transmission of thoughts leading to sharing of
thought relating to the unlawful act is suﬃcient.30. A wrong judgment or an inaccurate
or incorrect approach or poor management by itself, even after due deliberations
between Ministers or even with Prime Minister, by itself cannot be said to be a product
of criminal conspiracy.31. A few bits here and a few bits there on which the prosecution
relies cannot be held to be adequate for connecting the accused with the commission
of the crime of criminal conspiracy. It has to be shown that all means adopted and

illegal acts done were in furtherance of the object of conspiracy hatched. The
circumstances relied for the purposes of drawing an inference should be prior in point
of time than the actual commission of the offence in furtherance of the alleged
conspiracy.32.
The meeting of the minds to form a criminal conspiracy has to be proved by adducing
substantive evidence, in cases where the circumstantial evidence is incomplete or
vague.33.
[s 120A.3] Actus reus.—
The actus reus in a conspiracy is the agreement to execute the illegal conduct, not the
execution of it. It is not enough that two or more persons pursued the same unlawful
object at the same time or in the same place; it is necessary to show a meeting of
minds, a consensus to give effect to an unlawful purpose. It is not, however, necessary

that each conspirator should have been in communication with every other.34.
[s 120A.4] Participation.—
It is not necessary that all the conspirators should participate from the inception to the
end of the conspiracy; some may join the conspiracy after the time when such intention
was ﬁrst entertained by any one of them and some others may quit from the
conspiracy. All of them cannot be treated as conspirators. Where in pursuance of the
agreement the conspirators commit offences individually or adopt illegal means to do
a legal act which has a nexus to the object of conspiracy, all of them will be liable for
such offences even if some of them have not actively participated in the commission
of those offences.35. To constitute a conspiracy, meeting of mind of two or more

persons for doing an illegal act or an act by illegal means is the ﬁrst and primary
condition and it is not necessary that all the conspirators must know each and every
detail of conspiracy. Neither is it necessary that every one of the conspirators takes
active part in the commission of each and every conspiratorial act.36. Even if some
steps are resorted to by one or two of the conspirators without the knowledge of the
others it will not affect the culpability of those others when they are associated with the
object of the conspiracy.37. The rationale is that criminal acts done in furtherance of a
conspiracy may be suﬃciently dependent upon the encouragement and support of the
group as a whole to warrant treating each member as a causal agent to each act.
Under this view, which of the conspirators committed the substantive offence would be

less signiﬁcant in determining the defendant's liability than the fact that the crime was
performed as a part of a larger division of labour to which the accused had also
contributed his efforts.38.

[s 120A.5] Overt act.—
No overt act is necessary.39. Where the allegation against the third accused was that
he was merely standing nearby when the other accused committed the murder, he
cannot be charged for an offence under sections 302/120B, IPC, 1860, in the absence
of any other reliable evidence.40. In a case where the agreement is for accomplishment
of an act which by itself constitutes an offence, then in that event, unless the Statute so
requires, no overt act is necessary to be proved by the prosecution because in such a
fact-situation criminal conspiracy is established by proving such an agreement.41.
When two agree to carry it into effect, the very plot is an act in itself, and an act of each
of the parties, promise against promise, actus contra actum, capable of being enforced,
if lawful, punishable if for a criminal object or for use of criminal means.42. Where the
conspiracy alleged is with regard to the commission of a serious crime as

contemplated by section 120-B read with the proviso to sub-section (2) of section
120A, then the mere proof of an agreement is enough to bring about conviction under
section 120B and the proof of any overt act by the accused or by any of them would not
be necessary.43. The illegal act may or may not be done in pursuance of agreement, but
the very agreement is an offence and is punishable.44.
It is not an ingredient of the offence under this section that all the parties should agree
to do a single illegal act. It may comprise the commission of a number of acts. Where
the accused are charged with having conspired to do three categories of illegal acts,
the mere fact that all of them could not be convicted separately in respect of each of
the offences has no relevancy in considering the question whether the offence of

conspiracy has been committed. They can all be held guilty of the offence of
conspiracy to do illegal acts, though for individual offences all of them may not be
liable.45. Where the agreement between the accused is a conspiracy to do or continue
to do something which is illegal, it is immaterial whether the agreement to do any of
the acts in furtherance of the commission of the offence do not strictly amount to an
offence. The entire agreement must be viewed as a whole and it has to be ascertained
as to what in fact the conspirators intended to do or the object they wanted to
achieve.46. It is not necessary that each member of a conspiracy must know each other
or all the details of the conspiracy.47. It is also not necessary that every conspirator
must have taken part in each and every act done in pursuance of a conspiracy.48. It is,

however, necessary that a charge of conspiracy should contain particulars of the
names of the place or places where it was hatched, persons hatching it, how was it
hatched and what the purpose of the conspiracy was.49.
In the matter50. of the assassination of the then Prime Minister of India, Smt. Indira
Gandhi, one of the two actual killers and two conspirators were brought to trial. Both
the conspirators were away from the scene of the crime. One of them was acquitted by
the Supreme Court. His movements after the incident were not properly proved. The
documents recovered from his custody did not indicate any agreement between him
and the other accused. They only showed his agitated mind which was in the grip of an
avenging mood. This is not enough to establish an agreement with anybody. On the

other hand, about Kehar Singh, it was shown that he was having secret talks with one of
the actual killers, that they were trying all the time to keep themselves away from their
wives and children, they avoided the company of the other members of the family and
on being asked what they were talking about, they remained mysterious. These facts
were suﬃcient to show that they were planning something secret. This was enough to
constitute a prima facie evidence of conspiracy within the meaning of section 10 of the
Evidence Act, 1872 and to bring them within the jacket of punishment of all for the act
of one.

Privacy and secrecy are more characteristics of a conspiracy, than of a loud discussion
in an elevated place open to public view. Direct evidence in proof of a conspiracy is
seldom available; offence of conspiracy can be proved by either direct or circumstantial
evidence. It is not always possible to give aﬃrmative evidence about the date of the
formation of the criminal conspiracy, about the persons who took part in the formation
of the conspiracy, about the object, which the objectors set before themselves as the
object of conspiracy, and about the manner in which the object of conspiracy is to be
carried out, all this is necessarily a matter of inference.51. Thus, a conspiracy is an
inference from circumstances. There cannot always be much direct evidence about it.
Conspiracy can be inferred even from the circumstances giving rise to a conclusive or
irresistible inference of an agreement between two or more persons to commit an

offence.52. It is manifest that the meeting of minds of two or more persons is a sine
qua non but it may not be possible to establish by direct evidence. Its existence and
objective can be inferred from the surrounding circumstances and parties conduct. It is
necessary that the incriminating circumstances must form a chain of events, from
which a conclusion about the accused's guilt could be drawn. The help of
circumstantial evidence is necessary because a conspiracy is always hatched in
secrecy. It becomes diﬃcult to locate any direct evidence.53. A businessman was in
great need of money for completing the construction of a theatre complex. He was
approached by a person who told him that his ﬁnancier friend would help him with
money. This was followed by a number of meetings between him and the team of

ﬁnanciers during which documents were executed and money released in cash which
cash was found to be counterfeit currency. Every member of the team was held to be
guilty of conspiracy and of cheating under section 420.54. Seizure of unexplained
currency notes from the possession of a person who claimed to be the owner of the
money was held to be not suﬃcient to connect him with the person who was the main
accused of smuggling currency, though he was a relative of the main accused.55.
Where a bank accountant dishonestly agreed with others to conceal dishonour of
cheques purchased by the bank and thus, causing risk to the economic interests of the
bank, he was held guilty of conspiring to defraud whatever his motive or underlying
purpose might have been (he contended that he acted in the interest of the bank) and

even though he had no desire to harm the victim and no loss was actually caused.56.
Oﬃcials of a nationalised bank, in violation of departmental instructions, allowing
advance credits on banker's cheques to the account of a customer dealing in
securities. Advance credits were allowed before the cheques were sent for clearance
and in some cases even before the cheques were received. This allowed the customer
to take pecuniary advantage by overdrawing money from his account which he was not
entitled to. Public funds were thus, misused. It was held that a criminal conspiracy
between bank oﬃcials and the customer stood proved. One of them was acquitted
because no conclusive evidence could be found against him.57.
A criminal conspiracy can be proved by circumstantial evidence or by necessary

implication. A smaller conspiracy may be the part of a larger conspiracy. It was held on
facts that a criminal conspiracy was established when oﬃcials of two public sector
banks acted in such a way that the transaction appeared to be an inter-banking
transaction relating to call money which the borrowing bank was supposed to retain
with itself but the transaction was in fact meant to help a private party to use public
funds for private purpose.58. Where the accused, an LIC agent, was charged with
cheating the LIC by entering into conspiracy with the co-accused, a Development
Oﬃcer, on the allegation that insurance policies were got issued on the basis of fake
and forged documents and he received premium commission and bonus in respect of
those policies, the accused was entitled to be acquitted because the forging was done

by the co-accused without the knowledge and consent of the accused. Bonus,
Commission, etc., in respect of those policies were credited to his account only in the
normal course.59. A 'vaid' and an 'up-vaid' who, in conspiracy with others made bogus

medical bills for government servants and got them duly passed through their
Ayurvedic Aushadhalaya for payment of 30 per cent of the amount of the bills, were
caught in a trap and the tainted money was recovered from the accused. One of the
accused died during the pendency of appeal. Conviction of the other under sections
120B/468 was held to be proper.60.
A group of friends went to a club for fun and frolic. One of them (the main accused)
suddenly ﬁred at the bar mate for her refusal to serve drinks. The others were unaware
of the accused carrying a loaded pistol. They had stayed at the club for about two and
a half hours. The Court said that this could not constitute an evidence of conspiracy.
The Court also said that the fact that the group members dispersed separately and
also helped to retrieve the murder weapon would not suggest conspiracy for murder.61.
[s 120A.6] Same verdict in respect of each not necessary.—
It has been held that the rule that both parties to a conspiracy had to be convicted or

acquitted has been abrogated by the Criminal Law Act, 1977 (English). The important
question is whether there is a material difference in the evidence against the two.62.
[s 120A.7] Sections 34 and 120A.—
There is not much substantial difference between conspiracy as deﬁned in section
120A and acting on a common intention, as contemplated in section 34. While in the
former, the gist of the offence is bare engagement and association to break the law
even though the illegal act does not follow, the gist of the offence under section 34 is
the commission of a criminal act in furtherance of a common intention of all the
offenders, which means that there should be unity of criminal behaviour resulting in
something, for which an individual would be punishable, if it were all done by himself

alone.63. Another point of difference is that a single person cannot be convicted under
section 120A and, therefore, where all the accused except one were acquitted, the
Supreme Court ordered his acquittal also,64. whereas under section 34, read with some
other speciﬁc offence, a single person can be convicted because each is responsible
for the acts of all others.
[s 120A.8] Sections 107 and 120A.—
For an offence under this section a mere agreement is enough if the agreement is to
commit an offence. But, for an offence under the second clause of section 107 an act
or illegal omission must take place in pursuance of the conspiracy and a mere
agreement is not enough.65.
3. How proved (section 120A IPC, 1860 and section 10 Evidence Act, 1872-Doctrine
of agency).—There is no difference between the mode of proof of the offence of

conspiracy and that of any other offence, it can be established by direct evidence or by
circumstantial evidence. But section 10 of the Evidence Act introduces the doctrine of
agency and if the conditions laid down therein are satisﬁed, the acts done by one are
admissible against the coconspirators. When men enter into an agreement for an
unlawful end, they become ad-hoc agents for one another and have made a partnership
in crime. The said section reads: "Where there is reasonable ground to believe that two
or more persons have conspired together to commit an offence or an actionable wrong,
anything said, done or written by any one of such persons in reference to their common

intention, after the time when such intention was ﬁrst entertained by any one of them is
a relevant fact against each of the persons believed to be so conspiring, as well as for
the purpose of proving the existence of the conspiracy as for the purpose of showing
that any such person was party to it."
The section can be analysed as follows: "(1) There shall be a prima facie evidence
affording a reasonable ground for a Court to believe that two or more persons are
members of a conspiracy; (2) if the said condition is fulﬁlled, anything said, done or
written by any one of them in reference to their common intention will be evidence
against the other; (3) anything said, done or written by him should have been said, done
or written by him after the intention was formed by any one of them; (4) it would also
be relevant for the said purpose against another who entered the conspiracy whether it
was said, done or written before he entered the conspiracy or after he left it; and (5) it

can only be used against a coconspirator and not in his favour."66.
Since conspiracy is often hatched up in utmost secrecy it is mostly impossible to prove
conspiracy by direct evidence. It has, oftener than not, to be inferred from the acts,
statements and conduct of the parties to the conspiracy.67. The circumstances proved
before, during and after the occurrence have to be considered to decide about the
complicity of the accused.68. If it is proved that the accused pursued, by their acts, the
same object often by the same means, one performing one part of the act and the
other another part of the same act so as to complete it with a view to attainment of the
object which they were pursuing, the Court is at liberty to draw the inference that they
conspired together to effect that object.69. It should, however, be remembered that

where there is no direct evidence, for example through the evidence of an approver, and
the case for the prosecution is dependent on circumstantial evidence alone, it is
necessary for the prosecution to prove and establish such circumstances as would
lead to the only conclusion of existence of a criminal conspiracy and rule out the theory
of innocence.70. Thus, chairman of a large cooperative society cannot be punished
vicariously for the acts of others as mens rea cannot be excluded in a criminal case. As
a chairman he had to deal with various matters and it would have been impossible for
him to look into every detail to ﬁnd out if someone was committing any criminal breach
of trust.71. Similarly, a case of conspiracy to misappropriate cash entrusted to the

accused is not made out merely from the audit report without any evidence of shortage
on actual veriﬁcation of cash as mistakes and even double entries may be made bona
ﬁde while preparing the account.72. The onus is on the prosecution to prove the charge
of conspiracy by cogent evidence, direct or circumstantial.73. One more principle which
deserves notice is that the cumulative effect of the proved circumstances should be
taken into account in determining the guilt of the accused rather than adopting an
isolated approach to each of the circumstances. Of course, each one of the
circumstances should be proved beyond reasonable doubt. Lastly, in regard to the
appreciation of evidence relating to the conspiracy, the Court must take care to see that
the acts or conduct of the parties must be conscious and clear enough to infer their

concurrence as to the common design and its execution.74.
[s 120A.9] Inference of conspiracy.—
It is a matter of common experience that direct evidence to prove conspiracy is rarely
available.75. Thus, it is extremely diﬃcult to adduce direct evidence to prove
conspiracy. Existence of conspiracy and its objective can be inferred from the
surrounding circumstances and the conduct of the accused. In some cases, indulgence
in the illegal act or legal act by illegal means may be inferred from the knowledge
itself.76. It can be a matter of inference drawn by the Court after considering whether
the basic facts and circumstances on the basis of which inference is drawn have been

proved beyond all reasonable doubts and that no other conclusion except that of the
complicity of Accused to have agreed to commit an offence is evident.77. Accordingly,
the circumstances proved before and after the occurrence have to be considered to
decide about the complicity of the accused. Even if some acts are proved to have been
committed, it must be clear that they were so committed in pursuance of an agreement
made between the accused persons who were parties to the alleged conspiracy.
Inferences from such proved circumstances regarding the guilt may be drawn only
when such circumstances are incapable of any other reasonable explanation. An
offence of conspiracy cannot be deemed to have been established on mere suspicion
and surmises or inference which are not supported by cogent and acceptable evidence.
when such circumstances are incapable of any other reasonable explanation. To

establish a charge of conspiracy knowledge about indulgence in either an illegal act or
a legal act by illegal means is necessary. In some cases, intent of unlawful use being
made of the goods or services in question may be inferred from the knowledge
itself.78. This apart, the prosecution has not to establish that a particular unlawful use
was intended, so long as the goods or service in question could not be put to any lawful
use. Finally when the ultimate offence consists of a chain of actions, it would not be
necessary for the prosecution to establish, to bring home the charge of conspiracy, that
each of the conspirators had the knowledge of what the collaborator would do.79.
One of the accused persons, a foreign national, was found staying in the country
without valid passport and visa. His movement to various places with the main

accused was established. A large quantity of arms and ammunition was recovered
from the place occupied by the main accused. The Court said that an inference of
criminal conspiracy could be drawn.80. The Court also said that the appeal against
conviction of the main accused was dismissed would not be suﬃcient to say that the
charge of conspiracy against other accused would be deemed to be proved.81.
Circumstances proved before, during and after the occurrence of the crime have to be
considered together to decide about the complicity of the accused.82. Circumstantial
evidence was based on the recovery of the scooter used by the executant and alleged
to have been owned by a co-conspirator, but the recovery was not based on any
information given by the accused, but by one witness. The Supreme Court held that no

circumstantial evidence was proved against any of the conspirators.83.
[s 120A.10] Circumstantial evidence, inference must be backed by evidence.—
Most of the circumstances stated as against the accused were not proved. Merely
based on the circumstance that the accused had ﬁled a civil suit against the deceased
for restraining him from doing a business he cannot be convicted. Moreover, there was
no speciﬁc evidence as to who the conspirators were, where and when the conspiracy
was hatched, what the speciﬁc purpose of such a conspiracy was and whether it was
relating to the elimination of the deceased.84. The law is well established that
conspiracy cannot be proved merely on the basis of inferences. The inferences have to
be backed by evidence.85.
The Court for the purpose of arriving at a ﬁnding as to whether the said offence has

been committed or not may take into consideration the circumstantial evidence.
However, while doing so, it must bear in mind that the meeting of minds is essential
and mere knowledge or discussion would not be suﬃcient.86. In Mukesh v State for
NCT of Delhi, Criminal Appeal Nos. 607–608 of 2017, (popular as Nirbhaya Case) the
criminal conspiracy was proved by the sequence of events and the conduct of the
accused.

1.  Chapter VA (containing sections 120A and 120B) inserted by Act 8 of 1913, section 3.
2.  State through Superintendent of Police, CBI/SIT v Nalini, reported in (1999) 5 SCC 253 [LNIND
1999 SC 526] .
3.  Pratapbhai Hamirbhai Solanki v State of Gujarat, (2013) 1 SCC 613 [LNIND 2012 SC 1033] :
2012 (10) Scale 237 [LNIND 2012 SC 1033] relying on Ram Narayan Popli v Central Bureau of
In the conspiracy for assassination of the former PM (Rajiv Gandhi) one of the accused
persons at one point of time in his confessional statement said that he had a strong
suspicion that Rajiv Gandhi was the target of the accused persons. The Court said that
this suspicion did not make him a member of the conspiracy. His association, however
strong with the main conspirators would not make him a member of the conspiracy by
itself. But those who were in the thick of the conspiracy, for example, one who
purchased the battery for explosion of human body, their conviction for the main

offence was proper. But mere association with LTTE was not suﬃcient nor the fact that
messages about arrests were sent by certain persons.87.
[s 120A.11] Contacts through telephone.—
Where the case against the appellants A2 to A4 is that they had hatched a conspiracy
with appellant A1 to kill the deceased and the case against A1 was proved as per the
'last seen theory', and to prove the conspiracy the prosecution relied on the
circumstance that there were frequent phone calls among the accused some days
around the date of murder, and the recovery of some vehicles; the Supreme Court held
that the telephonic calls and the recovery may raise suspicion against the accused but
mere suspicion by itself cannot take the place of proof.88.
[s 120A.12] Between bank oﬃcials.—
Criminal conspiracy was taken to be established when oﬃcials of two public sector

banks acted in such a way that the transaction in question appeared to be an inter-
banking transaction relating to call money which the borrowing bank was supposed to
retain with itself. The transaction was in fact formalised for the purpose of helping a
private party to use public funds for a private purpose.89.
[s 120A.13] Approval of television serial.—
The accused was the director of Doordarshan. The allegation against him was that he
continued a serial which was approved at lower rates by an earlier director. Each
director worked at different point of time. They did not work together. Their postings
were oﬃcial postings. It was diﬃcult to infer any conspiracy between them for
continuing the telecast. The investigation launched against the director was liable to be
quashed.90.

Investigation, (2003) 3 SCC 641 [LNIND 2003 SC 26] .
4.  State of MP v Sheetla Sahai, 2009 Cr LJ 4436 : (2009) 8 SCC 617 : (2009) 3 SCC(Cr) 901.
5.  Yogesh v State of Maharashtra, AIR 2008 SC 2991 [LNIND 2008 SC 979] : 2008 Cr LJ 3872 :
(2008) 10 SCC 394 [LNIND 2008 SC 979] ; S Arul Raja v State of TN, reported in, 2010 (8) SCC
233 [LNIND 2010 SC 689] ; Mohan Singh v State of Bihar, AIR 2011 SC 3534 [LNIND 2011 SC 820]
: 2011 Cr LJ 4837 : (2011) 9 SCC 272 [LNIND 2011 SC 820] ; Central Bureau of Investigation
Hyderabad v K Narayana Rao, 2012 AIR SCW 5139 : 2012 Cr LJ 4610 : JT 2012 (9) SC 359
[LNIND 2012 SC 569] : (2012) 9 SCC 512 [LNIND 2012 SC 569] : 2012 (9) Scale 228 [LNIND 2012
SC 569] ; Ajay Aggarwal v UOI, (AIR 1993 SC 1637 [LNIND 1993 SC 431] : 1993 AIR SCW 1866 :
1993 Cr LJ 2516 ) : (1993) 3 SCC 609 [LNIND 1993 SC 431] .
6.  Rajiv Kumar v State of UP, AIR 2017 SC 3772 [LNIND 2017 SC 367] .
7.  Pratapbhai Hamirbhai Solanki v State of Gujarat, (2013) 1 SCC 613 [LNIND 2012 SC 1033] :

2012 Mad LJ (Cr) 532 : 2012 (10) Scale 237 [LNIND 2012 SC 1033] ; Damodar v State of
Rajasthan, (2004) 12 SCC 336 [LNIND 2003 SC 803] ; Kehar Singh v State (Delhi Admn), (1988) 3
SCC 609 [LNIND 1988 SC 887] ; State of Maharashtra v Somnath Thapa, (1996) 4 SCC 659
[LNIND 1996 SC 776] .
8.  Ram Narayan Popli v Central Bureau of Investigation, (2003) 3 SCC 641 [LNIND 2003 SC 26] .
9.  Topandas v State of Bombay, AIR 1956 SC 33 [LNIND 1955 SC 78] : 1956 Cr LJ 138 : (1955) 2
SCR 881 [LNIND 1955 SC 78] . The ruling in Topandas case, AIR 1956 SC 33 [LNIND 1955 SC 78]
and Fakhruddin case, AIR 1967 SC 1326 [LNIND 1966 SC 307] were not followed in Sanichar
Sahni v State of Bihar, (2009) 7 SCC 198 [LNIND 2009 SC 1350] : (2009) 3 SCC (Cr) 347, because
here only one person was charged under section 120-B and for no other offence, and his co-

accused was charged with another offence but not under section 120-B, the court said that the
charge was not properly framed. In the earlier cases, more than one were charged with
conspiracy, all but one were acquitted, the single one could not be convicted. He was convicted
for murder which was proved against him.
10.  Haradhan Chakrabarty v UOI, AIR 1990 SC 1210 [LNIND 1990 SC 57] : 1990 Cr LJ 1246 :
(1990) 2 SCC 143 [LNIND 1990 SC 57] .
11.  See also Thakur H v State of HP, 2013 Cr LJ 1704 (HP).
12.  Bimbadhar Pradhan v The State of Orissa, AIR 1956 SC 469 [LNIND 1956 SC 25] .
13.  Mohd Arif v State of NCT of Delhi, JT 2011 (9) SC 563 [LNIND 2011 SC 753] : (2011) 13 SCC
621 [LNIND 2011 SC 753] : (2011) 10 SCR 56 [LNIND 2011 SC 753] : 2011 (8) Scale 328 [LNIND
2011 SC 753] .

14.  McDowell, (1966) 1 All ER 193 : (1965) 3 WLR 1138 ; Rex v IRC Haulage, (1944) KB 551 :
(1944) 1 All ER 691 . Central Bureau of Investigation v VC Shukla, AIR 1998 SC 1406 [LNIND 1998
SC 272] : 1998 Cr LJ 1905 ; Ajay Kumar Rana v State of Bihar, 2001 Cr LJ 3837 (Pat).
15.  Mowji, (1957) All ER 385 : (1957) 2 WLR 277 . See Glanville Williams, Legal Unity of Husband
and Wife, 10 Modern LR 16 (1947). "But either spouse may be convicted of inciting the other to
commit a crime if such be proved." See Kenny, 450, p 428, Outlines Of Criminal Law, 19th Edn
1966.
16.  Cross & Jones : Introduction To Criminal Law, 9th Edn, p 343.
17.  R v Charstny, (1991) 1 WLR 1381 (CA).
18.  Bhagat Ram, AIR 1972 SC 1502 [LNIND 1972 SC 72] : 1972 Cr LJ 909 ; Tapandas, AIR 1956
SC 33 [LNIND 1955 SC 78] : (1955) 2 SCR 881 [LNIND 1955 SC 78] ; Fakhruddin, AIR 1967 SC

1326 [LNIND 1966 SC 307] : 1967 Cr LJ 1197 ; See also State v Dilbagh Rai, 1986 Cr LJ 138
(Delhi).
19.  Relying upon Faguna Kanta Nath v State of Assam, AIR 1959 SC 673 [LNIND 1959 SC 2] :
1959 Cr LJ 90 : 1959 Supp 2 SCR 1, where also the acquittal of the co-accused automatically

followed the acquittal of the main accused; Madan Lal Bhandari v State of Rajasthan, AIR 1970
SC 436 [LNIND 1969 SC 230] : 1970 Cr LJ 519 : (1969) 2 SCC 385 [LNIND 1969 SC 230] : (1970)
1 SCR 688 [LNIND 1969 SC 230] , the nurse causing miscarriage acquitted, the conspirator also
20.  Plummer v State, (1902) 2 KB 339 ; Coughlan (1976) 64 Cr App Rep 11 .
21.  Pradumna, 1981 Cr LJ 1873 (Bom).
22.  JE Cecil Turner, Kenny's Outlines of Criminal Law, 428, 19th Edn, 1966.
23.  Citing R v Myrick and Ribuﬃ, (1929) 21 Cr App R 94 TAC.
24.  Regina v Chrastry, (1991) 1 WLR 1381 (CA). Kuldeep Singh v State of Rajasthan, 2001 Cr LJ
479 (SC), the only evidence against one of the accused conspirators was that he was seen
moving with others to the house of the deceased. This was held to be not suﬃcient to make him
a part of the conspiracy or participant in murder.
25.  Mohammad Ismail, (1936) Nag 152; Bimbadhar Pradhan, (1956) Cut 409 SC; EG Barsay, AIR

1961 SC 1762 [LNIND 1961 SC 196] : 1962 (2) SCR 195 [LNIND 1961 SC 196] ; Chaman Lal v
State of Punjab, (2009) 11 SCC 721 [LNIND 2009 SC 721] AIR 2009 SC 2972 [LNIND 2009 SC
721] , requisites of the offence restated.
26.  Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr) 646 :
Baldev Singh v State of Punjab, (2009) 6 SCC 564 [LNIND 2009 SC 1151] : (2009) 3 SCC (Cr) 66.
27.  State through Superintendent of Police, CBI/SIT v Nalini, reported in (1999) 5 SCC 253 [LNIND
1999 SC 526] Mere knowledge, or even discussion, of the plan is not, per se enough; Russell on
Crimes, 12th Edn, vol I, quoted in Kehar Singh v State (Delhi Administration), 1988 (3) SCC 609
[LNIND 1988 SC 887] at 731.
28.  R Venkatakrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .

29.  Yogesh v State of Maharashtra, AIR 2008 SC 2991 [LNIND 2008 SC 979] : 2008 Cr LJ 3872 :
(2008) 10 SCC 394 [LNIND 2008 SC 979] .
30.  Esher Singh v State of AP, AIR 2004 SC 3030 [LNIND 2004 SC 329] : (2004) 11 SCC 585
[LNIND 2004 SC 329] . K Hashim v State of TN, AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005)
1 SCC 237 [LNIND 2004 SC 1142] , the court enumerated four elements of criminal conspiracy,
the essence is an unlawful agreement and it is complete when the agreement is framed. A
design resting in mind only does not make out the offence.
31.  Subramanian Swamy v A Raja, AIR 2012 SC 3336 [LNIND 2012 SC 498] : 2012 Cr LJ 4443 :
(2012) 9 SCC 257 [LNIND 2012 SC 498] (Involvement of ﬁnance minister in 2G Spectrum Case) -
Criminal conspiracy cannot be inferred on the mere fact that there were oﬃcial discussions

between the oﬃcers of the MoF and that of DoT and between two Ministers, which are all
recorded. Suspicion, however, strong, cannot take the place of legal proof and the meeting
between Shri P Chidambaram and Shri A Raja would not by itself be suﬃcient to infer the
existence of a criminal conspiracy so as to indict Shri P. Chidambaram.
32.  Esher Singh v State of AP, 2004 (11) SCC 585 [LNIND 2004 SC 329] .
33.  Gulam Sarbar v State of Bihar, 2014 Cr LJ 34 : (2014 ) 3 SCC 401.
34.  Chaman Lal v State of Punjab, AIR 2009 SC 2972 [LNIND 2009 SC 721] : (2009) 11 SCC 721
[LNIND 2009 SC 721] : (2010) 1 SCC(Cr) 159.
35.  State through Superintendent of Police, CBI/SIT v Nalini, reported in (1999) 5 SCC 253
[LNIND 1999 SC 526] ; State of HP v Krishan Lal Pardhan, ( AIR 1987 SC 773 [LNIND 1987 SC

131] : 1987 Cr LJ 709 ) : (1987) 2 SCC 17 [LNIND 1987 SC 131] .
36.  K R Purushothaman v State, AIR 2006 SC 35 [LNIND 2005 SC 842] : (2005) 12 SCC 631
[LNIND 2005 SC 842] ; approved in John Pandian v State Rep by Inspector of Police, TN, AIR 2011
SC (Supp) 531 : (2011) 3 SCC(Cr) 550 : 2010 (13) Scale 13.

37.  Yash Pal Mittal v State of Punjab, AIR 1977 SC 2433 [LNIND 1977 SC 304] : 1978 Cr LJ 189 :
(1977) 4 SCC 540 [LNIND 1977 SC 304] .
38.  Firozuddin Basheeruddin v State, 2001 (7) SCC 596 [LNIND 2001 SC 1755] .
39.  K Hasim v State of TN, AIR 2005 SC 128 [LNIND 2004 SC 1142] : 2005 Cr LJ 143 .
40.  Raju v State of Chhatisgarh, 2014 Cr LJ 4425 : 2014 (9) SCJ 453 [LNINDORD 2014 SC 19031]
.
41.  Sushil Suri v CBI, AIR 2011 SC 1713 [LNIND 2011 SC 494] : (2011) 5 SCC 708 [LNIND 2011
SC 494] : (2011) 2 SCC(Cr) 764 : (2011) 8 SCR 1 [LNIND 2011 SC 494] .
42.  Chaman Lal v State of Punjab, AIR 2009 SC 2972 [LNIND 2009 SC 721] : (2009) 11 SCC 721
43.  SC Bahri v State of Bihar, AIR 1994 SC 2020 : 1994 Cr LJ 3271 .
44.  Kehar Singh v State (Delhi Administration), AIR 1988 SC 1883 [LNIND 1988 SC 887] : 1989 Cr
LJ 1 : (1988) 3 SCC 609 [LNIND 1988 SC 887] .
45.  EG Barsay, AIR 1961 SC 1762 [LNIND 1961 SC 196] : 1962 (2) SCR 195 [LNIND 1961 SC 196]
.

.
46.  Lennart v State, AIR 1970 SC 549 [LNIND 1969 SC 396] : 1970 Cr LJ 707 .
47.  RK Dalmia, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1962) 2 Cr LJ 805 ; Yashpal v State,
AIR 1977 SC 2433 [LNIND 1977 SC 304] SC : 1978 Cr LJ 189 .
48.  State of HP v Krishanlal Pradhan, AIR 1987 SC 773 [LNIND 1987 SC 131] : 1987 Cr LJ 709 :
(1987) 2 SCC 17 [LNIND 1987 SC 131] .
49.  KS Narayanan, 1982 Cr LJ 1611 (Mad); Krishnalal Naskar, 1982 Cr LJ 1305 (Cal). Mahabir
Prasad Akela v State of Bihar, 1987 Cr LJ 1545 Pat, no meeting of minds.
50.  (1988) 3 SCC 609 [LNIND 1988 SC 887] : AIR 1988 SC 1883 [LNIND 1988 SC 887] : 1989 CR
LJ 1 . AS AGAINST THIS SEE, Param Hans Yadav v State of Bihar, AIR 1987 SC 955 [LNIND 1987
SC 253] : 1987 Cr LJ 789 : (1987) 2 SCC 197 [LNIND 1987 SC 253] , murder of Collector by a

person whose connection with the jailed co-accused not proved, though the latter had a grudge
against the collector for demolishing his temple and detaining him. Reversing the High Court
decision, 1986 Pat LJR 688 .
51.  Mohd Arif v State of NCT of Delhi, JT 2011 (9) SC 563 [LNIND 2011 SC 753] : (2011) 13 SCC
621 [LNIND 2011 SC 753] : 2011 (8) Scale 328 [LNIND 2011 SC 753] : (2011) 10 SCR 56 [LNIND
2011 SC 753] ; NV Subba Rao v State, (2013) 2 SCC 162 [LNIND 2012 SC 1350] : 2013 Cr LJ 953 .
52.  MS Reddy v State Inspector of Police ACB Nellore, 1993 Cr LJ 558 (AP). Ammuni v State of
Kerala, AIR 1998 SC 280 : 1998 Cr LJ 481 , the accused administered poison and caused death
of the woman and her two children, there was evidence to show that all the four entered into a

conspiracy to murder the woman. They were seen hanging around her house. One of the glass
tumblers recovered from her place carried the ﬁnger prints of one of them. One of them also
confessed. Conspiracy proved conviction under sections 300/34, conﬁrmed. Kuldeep Singh v
State of Rajasthan, AIR 2000 SC 3649 [LNIND 2000 SC 724] , accused persons entered into
conspiracy to cause death, circumstantial evidence coupled with recoveries. Guilt established.
Conviction for murder and conspiracy.
53.  Yogesh v State of Maharashtra, AIR 2008 SC 2991 [LNIND 2008 SC 979] : 2008 Cr LJ 3872 :
54.  Nellai Ganesan v State, 1991 Cr LJ 2157 . See also Khalid v. State, 1990 Cr LJ (NOC) Raj,
where the court inferred the fact of agreement from transmission of thoughts sharing the

unlawful design, the court observing that neither proof of actual words of communication nor
actual physical meeting of persons involved is necessary.
55.  KTMS Mohd v UOI, AIR 1992 SC 1831 [LNIND 1992 SC 362] : 1992 Cr LJ 2781 .

56.  Wai Yu-Tsang v The Queen, (1991) 3 WLR 1006 PC, applying Welham v DPP, (1961) AC 103
HL(E) and Reg v Allsop, (1976) 64 Cr App R; CA. Shambhu Singh v State of UP, AIR 1994 SC 1559
: 1994 Cr LJ 1584 , the Supreme Court did not interfere in the concurrent ﬁnding of the lower
courts as to the involvement of the accused in the conspiracy.
57.  Mir Naqvi Askari v CBI, AIR 2010 SC 528 [LNIND 2009 SC 1651] : (2009) 15 SCC 643 [LNIND
2009 SC 1651] . The court also explained the nature of the crime.
58.  R Venkatakrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] , under the National
Housing Bank Act, 1987. Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] :
(2009) 3 SCC (Cr) 646; criminal conspiracy by bank oﬃcials in relation to Harshad Mehta
Securities Scam, illegally extending discounting/ rediscounting facility for bills of exchange by
bank oﬃcials, conspiracy in relation to persons liable to be convicted, role/conduct necessary to
fasten liability.

59.  Nand Kumar Singh v State of Bihar, AIR 1992 SC 1939 : 992 Cr LJ 3587 : (1992) Supp (2)
SCC 111 .
60.  Narain Lal Nirala v State of Rajasthan, AIR 1993 SC 118 : 1993 Cr LJ 3911 .
61.  State v Siddarth Vashisth (alias Manu Sharma), 2001 Cr LJ 2404 (Del).
62.  R v Ashton, (1992) Cr LR 667 (CA).
63.  Dinanath, 1939 Nag 644.
64.  Vinayak v State of Maharashtra, AIR 1984 SC 1793 [LNIND 1984 SC 255] : (1984) 4 SCC 441
[LNIND 1984 SC 255] : 1984 SCC (Cr) 605.
65.  Pramatha Nath v Saroj Ranjan, AIR 1962 SC 876 [LNIND 1961 SC 400] : (1962) 1 Cr LJ 770 .
Further explained by the Supreme Court in Kehar Singh v State (Delhi Admn), AIR 1988 SC 1883
[LNIND 1988 SC 887] : 1989 Cr Lj 1 : (1988) 3 SCC 609 [LNIND 1988 SC 887] .
66.  State of TN through Superintendent of Police CBI/SIT v Nalini, AIR 1999 SC 2640 [LNIND
1999 SC 1584] : 1999 Cr LJ 3124 : JT 1999 (4) SC 106 [LNIND 1999 SC 526] : (1999) 5 SCC 253

[LNIND 1999 SC 526] ; Sardar Sardul Singh Caveeshar v State of Maharashtra, ( AIR 1965 SC 682
[LNIND 1963 SC 67] : 1965 (1) Cr LJ 608 ) : (1964) 2 SCR 378 [LNIND 1963 SC 67] See also.
67.  Bhagwandas, AIR 1974 SC 898 : 1974 Cr LJ 751 ; Ashok Datta Naik, 1979 Cr LJ NOC 95
(Goa); V Shivanarayan, AIR 1980 SC 439 : 1980 Cr LJ 388 ; Mohd Usman Mohd Hussain, AIR 1981
SC 1062 [LNIND 1981 SC 127] : 1981 Cr LJ 588 : (1988) 3 SCC 609 [LNIND 1988 SC 887] ; State
of UP v Girijashankar Misra, 1985 Cr LJ NOC 79 (Delhi); Subhas, 1985 Cr LJ 1807 (Cal).
68.  Pratapbhai Hamirbhai Solanki v State of Gujarat, (2013) 1 SCC 613 [LNIND 2012 SC 1033] :
2012 Mad LJ (Cr) 532 : 2012 (10) Scale 237 [LNIND 2012 SC 1033] ; An offence of criminal
conspiracy can also be proved by circumstantial evidence. State of MP v Sheetla Sahai, 2009 Cr

LJ 4436 : (2009) 8 SCC 617 : (2009) 3 SCC(Cr) 901]. In S Arul Raja v State of TN, 2010 (8) SCC
233 [LNIND 2010 SC 689] in which it is held that mere circumstantial evidence to prove the
involvement of the appellant is not suﬃcient to meet the requirements of criminal conspiracy
under Section 120A of the (IPC, 1860) A meeting of minds to form a criminal conspiracy has to
be proved by placing substantive evidence.
69.  Re MD Mendekar, 1972 Cr LJ 978 (Mysore); See also Bhagwandas, supra.
70.  DB Naik, 1982 Cr LJ 856 (Bom); Hari Ram, 1982 Cr LJ 294 (HP).
71.  Jethsur Surangbhai, AIR 1984 SC 151 [LNIND 1983 SC 329] : 1984 Cr LJ 162 (SC) : (1984)
SCC (Cr) 474.
72.  Ajoyadha PrashadI 1985 Cr LJ 1401 (Ori).
73.  State v VC Shukla, 1980 Cr LJ 965 : 1980 Cr LR (SC) 301 . Also VC Shukla v State (Delhi

Admn), AIR 1980 SC 1382 [LNIND 1980 SC 179] : 1980 SCC (Cr) 561 and 849 (1980) 2 SCC 665
[LNIND 1980 SC 179] . State of HP v Gian Chand, 2000 Cr LJ 949 (HP); Sardari Lal v State of
Punjab, 2003 Cr LJ 383 (P&H), State of MP v Sheetla Sahai, (2009) 8 SCC 617 : (2009) 3 SCC (Cr)

901; Baldev Singh v State of Punjab, (2009) 6 SCC 564 [LNIND 2009 SC 1151] : (2009) 3 SCC (Cr)
66; Y Venkaiah v State of AP, AIR 2009 SC 2311 [LNIND 2009 SC 513] : (2009) Cr LJ 2834 :
(2009) 12 SCC 126 [LNIND 2009 SC 513] . State of MP v Paltan Mallah, 2005 AIR 2005 SC 733
[LNIND 2005 SC 64] : Cr LJ 918 SC : (2005) 3 SCC 169 [LNIND 2005 SC 64] .
74.  State (NCT) of Delhi v Navjot Sandhu @ Afsan Guru, (2005) 11 SCC 600 [LNIND 2005 SC 580]
.
75.  Charandas Swami v State of Gujarat, 2017 (4) Scale 403 .
76.  Rajiv Kumar v State of UP, AIR 2017 SC 3772 [LNIND 2017 SC 367] .
77.  Charandas Swami v State of Gujarat, 2017 (4) Scale 403 .
78.  State of Maharashtra v Som Nath Thapa, AIR 1996 SC 1744 [LNIND 1996 SC 776] : 1996 AIR
SCW 1977 : 1996 Cr LJ 2448 : (1996) 4 SCC 649 .
79.  State through Central Bureau of Investigation v Dr Anup Kumar Srivastava, AIR 2017 SC 3698
[LNIND 2017 SC 371] .
80.  Lal Singh v State of Gujarat, AIR 2001 SC 746 [LNIND 2001 SC 98] : 2001 Cr LJ 978 . The

case under the Terrorists and Disruptive Activities (Prevention) Act, 1987. Saju v State of Kerala,
AIR 2001 SC 175 [LNIND 2000 SC 1552] , no inference of conspiracy to murder from
circumstances proved in the case, Suman Sood v State of Rajasthan, AIR 2007 SC 2774 [LNIND
2007 SC 647] : (2007) Cr LJ 4080 : (2007) 5 SCC 634 [LNIND 2007 SC 647] , inference regarding
conspiracy can be drawn from surrounding circumstances because normally no direct evidence
is available.
81.  Ibid. The court followed the ruling in Babu Singh v State of Punjab, AIR 1996 SC 3250 [LNIND
1996 SC 860] : 1996 Cr LJ 2503 ; Vijayan v State of Kerala, AIR 1999 SC 1086 [LNIND 1999 SC
159] : 1999 Cr LJ 1638 , it is diﬃcult to establish conspiracy by direct evidence. But there should
be material evidence showing the connection between the alleged conspiracy and the act done

pursuant to that conspiracy. Firozuddin Basheerudin v State of Kerala, AIR 2001 SC 3488 [LNIND
2001 SC 1755] : 2001 Cr LJ 4215 , conspiracy to eliminate a police informer on whose
information contraband gold was seized from the accused persons, chain of circumstances to
the point of murder, complete, conviction. State of Kerala v P Suganthan, AIR 2000 SC 3323
[LNIND 2000 SC 1298] : 2000 Cr LJ 4584 , conspiracy to murder the earlier paramour of the
concubine, not proved. Hira Lal Hari Lal v CBI, AIR 2003 SC 2545 [LNIND 2003 SC 499] : 2003 Cr
LJ 3041 : (2003) 5 SCC 257 [LNIND 2003 SC 499] , diﬃcult to prove conspiracy by direct
evidence. An agreement between the parties to do something unlawful has to be proved. The
allegation here was that of evasion of customs duty.

82.  Chandra Prakash v State of Rajasthan, 2014 Cr LJ 2884 : (2014) 8 SCC 340 [LNIND 2014 SC
346] .
83.  Indra Dalal v State of Haryana, 2015 Cr LJ 3174 : 2015 (6) SCJ 501 [LNIND 2015 SC 358] .
84.  Balkar Singh v State of Haryana, 2015 Cr LJ 901 : (2015) 2 SCC 746 [LNIND 2014 SC 950] .
85.  Satyavir Singh v State of UP, 2016 Cr LJ 4863 (All), 2015 (91) ALLCC 892.
86.  State v Nitin Gunwant Shah, 2015 Cr LJ 4759 : 2016 (1) SCJ 30 [LNIND 2015 SC 529] .
87.  State of TN v Nalini, AIR 1999 SC 2640 [LNIND 1999 SC 1584] : 1999 Cr LJ 3124 .
88.  Kiriti Pal v State of WB, 2015 Cr LJ 3152 : 2015 (3) Crimes 11 (SC).
89.  R Venkatkrishanan v CBI, 2010 1 SCC (Cr) 164 : (2009) 11 SCC 737 [LNIND 2009 SC 1653] .
90.  Mahesh Joshi v State, (CBI), 2002 Cr LJ 97 (Kant).

[s 120B] Punishment of criminal conspiracy.
(1) Whoever is a party to a criminal conspiracy to commit an offence punishable
with death, 91.[imprisonment for life] or rigorous imprisonment for a term of
two years or upwards, shall, where no express provision is made in this Code
for the punishment of such a conspiracy, be punished in the same manner as if
he had abetted such offence.
(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to
commit an offence punishable as aforesaid shall be punished with
imprisonment of either description for a term not exceeding six months, or
with ﬁne or with both.]
COMMENT—
Earlier to the introduction of sections 120A and B, conspiracy per se was not an
offence under IPC, 1860, except in respect of the offence mentioned in section 121A.
However, abetment by conspiracy was and still remains to be an ingredient of
abetment under the second clause of section 107 of IPC, 1860. The punishment

therefore, is provided under various sections, viz., sections 108–117. Whereas under
section 120A, the essence of the offence of criminal conspiracy is a bare agreement to
commit the offence, the abetment under section 107 requires the commission of some
act or illegal omission pursuant to the conspiracy.92. Criminal conspiracy is an
independent offence. It is punishable separately.93. The punishment for conspiracy is
the same as if the conspirator had abetted the offence.94. The punishment for a
criminal conspiracy is more severe if the agreement is one to commit a serious
offence; it is less severe if the agreement is one to commit an act which although
illegal is not an offence punishable with death, imprisonment for life or rigorous
imprisonment for more than two years.
Conspiracy to commit an offence is itself an offence and a person can be separately

charged with respect to such a conspiracy. There may be an element of abetment in a
conspiracy; but conspiracy is something more than abetment. The offences created by
section 109 and section 120A are quite distinct and where offences are committed by
several persons in pursuance of a conspiracy it is usual to charge them with those
offences as well as conspiracy to commit those offences.95.
This section applies to those who are the members of the conspiracy during its
continuance. Conspiracy has to be treated as a continuing offence and whoever is a
party to the conspiracy during the period for which he is charged is liable under this
section.96. A conspiracy is held to be continued and renewed as to encompass all its
members wherever and whenever any member of it acts in furtherance of the common
design.97. The most important ingredient of a criminal conspiracy is an agreement for

an illegal act, conspiracy continues to subsist till it is executed or rescinded or
frustrated by choice or necessity.98. The conspirators' connection with the conspiracy

would get snapped after he is nabbed by the police and kept in custody. He would then
cease to be the agent of others. In this case (Rajiv assassination) the prosecution could
not establish that the accused persons who were under detention continued their
conspiratorial contact with those who remained outside. A statement which
constitutes prima facie evidence of a conspiracy may amount to an act for which all the
members can be held liable.99.
Where the accused conspired with others in awarding a contract when he was in job, he
could be held liable for subsequent acts of other conspirators even after his retirement
as he contributed his part for furtherance of the conspiracy.100.
For the purpose of establishing or proving the charge of conspiracy, it is not necessary
that there should be knowledge of who are other conspirators and of the detailed
stages of the conspiracy. The necessary requisite is knowledge of the main object and
purpose of the conspiracy.101. A fraud was alleged to have been committed by

Government oﬃcers in processing and verifying fake bills. It was held that all the
oﬃcers who dealt with the relevant ﬁles at one point of time or the other could not be
considered to have taken part in the conspiracy or that they would be guilty of aiding
and abetting the offence. Individual acts of criminal misconduct would have to be
considered for fastening liability.102.
An accused can be convicted for substantive offence even where he has been
acquitted of the charge of conspiracy.103.
[s 120B.1] Sanction for prosecution (section 120B IPC, 1860 and section 196
(Cr PC, 1973)).—
This section has to be read along with section 196(1-A) (2) (Cr PC, 1973), which
requires previous sanction of the State Government or the District Magistrate to launch
prosecution in respect of a criminal conspiracy to commit an offence punishable with

less than two years imprisonment. Thus, where the object of the conspiracy was
cheating by false personation under section 419, IPC, 1860, which is an offence
punishable with a three-year imprisonment, the mere fact that there were other non-
cognizable offences for which too the accused had been charged would not vitiate the
trial in absence of sanction under section 196(1A)(2), (Cr PC, 1973), as that section is
meant to be applicable to a case where the object of the conspiracy is to commit an
offence punishable with less than two years' imprisonment.104. Where the act in
question was not done by the army oﬃcer in the discharge of his oﬃcial duties, it was
held that a sanction for his prosecution was not necessary.105.
[s 120B.2] Can a company be prosecuted for Criminal conspiracy.—

A corporation is virtually in the same position as any individual and may be convicted
of common law as well as statutory offences including those requiring mens rea. The
criminal liability of a corporation would arise when an offence is committed in relation
to the business of the corporation by a person or body of persons in control of its
affairs. In such circumstances, it would be necessary to ascertain that the degree and
control of the person or body of persons is so intense that a corporation may be said to
think and act through that person or the body of persons.106.
[s 120B.3] Signing differently in vakalatnama.—

The fact was that the accused put their signatures in vakalatnama differently from their
original ones. It has been alleged by the complainant that the accused petitioners have
deliberately and wilfully put their signatures on the vakalatnama in collusion with each
other like irresponsible persons in order to gain wrongfully and with a view to cheat and
mislead the complainant. It was held that the alleged action of the petitioners in
signing their own name on the vakalatnama and ﬁling the same in the Court through
their counsel is neither an offence nor prohibited by any law. When the alleged act itself
was not illegal, it cannot be said that there was any 'criminal conspiracy' and in
absence of the basis for a charge for criminal conspiracy, the petitioners cannot be
prosecuted or punished for the offence under section 120-B of the IPC, 1860.107.
[s 120B.4] Seeking opinion.—
Merely taking someone's opinion, who is an outsider to litigation, before ﬁling the reply

in the Court would not undermine the administration of justice in any way and it is not
indicative of criminal conspiracy.108.
[s 120B.5] Hooch Tragedy case.—
In a case, the allegation was that all the accused persons hatched a criminal
conspiracy and they created a well-oiled machinery for importing methyl alcohol to
make spurious liquor. Accused diluted the spirit by adding water and sold it through
their outlets. Many persons died due to the consumption of spurious liquor. Some
persons lost their eyesight and number of others sustained grievous injuries. Supreme
Court said that the whole business itself was a conspiracy. It may not be the
conspiracy to mix the noxious substance but the fact of the matter is that in order to
succeed in the business, which itself was a conspiracy, they mixed or allowed to be

mixed methanol and used it so freely that ultimately resulted in the tragedy. Conviction
is upheld.109.
[s 120B.6] Corruption cases.—
The prosecution asserted that the appellants A1 to A4 had entered into a conspiracy
and in furtherance thereof, A1 who was a public servant, had come to possess assets
to the tune of Rs. 66.65 crores, disproportionate to her known sources of income,
during the period from 1991 to 1996, when she held the oﬃce of the Chief Minister of
the State. The Supreme Court in respect to the charge of criminal conspiracy observed
that the free ﬂow of money from one account to the other of the respondent's,
ﬁrms/companies also proved beyond reasonable doubt that all the accused persons
had actively participated in the criminal conspiracy to launder the ill-gotten wealth of
A1 for purchasing properties in their names.110.

[s 120B.7] Previous sanction.—
No Court shall take cognizance of the offence of any criminal conspiracy punishable
under section 120B of the IPC, 1860, (45 of 1860), other than a criminal conspiracy to
commit an offence punishable with death, imprisonment for life or rigorous
imprisonment for a term of two years or upwards, unless the State Government or the
District Magistrate has consented in writing to the initiation of the proceeding: Provided

that where the criminal conspiracy is one to which the provisions of section 195 apply,
no such consent shall be necessary.111.
2. Sentence.—Where the accused is charged both under section 109 as well as section
120B, IPC, 1860, and the offence abetted is shown to have been committed as a result
of the abetment, the abettor should be punished with the imprisonment provided for
the principal offence under section 109, IPC, 1860, and no separate sentence need be
recorded under section 120B IPC, 1860.112. Where the charge of conspiracy fails, the
individual accused could still be convicted for the offences committed by them and
sentenced accordingly.113. Where no jail term was awarded to the principal accused in
a conspiracy and he was let off with ﬁne alone, it was held that substantive sentence of
imprisonment awarded to the other accused was wrongful and, therefore, they also
were ordered to pay ﬁne only.114. Where six of the seven persons accused of criminal

conspiracy were acquitted, remaining one accused could not be convicted merely for
being the head of the section of the branch where fraud was alleged to have been
committed.115. Where the appellant-accused was one of the active members of the
criminal conspiracy along with other accused and hatched the plan to kill/eliminate the
deceased and in furtherance thereof other accused persons successfully
killed/eliminated the deceased and it was not the case of the appellant-accused and
nor was urged also that his case fell under Section 120(2) so as to be awarded less
sentence as prescribed therein, the conviction and award of life sentence as prescribed
under Section 302 read with Section 120B, IPC, 1860 was held proper.116. The accused
pleaded guilty to conspiring to cause a public nuisance. He conspired with others to

interfere with a premier division football match by means of extinguishing the
ﬂoodlights while the match was in progress. The object of doing so was to affect bets
placed on the match abroad, which depended on the score at the time when the lights
were switched off and the match was abandoned. The plan was not put into effect and
the accused and others were arrested before the match was due to take place. The
accused would have received substantial reward for his role. He was sentenced to four
years' imprisonment. His appeal was dismissed. The Court said that the practice of
interfering with such an important sporting ﬁxture was something which should be
actively discouraged by severe sentences. The sentence could not be described as
manifestly excessive.117.
Law relating to Conspiracy as summarised by the Supreme Court in State of TN

through Superintendent of Police, CBI/SIT v Nalini, (AIR 1999 SC 2640 [LNIND 1999 SC
1584] : (1999) 5 SCC 253 [LNIND 1999 SC 526] : JT 1999 (4) SC 106 [LNIND 1999 SC
526] : 1999 Cr LJ 3124 ).
1. Under Section 120A, IPC, 1860, offence of criminal conspiracy is committed
when two or more persons agree to do or cause to be done an illegal act or legal
act by illegal means. When it is legal act by illegal means overt act is necessary.
Offence of criminal conspiracy is exception to the general law where intent alone
does not constitute crime. It is intention to commit crime and joining hands with
persons having the same intention. Not only the intention, but there has to be
agreement to carry out the object of the intention, which is an offence. The
question for consideration in a case is did all the accused had the intention and

did they agree that the crime be committed. It would not be enough for the
offence of conspiracy when some of the accused merely entertained a wish,
howsoever, horrendous it may be, that offence be committed.
2. Acts subsequent to the achieving of object of conspiracy may tend to prove that
a particular accused was party to the conspiracy. Once the object of conspiracy
has been achieved, any subsequent act, which may be unlawful, would not make
the accused a part of the conspiracy like giving shelter to an absconder.
3.

Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a
conspiracy by direct evidence. Usually, both the existence of the conspiracy and
its objects have to be inferred from the circumstances and the conduct of the
accused.
4. Conspirators may, for example, be enrolled in chain A enrolling B, B enrolling C,
and so on and all will be members of the single conspiracy if they so intend and
agree, even though each member knows only the person who enrolled him and
the person whom he enrols. There may be a kind of umbrella-spoke enrolment,
where a single person at the centre doing the enrolling and all the other members
being unknown to each other, though they know that there are to be other
members. These are theories and in practice it may be diﬃcult to tell whether the
conspiracy in a particular case falls into which category. It may, however, even
overlap. But then there has to be present mutual interest. Persons may be

members of single conspiracy even though each is ignorant of the identity of
many others who may have diverse role to play. It is not a part of the crime of
conspiracy that all the conspirators need to agree to play the same or an active
role.
5. When two or more persons agree to commit a crime of conspiracy, then
regardless of making or considering any plans for its commission, and despite
the fact that no step is taken by any such person to carry out their common
purpose, a crime is committed by each and every one who joins in the
agreement. There has thus, to be two conspirators and there may be more than
that. To prove the charge of conspiracy it is not necessary that intended crime
was committed or not. If committed it may further help prosecution to prove the
charge of conspiracy.

6. It is not necessary that all conspirators should agree to the common purpose at
the same time. They may join with other conspirators at any time before the
consummation of the intended objective, and all are equally responsible. What
part each conspirator is to play may not be known to everyone or the fact as to
when a conspirator joined the conspiracy and when he left.
7. A charge of conspiracy may prejudice the accused because it is forced them into
a joint trial and the Court may consider the entire mass of evidence against every
accused. Prosecution has to produce evidence not only to show that each of the
accused has knowledge of object of conspiracy but also of the agreement. In the
charge of conspiracy Court has to guard itself against the danger of unfairness to

the accused. Introduction of evidence against some may result in the conviction
of all, which is to be avoided. By means of evidence in conspiracy, which is
otherwise inadmissible in the trial of any other substantive offence prosecution
tries to implicate the accused not only in the conspiracy itself but also in the
substantive crime of the alleged conspirators. There is always diﬃcult in tracing
the precise contribution of each member of the conspiracy but then there has to
be cogent and convincing evidence against each one of the accused charged
with the offence of conspiracy. As observed to Judge Learned Hand that "this
distinction is important today when many prosecutors seek to sweep within the
dragnet of conspiracy all those who have been associated in any degree
whatever with the main offenders".

8. As stated above it is the unlawful agreement and not its accomplishment, which
is the gist or essence of the crime of conspiracy. Offence of criminal conspiracy
is complete even though there is no agreement as to the means by which the
purpose is to be accomplished. It is the unlawful agreement, which is the
gravamen of the crime of conspiracy. The unlawful agreement which amounts to
a conspiracy need not be formal or express, but may be inherent in and inferred
from the circumstances, especially declarations, acts and conduct of the
conspirators. The agreement need not be entered into by all the parties to it at

91.  Subs. by Act 26 of 1955, section 117 and Sch., for transportation for life (w.e.f. 1-1-1956).
92.  State (NCT) of Delhi v Navjot Sandhu @ Afsan Guru, 2005 Cr LJ 3950 : (2005) 11 SCC 600
[LNIND 2005 SC 580] .
93.  State of MP v Sheetla Sahai, 2009 Cr LJ 4436 : (2009) 8 SCC 617 : (2009) 3 SCC(Cr) 901.
94.  Alim Jan Bibi, (1937) 1 Cal 484 . It is not necessary that each and every conspirator must
have taken part in the commission of the act. State of HP v Krishanlal Pradhan, AIR 1987 SC 773
[LNIND 1987 SC 131] : 1987 Cr LJ 709 : (1987) 2 SCC 17 [LNIND 1987 SC 131] . Govt of NCT of
Delhi v Jaspal Singh, (2003) 10 SCC 586 [LNIND 2003 SC 649] , essential requirements of charge
under the section. Ram Narayan Popli v CBI, AIR 2003 SC 2748 [LNIND 2003 SC 26] : (2003) 3
SCC 641 [LNIND 2003 SC 26] , statement of ingredients. Nazir Khan v State of Delhi, AIR 2003 SC

4427 [LNIND 2003 SC 696] : (2003) 8 SCC 461 [LNIND 2003 SC 696] , statement of ingredients
and matters of proof.
95.  Subbaiah, AIR 1961 SC 1241 [LNIND 1961 SC 95] . See also Mohd Hussain v KS Dalipsinghji,
AIR 1970 SC 45 [LNIND 1969 SC 147] : (1970) 1 SCR 130 [LNIND 1969 SC 147] . See also
Jagdish Prasad v State of Bihar, 1990 Cr LJ 366 Pat, conspiracy with railway employees to
procure allotment of wagons under cover of fake letters. State of Rajasthan v Govind Ram
Bagdiya, 2003 Cr LJ 1169 (Raj), the prosecution has to prove the elements of conspiracy. No
the same time, but may be reached by successive actions evidencing their joining
of the conspiracy.
9. It has been said that a criminal conspiracy is a partnership in crime, and that
there is in each conspiracy a joint or mutual agency for the prosecution of a

common plan. Thus, if two or more persons enter into a conspiracy, any act done
by any of them pursuant to the agreement is, in contemplation of law, the act of
each of them and they are jointly responsible therefor. This means that
everything said, written or done by any of the conspirators in execution or
furtherance of the common purpose is deemed to have been said, done, or
written by each of them. And this joint responsibility extends not only to what is
done by any of the conspirators pursuant to the original agreement but also to
collateral acts incident to and growing out of the original purpose. A conspirator
is not responsible, however, for acts done by a co-conspirator after termination of
the conspiracy. The joinder of a conspiracy by a new member does not create a

new conspiracy nor does it change the status of the other conspirators, and the
mere fact that conspirators individually or in groups perform different tasks to a
common end does not split up a conspiracy into several different conspiracies.
10. A man may join a conspiracy by word or by deed. However, criminal
responsibility for a conspiracy requires more than a merely passive attitude
towards an existing conspiracy. One who commits an overt act with knowledge
of the conspiracy is guilty. And one who tacitly consents to the object of a
conspiracy and goes along with other conspirators, actually standing by while
the other but the conspiracy into effect, is guilty though he intends to take no
active part in the crime.

proof was forthcoming in this case in the matter of allotment of house of any conspiracy among
oﬃcials to manipulate the system.
96.  Abdul Kadar v State, (1963) 65 Bom LR 864 . For an example of a failed prosecution under
this section see State of UP v Pheru Singh, AIR 1989 SC 1205 : 1989 Cr LJ 1135 . In Darshan
Singh v State of Punjab, AIR 1983 SC 554 [LNIND 1983 SC 95] : 1983 Cr LJ 985 : (1983) 2 SCC
411 [LNIND 1983 SC 95] , the Supreme Court considered it to be unbelievable that the accused
hatched their plot while taking drinks in the presence of a stranger. For proof of conspiracy it
often becomes necessary to convert one of the conspirators into an approver witness and this
may require corroboration. See Balwant Kaur v UT Chandigarh, AIR 1988 SC 139 [LNIND 1987 SC
738] : 1988 Cr LJ 398 . The absence of one of the conspirators at one of their meetings does not
by itself rule out his complicity. Conspiracies are hatched under cover of secrecy. They are

generally proved by circumstantial evidence, EK Chandrasenan v State of Kerala, AIR 1995 SC
1066 [LNIND 1995 SC 88] : 1995 Cr LJ 1445 ; Aniceto Lobo v State (Goa, Daman and Diu), AIR
1994 SC 1613 : 1994 Cr LJ 1582 : 1993 Supp (3) SCC 311 , conspiracy of three persons, one of
whom, being bank employee, took out blank drafts, the other forged signatures and third opened
accounts in ﬁctitious names to encash the drafts, all of them were held to be equally guilty of
the offence.
97.  Esher Singh v State of AP, AIR 2004 SC 3030 [LNIND 2004 SC 329] : (2004) 11 SCC 585
[LNIND 2004 SC 329] .
98.  Damodar v State of Rajasthan, AIR 2003 SC 4414 [LNIND 2003 SC 803] : 2003 Cr LJ 5014 :
(2004) 12 SCC 336 [LNIND 2003 SC 803] . R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND

2003 SC 1023] : 2004 Cr LJ 286 : (2004) 2 SCC 9 [LNIND 2003 SC 1023] , alleged conspiracy
was to dispose of by auction the property of a Govt Co at a low price, but the bids made by the
alleged conspirators reﬂected a fair price. Ingredients of the section not made out. Hardeep
Singh Sohal v State of Punjab, AIR 2004 SC 4716 [LNIND 2004 SC 902] : (2004) 11 SCC 612
[LNIND 2004 SC 1006] conspiracy for murder not proved. Another charge of conspiracy for
murder was rejected in Hem Raj v State of Punjab, AIR 2003 SC 4259 [LNIND 2003 SC 759] :
2003 Cr LJ 4987 : (2003) 12 SCC 241 [LNIND 2003 SC 759] . State of HP v Satya Dev Sharma,
(2002) 10 SCC 601 , criminal conspiracy between timber merchants and private landowners and
Government oﬃcials for falling and misappropriating trees standing on Government land.

99.  State of TN v Nalini, AIR 1999 SC 2640 [LNIND 1999 SC 1584] : 1999 Cr LJ 3124 . Under
TADA (repealed) such confession had the status of evidence. Ram Singh v State of HP, AIR 1997
SC 3483 [LNIND 1997 SC 1060] : 1997 AIR SCW 1331 : 1997 Cr LJ 4091 , in a murder by some
persons, the accused persons assisted them in causing disappearance of the dead body
secretly in furtherance of their conspiracy, their conviction under sections 201-120B was held to
be proper. Subhash Harnarayanji Laddha v State of Maharashtra, (2006) 12 SCC 545 [LNIND 2006
SC 1088] , conspiracy not proved. Mallanna v State of Karnataka, (2007) 8 SCC 523 [LNIND 2007
SC 1526] , conspiracy not proved.
100.  R Balkrishna Pillai v State of Kerala, 1996 Cr LJ 757 (Ker); Devender Pal Singh v State (NCT)

of Delhi, 2002 Cr LJ 2034 (SC), acquittal of a co-accused on the ground of non-corroboration of
the confessional statement did not have the effect of demolishing the prosecution regarding
conspiracy Saju v State of Kerala, 2001 Cr LJ 102 (SC), no evidence to show that the accused
was responsible for pregnancy or insisted upon its termination. The accused and co-accused
were fellow workers and seemed to be hired killers. They were seen together at the place of the
incident both before and after it. That was held to be not suﬃcient to prove charge of
conspiracy against them. State of HP v Jai Lal, AIR 1999 SC 3318 [LNIND 1999 SC 798] : 1999 Cr
LJ 4294 State Government scheme of purchasing infected apples from growers and destroying
them. Allegations that some of them over charged by inﬂating weight. But no evidence of

experts about overweight, etc., charge not proved. Premlata v State of Rajasthan, 1998 Cr LJ
1430 (Raj), a charge-sheet was not quashed where there was evidence to believe that the two
accused persons had conspired to produce a document for fulﬁlling the eligibility criteria for an
appointment. Central Bureau of Investigation v VC Shukla, AIR 1998 SC 1406 [LNIND 1998 SC
272] : 1998 Cr LJ 1905 , the prosecution could not prove that one of the two accused was a
party to the conspiracy. Arun Gulab Gawli v State of Maharashtra, 1998 Cr LJ 4481 (Bom) mere
inference cannot invite punishment.
101.  Mohd Amin v CBI, (2008) 15 SCC 49 [LNIND 2008 SC 2255] : (2009) 3 SCC (Cr) 693.
102.  Soma Chakravarty v State, AIR 2007 SC 2149 [LNIND 2007 SC 632] : (2007) 5 SCC 403
[LNIND 2007 SC 632] .
103.  T Shankar Prasad v State of AP, AIR 2004 SC 1242 [LNIND 2004 SC 41] : 2004 Cr LJ 884 :
(2004) 3 SCC 753 [LNIND 2004 SC 41] .
104.  Yashpal v State, AIR 1977 SC 2433 [LNIND 1977 SC 304] : 1978 Cr LJ 189 . See also Vinod

Kumar Jain v State through CBI, 1991 Cr LJ 669 (Del); State of Bihar v Simranjit Singh Mann, 1987
Cr LJ 999 (Pat).
105.  Nirmal Puri (Lt Gen Retd) v UOI, 2002 Cr LJ 158 (Del).
106.  Iridium India Telecom Ltd v Motorola Incorporated, AIR 2011 SC 20 [LNIND 2010 SC 1012] :
2010 AIR (SCW) 6738 : JT 2010 (11) SC 492 [LNIND 2010 SC 1012] : (2011) 1 SCC 74 [LNIND
2010 SC 1012] : (2010) 3 SCC(Cr) 1201 : 2010 (11) Scale 417 ; relied on Standard Chartered Bank
v Directorate of Enforcement, AIR 2005 SC 2622 [LNIND 2005 SC 476] : (2005) 4 SCC 530 [LNIND
2005 SC 476] : 2005 SCC (Cr) 961.
107.  Padam Chand v The State of Bihar, 2016 Cr LJ 4998 (Pat) : 2016 (3) PLJR 258 .
108.  Sanjiv Rajendra Bhatt v UOI, 2016 Cr LJ 185 : (2016) 1 SCC 1 [LNIND 2015 SC 596] .
109.  Chandran v State, AIR 2011 SC 1594 [LNIND 2011 SC 358] : (2011) 5 SCC 161 [LNIND 2011

SC 358] : (2011) 2 SCC(Cr) 551 : (2011) 8 SCR 273 [LNIND 2011 SC 358] ; Also see Ravinder
Singh @ Ravi Pavar v State of Gujarat, AIR 2013 SC 1915 2013 Cr Lj 1832.
110.  State of Karnataka v Selvi J Jayalalitha, 2017 (2) Scale 375 [LNIND 2017 SC 72] : 2017 (1)
RCR (Criminal) 802.
111.  Section 196(2) of Code of Criminal Procedure, 1973.
112.  State of TN v Savithri, 1976 Cr LJ 37 (Mad).
113.  State of Orissa v Bishnu Charan Muduli, 1985 Cr LJ 1573 (Ori).
114.  CR Mehta v State of Maharashtra, 1993 Cr LJ 2863 (Bom). The Court referred to
Rameshwar Dayal v State of UP, 1971 (3) SCC 924 : 1972 SCC (Cr) 172.
115.  BN Narasimha Rao v Govt of AP, 1995 Cr LJ 4181 (SC), reversing AP High Court. See also
Sayed Mohd Owais v State of Maharashtra, 2003 Cr LJ 303 (Bom).
116.  Bilal Hajar v State, AIR 2018 SC 4780 [LNIND 2018 SC 520] .

117.  R v Chee Kew Ong, (2001) 1 Cr App R (S) 117 [CA (Crim Div)].

Provided that no agreement except an agreement to commit an offence shall
COMMENT—

1860).7.

vague.33.

of one.

accused.

accused.

(Delhi).

.

.
.

SCC 111 .

SCC 111 .

.

346] .

[s 120B.1] Sanction for prosecution (section 120B IPC, 1860 and section 196 (Cr PC,
1973)).—

3. Conspiracy is hatched in private or in secrecy. It is rarely possible to establish a
accused.

role.

CHAPTER VI OF OFFENCES AGAINST THE STATE
The offences against the State fall into the following groups:—
I. Waging, or attempting or conspiring to wage, or collecting men and ammunition to
wage war against the Government of India (sections 121, 121A, 122, 123).
II. Assaulting President, or Governor of a State with intent to compel or restrain the
exercise of any lawful power (section 124).
III. Sedition (section 124A).
IV. War against a power at peace with the Government of India (section 125) or
committing depredations on the territories of such power (sections 125–126).
V. Permitting or aiding or negligently suffering the escape of, or rescuing or harbouring,
a State prisoner (sections 128, 129, 130).
[s 121] Waging, or attempting to wage war or abetting waging of war, against
the Government of India.
Whoever, wages war1. against the 1[Government of India]2., or attempts, to wage such
war, or abets the waging of such war3., shall be punished with death, or

2[imprisonment for life] 3[and shall also be liable to ﬁne].
4.[ILLUSTRATIONS]
5.[***] (a) A joins an insurrection against the 6.[Government of India]. A has
committed the offence deﬁned in this section.
7.[***]COMMENT—
Earlier the word used in section 121 was "Queen". After the formation of the republic
under the Constitution it was substituted by the expression "Government of India" by
the Adaption of Laws Order of 1950. In a republic, sovereignty vests in the people of the
country and the lawfully elected government is simply the representative and a
manifestation of the sovereign, that is, the people. Thus, the expression "Government of
India", as appearing in section 121, must be held to mean the State or interchangeably
the people of the country as the repository of the sovereignty of India which is

manifested and expressed through the elected Government.8.
[s 121.1] Waging war against Government.—
The concept of war embedded in section 121 is not to be understood in the
international law sense of inter-country war involving military operations by and
between two or more hostile countries. Section 121 is not meant to punish prisoners of
war of a belligerent nation. Apart from the legislative history of the provision and the
understanding of the expression by various High Courts during the pre-independence

days, the Illustration to section 121 itself makes it clear that "war" contemplated by
section 121 is not conventional warfare between two nations. Organising or joining an
insurrection against the Government of India is also a form of war.9.
Neither the number of persons nor the manner in which they are assembled or armed is
material to constitute an offence under this section. The true criterion is the purpose or
intention with which the gathering is assembled. The object of the gathering must be to
attain by force and violence an object of a general public nature thereby striking directly
against the Government's authority.10.
In Md Jamiluddin Nasir v State of WB,11. while enumerating what principles are to be
kept in mind in cases, involving application of sections 121, 122, 121A read with
section 120B IPC, 1860 as well as section 302 IPC, 1860, the Supreme Court, observed
inter alia that not all violent behaviour would fall within the prescription of waging war

as contemplated under sections 121, 121A, 122 read with section 120B. It was also
found that the object sought to be achieved to make a case for the application of
section 121, should be directed against the sovereignty of the State and not merely
commission of a crime, even if that happens to be of higher magnitude. The concept of
'waging war' should not be stretched too far. A balanced and realistic approach should
be maintained while construing the offence committed, to ﬁnd out whether it amounts
to waging of war against the State.
1. 'Wages war'.—The expression "waging war" means and can only mean waging war in
the manner usual in war. In other words, in order to support a conviction on such a
charge it is not enough to show that the persons charged have contrived to obtain

possession of an armoury and have, when called upon to surrender it, used the riﬂes
and ammunition so obtained against the Government troops. It must also be shown
that the seizure of the armoury was part and parcel of a planned operation and that
their intention in resisting the troops of the Government was to overwhelm and defeat
these troops and then to go on and crush any further opposition with which they might
meet until either the leaders of the movement succeeded in obtaining the possession
of the machinery of Government or those in possession of it yielded to the demands of
their leaders.12. An illuminating discussion on the issue of "Waging war against the
Government of India" is to be found in this Court's decision in State (NCT of Delhi) v
Navjot Sandhu @ Afsan Guru.13. In para 272 of the judgment P Venkatarama Reddi, J,

speaking for the Court, referred to the report of the Indian Law Commission that
examined the draft Penal Code in 1847 and quoted the following passage from the
report:
We conceive the term 'wages war against the Government' naturally to import a person
arraying himself in deﬁance of the Government in like manner and by like means as a
foreign enemy would do, and it seems to us, we presume it did to the authors of the Code
that any deﬁnition of the term so unambiguous would be superﬂuous.
The expression, "in like manner and by like means as a foreign enemy", is very
signiﬁcant to understand the nature of the violent acts that would amount to waging
war. In "waging war", the intent of the foreign enemy is not only to disturb public peace
or law and order or to kill many people. A foreign enemy strikes at the sovereignty of

the State, and his conspiracy and actions are motivated by that animus.14.
[s 121.2] New concept of "Waging war" and Caution against using old
authorities.—
The concept of war in section 121 which includes insurrection or a civilian uprising
should not be understood in the sense of conventional war between two nations or
sovereign entities. The normative phenomenon of war as understood in the

international sense does not ﬁt into the ambit and reach of section 121. In the
Parliament attack case,15. the Supreme Court held as follows:
while these are the acceptable criteria of waging war, we must dissociate ourselves from
the old English and Indian authorities to the extent that they lay down a too general test of
attainment of an object of general public nature or a political object. The Supreme Court
expressed reservations in adopting this test in its literal sense and construing it in a manner
out of tune with the present day. The court must be cautious in adopting an approach which
has the effect of bringing within the fold of S.121 all acts of lawless and violent acts
resulting in destruction of public properties, etc., and all acts of violent resistance to the
armed personnel to achieve certain political objectives. The moment it is found that the
object sought to be attained is of a general public nature or has a political hue, the offensive

violent acts targeted against the armed forces and public oﬃcials should not be branded as
acts of waging war. The expression "waging war" should not be stretched too far to hold
that all the acts of disrupting public order and peace irrespective of their magnitude and
repercussions could be reckoned as acts of waging war against the Government. A
balanced and realistic approach is called for in construing the expression "waging war"
irrespective of how it was viewed in the long past. An organised movement attended with
violence and attacks against the public oﬃcials and armed forces while agitating for the
repeal of an unpopular law or for preventing burdensome taxes were viewed as acts of
treason in the form of levying war. We doubt whether such construction is in tune with the
modern day perspectives and standards.

[s 121.3] Terrorist Acts.—
Though every terrorist act does not amount to waging war, certain terrorist acts can
also constitute the offence of waging war and there is no dichotomy between the two.
Terrorist acts can manifest themselves into acts of war. According to the learned
Senior Counsel for the State, terrorist acts prompted by an intention to strike at the
sovereign authority of the State/Government, tantamount to waging war irrespective of
the number involved or the force employed. However, the degree of animus or intent
and the magnitude of the acts done or attempted to be done would assume some
relevance in order to consider whether the terrorist acts give rise to a state of war. Yet,
the demarcating line is by no means clear, much less transparent. It is often a
difference in degree. The distinction gets thinner if a comparison is made of terrorist

acts with the acts aimed at overawing the Government by means of criminal force.
Conspiracy to commit the latter offence is covered by section 121A.16. The
incorporation of Chapter IV of the Unlawful Activities (Prevention) Act, 1967, shall not
be viewed as deemed repeal of section 121 of the IPC, 1860. As explained in Navjot
Sandhu (supra), a "terrorist act" and an act of "waging war against the Government of
of waging war against the Government of India, and vice-versa. The provisions of
Chapter IV of the Unlawful Activities (Prevention) Act and those of Chapter VI of the
Indian Penal Code (IPC), 1860 including section 121, basically cover different areas.17.
[s 121.4] Foreign nationals not excluded.—

The word "whoever" is a word of broad import. Advisedly such language was used
departing from the observations made in the context of the Treason Statute. Supreme
Court ﬁnds no good reason why foreign nationals stealthily entering into Indian territory
with a view to subverting the functioning of the Government and destabilising the
society should not be held guilty of waging war within the meaning of section 121. The
section on its plain term need not be conﬁned only to those who owe allegiance to the
established Government.18.
The explanation to the section makes it clear that the offence is complete even without
any act or illegal omission occurring in pursuance of the conspiracy.19. It is not

necessary that any act or illegal omission should have taken place in pursuance of a
conspiracy. An action of waging war, attempt to wage war or abetment to wage war are
also covered by section 121-A.20.
2. Government of India.—The expression "Government of India" is surely not used in the
narrow and restricted sense in section 121. In our considered view, the expression
"Government of India" is used in section 121 to imply the Indian State, the juristic
embodiment of the sovereignty of the country that derives its legitimacy from the
collective will and consent of its people. The use of the phrase "Government of India" to
signify the notion of sovereignty is consistent with the principles of Public International
Law, wherein sovereignty of a territorial unit is deemed to vest in the people of the
territory and exercised by a representative government.21.
3. 'Abets the waging of such war'.—Such abetment is made a special offence. It is not

essential that as a result of the abetment the war should in fact be waged. The main
purpose of the instigation should be 'the waging of war'. It should not be merely a
remote and incidental purpose but the thing principally aimed at by the instigation.
There must be active suggestion or stimulation to the use of violence.22. As criminal
acts took place pursuant to the conspiracy, the appellant, as a party to the conspiracy,
shall be deemed to have abetted the offence. In fact, he took an active part in a series
of steps taken to pursue the objective of conspiracy. The offence of abetting the
waging of war, having regard to the extraordinary facts and circumstances of this case,
justiﬁes the imposition of capital punishment and, therefore, the judgment of the High
Court in regard to the conviction and sentence of Afzal under section 121 IPC, 1860
shall stand.23.

[s 121.5] Principles relating to Section 121.—
(i) No speciﬁc number of persons is necessary to constitute an offence under
S.121, Penal Code.
(ii) The number concerned and the manner in which they are equipped or armed is
not material.
(iii) The true criterion is quo animo did the gathering assemble?
(iv) The object of the gathering must be to attain by force and violence an object of
a general public nature, thereby striking directly against the King's authority.
(v) There is no distinction between principal and accessory and all who take part in
the unlawful act incur the same guilt.24.
[s 121.6] CASES.—Mumbai Terror Attack Case.—
The primary and the ﬁrst offence that the appellant and his co-conspirators committed
was the offence of waging war against the Government of India. What matters is that

the attack was aimed at India and Indians. It was by foreign nationals. People were
killed for no other reason than they were Indians; in case of foreigners, they were killed
because their killing on Indian soil would embarrass India. The conspiracy, in
furtherance of which the attack was made, was, inter alia, to hit at India; to hit at its
ﬁnancial centre; to try to give rise to communal tensions and create internal strife and
insurgency; to demand that India should withdraw from Kashmir; and to dictate its
relations with other countries. Nothing could have been more "in like manner and by

like means as a foreign enemy would do". The appellant was rightly held guilty of
waging war against the Government of India and rightly convicted under sections 121,
121A and 122 of the IPC, 1860.25.
[s 121.7] Red Fort Attack Case.—
The evidence as to the transmission of thoughts sharing the unlawful design would be
suﬃcient for establishing the conspiracy. Again there must have been some act in
pursuance of the agreement. The offence under section 121 of conspiring to wage a
war is proved to the hilt against the appellant, for which he has been rightly held guilty
for the offence punishable under sections 121 and 121-A, IPC, 1860.26.
[s 121.8] Parliament Attack Case.—
The single most important factor which impels to think that this is a case of waging or
attempting to wage war against the Government of India is the target of attack chosen
by the slain terrorists and conspirators and the immediate objective sought to be
achieved thereby. The battlefront selected was the Parliament House complex. The

target chosen was Parliament – a symbol of the sovereignty of the Indian republic.
Huge and powerful explosives, sophisticated arms and ammunition carried by the slain
terrorists who were to indulge in ﬁdayeen operations with a deﬁnite purpose in view, is a
clear indicator of the grave danger in store for the inmates of the House. The planned
operations if executed, would have spelt disaster for the whole nation. The undoubted
objective and determination of the deceased terrorists was to impinge on the sovereign
authority of the nation and its Government. Even if the conspired purpose and objective
falls short of installing some other authority or entity in the place of an established
Government, it does not detract from the offence of waging war.27.
[s 121.9] Charge under Section 121, conviction under Section 123.—

In the case the Court has speciﬁcally dealt with the question whether the offence under
section 123, IPC, 1860 of which the accused was not charged, is a minor offence falling
under the charges framed, and held that the fact that there was no charge against the
accused under this particular section, does not, in any way, result in prejudice to him
because the charge of waging war and other allied offences are the subject matter of
charges. It was held that the accused is not in any way handicapped by the absence of
charge under section 123, IPC, 1860. The case which he had to meet under section 123
is no different from the case relating to the major charges which he was confronted
with. In the face of the stand he had taken and his conduct even after the attack, he
could not have pleaded reasonable excuse for not passing on the information. It was

held that viewed from any angle, the evidence on record justiﬁes his conviction under
section 123, IPC, 1860.28.
[s 121.10] Previous Sanction.—
No Court shall take cognizance of any offence punishable under Chapter VI of IPC,
1860 except with the previous sanction of Central Government or of the State
Government.29. Where sanction was obtained only after cognizance, yet no prejudice

1.  Subs. by the A.O. 1950, for "Queen".
2.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1
January1956).
3.  Subs. by Act 16 of 1921, section 2, for "and shall forfeit all his property".
4.  Subs. by Act 36 of 1957, section 3 and Sch. II, for "Illustrations" (w.e.f. 17 September 1957).
5.  The brackets and letter "(a)" omitted by Act 36 of 1957, section 3 and Sch. II (w.e.f. 17
September 1957).
6.  Subs. by the A.O. 1950, for "Queen".
7.  Illustration (b) omitted by the A.O. 1950.
8.  Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND
2012 SC 1215] : 2012 AIR (SCW) 4942 : AIR 2012 SC 3565 [LNIND 2012 SC 1215] : 2012 Cr LJ
4770 : JT 2012 (8) SC 4 [LNIND 2012 SC 1215] : 2012 (7) Scale 553 .
9.  State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715.
10.  Maganlal v State, (1946) Nag 126.

11.  Md Jamiluddin Nasir v State of WB, 2014 Cr LJ 3589 : AIR 2014 SC 2587 [LNIND 2014 SC
138] .
12.  Nazir Khan v State of Delhi, (2003) 8 SCC 461 [LNIND 2003 SC 696] : 2003 AIR SCW 5068 :
AIR 2003 SC 4427 [LNIND 2003 SC 696] : 2003 Cr LJ 5021 .
13.  State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :
14.  Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND
15.  State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :

16.  State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :
17.  Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND
18.  State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :
19.  Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND

20.  Adnan Bilal Mulla v State of Bombay, 2006 Cr LJ (NOC) 406 Bom : (2006) 5 AIR Bom R 11
DB.
was caused because the matter was not proceeded any further and charge was also
not yet framed. The Court remitted the matter for disposal after the date of sanction.30.

21.  Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND
22.  Hasrat Mohani, (1922) 24 Bom LR 885 [LNIND 1922 BOM 136] .
23.  State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :
24.  State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :
(2005) 11 SCC 600 [LNIND 2005 SC 580] : (2005) 2 SCC (Cr) 1715 relied on Maganlal
Radhakrishan, AIR 1946 Ngp 173 .
25.  Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND
26.  Mohd. Arif v State of NCT of Delhi, JT 2011 (9) SC 563 [LNIND 2011 SC 753] : 2011 (8) Scale

328 [LNIND 2011 SC 753] : (2011) 10 SCR 56 [LNIND 2011 SC 753] : (2011) 13 SCC 621 [LNIND
2011 SC 753] relied on Kehar Singh v State (Delhi Admn.), AIR 1988 SC 1883 [LNIND 1988 SC
887] . See also State of Gujarat v Jaman Haji Mamad Jat, 2007 Cr LJ 1584 (Guj).
27.  State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :
28.  Shaukat Hussain Guru v State (NCT) Delhi, AIR 2008 SC 2419 : (2008) 6 SCC 776 : 2008 Cr LJ
3016 : 2008 (8) SCR 391 : (2008) 3 SCC (Cr) 137.
29.  Section 196(1)(a) of Code of Criminal Procedure, 1973.
30.  Jamil Akhtar v State of WB, 2001 Cr LJ 4529 (Cal).

31.[[s 121A] Conspiracy to commit offences punishable by section 121.
Whoever within or without 32.[India] conspires to commit any of the offences
punishable by section 121, 33.[***]or conspires to overawe,1 by means of criminal

force or the show of criminal force, 34.[the Central Government or any 35.[State]
Government 36.[***]], shall be punished with 37.[imprisonment for life], or with
imprisonment of either description which may extend to ten years, 38.[and shall also
be liable to ﬁne].
E x p l a n a t i o n .—To constitute a conspiracy under this section, it is not necessary that
any act or illegal omission shall take place in pursuance thereof.]
COMMENT—
Conspiracy to wage war.—This section provides for the offence of conspiring to wage
war against the Government of India. It was thought right to make the offence of
conspiring by criminal force, or by show of criminal force, more severely penal than the
offence of actually taking part in an unlawful assembly, having for its object the
overawing of the Government. The reason was this that persons who by conspiring to

bring about such a result, set the whole matter in motion, seemed more criminal and
far more deserving of punishment than those who were their mere tools, and only took
part in such an assembly.
The Explanation to section 121A clariﬁes that it is not necessary that any act or illegal
omission should take place pursuant to the conspiracy, in order to constitute the said
offence. Thus, the criminal act done by the deceased terrorists in order to capture the
Parliament House is an act that amounts to waging or attempting to wage war. The
conspiracy to commit either the offence of waging war or attempting to wage war or
abetting the waging of war is punishable under section 121A IPC, 1860 with the
maximum sentence of imprisonment for life. In the circumstances of the case, the

imposition of maximum sentence is called for and the High Court is justiﬁed in holding

31.  Ins. by Act 27 of 1870, section 4.
32.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
33.  The words "or to deprive the Queen of the sovereignty of the Provinces or of any part
thereof" omitted by the A.O. 1950.
34.  Subs. by the A.O. 1937, for "the Government of India or any Local Government".
35.  Subs. by the A.O. 1950, for "Provincial".
36.  The words "or the Government of Burma" omitted by the A.O. 1948.
37.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life or any shorter
term" (w.e.f. 1 January 1956).
38.  Ins. by Act 16 of 1921, section 3.
the appellant Afzal guilty under section 121A IPC, 1860 and sentencing him to life
imprisonment.39.
The words 'conspires to overawe by means of criminal force or the show of criminal
force, the Central Government, or any State Government' in this section clearly embrace

not merely a conspiracy to raise a general insurrection, but also a conspiracy to
overawe the Central Government or any State Government by the organisation of a
serious riot or a large and tumultuous unlawful assembly.40.
[s 121A.1] Ingredients.—
The section deals with two kinds of conspiracies:—
1. Conspiring within or without India to commit any of the offences punishable by
section 121.
2. Conspiring to overawe by means of criminal force or the show of criminal force, the
Government.
1. 'Overawe'.—The word 'overawe' clearly imports more than the creation of
apprehension or alarm or even perhaps fear. It appears to connote the creation of a
situation in which the members of the Central or State Government feel themselves
compelled to choose between yielding to force or exposing themselves or members of

the public to a very serious danger. It is not necessary that the danger should be a
danger of assassination or of bodily injury to themselves. The danger might well be a
danger to public property or to the safety of members of the general public.25 The word
'overawe' clearly imports more than the creation of apprehension or alarm or fear. A
slogan that Government can be changed by an armed revolution does not mean that
there is a conspiracy to change the Government by criminal force. At best it means that
the petitioners want to educate the people that by force only the Government could be
changed.41.
Explanation.—The Explanation to this section says that to constitute a conspiracy under
this section, it is not necessary that any act or illegal omission should take place in
pursuance thereof.

39.  State (NCT of Delhi) v Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 [LNIND 2005 SC 580] :
40.  Ramanand v State, (1950) 30 Pat 152.
41.  Aravindan, 1983 Cr LJ 1259 (Ker).

[s 122] Collecting arms, etc., with intention of waging war against the
Government of India.
Whoever collects men, arms or ammunition or otherwise prepares to wage war with
the intention of either waging or being prepared to wage war against the 42.

[Government of India], shall be punished with 43.[imprisonment for life] or
imprisonment of either description for a term not exceeding ten years, 44.[and shall
also be liable to ﬁne].
42.  Subs. by the A.O. 1950, for "Queen".
COMMENT—
This section is intended to put down with a heavy hand any preparation to wage war
against the Government of India. The act made punishable by this section cannot be
considered attempts; they are in truth preparations made for committing the offence of
waging war. Preparation consists of devising or arranging the means or measures
necessary for the commission of the offence. It differs widely from attempt which is
the direct movement towards the commission after preparations are made. Preparation
to commit an offence is punishable only when the preparation is to commit offences

under section 122 (waging war against the Government of India) and section 399
(preparation and an attempt is sometimes thin and has to be decided on the facts of
each case). There is a greater degree of determination in attempt as compared with
preparation.45.

43.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
44.  Ins. by Act 16 of 1921, section 3.
45.  Koppula Venkat Rao v State of AP, AIR 2004 SC 1874 [LNIND 2004 SC 301] : (2004) 3 SCC
602 [LNIND 2004 SC 301] .

[s 123] Concealing with intent to facilitate design to wage war.
Whoever, by any act, or by any illegal omission, conceals the existence of a design to
wage war against the 46.[Government of India], intending by such concealment to

facilitate, or knowing it to be likely that such concealment will facilitate, the waging of
such war, shall be punished with imprisonment of either description for a term which
may extend to ten years, and shall also be liable to ﬁne.
COMMENT—
This section reiterates the principle enunciated in section 118, the only difference being
that the penalty under it is more severe. Section 39 of Code of Criminal Procedure (Cr
PC), 1973 read with section 176 of the IPC, 1860 makes it an offence for any person
who is aware of the commission of, or of the intention of any person to commit, an
offence under sections 121–126, both inclusive (that is, offences against the State
speciﬁed in Chapter VI of the Code), to omit giving any notice or furnishing any
information to any public servant. Moreover, section 123 of IPC, 1860 makes it an

offence to conceal, whether by act or omission, the existence of a design to "wage war"
against the Government of India, when intending by such concealment to facilitate, or
knowing it to be likely that such concealing will facilitate, the waging of such war.47.
[s 123.1] Section 121 and Section 123.—
To prove an offence under section 121, IPC, 1860, the prosecution is required to prove
that the accused is guilty of waging war against the Government of India or attempts to
wage such war, or abets the waging of such war, whereas for proving the offence under
section 123, IPC, 1860 against the accused, the prosecution is required to prove that
there was a concealment by an act or by illegal omission of existence of a design to
wage war against the Government of India and he intended by such concealment to

facilitate, or he knew that such concealment will facilitate, the waging of war. In the
present case, the accused was charged under section 121, IPC, 1860, for waging war
against the Government of India or attempting to wage such war or abetting the

46.  Subs. by the A.O. 1950, for "Queen".
47.  Mohammed Ajmal Mohammad Amir Kasab v State of Maharashtra, (2012) 9 SCC 1 [LNIND
48.  Shaukat Hussain Guru v State (NCT) Delhi, AIR 2008 SC 2419 : (2008) 6 SCC 776 : 2008 Cr LJ
waging of such war. The concealment of such fact by an act or illegal omission with an
intention to facilitate, or knowing that such concealment will facilitate, waging of war,
even in the absence of proof of his involvement in waging of war against the
Government of India, will constitute an offence and an accused can always be
convicted for the concealment of such fact under section 123, IPC, 1860. The
prosecution having been successful in proving the necessary ingredients of section
123, IPC, 1860, it would constitute a minor offence of a major offence and, therefore,

the petitioner was convicted under section 123, IPC, 1860 which is a minor offence of
the offences he faced trial.48.

[s 124] Assaulting President, Governor, etc., with intent to compel or restrain
the exercise of any lawful power.
Whoever, with the intention of inducing or compelling the 49.[President] of India, or the

50.[Governor 51.[***]] of any 52.[State], 53.[***] 54.[***] 55.[***] to exercise or refrain
from exercising in any manner any of the lawful powers of such 56.[President] or 57.
[Governor 58.[***]],
assaults or wrongfully restrains, or attempts wrongfully to restrain, or overawes, by
means of criminal force or the show of criminal force, or attempts so to overawe, such
59.[President or 60.[Governor 61.[***]],
shall be punished with imprisonment of either description for a term which may
extend to seven years, and shall also be liable to ﬁne.
49.  Subs. by the A.O. 1950, for "Governor General".
50.  Subs. by Act 3 of 1951, section 3 and Sch., for "Governor" (w.e.f. 1 April 1951).
51.  The words "or Rajpramukh" omitted by the A.O. (No. 2) 1956.
52.  Subs. by the A.O. 1950, for "Province". Earlier the word "Province" was subs. by the A.O.
1937, for the word "Presidency".
COMMENT—

COMMENT—
This section is an ampliﬁcation of the third clause of section 121A. It punishes severely
assaults, etc., made on high oﬃcers of Government.

53.  The words "or a Lieutenant-Governor" omitted by the A.O. 1937.
54.  The words "or a Member of the Council of the Governor General of India" omitted by the A.O.
1948.
55.  The words "or of the Council of any Presidency" omitted by the A.O. 1937.
56.  The words "Governor General, Governor, Lieutenant-Governor or Member of Council" have
successfully been amended by the A.O. 1937, the A.O. 1948 and the A.O. 1950 to read as above.
57.  Subs. by Act 3 of 1951, section 3 and Sch., for "Governor" (w.e.f. 1 April 1951).
58.  The words "or Rajpramukh" omitted by the A.O. (No. 2) 1956.
59.  The words "Governor General, Governor, Lieutenant-Governor or Member of Council" have
60.  Subs. by Act 3 of 1951, section 3 and Sch., for "Governor" (w.e.f. 1 April 1951).
61.  The words "or Rajpramukh" omitted by the A.O. (No. 2) 1956.

62.[[s 124A] Sedition.
Whoever, by words, either spoken or written, or by
signs, or by visible representation, or otherwise, brings or attempts
to bring into hatred or contempt, or excites or attempts to excite disaffection towards,

63.[***] the Government established by law in 64.[India], 65.[***] shall be punished with
66.[imprisonment for life], to which ﬁne may be added, or with imprisonment which
may extend to three years, to which ﬁne may be added, or with ﬁne.
Explanation 1.—The expression "disaffection" includes disloyalty and all feelings of
enmity.
Explanation 2.—Comments expressing disapprobation of the measures of the
Government with a view to obtain their alteration by lawful means, without exciting or
attempting to excite hatred, contempt or disaffection, do not constitute an offence
under this section.
Explanation 3.—Comments expressing disapprobation of the administrative or other
action of the Government without exciting or attempting to excite hatred, contempt or
disaffection, do not constitute an offence under this section.]
COMMENT—

COMMENT—
The offence under section 124A captioned as 'Sedition' is closely allied to treason – an
offence against the State. Many personalities including the Father of the Nation and
several freedom ﬁghters have been tried and punished during the imperial rule under
the above section. How far in a democratic set-up publishing or preaching of protest
even questioning the foundation of the form of Government could be imputed as
causing disaffection towards the Government and thus, committing of any offence

under Chapter VI of the IPC, 1860 has to be examined within the letter and spirit of the
Constitution and not as previously done under the imperial rule.67.
Sedition in itself is a comprehensive term, and it embraces all those practices, whether
by word, deed, or writing, which are calculated to disturb the tranquillity of the State,
and lead ignorant persons to endeavour to subvert the Government and laws of the
country. The objects of sedition generally are to induce discontent and insurrection,
and stir up opposition to the Government, and bring the administration of justice into
contempt; and the very tendency of sedition is to incite the people to insurrection and
rebellion.
Sedition has been described as disloyalty in action, and the law considers as sedition all
those practices which have for their object to excite discontent or dissatisfaction, to create
public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or

the Government, the laws or constitutions of the realm, and generally all endeavours to
promote public disorder.68.
[s 124A.1] Constitutional Validity.—
The Supreme Court, in Kedar Nath Singh v State of Bihar,69. held that this section is not
unconstitutional and opined that only when it is construed that the words, written or
spoken, etc. which have the pernicious tendency or intention of creating public disorder
or disturbance of law and order the law steps in to prevent such activities in the interest
of public order, then only the section strikes the correct balance between individual
fundamental rights and the interest of public order. The Court also held that a citizen
has a right to say or write whatever he likes about the Government, or its measures, by

way of criticism or comment, so long as he does not incite people to violence against
the Government established by law or with the intention of creating public disorder.
The Supreme Court in a later Order in Common Cause v UOI70. ordered that the
authorities while dealing with the offences under section 124A of the IPC, 1860 shall be
guided by the principles laid down by the Constitution Bench in Kedar Nath Singh.
Section 124A]
[s 124A.2] Ingredients.—
This section requires two essentials:—
1. Bringing or attempting to bring into hatred or contempt, or exciting or attempting to
excite disaffection towards the Government of India.
2. Such act or attempt may be done (i) by words, either spoken or written; or (ii) by
signs; or (iii) by visible representation.

excite disaffection towards the Government of India.—A plain reading of the section
would show that its application would be attracted only when the accused brings or
attempts to bring into hatred or contempt or excites or attempts to excite disaffection
towards the Government established by law in India, by words either written or spoken
or visible signs or representations, etc.71. Necessary ingredient to attract punishment
under section 124A, IPC, 1860, appears to be the effort of bringing or attempting to
bring into hatred or contempt to excite or attempt to excite disaffection towards the
Government established by law in India by words, either spoken or written or by signs

or by visible representation or otherwise.72. The offence does not consist in exciting or
attempting to excite mutiny or rebellion, or any sort of actual disturbance, great or

small. Whether any disturbance or outbreak was caused by the publication of seditious
articles is absolutely immaterial. If the accused intended by the articles to excite
rebellion or disturbance, his act would doubtless fall within this section, and would
probably fall within other sections of the IPC, 1860. If he tried to excite feelings of
hatred or contempt towards the Government, that is suﬃcient to make him guilty under
this section.73. The Federal Court of India had, however, held that the gist of the
offence of sedition is incitement to violence; mere abusive words are not enough.74.
The view of the Federal Court was subsequently overruled by the Privy Council,75. as
being opposed to the view expressed in several cases.76.
In appreciating whether the act done by the accused by words "either spoken or written
or by signs or by misrepresentation or otherwise" one cannot shut one's eyes to
changes in political consumptions which have taken place over the course of time after

the aforesaid penal provision section 124A was included in the IPC, 1860 and the
declared objective of the Government of the day. Very often, the demarcating line
between political criticism of the Government and those causing disaffection against
the Government is thin and waving.77.
It is not an essential ingredient of sedition that the act done should be an act which is
intended or likely to incite to public disorder.78. But this view of the law does no longer
seem to be correct, in view of the decision of the Supreme Court in Kedar Nath's
case,79. wherein Sinha, CJ observed:
comments, however strongly worded expressing, disapprobation of actions of Government,
without exciting those feelings which generate the inclination to cause public disorder by
acts of violence, would not be penal. In other words, disloyalty to Government established

by law is not the same thing as commenting in strong terms upon the measures or acts of
Government, or its agencies, so as to ameliorate the condition of the people or to secure the
cancellation or alteration of those acts or measures by lawful means, that is to say, without
exciting those feelings of enmity or disloyalty which imply excitement to public disorder or
the use of violence.
In this very case it was further held that viewed in the context of antecedent history of
the legislation, its purpose and the mischief it seeks to suppress the provisions of
section 124A and section 505 of the IPC, 1860 should be limited in their application to
acts involving intention or tendency to create disorder or disturbance of law and order
or incitement to violence. Where the propaganda secretary of a Gurdwara addressed a

gathering of Sikhs, some of whom were wearing black clothes and turbans, and in
course of his speech though he did not give direct incitement to violence but he
nevertheless gave exaggerated ﬁgures of casualties following Army action in Punjab, it
was held that it would be quite proper to infer from the text and tenor of the speech
made by the accused that the same was intended to bring the Government into
contempt with the likelihood of eruption of violence and public disorder contemplated
in Kedarnath's case. In the circumstances, his petition for quashing the criminal
proceedings against him under section 482, Cr PC, 1973 was rejected.80. The decisive
ingredient for establishing the offence of Sedition under section 124A, IPC, 1860 is the
doing of certain acts which would bring the Government established by law in India into

hatred or contempt, etc. In this case, there is not even a suggestion that appellant did
anything as against the Government of India or any other Government of the State. The
charge framed against the accused contains no averment that accused did anything as
against the Government.81. The prosecution evidence shows that the slogans were
raised a couple of times only by the accused and that neither the slogans evoked a
response from any other person of the Sikh community nor reaction from people of
other communities. Supreme Court found it diﬃcult to hold that upon the raising of
such casual slogans, a couple of times without any other act whatsoever, the charge of
sedition can be founded.

The casual raising of the slogans, once or twice by two individuals alone cannot be
said to be aimed at exciting or attempt to excite hatred or disaffection towards the
Government as established by law in India. Section 124A IPC, 1860 would in the facts
and circumstances of the case have no application whatsoever and would not be
attracted to the facts and circumstances of the case.82. The prosecution case is that
the accused has delivered a speech creating ill will and promoting enmity among
different retail and linguistic groups of Indian people and thereby committed the
offences punishable under sections 124(A) and 153(A) of the IPC, 1860. A perusal of
the First Information Report and the charge sheet laid by the respondent police would
make it abundantly clear that the allegations mentioned therein, if proved, would
naturally attract the provisions of sections 124(A) and 153(A) of IPC, 1860.83. State of
Punjab and Union Territory, Chandigarh, had been declared Disturbed Area and the

extremists activities were going on a large scale in September 1984. The law and order
situation had so deteriorated that the Army had to spread out. In this background, it will
be proper to infer from the text and tenor of the speech made by the accused that the
same was intended and it did tend to bring the Government into contempt with the
likelihood of eruption of violence and public disorder.84.
2. Such act, attempt, etc., may be done by words, either spoken or written or by signs
or by visible representation.—Not only the writer of seditious articles but whoever uses
in any way words or printed matter for the purpose of exciting feelings of disaffection
to the Government is liable under the section, whether he is the actual author or not.85.
[s 124A.3] 'Written'.—

In Raghubir Singh,86. it has been held that for establishing the charge of sedition, it is
not necessary that the accused must be the author of the seditious material and that
distribution or circulation of seditious material may also be suﬃcient on the facts and
circumstances of the case and even the act of courier is sometimes enough in a case
of conspiracy and further that it is also not necessary that a person should be the
participant in the conspiracy from start to ﬁnish. Disaffection may be excited in a
thousand different ways. A poem, an allegory, a drama, a philosophical or historical
discussion, may be used for the purpose of exciting disaffection. Seditious writing,
while it remains in the hands of the author unpublished, will not make him liable.
Publication of some kind is necessary.87. Sending of seditious matter by post

addressed to a private individual not by name but by designation as the representative
of a large body of students amounts to publication if it is opened by anybody.88.
[s 124A.4] Advise to kill members of police force.—
The Government established by law acts through human agency and admittedly, the
police service or force is itself a principal agency for the administration and
maintenance of the law and order in the State. When a person makes a statement or
gives an advice to resort to violence by killing four to ﬁve police oﬃcers, he could be
said to have criticised the police force or the service en bloc. In such circumstances a
prima facie case of waging war against the Government could be said to have been
made out.89.
[s 124A.5] 'Visible representation'.—

Sedition does not necessarily consist of written matter: it may be evidenced by a wood-
cut or engraving of any kind.90.
[s 124A.6] Explanations 2 and 3.—
Both these Explanations have a strictly deﬁned and limited scope. They have no
application unless the article in question criticises "the measures of Government" or
"administrative or other action of the Government" without exciting or attempting to
excite hatred, contempt or disaffection.
[s 124A.7] Membership in a banned organization.—
Mere membership of a banned organization will not incriminate a person unless he
resorts to violence or incites people to violence or does an act intended to create
disorder or disturbance of public peace by resort to violence.91.
[s 124A.8] 'Disapprobation'.—
This means simply disapproval. It is quite possible to disapprove of a man's sentiments
or actions and yet to like him.92.
[s 124A.9] Liability for extracts from other papers.—
The law does not excuse the publication in newspapers of writings which are in

themselves seditious libels, merely because they are copied from foreign newspapers
as items of news.93.
[s 124A.10] Liability for letters of correspondents.—
The editor of a newspaper is liable for unsigned seditious letters appearing in his
paper.94.
[s 124A.11] Publication of seditious exhibits.—
Republication of a seditious article used as an exhibit in a case of sedition is not
justiﬁable.95.
[s 124A.12] Listening to cassettes.—
Certain accused persons were convicted for listening to some cassettes containing
speeches of seditious nature. There was no other evidence to show that they either
committed or conspired or attempted to commit or advocated or advised or knowingly

62.  Subs. by Act 4 of 1898, section 4, for section 124A. Earlier section 124A was inserted by
Act 27 of 1870, section 5.
63.  The words "Her Majesty or" omitted by the A.O. 1950. The words "or the Crown
Representative" ins. after the word "Majesty" by the A.O. 1937 were omitted by the A.O. 1948.
64.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
65.  The words "or British Burma" omitted by the A.O. 1948. Earlier the words "or British Burma"
were inserted by the A.O. 1937.
66.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life or any shorter
term" (w.e.f. 1 January1956).
67.  Advocate Manuel PJ v State, 2012 (4) Ker LT 708 .
68.  Nazir Khan v State of Delhi, AIR 2003 SC 4427 [LNIND 2003 SC 696] : (2003) 8 SCC 461
[LNIND 2003 SC 696] : JT 2003 (1) SC 200 : 2003 Cr LJ 5021 .
69.  Kedar Nath Singh v State of Bihar, AIR 1962 SC 955 [LNIND 1962 SC 21] : [1962] Supp 2 SCR

76.
70.  Common Cause v UOI, Writ Petitions Civil No. 683/2016.
71.  Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : (1995) 3 SCC
214 [LNIND 1995 SC 1420] .
72.  Asit Kumar Sen Gupta v State of Chhattisgarh, 2012 (NOC) Cr LJ 384 (Chh).
73.  Bal Gangadhar Tilak, (1897) 22 Bom 112, 528, (PC); BG Tilak, (1908) 10 Bom LR 848 [LNIND
1908 BOM 85] ; Amba Prasad, (1897) 20 All 55 , 69, FB; Luxman, (1899) 2 Bom LR 286 ; Shankar,
(1910) 12 Bom LR 675 [LNIND 1910 BOM 66] .
74.  Niharendu Dutt Majumdar, (1942) FCR 38 .
75.  Sadashi v Narayan v State, (1947) 49 Bom LR 526 , (1947) Bom 110, 74 IA 89.
76.  Bal Gangadhar Tilak, (1897) 22 Bom 528, PC; Besant v Advocate-General of Madras, (1919)
43 Mad 146 : 21 Bom LR 867 PC; Wallace-Johnson, (1940) AC 231 .
facilitated commission of disruptive activities under Terrorist and Disruptive Activities

(Prevention) Act (TADA), 1987. Their conviction was set aside.96.
[s 124A.13] Previous Sanction.—
No sanction has been obtained to prosecute the petitioner/ accused for the offence
under section 124A of the IPC, 1860 which is a mandatory requirement for the Court to
take cognizance of such offence. When that be so, whether the contents of the poster
and its publication by the accused, even if it is at his instance, to determine whether
any offence of sedition is made out thereof is not called for. Section 196 of the Cr PC,
1973 mandates that a complaint for such offence should be expressly authorised by
the Government, and if not, the Court cannot take cognizance of such offence against
the accused person. Committal proceedings taken over the ﬁnal report laid before the
Court without production of order of sanction satisfying the statutory mandate is

clearly unsustainable.97.

77.  Advocate Manuel PJ v State, 2012 (4) Ker LT 708 .
78.  Pratap "Urdu Daily of New Delhi", (1949) 2 Punj 348.
79.  Kedar Nath, AIR 1962 SC 955 [LNIND 1962 SC 21] : 1962 (2) Cr LJ 103 .
80.  Naurang Singh, 1986 Cr LJ 846 (P&H).
81.  Bilal Ahmed Kaloo v State of AP, AIR 1997 SC 3483 [LNIND 1997 SC 1060] : (1997) 7 SCC
431 [LNIND 1997 SC 1060] : 1997 Cr LJ 4091 : (1997) 1 SCC (Cr) 1094.
82.  Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : (1995) 3 SCC
83.  P Nedumaran v State, 2003 Cr LJ 4388 (Mad).
84.  Naurang Singh v Union Territory, Chandigarh, 1986 Cr LJ 846 (PH).
85.  Bal Gangadhar Tilak, (1897) 22 Bom 112, 129; Jogendra Chunder Bose, (1891) 19 Cal 35 , 41.
86.  Raghubir Singh, 1987 Cr LJ 157 : AIR 1987 SC 149 [LNIND 1986 SC 336] : (1986) 4 SCC 481
[LNIND 1986 SC 336] .
87.  Foster, 198.
88.  Suresh Chandra Sanyal, (1912) 39 Cal 606 . Recovery of seditious material in the shape of

letters is enough though they were not written by the person carrying them. Raghubir Singh v
State of Bihar, 1987 Cr LJ 157 : AIR 1987 SC 149 [LNIND 1986 SC 336] : (1986) 4 SCC 481
89.  Hardik Bharatbhai Patel v State of Gujarat, 2016 Cr LJ 225 (Guj) : 2016 (1) RCR (Criminal)
542.
90.  Alexander M Sullivan, (1868) 11 Cox 44, 51.
91.  Indra Das v State of Assam, (2011) 3 SCC 380 [LNIND 2011 SC 164] : 2011 Cr LJ 1646 :
(2011) 1 SCC (Cr) 1150 : (2011) 4 SCR 289 [LNIND 2011 SC 164] ; State v Raneef, (2011) 1 SCC
784 [LNIND 2011 SC 3] : AIR 2011 SC 340 [LNIND 2011 SC 3] : 2011 Cr LJ 982 .
92.  Jogendra Chunder Bose, (1891) 19 Cal 35 , 44; Bal Gangadhar Tilak, (1897) 22 Bom 112, 137.
93.  Alexander M Sullivan, (1886) 11 Cox 44.
94.  Apurba Krishna Bose, (1907) 35 Cal 141 .
95.  Ibid.
96.  Balbir Singh v State of UP, AIR 2000 SC 464 : 2000 Cr LJ 590 .

95.  Ibid.
97.  Advocate Manuel PJ v State, 2012 (4) Ker LT 708 .

paper.94.

76.

542.

[s 125] Waging war against any Asiatic Power in alliance with the Government
of India.
Whoever wages war against the Government of any Asiatic Power in alliance or at
peace with the 98.[Government of India] or attempts to wage such war, or abets the

of India.
waging of such war, shall be punished with 99.[imprisonment for life], to which ﬁne
may be added, or with imprisonment of either description for a term which may
extend to seven years, to which ﬁne may be added, or with ﬁne.
98.  Subs. by the A.O. 1950, for "Queen".
99.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
100.  M & M 105.
101.  J a m e s o n , (1896) 2 QB 425 , 430.
COMMENT—
Waging war against Asiatic power.—This section restrains a person from making India
the base of intrigues and enterprise for the restoration of deposed rulers or other like
purposes. The fulﬁlment of the obligations of the State to allies and friendly Powers
requires that the abetment of such schemes by its subjects whether by furnishing

supplies or otherwise should be forbidden.100. "One Sovereign power is bound to
respect the subjects and the rights of all other sovereign powers outside its own
territory".101. This section, however, does not affect India's right as sovereign nation to
offer political asylum to a deposed ruler.

[s 126] Committing depredation on territories of power at peace with the
Whoever commits depredation, or makes preparations to commit depredation, on the
territories of any power in alliance or at peace with the 102.[Government of India], shall

be punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to ﬁne and to forfeiture of any property used or
intended to be used in committing such depredation, or acquired by such depredation.
102.  Subs. by the A.O. 1950, for "Queen".
COMMENT—
Depredation.—The preceding section provides for waging war against any Asiatic
Power in alliance with the Government of India, this section prevents the commission
of depredation or plunder on territories of States at peace with the Government of
India. The scope of this section is much wider than the preceding section, for it applies
to a Power which may or may not be Asiatic.

31[s 127] Receiving property taken by war or depredation mentioned in
sections 125 and 126.
Whoever receives any property knowing the same to have been taken in the
commission of any of the offences mentioned in sections 125 and 126, shall be

punished with imprisonment of either description for a term which may extend to
seven years, and shall also be liable to ﬁne and to forfeiture of the property so
received.
COMMENT—
This section applies to those persons who knowingly receive any property obtained by
waging war with a Power at peace with the Government of India or by committing
depredation on its territories.

[s 128] Public servant voluntarily allowing prisoner of State or war to escape.
Whoever, being a public servant and having the custody of any State prisoner1 or
prisoner of war2, voluntarily allows such prisoner to escape from any place in which

such prisoner is conﬁned, shall be punished with 103.[imprisonment for life], or
imprisonment of either description for a term which may extend to ten years, and
shall also be liable to ﬁne.
COMMENT—
Allowing escape to prisoners.—This section and section 225A provide for one kind of
offence. In both sections the public servant who has the custody of the prisoner is
punished if he voluntarily allows such prisoner to escape. In this section the prisoner
must be a State prisoner or a prisoner of war; under section 225A the prisoner may be
an ordinary criminal. The offence under this section is thus, an aggravated form of the
offence than under section 225A.
1. 'State prisoner' is one whose conﬁnement is necessary in order to preserve the
security of India from foreign hostility or from internal commotion, and who has been

conﬁned by the order of the Government of India.104.
2. 'Prisoner of war' is one who in war is taken in arms. Those who are not in arms, or
who being in arms submit and surrender themselves, are not to be slain but to be made
prisoners. But it seems those only are prisoners of war who are taken in arms.105.

103.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
104.  Beng Reg III of 1818; Bom Reg VIII of 1818; Mad Reg II of 1819.
105.  M & M 107.

[s 129] Public servant negligently suffering such prisoner to escape.
Whoever, being a public servant and having the custody of any State prisoner or
prisoner of war, negligently suffers such prisoner to escape from any place of

conﬁnement in which such prisoner is conﬁned, shall be punished with simple
imprisonment for a term which may extend to three years, and shall also be liable to
ﬁne.
COMMENT—
Negligently suffering prisoners to escape.—The offence under this section is like the
one provided in section 128. Under it the escape of the prisoner should be owing to the
n e g l i g e n c e  of the public servant. Section 128 punishes a public servant who v o l u n t a r i l y 
allows a State prisoner to escape. Section 223 punishes the escape of an ordinary
prisoner under similar circumstances.

[s 130] Aiding escape of, rescuing or harbouring such prisoner.
Whoever knowingly aids or assists any State prisoner or prisoner of war in escaping
from lawful custody, or rescues or attempts to rescue any such prisoner, or harbours

or conceals any such prisoner who has escaped from lawful custody, or offers or
attempts to offer any resistance to the recapture of such prisoner, shall be punished
with 106.[imprisonment for life], or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to ﬁne.
E x p l a n a t i o n .—A State prisoner or prisoner of war, who is permitted to be at large on his
parole within certain limits in 107.[India], is said to escape from lawful custody if he
goes beyond the limits within which he is allowed to be at large.
106.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f.
1January1956).
107.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and

COMMENT—
Aiding escape, harbouring escapees.—This section uses words more extensive than
those in the two preceding ones which contemplate an escape only from some prison
or actual place of custody. Again in the last two sections the offender is a public
servant; under this section he may be any person. The scope of this section is much
narrower than section 129. This section requires that the rescue or assistance be given
"knowingly".

CHAPTER VII OF OFFENCES RELATING TO THE ARMY, NAVY AND AIR
FORCE
[s 131] Abetting mutiny, or attempting to seduce a soldier, sailor or airman
from his duty.
Whoever abets the committing of mutiny by an oﬃcer, soldier, 1.[sailor or airman], in
the Army, 2.[Navy or Air Force] of the 3.[Government of India] or attempts to seduce
any such oﬃcer, soldier, 4.[sailor or airman] from his allegiance or his duty, shall be
punished with 5.[imprisonment for life], or with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to ﬁne.
6.[E x p l a n a t i o n .—In this section the words "oﬃcer", 7.["soldier", 8.["sailor"] and "airman"]
include any person subject to 9.[the Army Act, 10.[the Army Act, 195011.], 12.[the Naval
Discipline Act, 13.[***] the Indian Navy (Discipline) Act, 1934 (34 of 1934)14.], 15.[the
Air Force Act or 16.[the Air Force Act, 1950]], as the case may be].]
1.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor"

2.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Navy".
3.  Subs. by the A.O. 1950, for "Queen".
4.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
5.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1-1-1956).
6.  Ins. by Act 27 of 1870, section 6.
7.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "and soldier".
8.  Ins. by Act 35 of 1934, section 2 and Sch.
9.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "Articles of War for the better government
of Her Majesty's Army, or to the Articles of War contained in Act No. 5 of 1869".
COMMENT—
Aiding mutiny, seduction from duty.—The ﬁrst part of this section relates to the offence
of abetting mutiny. The offence contemplated is an abetment which is not followed by
actual mutiny, or which, supposing actual mutiny follows, is not the cause of that
mutiny.

mutiny.
The offence of 'mutiny' consists in extreme insubordination, as if a soldier resists by
force, or if a number of soldiers rise against or oppose their military superiors, such
acts proceeding from alleged or pretended grievances of a military nature. Acts of a
riotous nature directed against the government or civil authorities rather than against
military superiors seem also to constitute mutiny.17.

10.  Subs. by Act 3 of 1951, section 3 and Sch., for "the Indian Army Act, 1911" (w.e.f. 1-4-1951).
11.  Now see the Navy Act, 1957 (62 of 1957).
12.  Ins. by Act 35 of 1934, section 2 and Sch.
13.  The words "or that Act as modiﬁed by" omitted by the A.O. 1950.
14.  Now see the Navy Act, 1957 (62 of 1957).
15.  Subs. by Act 14 of 1932, section 130 and Sch., for "or the Air Force Act".
16.  Subs. by Act 3 of 1951, section 3 and Sch., for "the Indian Air Force Act, 1932" (w.e.f. 1-4-
1951).
17.  M&M 112.

FORCE
[s 132] Abetment of mutiny if mutiny is committed in consequence thereof.
Whoever abets the committing of mutiny by an oﬃcer, soldier, 18.[sailor or airman] in
the Army, 19.[Navy or Air Force] of the 20.[Government of India], shall, if mutiny be
committed in consequence of that abetment, be punished with death or with 21.
[imprisonment for life], or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to ﬁne.
18.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
19.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Navy".
20.  Subs. by the A.O. 1950, for "Queen".
21.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1-1-1956).

FORCE
[s 133] Abetment of assault by soldier, sailor or airman on his superior oﬃcer,
when in execution of his oﬃce.
Whoever abets an assault by an oﬃcer, soldier, 22.[sailor or airman], in the Army, 23.
[Navy or Air Force] of the 24.[Government of India], on any superior oﬃcer being in the
execution of his oﬃce, shall be punished with imprisonment of either description for a
term which may extend to three years, and shall also be liable to ﬁne.
22.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
23.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Navy".
24.  Subs. by the A.O. 1950, for "Queen".
COMMENT—
Abetment of assault, etc.—This section punishes the abetment of an assault which is
not committed. The next section punishes similar abetment where the offence is

FORCE
[s 134] Abetment of such assault, if the assault is committed.
Whoever abets an assault by an oﬃcer, soldier, 25.[sailor or airman], in the Army, 26.
[Navy or Air Force] of the 27.[Government of India], on any superior oﬃcer being in the
execution of his oﬃce, shall, if such assault be committed in consequence of that
abetment be punished with imprisonment of either description for a term which may
25.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
26.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Navy".
27.  Subs. by the A.O. 1950, for "Queen".
COMMENT—
Where abetted assault committed.—This section punishes the abetment of an assault
when such assault is committed in consequence of that abetment. It stands in the
same relation to section 133 as section 132 does to section 131.

FORCE
[s 135] Abetment of desertion of soldier, sailor or airman.
Whoever abets the desertion of any oﬃcer, soldier, 28.[sailor or airman], in the Army,
29.[Navy or Air Force] of the 30.[Government of India], shall be punished with
imprisonment of either description for a term which may extend to two years, or with
ﬁne, or with both.
28.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
29.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Navy".
30.  Subs. by the A.O. 1950, for "Queen".
COMMENT—
Abetment of desertion.—The desertion abetted under this section need not take place.
Mere abetment is made punishable.

FORCE
[s 136] Harbouring deserter.
Whoever, except as hereinafter expected, knowing or having reason to believe that an
oﬃcer, soldier, 31.[sailor or airman], in the Army, 32.[Navy or Air Force] of the 33.
[Government of India], has deserted, harbours such oﬃcer, soldier, 34.[sailor or
airman], shall be punished with imprisonment of either description for a term which
may extend to two years, or with ﬁne, or with both.
Exception.—This provision does not extend to the case in which the harbour is given
by a wife to her husband.
31.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
32.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Navy".
33.  Subs. by the A.O. 1950, for "Queen".
34.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
COMMENT—
Harbouring deserter.—A person harbouring a deserter is an 'accessory after the fact'.

COMMENT—
The gist of the offence is concealment of a deserter to prevent his apprehension.
Exception is made only in the case of a wife.
The word 'harbour' is deﬁned in section 52A.

FORCE
[s 137] Deserter concealed on board, merchant vessel through negligence of
master.
The master or person in charge of a merchant vessel, on board of which any deserter
from the Army, 35.[Navy or Air Force] of the 36.[Government of India] is concealed,
shall, though ignorant of such concealment, be liable to a penalty not exceeding ﬁve
hundred rupees, if he might have known of such concealment but for some neglect of
his duty as such master or person in charge, or but for some want of discipline on
board of the vessel.
35.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Navy".
36.  Subs. by the A.O. 1950, for "Queen".
COMMENT—
Concealment on board.—This section punishes the master or person in charge of a
merchant ship on board of which a deserter has concealed himself. The master is
liable even though he is ignorant of such concealment. But some negligence or laxity in

the maintenance of discipline on the part of the master has to be made out.

FORCE
[s 138] Abetment of act of insubordination by soldier, sailor or airman.
Whoever abets what he knows to be an act of insubordination by an oﬃcer, soldier, 37.
[sailor or airman], in the Army, 38.[Navy or Air Force] of the 39.[Government of India],
shall, if such act of insubordination be committed in consequence of that abetment,
six months, or with ﬁne, or with both.
37.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
38.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Navy".
39.  Subs. by the A.O. 1950, for "Queen".
COMMENT—
Abetment of insubordination.—In this section it is expressed as part of the deﬁnition of
the offence that the abettor knows the quality of the act abetted, that is, he knows it to
be an act of insubordination.

FORCE
[s 138A] [ R e p e a l e d ] 
[Application of foregoing sections to the Indian Marine Service.] Repealed by s. 2 and
Sch. of Act XXXV of 1934.

FORCE
[s 139] Persons subject to certain Acts.
No person subject to 40.[the Army Act, 41.[the Army Act, 1950, the Naval Discipline
Act, 42.[43.[***] the Indian Navy (Discipline) Act, 193444.], 45.[the Air Force Act or 46.
[the Air Force Act, 1950]]], is subject to punishment under this Code for any of the
offences deﬁned in this Chapter.
40.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "any Article of War for the Army or Navy
ofthe Queen, or for any part of such Army or Navy".
41.  Subs. by Act 3 of 1951, section 3 and Sch., for "the Indian Army Act, 1911" (w.e.f. 1-4-1951).
42.  Ins. by Act 35 of 1934, section 2 and Sch.
43.  The words "or that Act as modiﬁed" omitted by the A.O. 1950.
44.  Now see the Navy Act, 1957 (62 of 1957).
45.  Subs. by Act 14 of 1932, section 130 and Sch., for "or the Air Force Act".
46.  Subs. by Act 3 of 1951, section 3 and Sch., for "the Indian Air Force Act, 1932" (w.e.f. 1-4-
1951).
COMMENT—

1951).
COMMENT—
Persons subject to these special Acts are punishable under those Acts and not under
the Penal Code.

FORCE
[s 140] Wearing garb or carrying token used by soldier, sailor or airman.
Whoever, not being a soldier, 47.[sailor or airman], in the Military, 48.[Naval or Air]
service of the 49.[Government of India], wears any garb or carries any token
resembling any garb or token used by such a soldier, 50.[sailor or airman] with the
intention that it may be believed that he is such a soldier, 51.[sailor or airman], shall be
three months, or with ﬁne which may extend to ﬁve hundred rupees, or with both.
47.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
48.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or Navy".
49.  Subs. by the A.O. 1950, for "Queen".
50.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
51.  Subs. by Act 10 of 1927, section 2 and Sch. I, for "or sailor".
COMMENT—

COMMENT—
Wearing garb or carrying token.—The gist of the offence herein made penal is the
intention of the accused wearing the dress of a soldier for the purpose of inducing
others to believe that he is in service at the present time. Merely wearing a soldier's
garb without any speciﬁc intention is no offence. Cast-off uniforms of soldiers are worn
by many men. Actors put on different military uniforms.

CHAPTER VIII OF OFFENCES AGAINST THE PUBLIC TRANQUILLITY
The offences in this chapter may be classiﬁed in the following four groups:—
I. Unlawful assembly.
(1) Being a member of an unlawful assembly (sections 141, 142, 143).
(2) Joining an unlawful assembly armed with deadly weapons (section 144).
(3) Joining or continuing in an unlawful assembly knowing it has been commanded
to disperse (section 145).
(4) Hiring of persons to join an unlawful assembly (section 150).
(5) Harbouring persons hired for an unlawful assembly (section 157).
(6) Being hired to take part in an unlawful assembly (section 158).
II. Rioting (sections 146, 147).
(1) Rioting with deadly weapon (section 148).
(2) Assaulting or obstructing a public servant in the suppression of a riot (section
152).
(3) Wantonly giving provocation with intent to cause riot (section 153).
(4) Liability of the owner or occupier of land on which an unlawful assembly is held
or a riot is committed (section 154).

(5) Liability of the person for whose beneﬁt a riot is committed (section 155).
(6) Liability of the agent of owner or occupier for whose beneﬁt a riot is committed
(section 156).
III. Promoting enmity between different classes (section 153A).
IV. Affray (sections 159, 160).
[s 141] Unlawful assembly.
An assembly of ﬁve or more1 persons is designated an "unlawful assembly", if the
common object2 of the persons composing that assembly is—
F i r s t .—To overawe by criminal force, or show of criminal force, 1.[the Central or any
State Government or Parliament or the Legislature of any State], or any public servant
in the exercise of the lawful power of such public servant; or
S e c o n d .—To resist the execution of any law, or of any legal process; or T h i r d .—To

commit any mischief or criminal trespass, or other offence; or
F o u r t h .—By means of criminal force, or show of criminal force, to any person, to take
or obtain possession of any property, or to deprive any person of the enjoyment of a
right of way, or of the use of water or other incorporeal right of which he is in
possession or enjoyment, or to enforce any right or supposed right; or

F i f t h .—By means of criminal force, or show of criminal force, to compel any person to
do what he is not legally bound to do, or to omit to do what he is legally entitled to do.
E x p l a n a t i o n .—An assembly which was not unlawful when it assembled, may
subsequently become an unlawful assembly.
1.  Subs. by the A.O. 1950, for The Central or any Provincial Government or Legislature.

[s 142] Being member of unlawful assembly.
Whoever, being aware of facts which render any assembly an unlawful assembly,
intentionally joins that assembly, or continues in it, is said to be a member of an
unlawful assembly.

[s 143] Punishment.
Whoever is a member of an unlawful assembly, shall be punished with imprisonment
of either description for a term which may extend to six months, or with ﬁne, or with
both.
COMMENT—
Unlawful assembly.—An 'assembly' is a company of persons assembled together in a
place, usually for a common purpose. Court is concerned with an 'unlawful assembly'.
Wherever ﬁve or more persons commit a crime with a common object and intent, then
each of them would be liable for commission of such offence, in terms of sections 141

and 149, Indian Penal Code, 1860 (IPC, 1860). It is not possible to deﬁne the

constituents or dimensions of an offence under section 149 simpliciter with regard to
dictionary meaning of the words 'unlawful assembly' or 'assembly'.2. An assembly of
ﬁve or more persons having as its common object any of the ﬁve objects enumerated
under section 1 41 of IPC is deemed to be an unlawful assembly. Membership of an
unlawful assembly is itself an offence punishable under section.143, whereas other
species of the said offence are dealt with under section 143–145 of IPC. Similarly,
sections 146–148 of IPC deals with the offence of rioting which is deﬁned to be use of
force or violence by any member thereof. Section 149 makes every member of an
unlawful assembly liable for offence that may be committed by any member of the
unlawful assembly in prosecution of the common object of that assembly or for
commission of any offence that the members of the assembly knew to be likely to be
committed in prosecution of the common object of the assembly.3. To bring a case

within section 149 of IPC some essential features must be present. First, there must be
an existence of an unlawful assembly within the meaning of section 141 of IPC. This is
a mixed question of fact and law.4.
The underlying principle of section 141 is that law discourages tumultuous assemblage
of men to preserve the public peace. Section 141 deﬁnes what an 'unlawful assembly'
is. Section 142 gives the connotations of 'a member of an unlawful assembly'. Section
143 punishes tumultuous assemblies as they endanger public peace. It does not
require that the purpose of the unlawful assembly should have been fulﬁlled.
The essence of an offence under this section is the combination of ﬁve or more
persons, united in the purpose of committing a criminal offence, and the consensus of

purpose is itself an offence distinct from the criminal offence which these persons
agree and intend to commit.5. Unlike the Indian law contained in section 141, IPC, 1860,
an unlawful assembly at common law need to have only three or more persons who
must assemble together for the common purpose of committing an offence involving
use of violence, or for achieving a lawful or unlawful object in such a manner so as to
lead to a reasonable apprehension of a breach of peace as a direct result of their
conduct.6. Thus, under section 141, IPC, especially under sub-section (3) thereof, use of
violence or likelihood of breach of the peace is not at all a sine qua non for an offence
of unlawful assembly but this is so under the common law. So under the common law,
even if the purpose of the assembly is unlawful, the offence of being an unlawful

assembly would not be committed if there is no likelihood of breach of the peace and
this would be so even if the unlawful common purpose is carried out.
[s 143.1] Ingredients.—
An 'unlawful assembly' is an assembly of ﬁve or more persons if their common object
is—
1. to overawe by criminal force
(a) the Central Government, or
(b) the State Government, or
(c) the Legislature, or
(d) any public servant in the exercise of lawful power;
2. to resist the execution of law or legal process;
3. to commit mischief, criminal trespass, or any other offence;
4. by criminal force—
(a) to take or obtain possession of any property, or

(b) to deprive any person of any incorporeal right, or
(c) to enforce any right or supposed right;
5. by criminal force to compel any person—
(a) to do what he is not legally bound to do, or
(b) to omit what he is legally entitled to do.
1. 'Five or more'.— The Constitution Bench in Mohan Singh's case7. held that it is only
where ﬁve or more persons constituted an assembly that an unlawful assembly is born,
provided, of course, the other requirements of the said section as to the common
object of the persons composing that assembly are satisﬁed. In other words, it is an
essential condition of an unlawful assembly that its membership must be ﬁve or more.
The Supreme Court has endorsed the view that the number of injuries caused and the
number of persons who were inﬂicted with those injuries, (in this case, three persons
were attacked and they sustained 13, 12 and 7 injuries respectively) can give a clue to
the fact that more than three persons must necessarily have participated in the
attack.8.

attack.8.
[s 143.2] Effect of acquittal of some accused:
In Mohan Singh v State of Punjab,9. the Supreme Court considered the question of
acquittal of two of the accused charged for the offence under section 302 read with
section 149, on the conviction of the remaining three accused. If ﬁve or more persons
are named in the charge as forming an unlawful assembly and the evidence adduced
by the prosecution proves that charge against all of them that is a very clear case
where section 149 could be invoked. "It is however not necessary that ﬁve or more
persons must be convicted before a charge under section 149 could be successfully
brought home to any members of the unlawful assembly. It may be that less than ﬁve
persons may be charged and convicted under section 302 read with section 149, if the

charge is that persons before the court along with others named, constituted an
unlawful assembly. Other persons so named may not be available for trial along with
their companions for the reason that they have absconded. In such a case, the fact that
less than ﬁve persons are before the court does not make section 149 inapplicable.
Therefore, in order to bring home a charge under section 149, it is not necessary that
ﬁve or more persons must necessarily be brought before the court and convicted …" In
view of the decision of the Constitution Bench in Mohan Singh's case,10. even after
acquittal of the two accused from all the charges levelled against them, if there is any
material that they were members of the unlawful assembly, the conviction under
section 302 can be based with the aid of section 149.11.

Where two of the six accused persons were acquitted without any ﬁnding that some
other known or unknown persons also were involved in the assault, the remaining four
accused persons could not be said to be members of an unlawful assembly.12. Where
a group of persons, differently armed, assaulted a man with the common object of
killing him and all the assailants accused except one were acquitted, it was held that
the remaining sole accused could not be convicted and sentenced under section 302
with the aid of section 149. The court cannot carve out a new case.13. If out of an
unlawful assembly consisting of seven named persons four are acquitted, the other
three cannot be convicted of rioting as members of an unlawful assembly.14. They may,
however, be convicted of the principal offence with the aid of section 34, IPC, 1860.15.

Where presence of eight persons in the course of assault was established, four of them
were given beneﬁt of doubt but there was no ﬁnding anywhere to the effect that only

four persons had taken part in the assault, conviction of the remaining four on the
charge of forming unlawful assembly was not illegal.16.
2. 'Common object'.— The common object of an unlawful assembly depends ﬁrstly on
whether such object can be classiﬁed as one of those described in section 141;
secondly, such common object need not be the product of prior concert but may form
on spur of the moment, ﬁnally, nature of such common object is a question of fact to
be determined by considering the nature of arms, nature of assembly, behaviour of
members, etc.17. Mere presence in an assembly does not make a person a member of
an unlawful assembly unless it is shown that he had done something or omitted to do
something which would make him a member of the unlawful assembly or unless the
case falls under section 142.18. Thus, merely because some persons assembled, all of
them cannot be condemned 'ipso facto' as being members of that unlawful

assembly.19. At the same time it cannot be laid down as a general proposition of law
that unless an overt act is proved against a person, who is alleged to be a member of
unlawful assembly, it cannot be said that he is a member of an assembly. The only
thing required is that he should have understood that the assembly was unlawful and
was likely to commit any of the acts which fall within the purview of section 141.20.
Further the prosecution has to prove that the commission of the offence was by any
member of an unlawful assembly and such offence must have been committed in
prosecution of the common object of the unlawful assembly or such that the members
of the assembly knew that it was likely to be committed.21. The word 'object' means the
purpose or design and, in order to make it 'common', it must be shared by all. In other

words, the object should be common to the persons, who compose the assembly, that
is to say, they should all be aware of it and concur in it. A common object may be
formed by express agreement after mutual consultation, but that is by no means
necessary. It may be formed at any stage by all or a few members of the assembly and
the other members may just join and adopt it. Once formed, it need not continue to be
the same. It may be modiﬁed or altered or abandoned at any stage.22.
Section 142 postulates that whoever, being aware of facts which render any assembly
an unlawful one, intentionally joins the same would be a member thereof. Whether an
assembly is unlawful one or not, would depend on various factors, the principal
amongst them being a common object formed by the members thereof to commit an

offence speciﬁed in one or the other clauses contained in section 141.23. In a free ﬁght
between two groups resulting in death of one person and injuries to several others on
both the sides, it was held that the formation of an unlawful assembly was not
impossible but the common object of such an assembly cannot be determined on the
basis of serious injury by one of them.24. The accused along with about six–eight
others forcibly entered into the oﬃce of a union leader and assaulted him but the victim
did not receive any serious injury inside the union oﬃce and managed to escape. Later
on in the open space some members of the crowd surrounded and attacked him and
dealt fatal blows. It was held that the accused who entered the union oﬃce did not
share the common object of committing murder of the deceased. They were convicted

under sections 326/149.25. Where the accused forming an unlawful assembly
assaulted the deceased but the injury caused by only one accused proved to be fatal
and the injuries caused by the others were found to be simple, it was held that the
common object of the unlawful assembly was only to cause grievous hurt and only the
accused who caused fatal injury was liable to be convicted for murder and others
under section 326/149.26.
The Supreme Court observed on the facts of a case that given the circumstances in
which the assembly came together and given that all parties were aware that among
them, certain members carried weapons like guns and spear, even if it was held that
common object of assembly was not to cause death, it would not be an unreasonable
inference that all accused knew that the offence of culpable homicide was likely to be

committed in prosecution of such an armed assault on another group which was not
prepared to withstand such an attack, bringing about application of second portion of
section 149. Therefore, it was held, that any of the accused found to have participated
in the assault should be held guilty under section 141 and 149.27.
[s 143.3] Determination of Common object:
Determination of the common object of an unlawful assembly or the determination of
the question whether a member of the unlawful assembly knew that the offence that
was committed was likely to be committed is essentially a question of fact that has to
be made keeping in view the nature of the assembly, the arms carried by the members
and the behaviour of the members at or near the scene and a host of similar or
connected facts and circumstances that cannot be entrapped by any attempt at an
exhaustive enumeration.28. It is diﬃcult indeed, though not impossible, to collect direct

evidence of such knowledge. An inference may be drawn from circumstances such as
the background of the incident, the motive, the nature of the assembly, the nature of the
arms carried by the members of the assembly, their common object and the behaviour
of the members soon before, at or after the actual commission of the crime.29.
[s 143.4] Second clause—Resisting Law or Legal Process.—
Resistance to some law, or legal process, connotes some overt act, and mere words,
when there is no intention of carrying them into effect, are not suﬃcient to prove an
intention to resist.30. When an order is lawfully made under the provisions of a statute,
that order is law, and resistance to the execution of that law is an offence.31.
Under this clause the act resisted must be a legal act. Where a number of persons

resisted an attempt to search a house which was being made by oﬃcers, who had not
the written order investing them with the power to do so, it was held that the persons
resisting the attempted search were not guilty of this offence.32. Assembling together
for the common object of rescuing a friend from unlawful police detention has been
held by the Supreme Court as not constituting an unlawful assembly.33.
[s 143.5] Third clause.—Committing Criminal Trespass, Mischief, other
offence.—
This clause speciﬁes only two offences, viz., mischief and criminal trespass, but the
words 'or other offence' seem to denote that all offences are included though only two
are enumerated in a haphazard way. In Manga @ Man Singh v State of Uttarakhand, the
Supreme Court while considering the application of principle of 'ejusdem generis' to

section 141 'third' clause, observed that:
We fail to appreciate as to how simply because the offences mischief or criminal trespass
are used preceding the expression "other offence" in Section 141 'third', it should be taken
that such offence would only relate to a minor offence of mischief or trespass and that the
expression "other offence" should be restricted only to that extent. As pointed out by us
above, the offence of mischief and trespass could also be as grave as that of an offence of
murder, for which the punishment of life imprisonment can be imposed as provided for
under Sections 438, 449, 450 etc. Therefore, we straight away hold that the argument of
learned senior counsel for the Appellants to import the principle of 'ejusdem generis' to
Section 141 'third', cannot be accepted.34.

[s 143.6] Suleman Bakery Case:
It is a case related to the communal riots of Mumbai in early 1993. Government
imposed curfew and the Special Operation Squad (SOS) was called to control the
communal riots on information of stone pelting, throwing of glass bottles, acid bulbs
and ﬁring from the terrace of Suleman Bakery. It was argued that at any rate SOS was
an unlawful assembly on account of the third clause of section 141 of IPC, 1860, and
hence, all the discharged accused persons were members of the unlawful assembly
and had to be at least charged and inquired into by the courts below. It was argued that
the assembly of the police at least till the time they broke open the door was a lawful
move, as it was their duty but they should not have broken open the door and
trespassed the Suleman bakery; and all those who entered Suleman bakery formulated
an unlawful assembly as they illegally trespassed into the Suleman bakery. Since A-1,

Shri Tyagi, had ordered them to break open the doors and he was a part of that unlawful
assembly who had the common object. The Supreme Court held that they were all the
members of the SOS and had the duty to quell the riots. They were not doing anything
illegal in coming out and trying to control the riots. Court rejected the argument by
holding that a trespass becomes a criminal trespass if it is with an intention to annoy
or to do something illegal which is not the case here. There was no question of the so-
called entry amounting to criminal trespass.35.
[s 143.7] Fourth clause—Application of Criminal Force.—
The act falling within the purview of this clause is made punishable owing to the
injurious consequences which it is likely to cause to the public peace. This clause does

not take away the right of private defence of property. It does not affect clause 2 of
section 105, which allows a person to recover the property carried away by theft. It is
meant to prevent the resort to force in vindication of supposed rights. It makes a
distinction between an admitted claim or an ascertained right and a disputed claim.36.
Where ﬁve or more persons assemble for maintaining by force or show of force a right
which they bona ﬁde believe they possess, and not for enforcing by such force or show
of force a right or supposed right of theirs, they do not constitute an unlawful
assembly.37. An assembly of ﬁve or more persons cannot be designated as an unlawful
assembly under this section if its object is to defend property by the use of force within

the limits prescribed by law.38. But when a body of men are determined to vindicate
their rights, or supposed rights, by unlawful force, and when they engage in a ﬁght with
men who, on the other hand, are equally determined to vindicate, by unlawful force,
their rights or supposed rights, no question of self-defence arises. Neither side is trying
to protect itself, but each side is trying to get the better of the other.39.
[s 143.8] Fifth clause—Compelling persons to act or omission.—
This clause is very comprehensive and applies to all the rights a man can possess,
whether they concern the enjoyment of property or not. There is no reference to 'any
right or supposed right' as in the preceding clause.
[s 143.9] Explanation.—

An assembly which is lawful in its inception may become unlawful by the subsequent
act of its members.40. It may turn unlawful all of a sudden and without previous
concert among its members.41. But illegal acts of one or two members, not acquiesced
in by the others, do not change the character of the assembly.42. The law on the point
as stated above is approved by the Supreme Court in Moti Das.43.
[s 143.10] Being member of unlawful assembly.—
Section 142 shows that it is suﬃcient for the offence of riot to be proved against an
individual that the individual should remain in an unlawful assembly as soon as he is
aware that the assembly is unlawful. The word "continues" in the section means
physical presence as a member of the unlawful assembly, that is, to be physically
present in the crowd.44. This, however, should not be interpreted to mean that mere
presence as a curious onlooker or bystander at the scene of the unlawful assembly

without sharing its common object would make a person liable under section 142, IPC,
1860, for being a member of an unlawful assembly.45. Thus common object cannot be
attributed to a person from his mere presence at the scene of the occurrence. There
must be some other direct or circumstantial evidence to justify that inference.46.
For being a member of unlawful assembly it is not necessary that a person must
commit some overt act towards the commission of the crime. The test is whether he
knows of its common object and continues to keep its company due to his own free
will.47. Thus, where a large procession of Kannadigas, taken out to voice protest
against Maharashtrians, turned violent, started pelting stones and attacking police
oﬃcers; the procession turned into an unlawful assembly the moment it developed the

common object of causing damage to property and injuries to police oﬃcers.
Thereafter, every person who continued as a member of the assembly became liable
for the offence committed by the processionalists by virtue of section 149 of IPC,
1860.48. If some unidentiﬁed members of an unlawful assembly behaved in an unruly
manner, the other members in the procession cannot be held guilty of the offence by
foisting vicarious liability, merely because they were in the procession.49.
[s 143.11] CASES.—Enforcement of right by use of criminal force.—Dispute
regarding possession of land.—
Where there was a dispute of long standing between the accused and certain other
parties regarding possession of certain land, and the accused went to sow the land
with indigo, accompanied by a body of men armed with sticks who kept off the

opposite party by brandishing their weapons while the land was sowed, it was held that
they were guilty of this offence.50. Where the accused, who were in possession of the
disputed land, went upon it in a large body armed with sticks, prepared in anticipation
of a ﬁght, and were reaping the paddy grown by them, when the complainant's party
came up and attempted to cut the same, whereupon a ﬁght ensued and one man was
seriously wounded and died subsequently, it was held that the common object was not
to enforce a right but to maintain undisturbed the actual enjoyment of a right and that
the assembly was not therefore unlawful.51.

2.  State of Haryana v Shakuntla, (2012) 5 SCC 171 [LNIND 2012 SC 1259] : JT 2012 (4) SC 287 :
AIR 2012 (SCW) 2952 : 2012 Cr LJ 2850 .
3.  Bharat Soni v State of Chhattisgarh, 2013 Cr LJ 486 (SC) : 2013 (1) Mad LJ (Cr) 94 : 2013 (1)
Crimes 66 .
4.  Gurmail Singh v State of Pumjab, 2013 (4) SCC 228 [LNIND 2012 SC 864] : 2013 (2) SCC (Cr)
369.
5.  Matti Venkanna, (1922) 46 Mad 257.
6.  Stephen, Digest of Criminal Law, Article 90.
7.  Mohan Singh's case, AIR 1963 SC 174 [LNIND 1962 SC 118] : (1963) 1 Cr LJ 100 .
8.  Suresh Pal v State of UP, AIR 1981 SC 1161 : 1981 Cr LJ 624 : 1981 All LJ 562 : 1981 Supp
SCC 6 .
9.  Mohan Singh v State of Punjab, AIR 1963 SC 174 [LNIND 1962 SC 118] : 1963 (1) Cr LJ 100
10.  Supra.
11.  Shaji v State, (2011) 5 SCC 423 [LNIND 2011 SC 481] : AIR 2011 SC 1825 [LNIND 2011 SC
481] : 2011 Cr LJ 2935 (SC). See also Roy Fernandes v State of Goa, (2012) 3 SCC 221 [LNIND
2012 SC 86] : 2012 Cr LJ 1542 (SC).

12.  Subran v State of Kerala, 1993 Cr LJ 1387 (SC) : AIR 1993 SCW 1014 : (1993) 3 SCC 32
[LNIND 1993 SC 162] , 39.
13.  Ram Chandra Chaudhary v State of UP, 1992 Cr LJ 1488 (All). Over a dozen persons
prosecuted, others acquitted, only two convicted of whom one died, the remaining one convict
entitled to acquittal on the same grounds, see Malkiat Singh v State of Punjab, 1994 Cr LJ 623 :
AIR 1993 SCW 4071 .
14.  Motiram, (1960) 62 Bom LR 514 ; Kartar Singh, AIR 1961 SC 1787 [LNIND 1961 SC 210] :
1961 (2) Cr LJ 853 .
15.  Ram Tahal, 1972 Cr LJ 227 (SC); Amir Hussain, 1975 Cr LJ 1874 : AIR 1975 SC 2211 ;
Methala Potturaju v State of AP, (1992) 1 SCC 49 [LNIND 1991 SC 448] : AIR 1991 SC 2214
[LNIND 1991 SC 448] : 1991 Cr LJ 3133 : AIR 1991 SC 2214 [LNIND 1991 SC 448] .
16.  Sahebrao Kisan Jadhav v State of Maharashtra, 1992 Cr LJ 339 (Bom) : 1992 (1) Bom CR 423
[LNIND 1991 BOM 410] .

17.  Bhanwar Singh v State of MP, (2008) 16 SCC 657 [LNIND 2008 SC 1246] : AIR 2009 SC 768
[LNIND 2008 SC 1246] : (2008) 67 AIC 133 .
18.  KM Ravi v State of Karnataka, (2009) 16 SC 337 ; Baladin, AIR 1956 SC 181 : 1956 Cr LJ 345 .
See also Masalti v State of UP, AIR 1965 SC 202 [LNIND 1964 SC 173] : (1965) 1 Cr LJ 226 ; and
Bishambar, AIR 1971 SC 2381 : 1971 Cr LJ 1700 ; followed in Babu Hamidkhan Mestry v State of
Maharashtra, (1995) 2 Cr LJ 2355 (Bom) cited in Binay Kumar Singh v State of Bihar, AIR 1997 SC
322 [LNIND 1996 SC 2707] : 1997 AIR SCW 78 : (1997) 1 SCC 283 [LNIND 1996 SC 2707] : 1997
Cr LJ 362 , to the effect that where a larger number of persons are accused of committing a
crime and are charged with the aid of section 149, the court should be extremely careful in

scrutinising the evidence and there should be two, three or more witness who should be
consistent. This ruling was applied in Kamaksha Rai v State of UP, AIR 2000 SC 53 [LNIND 1999
SC 885] : 2000 Cr LJ 178 . See also Thankappan Mohanan v State of Kerala, 1990 Cr LJ 1477 ;
Chinu Patel v State of Orissa, 1990 Cr LJ 248 (Ori).
19.  Uday Singh v State of MP, AIR 2017 SC 393 .
20.  Raj Nath v State of UP, AIR 2009 SC 1422 [LNIND 2009 SC 59] : (2009) 4 SCC 334 [LNIND
2009 SC 59] : (2009) 1 SCR 336 : JT 2009 (1) SC 373 [LNIND 2009 SC 85] ; (2009) 2 SCC (Cr)
289.
21.  Uday Singh v State of MP, AIR 2017 SC 393 .

22.  Raj Nath v State of UP, AIR 2009 SC 1422 [LNIND 2009 SC 59] : (2009) 4 SCC 334 [LNIND
2009 SC 59] : (2009) 1 SCR 336 : JT 2009 (1) SC 373 [LNIND 2009 SC 85] : (2009) 2 SCC (Cr)
289.
23.  Akbar Sheikh v State of WB, (2009) 7 SCC 415 [LNIND 2009 SC 1106] : (2009) 3 SCC (Cr)
431.
24.  Amrik Singh v State of Punjab, 1993 AIR SCW 2482 : 1993 Cr LJ 2857 : 1994 Supp (1) SCC
320 .
25.  SP Sinha v State of Maharashtra, AIR 1992 SC 1791 : 1992 Cr LJ 2754 : 1993 Supp (1) SCC
658 .
26.  Thakore Dolji Vanvirji v State of Gujarat, AIR 1992 SC 209 : 1992 Cr LJ 3953 .
27.  Bhanwar Singh v State of MP, (2008) 16 SCC 657 [LNIND 2008 SC 1246] : AIR 2009 SC 768
[LNIND 2008 SC 1246] : (2008) 67 AIC 133 . There was no right of private defence in the
circumstances, the accused persons were aggressors and such persons cannot claim beneﬁt of
28.  Bharat Soni v State of Chhattisgarh, 2013 Cr LJ 486 (SC) 2013 (1) Mad LJ (Cr) 94 : 2013 (1)
Crimes 66 .

Crimes 66 .
29.  Rajendra Shantaram Todankar v State of Maharashtra, AIR 2003 SC 1110 [LNIND 2003 SC 4] :
2003 (2) SCC 257 [LNIND 2003 SC 4] .
30.  Abdul Hamid, (1922) 2 Pat 134 (SB).
31.  Ramendrachandra Ray, (1931) 58 Cal 1303 .
32.  Narain, (1875) 7 NWP 209.
33.  State of UP v Niyamat, (1987) 1 SCC 434 : AIR 1987 SC 1652 [LNIND 1987 SC 391] : 1987 Cr
LJ 1881 .
34.  Manga @ Man Singh v State of Uttarakhand, (2013) 7 SCC 629 [LNIND 2013 SC 529] : 2013
Cr LJ 3332 .
35.  Noorul Huda Maqbool Ahmed v Ram Deo Tyagi, (2011) 7 SCC 95 [LNIND 2011 SC 570] : 2011
Cr LJ 4264 : (2011) 3 SCC (Cr) 31.
36.  Gulam Hoosein, (1909) 11 Bom LR 849 .
37.  Veerabadra Pillai v State, (1927) 51 Mad 91.
38.  Mathu Pandey, (1970) 1 SCR 358 [LNIND 1969 SC 516] : AIR 1970 SC 27 [LNIND 1969 SC
516] .
39.  Prag Dat, (1898) 20 All 459 ; Kabiruddin, (1908) 35 Cal 368 ; Maniruddin, (1908) 35 Cal 384 .

516] .
See also Onkarnath, 1974 Cr LJ 1015 : AIR 1974 SC 1550 [LNIND 1974 SC 154] ; Vishvas v State,
1978 Cr LJ 484 : AIR 1978 SC 414 [LNIND 1978 SC 17] .
40.  Khemee Singh, (1864) 1 WR (Cr) 18; Lokenath Kar, (1872) 18 WR (Cr) 2.
41.  Ragho Singh, (1902) 6 Cal WN 507.
42.  Dinobundo Rai, (1868) 9 WR (Cr) 19.
43.  Moti Das, AIR 1954 SC 657 at p 659.
44.  Sheo Dayal v State, (1933) 55 All 689 .
45.  Baladin, 1956 Cr LJ 345 : AIR 1956 SC 181 ; Hanuman Singh, 1969 Cr LJ 359 (All); Md
Shariff, 1969 Cr LJ 1351 (Bom); Musakhan, 1976 Cr LJ 1987 : AIR 1976 SC 2566 ; Muthu Naicker
v State of WB, 1978 Cr LJ 1713 (SC). To the same effect, State of Karnataka v Mallu Kallappa
Patil, 1994 Cr LJ 952 : AIR 1994 SC 784 : 1994 Supp (3) SCC 352 .
46.  R Deb, Principles of Criminology, Criminal Law and Investigation, 2nd Edn, vol II, p 862. See

also Akbar Sheikh v State of WB, (2009) 7 SCC 415 [LNIND 2009 SC 1106] : (2009) 3 SCC (Cr)
431; Rattiram v State of MP, through Inspector of Police, 2013 Cr LJ 2353 (SC) : 2013 AIR (SCW)
2456.

47.  Apren Joseph, 1972 Cr LJ 1162 (Ker); See also Balwant Singh, 1972 Cr LJ 645 : AIR 1972 SC
860 [LNIND 1972 SC 94] .
48.  Kutubuddin Hasansab Mahat, 1977 Cr LJ NOC 155 (Kant); See also Moti Das, 1954 Cr LJ
1708 : AIR 1954 SC 657 ; Sukha, 1956 Cr LJ 923 : AIR 1956 SC 513 [LNIND 1956 SC 30] ;
Chandrika Prasad, 1972 Cr LJ 22 : AIR 1972 SC 109 [LNIND 1971 SC 453] .
49.  Jayendra Shantaram Dighe v State of Maharashtra, 1992 Cr LJ 2796 (Bom).
50.  Peary Mohun Sircar, (1883) 9 Cal 639 .
51.  Silajit Mahto, (1909) 36 Cal 865 .

[s 144] Joining unlawful assembly armed with deadly weapon.
Whoever, being armed with any deadly weapon, or with anything which, used as a
weapon of offence, is likely to cause death, is a member of an unlawful assembly,
extend to two years, or with ﬁne, or with both.
COMMENT—
Armed with deadly weapons.—This is an aggravated form of the offence mentioned in
the last section. The risk to public tranquillity is aggravated by the intention of using

COMMENT—
force evinced by carrying arms. The enhanced punishment under this section can only

be inﬂicted on that member of an unlawful assembly who is armed with a weapon of
offence.

[s 145] Joining or continuing in unlawful assembly, knowing it has been
commanded to disperse.
Whoever joins or continues in an unlawful assembly, knowing that such unlawful
assembly has been commanded in the manner prescribed by law to disperse, shall be
punished with imprisonment of either description for a term which may extend to two
years, or with ﬁne, or with both.
COMMENT—
Joining or continuing with unlawful assembly.—

52.  Jagmohan, 1977 Cr LJ 1394 (Ori).
53.  R Deb, Op Cit, vol II, pp 834–835; See also Duncan, supra.
This section is connected with section 151, infra. Section 188 of IPC, 1860 provides for
the disobedience of any lawful order promulgated by a public servant. Sections 145
and 151 deal with special cases as the disobedience may cause serious breach of the
peace. As to the powers of the police to disperse an unlawful assembly, see section
129, Criminal Procedure Code.
[s 145.1] CASES.—
Where an assembly did not by its own conduct become an unlawful assembly by
developing common object within the meaning of section 141, IPC, 1860, its members
could not be convicted under section 145, IPC, by merely joining or continuing as its
members.52. It may, however, be added here that members of such an assembly, even
though not unlawful, could be prosecuted under section 151, IPC, if the order of
dispersal had been lawfully given in the bona ﬁde exercise of police powers under

section 129, Code of Criminal Procedure, 1973 (Cr PC, 1973), with a view to preventing
a breach of the peace.53.

[s 146] Rioting.
Whenever force or violence is used by an unlawful assembly,1 or by any member
thereof, in prosecution of the common object2 of such assembly, every member of
such assembly is guilty of the offence of rioting.

[s 147] Punishment for rioting.
Whoever is guilty of rioting, shall be punished with imprisonment of either description
for a term which may extend to two years, or with ﬁne, or with both.
COMMENT—
Rioting.—A riot is an unlawful assembly in a particular state of activity, which activity is
accompanied by the use of force or violence. It is only the use of force that
distinguishes rioting from an unlawful assembly.54. Under the Common law when
members of an unlawful assembly actually carry out their unlawful common purpose

with violence, so as to cause alarm, they are guilty of riot. For a successful prosecution
of a riot case the prosecution must prove:—
(i) that there were ﬁve or more persons;
(ii) that they had a common purpose;
(iii) that they had begun to execute such purpose;
(iv) that they intended to help one another by force, if necessary;
(v) that they had shown such degree of violence which would alarm at least one
person of reasonable courage.
This last mentioned fact need not be proved by calling a person, who has been so
alarmed but it may be made out from facts and circumstances of the case in hand.55.
The ingredients mentioned in item numbers (iv) and (v) above are not to be found at all
in section 146 of IPC, 1860. Where some youths exceeding three were found
demolishing a wall but disappeared the moment the caretaker of the building appeared
at the scene, it was held that they could not be convicted of the offence of riot under
the common law as there was no evidence of show of violence suﬃcient to alarm one

person of reasonable ﬁrmness and courage.56. In the Indian context in this very case
the offence of rioting was complete the moment the youths used force to demolish the
wall for it was not necessary in the Indian law to use force or violence against a person,
far less to cause alarm to a person of reasonable courage and ﬁrmness. Force or
violence against an inanimate object too comes within the purview of section 146, IPC,
1860.57.
[s 147.1] Ingredients.—
The following are the essentials of the offence of rioting:—
(1) That the accused persons, being ﬁve or more in number, formed an unlawful
assembly.
(2) That they were animated by a common object.
(3) That force or violence was used by the unlawful assembly or any member of it in
prosecution of the common object.

assembly.
1. 'Force or violence is used by an unlawful assembly'.—The word 'violence' is not
restricted to force used against persons only, but extends also to force against
inanimate objects.58. The words 'force' and 'violence' in this section connote different
and distinct concepts. 'Force' is narrowed down by the deﬁnition under section 350 to
persons while the word 'violence' includes violence to property and other inanimate
objects.59.
The use of any force, even though it be of the slightest possible character, by any one
of an assembly once established as unlawful, constitutes rioting.60. Where a member
of an unlawful assembly in prosecution of the common object of the assembly throws
down a man and then causes him bodily hurt, the offence of rioting under this section

is complete as soon as the man is thrown down by using force and the hurt
subsequently caused would come under section 323 or section 325.61. The essential
question in a case under section 147 is whether there was an unlawful assembly of ﬁve
or more persons. The identity of the persons comprising the assembly is a matter
relating to the determination of the guilt of the individual accused and even when it is
possible to convict less than ﬁve persons only, section 147 still applies, if upon the

evidence in the case the Court is able to hold that the person or persons who have been
found guilty were members of an assembly of ﬁve or more persons, known or unknown,
identiﬁed or unidentiﬁed.62. It has been held by the Supreme Court that this section is
not attracted where the act in question was done in pursuit of a lawful object. In this
case the investigating police party was being led by the witness to a spot for recovering
the dead-body. The witness tried to run away and was beaten up with a lathi. He died
shortly thereafter. The Supreme Court did not sustain the conviction of the police
personnel under this section.63.
2. 'In prosecution of the common object'.—Acts done by some members of an unlawful
assembly outside the common object of the assembly or of such a nature as the
members of the assembly could not have known to be likely to be committed in
prosecution of that object are only chargeable against the actual perpetrators of those

acts.64. It is obligatory on the part of the court to examine that if the offence
committed is not in direct prosecution of the common object, it yet may fall under
second part of section 149, IPC, 1860, if the offence was such as the members knew
was likely to be committed. Further inference has to be drawn as what was the number
of persons; how many of them were merely passive witnesses; what were their arms
and weapons. Number and nature of injuries is also relevant to be considered.65.
[s 147.2] 'Resistance to illegal warrant'.—
Resistance to the execution of an illegal warrant within reasonable bounds does not
amount to rioting; but when the right of resistance is exceeded and a severe injury, not
called for, is inﬂicted, the person who inﬂicts the injury may be convicted of such
injury.66.
[s 147.3] 'Sudden quarrel'.—

If a number of persons assembled for any lawful purpose suddenly quarrel without any
previous intention or design, they do not commit 'riot' in the legal sense of the word.67.
[s 147.4] 'Fundamental principles in cases of mammoth rioting'.—
(1) Notwithstanding the large number of rioters or of the persons put up in Court for
rioting, and the consequent diﬃculty for the prosecution to name the speciﬁc acts
attributed to each of the accused, the Court must see to it that all the ingredients
required for unlawful assembly and rioting are strictly proved by the prosecution before
convicting the particular accused persons.68.(2) Spectators, wayfarers, etc., attracted
to the scene of the rioting by curiosity, should not be, by reason of their mere presence
at the scene of rioting and with the rioters, held to be members of the unlawful

assembly or rioters. But of course, if they are proved to have marched with the rioters
for a long distance, when the rioters were shouting tell-tale slogans and pelting stones,
it will be for them to prove their innocence under section 106 of the Indian Evidence
Act, 1872. (3) It will be very unsafe, in the case of such a large mob of rioters, to rely on
the evidence of a single witness speaking to the presence of an accused in that mob for
convicting him, especially when no overt act of violence, or shouting of slogan, or
organising the mob, or giving orders to it or marching in procession with it, or other
similar thing is proved against him. In a big riot by hundreds of persons, it is very easy
even to mistake one person for another, and to implicate honestly really innocent

persons, and even, to mistake persons seen elsewhere as having been seen there. An
ordinary rule of caution and prudence will require that an accused person identiﬁed
only by one witness, and not proved to have done any overt act, etc., as described
above, should be acquitted, by giving him the beneﬁt of the doubt. (4) Where there are
acute factions based on either agrarian disputes and troubles or on political wrangling
and rivalry or on caste divisions or on divisions of the "haves" and the "have-nots," the
greatest care must be exercised before believing the evidence of a particular witness
belonging to one of these factions against an accused of the opposite view. This
principle becomes of special importance when there are no overt acts, etc., proved, and
when there are only one or two witnesses speaking to the presence of the accused
among the rioters, and they belong to the classes or factions opposed to the accused.
(5) Mere followers in rioting deserve a much more lenient sentence than leaders, who

mislead them into such violent acts, by emotional appeals, slogans and cries.69.
[s 147.5] Offence Compoundable:
When an offence is compoundable under section 320 of Cr PC, 1973, and where the
accused is liable under section 34 or 149 of IPC (45 of 1860) it may be compounded in
like manner.70.
[s 147.6] CASES.—
Where several Hindus, acting in concert, forcibly removed an ox and two cows from the
possession of a Mohammedan, not for the purpose of causing 'wrongful gain' to
themselves or 'wrongful loss' to the owner of the cattle, but for the purpose of
preventing the killing of the cows, it was held that they were guilty of rioting.71. There
was a dispute about the possession of a certain land between the complainant and the
accused. The complainant dug a well with a view to cultivate the said land. The

accused forcibly entered on the land and damaged the well. It was held that the
accused were guilty under this section as an accused person is not entitled to go upon
his own land and by violence destroy the property of the complainant, even though a
trespasser.72.
[s 147.7] No unlawful assembly.—
The accused on receiving information that the complainant's party were about to take
forcible possession of a plot of their land, collected a number of men, some of whom
were armed, and went to the land. While they were engaged in ploughing, the
complainant's party came up and interfered with the ploughing. A ﬁght ensued, in the
course of which one of the complainant's party was grievously wounded and
subsequently died, and two of the accused's party were hurt. It was held that the

accused were justiﬁed in taking such precautions as they thought were required to
prevent the aggression, and that they were not members of an unlawful assembly.73.
[s 147.8] Free ﬁght.—
In a free ﬁght there cannot be said to be any formation of an unlawful assembly and
common intention. Each accused will be responsible for his individual act.74.

54.  Rasul, (1888) PR No. 4 of 1889.
55.  Sharp, Johnson, (1957) 1 QB 522 , per Lord Goddard, CJ.
56.  Field v Metropolitan Police Receiver, (1907) 2 KB 853 .
57.  Kalidas, 48 Cr LJ 351 (Cal).
58.  Samaruddi, (1912) 40 Cal 367 .
59.  Lakshmiammal v Samiappa, AIR 1968 Mad 310 [LNIND 1967 MAD 171] ; Kalidas, 48 Cr LJ
351 (Cal).
60.  Koura Khan v State, (1868) PR No. 34 of 1868; Ramadeen Doobay, (1876) 26 WR (Cr) 6.
61.  Parmeshwar, (1940) 16 Luck 51 .
62.  Kapildeo Singh, (1949–1950) FCR 834 : 52 Bom LR 512.
63.  Maiku v State of UP, AIR 1989 SC 67 : 1989 Cr LJ 360 : 1989 Supp (1) SCC 25 .
64.  Agra, (1914) PR No. 37 of 1914. Vishal Singh v State of MP, AIR 1998 SC 308 [LNIND 1997
SC 1362] : 1998 Cr LJ 505 . See also Kania v State of Rajasthan, 1998 Cr LJ 50 (Raj). Bhanwarlal
v State of Rajasthan, 1998 Cr LJ 3489 (Raj), ﬁght between main accused and deceased over
possession of land, other persons who were present at the spot and played no role could not be
roped in.

roped in.
65.  Ramachandran v State, (2011) 9 SCC 257 [LNIND 2011 SC 854] : AIR 2011 SC 3581 [LNIND
2011 SC 854] : (2011) 3 SCC (Cr) 677.
66.  Uma Charan Singh, (1901) 29 Cal 244 .
67.  Khajah Noorul Hoossein v C Fabre-Tonnerre, (1875) 24 WR (Cr) 26; State of UP v Jodha Singh,
AIR 1989 SC 1822 : 1989 Cr LJ 2113 : (1989) 3 SCC 465 , a verbal quarrel converting itself into
armed group conﬂict, held not punishable under this section or section 108.
68.  See Sherey v State of UP, 1991 Cr LJ 3289 : AIR 1991 SC 2246 , where the Supreme Court
observed that it would be safe to convict only those whose presence was consistently
established by the evidence appearing from the stage of the First Information Report and to
whom covert acts of violence were attributed. Kutumbaka Krishna Mohan Rao v Public

Prosecutor, AIR 1991 SC 314 : 1991 Cr LJ 1711 : 1991 Supp (2) SCC 509 , how presence is to be
established. Budhwa v State of MP, AIR 1991 SC 4 [LNIND 1990 SC 580] : 1990 Cr LJ 2597 ,
where the conviction of only four out of ﬁfteen accused was upheld because evidence
established only their participation in the attack.
69.  Arulanandu, (1952) Mad 728. See also Toseswar Chutia v State of Assam, 2002 Cr LJ 1465
(Gau); Bhima v State of Maharashtra, AIR 2002 SC 3086 [LNIND 2002 SC 528] (Bom).
70.  Section 320 (3), Cr PC, 1973.
71.  Raghunath Rai v State, (1892) 15 All 22 .
[s 147.9] Separate trials.—
Where two opposite factions commit a riot, it is illegal to treat both parties as
constituting one unlawful assembly and to try them together, as they cannot have one
common object within the meaning of section 141; each party should be tried

separately.75.

72.  Abdul Hussain, (1943) Kar 7 . See Ajab v State of Maharashtra, AIR 1989 SC 827 : 1989 Cr LJ
954 : (1989) Supp (1) SCC 601 .
73.  Pachkauri, (1897) 24 Cal 686 ; Fateh Singh, (1913) 41 Cal 43 . K Ashokan v State of Kerala,
AIR 1998 SC 1974 [LNIND 1998 SC 223] : 1998 Cr LJ 2834 , names of miscreants not mentioned
by eye-witnesses in the FIR, miscreants mentioned in the investigation report which included
certain names in different ink. False implication could not be ruled out. Beneﬁt of doubt to
accused persons. State of UP v Dan Singh, 1997 Cr LJ 1159 : AIR 1997 SC 1654 [LNIND 1997 SC
162] , the members of marriage party of a scheduled caste, were assaulted by villagers by sticks
and stones. Some of them were burnt alive inside the house of the victims. The accused
persons were held liable to be convicted under sections 147, 302/149, 436/149, 323/149 and
sections 307/149. Lakhu Singh v State of Rajasthan, 1997 Cr LJ 3638 (Raj), lathi is not a deadly

weapon, lathi bearing accused could not be convicted under section 148. Conviction altered to
one under section 147.
74.  Mangal Singh v State of MP, 1996 Cr LJ 1908 (MP).
75.  Hossein Buksh, (1880) 6 Cal 96 ; Bachu Mullah v Sia Ram Singh, (1886) 14 Cal 358 ; Chandra
Bhuiya, (1892) 20 Cal 537 .

[s 148] Rioting armed with deadly weapon.
Whoever is guilty of rioting, being armed with a deadly weapon or with anything
which, used as a weapon of offence, is likely to cause death, shall be punished with
imprisonment of either description for a term which may extend to three years, or with
COMMENT—
Rioting with deadly weapons.—Similar to section 144, this section is an aggravated
form of the offence mentioned in the previous section. Enhanced punishment is

76.  Vasu Pillai v State, 1956 Cr LJ 1358 ; Nand Kishore v State, AIR 1961 Ori. 29 [LNIND 1959 ORI
52] ; Re VS Reddy, (1963) 2 Cr LJ 70 .
77.  State of AP v Rayaneedi Sitharamaiah, (2008) 16 SCC 179 [LNIND 2008 SC 2492] . Mohd
Ishaq v S Kazam Pasha, (2009) 12 SCC 748 [LNIND 2009 SC 1173] : 2009 Cr LJ 3063 , a mob
60–70 persons armed with deadly weapons entered a house and forcibly removed household
articles and took them away on a lorry, person at whose instance they acted, held liable.
78.  Nand Kishore v State of Bihar, 2000 Cr LJ 5079 (Pat). See also Raju v State of Rajasthan,
(2007) 10 SCC 289 [LNIND 2007 SC 591] .
79.  Mahadev Sharma v State of Bihar, AIR 1966 SC 302 [LNIND 1965 SC 143] : 1965 (1) SCR 18 :
1966 Cr LJ 1971 .
provided for the person who is armed with a deadly weapon while committing the
offence of rioting. This section cannot be read with section 149.76.
Where out of the 45 accused persons convicted by the High Court 36 had been

identiﬁed as members of the assembly by a solitary witness, the Supreme Court said
that it was not safe to place reliance in reference to the accused about whom no other
witness said that they were a part of the assembly. Their conviction was held to be
unsustainable. So far as the remaining accused were concerned, the prosecution had
proved the charge against them under section 148 and therefore their acquittal by the
High Court was not justiﬁed.77.
Where several persons assaulted the victim, the court said that it was not necessary
that the death of the victim must be attributed to a particular injury or to a particular
assailant. All of them are liable for conviction for causing death of the victim with the
common object of the unlawful assembly.78.
[s 148.1] Charge under section 147/148; Conviction under section 149.—

The Constitution Bench in Mahadev Sharma v State of Bihar,79. held that if a charge had
been framed under section 147 or section 148 and that charge had failed against any
of the accused then section 149 could not have been used against him. The area which
is common to sections 147 and 149 is the substratum on which different degrees of
liability are built and there cannot be a conviction with the aid of section 149 when
there is no evidence of such substratum. The accused have been expressly charged for
the offence punishable under section 148, IPC, 1860, and have been acquitted
thereunder, they cannot be legally convicted for the offence punishable under section
302 read with section 149, IPC. It is so because the offence of rioting must occur when
members are charged with murder as the common object of the unlawful assembly.

The offences under sections 147 and 148 are distinct offences.80. Section 148, IPC
creates liability on persons armed with deadly weapons and is a distinct offence and
there is no requirement in law that members of unlawful assembly have also to be
charged under section 148, IPC for legally recording their conviction under section 302
read with section 149, IPC. However, where an accused is charged under section 148,
IPC and acquitted, conviction of such accused under section 302 read with section
149, IPC could not be legally recorded.81.

80.  Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018 SC
300] .
81.  Ankoos v Public Prosecutor High Court of AP, (2010) 1 SCC 94 [LNIND 2010 SC 713] : JT
2009 (14) SC 6 [LNIND 2009 SC 1959] : AIR 2010 SC 566 [LNIND 2009 SC 1959] : 2010 Cr LJ
861 : (2010) 1 SCC (Cr) 460.

[s 149] Every member of unlawful assembly guilty of offence committed in
prosecution of common object.
If an offence is committed by any member of an unlawful assembly in prosecution of
the common object1 of that assembly, or such as the members of that assembly knew
to be likely to be committed in prosecution of that object, every person who, at the
time of the committing of that offence, is a member of the same assembly, is guilty of
that offence.
COMMENT—
Liability of every member.—The Supreme Court has held that this section does not

COMMENT—
create a separate offence but only declares the vicarious liability of all the members of

an unlawful assembly for acts done in prosecution of the common object of that
assembly or for such offences as the members of the unlawful assembly knew to be
likely to be committed in prosecution of that object.82. However, Benches of a smaller
strength in some cases83. have observed that section 149 creates a speciﬁc and
distinct offence. Thus the law declared therein by the Benches of a smaller strength
cannot be taken as correct legal position.84. This section creates a speciﬁc and distinct
offence.85. It is not the intention of the legislature in enacting section 149 to render
every member of unlawful assembly liable to punishment for every offence committed
by one or more of its members. In order to attract section 149, it must be shown that
the incriminating act was done to accomplish the common object of unlawful
assembly and it must be within the knowledge of other members as one likely to be
committed in prosecution of the common object.86. A plain reading of the section

shows that the provision is in two parts. The ﬁrst part deals with cases in which an
offence is committed by any member of the assembly "in prosecution of the common
object" of that assembly. The second part deals with cases where the commission of a
given offence is not by itself the common object of the unlawful assembly but
members of such assembly 'knew that the same is likely to be committed in
prosecution of the common object of the assembly'.87. This section makes both the
categories of persons, those who have committed the offence as also those who were
members of the same assembly liable for the offences under section 149, IPC, 1860,
provided the other requirements of the section are satisﬁed. That is to say, if an offence
is committed by any person of an unlawful assembly, which the members of that

assembly knew to be likely to be committed, every member of such an assembly is
guilty of the offence. The law is clear that membership of unlawful assembly is
suﬃcient to hold such participating members vicariously liable. For mulcting liability on
the members of an unlawful assembly under section 149, it is not necessary that every
member of the unlawful assembly should commit the offence in prosecution of the
common object of the assembly. Mere knowledge of the likelihood of commission of
such an offence by the members of the assembly is suﬃcient.88. Whenever the court
convicts any person or persons of any offence with the aid of section 149, a clear
ﬁnding regarding the common object of the assembly must be given and the evidence
disclosed must show not only the nature of the common object but also that the object

was unlawful. If members of the assembly knew or were aware of the likelihood of a
particular offence being committed in prosecution of a common object, they would be
liable for the same under section 149.89. In the absence of such ﬁnding as also any
overt act on the part of the accused persons, mere fact that they were armed would not
be suﬃcient to prove common object.90. Where the moot question as to common
objective is proved all the members of unlawful assembly would be vicariously liable
for the acts done by the said assembly and thus the separate roles played by all the
accused persons need not be examined.91. Section 149 makes it abundantly clear that
if an offence is committed by any member of an unlawful assembly in prosecution of
the common object of that assembly, or such as the members of that assembly knew

to be likely to be committed in prosecution of that object, every person who, at the time
of the committing of that offence is a member of such an assembly, is guilty of that
offence, however if a person is a mere bystander, and no speciﬁc role is attributed to
him, he may not come under the wide sweep contemplated under section 149.92.
Further where the member had no knowledge of the unlawful object of the assembly or
after having gained knowledge, he attempted to prevent the assembly from
accomplishing the unlawful object, and after having failed to do so, he disassociated
himself from the assembly, the mere participation of him in such an assembly would
not be made him liable.93.
The section constitutes a substantive offence.94.

The Supreme Court reiterated the ambit and scope of this principle of liability as
follows:
Section 149 IPC provides for vicarious liability. If an offence is committed by any member of
an unlawful assembly in prosecution of a common object thereof or such as the members
of that assembly knew that the offence was likely to be committed in prosecution of that
object, every person who at the time of committing that offence was member would be
guilty of the offence committed. The common object may be commission of one offence
while there may be likelihood of commission of yet another offence, the knowledge whereof
is capable of being safely attributable to the members of the unlawful assembly. Whether a
member of such unlawful assembly was aware as regards likelihood of commission of
another offence or not would depend upon the facts and circumstances of each case.
Background of the incident, the motive, the nature of the assembly, the nature of the arms

carried by the members of the assembly, their common object and the behaviour of the
members soon before, at or after the actual commission of the crime would be relevant
factors for drawing an inference in that behalf."95. "Common object" means the purpose or
design shared by all the members which may be formed at any stage. It has to be
ascertained from the acts and conduct of the individuals concerned and surrounding
circumstances.96. Common object to commit a murder cannot be inferred only on the basis
that the weapons carried by the accused were dangerous.97.
[s 149.1] Ingredients.—
The section has the following essentials—
1. There must be an unlawful assembly.
2. Commission of an offence by any member of an unlawful assembly.
3. Such offence must have been committed in prosecution of the common object of

the assembly; or must be such as the members of the assembly knew to be likely to be
committed. If these three elements are satisﬁed, then only a conviction under section
149, IPC, 1860, may be substantiated, and not otherwise.98. Section 149 shall not apply
to a person who is merely present in any unlawful assembly, unless he actively
participates in offence or does some overt act with the necessary criminal intention or
shares the common object of the unlawful assembly.99.
[s 149.2] Sudden action of one of the member in the assembly; all are not
liable:
To the question whether the sudden action of one of the members of the unlawful
assembly constitutes an act in prosecution of the common object of the unlawful
assembly namely preventing of erection of the fence in question and whether the

members of the unlawful assembly knew that such an offence was likely to be
committed by any member of the assembly Supreme Court answered in the
negative.100. As a consequence, the effect of section 149 of IPC, 1860, may be
different on different members of the same unlawful assembly. Decisions of the
Supreme Court in Gangadhar Behera v State of Orissa and Bishnaalias
BhiswadebMahato v State of WB,101. similarly explained and reiterated the legal position
on the subject.
[s 149.3] Sections 34 and 149.—
There is a difference between object and intention, for though their object is common,
the intention of the several members may differ and indeed may be similar only in
respect that they are all unlawful, while the element of participation in action, which is
the leading feature of section 34, is replaced in section 149 by membership of the

assembly at the time of the committing of the offence. Both sections deal with
combinations of persons, who become punishable as sharers in an offence. Thus they
have a certain resemblance and may to some extent overlap, but section 149 cannot at
any rate relegate section 34 to the position of dealing only with joint action by the
commission of identically similar criminal acts, a kind of case which is not in itself
deserving of separate treatment at all".102. Section 34 of IPC, 1860 refers to cases in
which several persons both do an act and intend to do that act: it does not refer to
cases where several persons intend to do an act and some one or more of them do an
entirely different act. In the latter class of cases section 149 of the Code may be
applicable but section 34 is not.103. On the other hand, if ﬁve or more persons both do
an act and intend to do it, both section 34 and section 149, may apply, since the term
"member" in the singular includes the plural also (section 9). In this connection see

detailed discussion and cases under sub-head "Distinction between section 34 and
section 149, IPC, 1860," under section 34 ante.
[s 149.4] Scope.—
This section is not intended to subject a member of an unlawful assembly to
punishment for every offence which is committed by one of its members during the
time they are engaged in the prosecution of the common object. It is divided into two
parts: (1) an offence committed by a member of an unlawful assembly in prosecution
of the common object of that assembly; and (2) an offence such as the members of
that assembly knew to be likely to be committed in prosecution of the common object
of the unlawful assembly, is one which the accused knew would be likely to be
committed in prosecution of the common object.104. The section applies equally in

cases where offences are committed by single member of the assembly and in cases
where offences are committed by two or more members of the assembly acting in
furtherance of a common intention.105.
Once the Court can ﬁnd that an offence has been committed by some member or
members of an unlawful assembly in prosecution of the common object, then whether
the principal offender has been convicted for that offence or not, upon the plain
wording of this section, the other members may be constructively convicted of that
offence, provided they are found to have had the necessary intention or knowledge. It is
not correct to say that when a member of an unlawful assembly is to be found
constructively guilty of an offence under this section, it must be the same offence of
which the principal is convicted and not some other offence.106.

Members of an unlawful assembly may have a community of object only up to a certain
point, beyond which they may differ in their objects, and the knowledge possessed by
each member of what is likely to be committed in prosecution of their common object
will vary, not only according to the information at his command, but also according to
the extent to which he shares the community of object, and as a consequence of this
the effect of this section may be different on different members of the same unlawful
assembly.107.
Before this section can be called in aid, the Court must ﬁnd with 'certainty' that there
were at least ﬁve persons sharing the common object. A ﬁnding that three of them
'may or may not have been there' betrays uncertainty on this vital point and it
consequently becomes impossible to allow the conviction to rest on this uncertain

foundation. This is not to say that ﬁve persons must always be convicted before this
section can be applied. It is possible in some cases for Judges to conclude that though
ﬁve were unquestionably there the identity of one or more is in doubt. In that case, the
conviction of the rest with the aid of this section would be good.108. Non-applicability

of section 149, IPC, 1860, is no bar in convicting the accused persons under section
302, IPC read with section 34 of IPC, if the evidence discloses commission of offence
in furtherance of common intention of them all. It would depend on the facts of each
case as to whether section 34 or section 149 of IPC or both the provisions are
attracted.109. Where the accused, forming an unlawful assembly, chased and killed a
man by inﬂicting multiple injuries on his body with sharp edged weapons, it was held
that circumstances and transaction taken as a whole were suﬃcient to invoke section
34 or section 149.110.
No judgment can be cited as a precedent however similar the facts may be. Each case
must rest on its own facts.111.
The persons acting in self-defence of property cannot be members of an unlawful
assembly.112.
1. 'In prosecution of the common object'.—The expression "in prosecution of common
object" has to be strictly construed as equivalent to "in order to attain the common

object". There must be community of object and the object may exist only up to a
particular stage, and not thereafter. Members of an unlawful assembly may have
community of object up to certain point beyond which they may differ in their objects
and the knowledge, possessed by each member of what is likely to be committed in
prosecution of their common object may vary not only according to the information at
his command, but also according to the extent to which he shares the community of
object, and as a consequence of this the effect of section 149, IPC, 1860, may be
different on different members of the same assembly.113. The word "knew" as used in
the second branch of section 149 implied something more than "possibility" and it
cannot bear the sense of "might have known". An offence committed in prosecution of

common object would generally be the offence which the members of the assembly
knew was likely to be committed.114. This phrase means that the offence committed
was immediately connected with the common object of the unlawful assembly, of
which the accused were members. The act must be one which must have been done
with a view to accomplish the common object attributed to the members of the
unlawful assembly. Where the common object is established, the unlawful assembly
does not cease to be so by merely splitting itself into two groups for launching the
attack. Section 149, IPC, 1860, would be clearly applicable to such a case.115.
The words "in prosecution of the common object" do not mean "during the prosecution
of the common object of the assembly". It means that the offence committed was

immediately connected with the common object of the assembly or the act is one
which upon the evidence appears to have been done with a view to accomplish the
common object attributed to the members of the assembly. The words "in prosecution
of the common object" have to be strictly construed as equivalent to "in order to attain
common object".116. In the present case,117. the common object of unlawful assembly
was to kill a particular person. Two members of the assembly went after him. Sensing
danger, he ran into the adjoining room to fetch a spear to defend himself. His wife
blocked his way and he could not come out. Frustrated, as they were, the two members
of the assembly gunned down two young girls of their intended victim who were then
playing in the courtyard outside the house. The conviction of the rest of the members

for this murder was set aside as this was neither their common object, nor incidental to
that, nor necessary for its attainment.
Vicarious responsibility can be fastened only on proof that the ultimate act was done in
pursuance of common object.118.
Even where the common object is not developed at the initial stage, it may develop on
the spot, eoinstanti. Thus, where it appeared that members of a party divided

themselves into small groups and waited for the victim and simultaneously pounced
upon him and jointly removed his body, the fact that they did not assemble at one place
under any plan, but came there separately, was considered by the Supreme Court to be
not of much importance because at the sensitive moment they seemed to be acting in
an organised way.119. Where, however, the agreement speciﬁcally was only to give a
thrashing to the victim, but one of them pulled out a knife and stabbed the victim, it was
held that neither at the initial stage nor at the execution stage, could it be said that
there was the object to cause a fatal injury so as to make all others liable for the
death.120.
[s 149.5] Change of object.—
Members who shared the original common intention may not be liable when some
members adopted a subsequently developed and aggravated common object and
acted on it.121.
[s 149.6] CASES.—Prosecution of common object.—

While membership of an unlawful assembly itself is an offence under section 143, IPC,
1860, use of force by members of the unlawful assembly gives rise to the offence of
rioting which is punishable either under section 147 or section 148, IPC. Membership
of the 4 accused in the unlawful assembly and use of force with dangerous weapons is
borne out by the evidence on record. The said facts would make the acquitted accused
liable for the offence under section 148 of IPC, 1860.122. Where a small compact body
of men armed with clubs, and headed by a man carrying a gun, endeavoured to take
forcible possession of certain lands, and one of the opponents was shot by their leader,
it was held that they were guilty of murder.123.
Where in a faction- ridden village the members of one party seeing someone of the

other party alighting from a bus emerged together to attack him, it could be easily said
that they shared the common object to assault one of their enemies and at that stage
the assembly turned into an unlawful assembly.124. Where several persons assaulted
and caused injuries to the deceased, however except one incised injury on the head, all
were lacerated injuries on legs, common object of the unlawful assembly was held to
cause grievous hurt and not murder and conviction of the accused was altered from
sections 302/ 149 to sections 326/149.125. Where the accused, being members of an
unlawful assembly and being armed with sharp edged weapons, used only the blunt
sides of their weapons, they were held to share the common object of causing grievous
hurt and not murder.57 Accused persons variously armed entered a police wireless

station after breaking open doors and windows and assaulted inmates. Their individual
acts were not known. It was held that all the accused persons must be deemed to have
shared the common object of lurking house trespass and could be convicted under
sections 149/455.126. Where two innocent young girls were killed in a very gruesome
manner just only to teach a lesson to their mother over a property dispute, every
member of the killing team was held to be equally guilty deserving the maximum
penalty of death, it being a case of the "rarest of rare" category.127. Where the death of
a police oﬃcer was caused while he was arresting the accused and those who caught
hold of him intended only to prevent him from performing his duty, but the main
accused suddenly killed him, it was held that the common object of the unlawful

assembly was to deter police from performing their duty and not to commit murder.
Their conviction was altered from one under sections 302/149 to one under section

353/149.128. Several persons entered into a conspiracy to commit dacoity during the
course of which one of the accused ﬁred a shot which missed the target and hit one of
his accomplices who died. The other accused ﬁred a shot and killed one of the inmates
of the house. The accused killing the inmate was convicted under sections 302 and
398. The three others were punished under section 398/149, their common object
being dacoity and not murder.129.
The accused persons were armed with lathis and guns. They declared on entry into the
threshing ﬂoor mill that they had come to take away the paddy and, if the owner
resisted, they would take life out of him. In these circumstances they caused death. s
conviction under section 300 read with section 149 was held to be not illegal.130.
There is no requirement for conviction under the section of assigning deﬁnite roles to
the accused persons.131.
[s 149.7] Identiﬁcation of all the ﬁve not necessary.—

The section does not require that all the ﬁve persons must be identiﬁed. Presence of
ﬁve persons is required to be established with the common object of doing an act. The
fact that all of them could not be identiﬁed would not affect the application of the
section. The eye-witnesses identiﬁed only four of them but testiﬁed that others were
present with weapons at the time and place of occurrence.
[s 149.8] Unlawful assembly and the right of private defence.—
As long as the accused persons exercised their right of private defence, their assembly
could not be described as unlawful. But only those accused persons who shared the
object of doing something in excess of the right of private defence were liable to
conviction with the help of section 149.132. Where the accused persons were acting in

the exercise of the right of private defence, the Supreme Court said that they could not
be said to have constituted an unlawful assembly. Only one of them caused an injury
after the right of private defence had ceased to be available to them. They could not be
convicted under section 148 with the aid of section 149.133.
[s 149.9] Overt act on the part of each and every member not necessary.—
The presence of the accused as a part of the unlawful assembly is suﬃcient for his
conviction. The fact that the accused was present at the place of occurrence as a part
of the unlawful assembly was not disputed. That was held to be suﬃcient to hold him
guilty even if no overt act was attributed to him.134. This principle may not apply where
the presence is such that merely by its reason the person concerned does not become

a member of the assembly. This happened in a case in which the names of only 4
persons were mentioned in the complaint. Five other persons were not mentioned
because they kept standing at the back without any participation in the incident. But
they were also roped in under section 149. The Supreme Court held that they could not
be regarded as members of the assembly. Their conviction was impermissible.135.
Once a membership of an unlawful assembly is established it is not incumbent on the
prosecution to establish whether any speciﬁc overt act has been assigned to any
accused. Mere membership of the unlawful assembly is suﬃcient and every member is
vicariously liable for the acts done by others either in the prosecution of the common

object of the unlawful assembly or such as the members of the unlawful assembly
knew were likely to be committed.136.
[s 149.10] Inference of common object.—
The common object of the unlawful assembly has to be inferred from the membership,
the weapons used and the nature of the injuries as well as other surrounding
circumstances. Intention of members of unlawful assembly can be gathered by nature,
number and location of injuries inﬂicted. In the instant case, repeated gun shots ﬁred
by one of accused person on the person of deceased and the injuries caused by lathis
by other accused persons on the complainant and his second brother on their heads,
clearly demonstrate the objective to cause murder of these persons.137. Common
object to commit a murder cannot be inferred only on the basis that the weapons
carried by the accused were dangerous.138. The common object of assembly is
normally to be gathered from the circumstances of each case such as the time and

place of the gathering of the assembly, the conduct of the gathering as distinguished
from the conduct of the individual members are indicative of the common object of the
gathering. Assessing the common object of an assembly only on the basis of the overt
acts committed by such individual members of the assembly is impermissible.139.
[s 149.11] Identiﬁcation of common object.—
The identiﬁcation of the common object essentially requires an assessment of the
state of mind of the members of the unlawful assembly. Proof of such mental
condition is normally established by inferential logic. If a large number of people gather
at a public place at the dead of night armed with deadly weapons like axes and ﬁre
arms and attack another person or group of persons, any member of the attacking

group would have to be a moron in intelligence if he did not know murder would be a
likely consequence.140.
[s 149.12] No common object.—
A large body of men belonging to one faction waylaid another body of men belonging
to a second faction, and a ﬁght ensued, in the course of which a member of the ﬁrst
mentioned faction was wounded and retired to the side of the road, taking no further
active part in the affray. After his retirement a member of the second faction was killed.
It was held that the wounded man had ceased to be a member of the unlawful
assembly when he retired wounded, and that he could not, under this section, be made
liable for the subsequent murder.141. Where the accused persons rushed to the house
of K with a view to injure K or inmates of his house but one of the accused attacked M,

a woman working in the house causing grievous injuries to her, the other accused
persons could not be held vicariously liable with the help of section 149, IPC, 1860, as it
was not their common object nor had they any animus against M.142. An unlawful
assembly of 50 persons was alleged to have caused two deaths. There were no
speciﬁc allegations against some of them, or that any criminal act was done by them in
furtherance of common intention. It was held that they could not be convicted with the
aid of either section 34 or section 149.143. When an accused leaves the place of
occurrence and thus ceases to be a member of the unlawful assembly, he cannot be
convicted vicariously with the aid of section 149, IPC, for the murder which is
committed subsequent to his leaving the scene of crime.144. Where one member ﬁred

on being supplied with a bullet by another only the member supplying the bullet was
held liable under section 302/149 and others were convicted only under section
325/194, IPC.145. After a heated exchange of words, the accused went home and came
back with a gun accompanied by others who also armed and immediately opened ﬁre
at the victim causing his death. Others did not ﬁre at the victim. They ﬁred
indiscriminately at others injuring some people. Things happened in a very short span
of time. It was held that the others could not have formed an unlawful assembly with
the main accused with a common object. The main culprit alone was convicted of
murder.146. Where people collected outside a police-station to voice their protest over
police- inaction in connection with the murder of a child, such an assembly could not
possibly have any common object to commit criminal trespass, arson, looting, etc., and
as such none could be convicted with the aid of section 149, IPC, 1860.147. All the

accused, armed only with lathis, caused multiple injuries to a man who died. All the
injuries caused were simple in nature and were on non-vital parts of the body of the
deceased, it could not be said that their common object was to kill the deceased. They
were held liable to be convicted under section 304, Part II/149 and not under section
302/149.148.
Where the common object of an unlawful assembly was to cause hurt to prosecution
witnesses, and the daughter of a witness who came out from inside the house only to
save her father sustained an injury at the hands of one of the accused and died, it was
held that there could be no common object in the circumstances to commit murder.
They were held to be guilty under section 323 read with section 149.149.
[s 149.13] Unlawful assembly and single witness.—

In a case involving an unlawful assembly with a large number of persons, there is no
rule of law that states that there cannot be any conviction on the testimony of sole
eyewitness unless that the court is of the view that testimony of such eye witness is
not reliable. The rule of requirement of more than one witness applies only in a case
where a witness deposes in a general and vague manner or in the case of a riot.150.
Direct evidence is generally not available. The existence of common object has to be
gathered from the act committed and results ﬂowing from them.151.
[s 149.14] Conviction for section 302 s i m p l i c i t e r , when the charge was for
section 302 read with section 149 of IPC, 1860:
The Supreme Court in Nanak Chand v State of Punjab,152. considered the question
whether there could be a conviction for the offence under section 302 simpliciter, when

the charge was for the offence under section 302 read with section 149 of IPC. It was
held that when there is no separate charge for the offence under section 302 simpliciter
and charge is only for the offence under section 302 read with 149, the conviction for
the offence under section 302 simpliciter is not sustainable. In Suraj Pal v State of
UP,153. 19 accused were tried for the offences under sections 148, 307 and 302 read
with section 149 of IPC. Sessions Court convicted all the accused. In appeal to the
High Court, ten accused were acquitted. Conviction and sentence of one accused was
aﬃrmed for the offence under sections 148, 307 and 302. Holding that absence of
speciﬁc charges against the appellant under sections 307 and section 302, IPC in
respect of which he was sentenced is a very serious lacuna as framing of a speciﬁc

and distinct charge in respect of every distinct head of criminal liability constituting an
offence is the foundation for a conviction and sentence. The question was referred to

the Five Judge Constitution Bench, to determine whether there was a conﬂict of view
between Nanak Chand's case (supra) and Suraj Pal's case (supra) and if so to determine
it in Willie Slaney v State of Madhya Pradesh.154. The Constitution Bench held that there
was no conﬂict of views in the two decisions. It was held that the observations in
Nanak Chand (supra), have to be appreciated on close examination of facts. Their
Lordships considered the effect of a charge for constructive liability and its difference
with a charge for the offence simpliciter and held that there was no prejudice and that
the conviction is not invalid because of the nature of the charge. A three Judge Bench
in Subran v State,155. held that when the charge is under section 302 read with section
149 of IPC, without a speciﬁc charge having been framed for the offence under section
302 of IPC, as envisaged in law, an accused cannot be convicted for the substantive

offence under section 302 of IPC, their Lordships did not consider the Constitution
Bench decision in Willie Slaney's case (supra). Later in the review judgment, Subran v
State, 1993 (3) SCC 722 , their lordships reviewed the same as follows:
On a review of the judgment, we ﬁnd that the opinion expressed is capable of being
misinterpreted. The opinion expressed therein was required to be conﬁned to the peculiar
facts of the case, but it tends to give an impression as if it is a general exposition of law,
which it was not meant to be.
The legal position in the light of the Constitution Bench decision in Willie Slaney156. is
clear. If the charge framed discloses the overt act committed by a particular accused,
though the charge is for the offence under section 302 read with section 149 of IPC,

1860, and the accused faced trial with the knowledge that the prosecution case is that
he committed the particular overt act which caused the death, non-framing of a distinct
charge for the offence under section 302 will not cause prejudice to the accused, even
though the charge framed was under section 302 read with section 149, IPC. In such a
case, even though the charge is for the offence under section 302 read with section
149 of IPC and there is not even an alternate charge for the offence under section 302
simpliciter, when the charge discloses the overt act by a particular accused which
caused the death of the victim, if the evidence establishes that, that particular accused
inﬂicted that particular injury which caused the death, he could deﬁnitely be convicted

for the offence under section 302 simpliciter. Even though there is no speciﬁc charge
for section 302 simpliciter and the charge is for the offence under section 302 read
with 149 of IPC, there could be a conviction under section 302 simpliciter.
[s 149.15] Where no charge framed as substantive offence with aid of either
section 34 and section 149.—
Where participation of all the ten accused in the alleged assault on the deceased has
been proved by the evidence of witnesses, but no charge insofar as the substantive
offence under section 302, IPC, 1860, or under section 307, IPC with the aid of either
section 34, IPC and section 149, IPC had been framed and also the evidence on record
is not suﬃcient to attribute any speciﬁc injury suffered by the deceased to any

particular accused, acquittal of the accused of the offences under section 302, IPC or
under section 307, IPC is perfectly justiﬁed.157.
[s 149.16] Free ﬁght and overt act.—
It has been held by the Supreme Court that in a case involving free ﬁght, a conviction by
resorting to section 149 is not permissible. No particular accused person can be
convicted under section 149 unless it can be shown that he caused injuries.158.

82.  Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018 SC
300] .
83.  Sheo Mahadeo Singh v State of Bihar, (1970) 3 SCC 46 ; Lalji v State of UP, 1989 (1) SCC 437
[LNIND 1989 SC 26] ; Lakhan Mahto, AIR 1966 SC 1742 [LNIND 1966 SC 61] .
84.  Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018 SC
300] .
85.  Lakhan Mahto, AIR 1966 SC 1742 [LNIND 1966 SC 61] : 1966 Cr LJ 1349 .
86.  Kuldip Yadav v State of Bihar, 2011 (5) SCC 324 [LNIND 2011 SC 403] : AIR 2011 SC 1736
[LNIND 2011 SC 403] : 2011 Cr LJ 2640 : (2011) 2 SCC (Cr) 632.
87.  Roy Fernandes v State of Goa, (2012) 3 SCC 221 [LNIND 2012 SC 86] : 2012 Cr LJ 1542 .
88.  Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018 SC
300] .
89.  Waman v State of Maharashtra, (2011) 7 SCC 295 [LNIND 2011 SC 564] : AIR 2011 (SCW)
4973 : 2011 Cr LJ 4827 : AIR 2011 SC 3327 [LNIND 2011 SC 564] : (2011) 3 SCC (Cr) 83; Bhudeo

300] .
Mandal v State of Bihar, (1981) 2 SCC 755 [LNIND 1981 SC 177] : 1981 SCC (Cr) 595, Ranbir
Yadav v State of Bihar, (1995) 4 SCC 392 [LNIND 1995 SC 389] : 1995 SCC (Cr) 728, Allauddin
Mian v State of Bihar, (1989) 3 SCC 5 [LNIND 1989 SC 236] : 1989 SCC (Cr) 490, Rajendra
[s 149.17] Sentencing.—
The presence of the appellant accused and their participation in the incidence was
established. Their conviction under section 326 read with sections 149, 148 was
conﬁrmed. But considering their age and the fact that their participation in the incident
was minimal, the sentence of six years R1 was reduced to two years R1, conﬁrming the
sentence of one year under section 148.159.
[s 149.18] Group rivalries.—
In the case of group rivalries and enmities, there is a general tendency to rope in as

many persons as possible as having participated in the assault. In such situations, the
courts are called upon to be very cautious and sift the evidence with care. Where after
a close scrutiny of the evidence, a reasonable doubt arises in the mind of the court with
regard to the participation of any of those who have been roped in, the court would be
obliged to give the beneﬁt of doubt to them.160. However, when there are eyewitnesses
including injured witness who fully support the prosecution case and proved the roles
of different accused, prosecution case cannot be negated only on the ground that it
was a case of group rivalry. Group rivalry is double edged sword.161.
[s 149.19] Inference from dangerous weapon.–
Common object to commit a murder cannot be inferred only on the basis that the
weapons carried by the accused were dangerous.162.

Shantaram Todankar v State of Maharashtra, (2003) 2 SCC 257 [LNIND 2003 SC 4] : 2003 SCC
(Cr) 506 and State of Punjab v Sanjiv Kumar, (2007) 9 SCC 791 [LNIND 2007 SC 797] : (2007) 3
SCC (Cr) 578.
90.  Kuldip Yadav v State of Bihar, 2011 (5) SCC 324 [LNIND 2011 SC 403] : AIR 2011 SC 1736
91.  Iqbal v State of UP, AIR 2017 SC 1127 [LNIND 2017 SC 73] .
92.  Vyas Ram @ Vyas Kahar v State of Bihar, 2014 Cr LJ 50 : (2013) 12 SCC 349 [LNIND 2013 SC
861] .
93.  Kattukulangara Madhavan v Majeed, AIR 2017 SC 2004 [LNIND 2017 SC 158] .
94.  Sunil Balkrishna Bheir v State of Maharashtra, (2007) 14 SCC 598 [LNIND 2007 SC 669] :
2007 Cr LJ 3277 .
95.  Munivel v State of TN, 2006 Cr LJ 2133 .
96.  Hori Lal v State of UP, (2006) 13 SCC 79 [LNIND 2006 SC 1086] : 2007 Cr LJ 1181 . See also
State of Punjab v Sanjeev Kumar, (2007) 9 SCC 791 [LNIND 2007 SC 797] : AIR 2007 SC 2430
[LNIND 2007 SC 797] ; Purusuram Pandey v State of Bihar, AIR 2004 SC 5068 [LNIND 2004 SC

1075] : 2005 SCC (Cr) 113, restatement of ingredients and principle on which the provision is
based.
97.  Najabhai Desurbhai Wagh v Valerabhai Deganbhai Vagh, 2017 (1) Crimes 270 (SC), (2017) 3
SCC 261 [LNIND 2017 SC 46] .
98.  Vijay Pandurang Thakre v State of Maharashtra, AIR 2017 SC 897 . Gurmail Singh v State of
Punjab, 2013 (4) SCC 228 [LNIND 2012 SC 864] : 2013 (2) SCC (Cr) 36; State of Maharashtra v
Kashiram, (2003) 10 SCC 434 [LNIND 2003 SC 716] : AIR 2003 SC 3901 [LNIND 2003 SC 716] ,
two parts of sections 149 explained and distinguished, the expression "in prosecution of
common object" and the word "knew" in section 149, their meaning also explained. Rajendra
Shantaram Todankar v State of Maharashtra, (2003) 2 SCC 257 [LNIND 2003 SC 4] : AIR 2003 SC

1110 [LNIND 2003 SC 4] : 2003 Cr LJ 1277 , two clauses of the section explained, inference
about knowledge of likelihood of crime, when can be drawn, explained.
99.  Vijay Pandurang Thakre v State of Maharashtra, AIR 2017 SC 897 .
100.  Roy Fernandes v State of Goa, 2012 (2) Scale 68 [LNIND 2012 SC 86] : JT 2012 (2) SC 457 :
AIR 2012 (SCW) 1238 : (2012) 3 SCC 221 [LNIND 2012 SC 86] : 2012 Cr LJ 1542 .
101.  Gangadhar Behera v State of Orissa, 2002 (8) SCC 381 [LNIND 2002 SC 645] and
Bishnaalias BhiswadebMahato v State of WB, 2005 (12) SCC 657 [LNIND 2005 SC 873]
102.  Barendra Kumar Ghosh, (1924) 52 IA 40 , 52 : 27 Bom LR 148 : 52 Cal 197.
103.  Aniruddha Mana, (1924) 26 Cr LJ 827 , 829. Where the purpose was to show force and not
to cause death, common intention was ruled out and the conviction was converted from under

sections 302/34 to one under 302/149, Jai Narain v State of UP, 1995 Cr LJ 2335 (All).
104.  Sabid Ali, (1873) 20 WR (Cr) 5 : 11 Beng LR 347, approved by the Supreme Court in Mazaji,
AIR 1959 SC 572 [LNIND 1958 SC 169] ; Krishnarao, (1903) 5 Bom LR 1023 ; Fatnaya, (1941) 23
Lah 470.
105.  Legal Remembrancer, Bengal v Golok Tikadar, (1943) 1 Cal 181 .
106.  UN Singh v State, (1946) 25 Pat 215.
107.  Jahiruddin, (1894) 22 Cal 306 , approved by the Supreme Court in Shambhu Nath, AIR 1960
SC 725 : 1960 Cr LJ 1114 .
108.  Dalip Singh, AIR 1953 SC 364 [LNIND 1953 SC 61] : 1953 Cr LJ 1465 ; See also Dharam Pal,
1975 Cr LJ 1666 : AIR 1975 SC 1917 [LNIND 1975 SC 314] ; State of UP v Ranjha Ram, AIR 1986
SC 1959 [LNIND 1986 SC 271] : 1986 Cr LJ 1906 : (1986) 4 SCC 99 [LNIND 1986 SC 271] ; Amar

Singh v State of Punjab, AIR 1987 SC 826 : 1987 Cr LJ 706 : (1987) 1 SCC 679 , see further
Gopeteshwar Nath Ojha v State of Bihar, AIR 1986 SC 1649 : 1986 Cr LJ 1242 . Hoshiar Singh v

State of Punjab, AIR 1992 SC 191 [LNIND 1991 SC 568] : 1992 Cr LJ 510 , the acquittal of some
would not warrant the acquittal of the rest; Sahebrao Kisan Jadhav v State of Maharashtra, 1992
Cr LJ 339 , presence of eight in the course of an assault was established but four were
acquitted due to weak evidence, conviction of the rest for unlawful assembly not illegal. The
cases of Amar Singh v State of Punjab, AIR 1987 SC 826 ; and Maina Singh v State of Punjab, AIR
1976 SC 1084 [LNIND 1976 SC 97] : (1976) 3 SCR 651 [LNIND 1976 SC 97] , were followed by
the Supreme Court in K Nagamalleswara Rao v State of AP, 1991 Cr LJ 1365 : AIR 1991 SC 1075
[LNIND 1991 SC 150] : (1991) 2 SCC 532 [LNIND 1991 SC 150] , so as to come to the conclusion
that where all others were acquitted and the evidence against the remaining four was also not
reliable as to any overt acts done by them, their conviction was not sustainable. Darshan Singh v

State of Punjab, 1990 Cr LJ 2684 : AIR 1991 SC 66 , prosecution theory that an 80-year-old man
went in advance to hold the deceased, not acceptable. State of Assam v Bhelu Sheikh, 1989 Cr
LJ 879 : AIR 1989 SC 1097 , no evidence to show that the accused caused injury, even dying
declaration not recorded when the injured lived for seven days. Saudagar Singh v State of
Haryana, AIR 1998 SC 28 [LNIND 1997 SC 890] : 1998 Cr LJ 62 , persons not named in the FIR as
members of unlawful assembly were let off, the gun wielding accused persons ﬁred gun shots,
convicted for murder. Komal v State of HP, AIR 2002 SC 3057 [LNIND 2002 SC 518] , prosecution
case of murder with common object proved, conviction. See also Sajjan Sharma v State of Bihar,

(2011) 2 SCC 206 [LNIND 2011 SC 33] : AIR 2011 SC 632 [LNIND 2011 SC 33] : 2011 Cr LJ 1169
: (2011) 1 SCC (Cr) 660.
109.  Birbal Choudhary v State of Bihar, AIR 2017 SC 4866 [LNIND 2017 SC 2898] .
110.  Bolineedi Venkataramaiah v State of AP, AIR 1994 SC 76 : 1994 Cr LJ 61 : 1994 Supp (3)
SCC 732 . Chanda v State of UP, (2004) 5 SCC 141 [LNIND 2004 SC 582] : AIR 2004 SC 2451
[LNIND 2004 SC 582] : 2004 All LJ 1871 : 2004 Cr LJ 2536 , common object as speciﬁed in
section 141 must be proved for inﬂicting constructive liability, but proof of any overt act is not
necessary. The court stated consideration for ascertaining common object, when and how it
comes into existence and when it becomes modiﬁed or abandoned. Madan Singh v State of
Bihar, (2004) 4 SCC 622 [LNIND 2004 SC 427] : AIR 2004 SC 3317 [LNIND 2004 SC 427] . Dani

Singh v State of Bihar, 2004 Cr LJ 3328 , there must be common object as stated in section 141
and person actuated by it. Charan Singh v State of UP, (2004) 4 SCC 205 [LNIND 2004 SC 308] :
AIR 2004 SC 2828 [LNIND 2004 SC 308] .
111.  Rudrappa Ramappa Jainpur v State of Karnataka, (2004) 7 SCC 422 [LNIND 2004 SC 738] :
AIR 2004 SC 4148 [LNIND 2004 SC 738] . Amzad Ali v State of Assam, 2003 Cr LJ 3545 : (2003)
6 SCC 270 [LNIND 2003 SC 570] , applicability in the context of section 302.
112.  Shyam Singh v State of UP, 1992 Cr LJ 1632 (All). Ram Dhani v State, 1997 Cr LJ 2286 (All)
dispute over land, complainant party resorted to cutting crop grown by the accused party. The
latter were more than ﬁve in number and assembled to prevent the cutting. The court held that
they could not be said to form an unlawful assembly.

113.  Raj Nath v State of UP, AIR 2009 SC 1422 [LNIND 2009 SC 59] : (2009) 4 SCC 334 [LNIND
289.
114.  Gangadhar Behera v State of Orissa, 2003 Cr LJ 41 : AIR 2002 SC 3633 [LNIND 2002 SC
645] . Chanda v State of UP, (2004) 3 SCC 141 : AIR 2004 SC 2836 [LNIND 2004 SC 1556] , the
expression "in prosecution of common object" and the word "knew" as used in section 149 were
explained and distinguished.
115.  Jagdeo Singh, 1981 Cr LJ 166 : AIR 1981 SC 648 .
116.  Jit Singh v State, (1957) Pun 950; Mizaji, (1959) Supp (1) SCR 940 : AIR 1959 SC 572
[LNIND 1958 SC 169] : 1959 Cr LJ 777 . Satbir Singh v State of UP, (2009) 13 SCC 790 [LNIND

2009 SC 450] : AIR 2009 SC 2163 [LNIND 2009 SC 450] : (2009) 3 All LJ 786; Ashok Kumar v
State of TN, 2006 Cr LJ 2931 : AIR 2006 SC 2419 [LNIND 2006 SC 360] : (2006) 10 SCC 157
117.  Ibid, and see Lalji v State of UP, AIR 1989 SC 754 [LNIND 1989 SC 26] : (1989) 1 SCR 130
[LNIND 1989 SC 26] : 1989 Cr LJ 850 , the members cannot be acquitted only because of lack of
evidence of precise participation. Earlier to this, in Ram Bilas Singh v State of Bihar, 1964 (1) Cr
LJ 573 : (1963) 1 SCWR 743 : (1964) 1 SCR 775 [LNIND 1963 SC 22] , the Supreme Court
observed: "It is true that in order to convict persons vicariously under section 34 or section 149
it is not necessary to prove that each and every one of them had indulged in overt acts. Even so,
there must be material to show that the overt act or acts of one or more was or were done in
furtherance of the common intention of all the accused or in prosecution of the common object

of the members of the unlawful assembly. Following this and the above cited Supreme Court
cases in Nagina Sharma v State of Bihar, 1991 Cr LJ 1195 , the Patna High Court held that the
gang of persons who came fully armed to capture a booth and to prevent voters from voting and
causing eight deaths in the process were all responsible for the deaths in question. See at pp
1231–1233.
118.  Allauddin Mian v State of Bihar, AIR 1989 SC 1456 [LNIND 1989 SC 236] : 1989 Cr LJ 1466 .
Ramappa Halappa Pujar v State of Karnataka, (2007) 13 SCC 31 [LNIND 2007 SC 561] , the fact
of beneﬁt of doubt to some accused person could not give advantage to others on whose part
some other act was evident.
119.  Vithal Bhimshah Koli v State of Maharashtra, AIR 1983 SC 179 [LNIND 1982 BOM 340] :

1983 Cr LJ 340 : (1983) 1 SCC 431 . See also Jawahar v State of UP, AIR 1991 SC 273 : 1991 Cr
LJ 376 , equal conviction of the accused who was only holding the deceased by the neck while
others struck.
120.  Suratlal v State of MP, AIR 1982 SC 1224 [LNIND 1980 SC 121] : 1982 Cr LJ 1577 : (1982) 1
SCC 488 [LNIND 1980 SC 121] . Mohamed Arif v State of Gujarat, AIR 1997 SC 105 [LNIND 1996
SC 1604] : 1997 Cr LJ 65 ; conviction of all the accused except one who was not identiﬁed by
the eye-witness and given beneﬁt of doubt. Ganga Singh v State of UP, 2000 Cr LJ 1695 (All),
unlawful assembly, fodder belonging to informant burnt, death ensued from lathi blows, incident
21 years old. Accused persons grew into men of 55–60 years. They were sentenced to three
years RI and ﬁne of Rs. 5,000 each. Vikram v State of Maharashtra, (2007) 12 SCC 332 [LNIND

2007 SC 617] : (2008) 1 SCC (Cr) 362 : AIR 2007 SC 1893 [LNIND 2007 SC 617] : 2007 Cr LJ
3193 , whether in a given case common object has been made out depends upon facts and
circumstances, conduct of the parties and the manner in which the occurrence had taken place
has some bearing on the question.
121.  Bhimrao v State of Maharashtra, (2003) 3 SCC 37 [LNIND 2003 SC 167] : AIR 2003 SC 1493
[LNIND 2003 SC 167] : 2003 Cr LJ 1204 .
122.  Raju v State of Rajasthan, 2013 (2) SCC 233 [LNIND 2013 SC 25] : 2013 Cr LJ 1248 (SC).
See also Shyam Babu v State of UP, JT 2012 (8) SC 377 [LNIND 2012 SC 536] : AIR 2012 (SCW)
4846 : (2012) 8 SCC 651 [LNIND 2012 SC 536] : AIR 2012 SC 3311 [LNIND 2012 SC 536] : 2012
Cr LJ 4550 : 2012 (8) Scale 535 [LNIND 2012 SC 536] .

123.  Hari Singh, (1878) 3 CLR 49 . Haricharan v State of Rajasthan, AIR 1998 SC 244 [LNIND
1997 SC 1350] : 1998 Cr LJ 398 , accused appeared armed with weapons. They stopped the
bus, put the gun on the chest of the driver threatening him if he tried to move. They caught hold
of the deceased. One of them ﬁred two shots and the other attacked with his weapon. Their
conviction under section 300 read with section 149 was held to be proper. Mahantappa v State
of Karnataka, AIR 1999 SC 314 [LNIND 1998 SC 1018] : 1999 Cr LJ 450 , the accused persons
assaulted their victim with a sword, threw his body into a hut and set it on ﬁre. Their conviction

under section 300 read with section 149 was held to be proper. Some others who were also
tried with them did not seem to have been members, they could have been bystanders. They
were given the beneﬁt of doubt. Bhagwan Singh v State of UP, (1992) 4 SCC 85 , the accused
persons were on inimical terms with the complainant party, came to the spot armed with deadly
weapons and attacked claiming three lives, it was held that they shared common object.
Rachapalliabulu v State of AP, (2002) 4 SCC 208 [LNIND 2002 SC 267] : 2000 Cr LJ 2527 : AIR
2002 SC 1805 [LNIND 2002 SC 267] , assailants came together as fully armed, caused two
deaths, held to have shared common object. Pratapaneni Ravi Kumar v State of AP, AIR 1997 SC
2810 [LNIND 1997 SC 892] : 1997 Cr LJ 3505 , all those who assaulted the victim were members
of unlawful assembly and death was caused in prosecution of common object, all of them guilty
irrespective of the fact whether they had participated in beating the deceased. State of

Rajasthan v Ani, AIR 1997 SC 1023 [LNIND 1997 SC 35] , armed accused person killed two and
attempted to cause one more death, they were earlier involved in other riots. Conviction, but two
accused were acquitted because evidence showed no connection with the incident. Satbir v
Surat Singh, AIR 1997 SC 1160 : (1997) 4 SCC 192 , two accused persons, though present, could
not be said with certainty to have shared the common intention to commit murder, beneﬁt of
doubt. Siddique v State of UP, 1998 Cr LJ 3829 (All), unlawful assembly causing death in
business rivalry, conviction. State of Rajasthan v Nathu, (2003) 5 SCC 537 [LNIND 2003 SC 479] ,
murder, vicarious liability.
124.  Muthu Naicker v State of WB, 1978 Cr LJ 1713 : AIR 1978 SC 1647 [LNIND 1978 SC 188] .

From numbers, situs and nature of wounds it could be hold that all ﬁve accused persons had
deﬁnite intention to commit murder of victim. State of Assam v Golbar Hussain, 2012 Cr LJ 4649
(Gau).
125.  Kartar Singh v State of Punjab, AIR 1996 SC 1406 [LNIND 1996 SC 307] : 1996 Cr LJ 1722 .
In Ramesh v State of Haryana, AIR 2011 SC 169 [LNIND 2010 SC 1016] : 2011 Cr LJ 80 : (2010)
12 SCR 799 : (2010) 13 SCC 409 [LNIND 2010 SC 1016] : (2011) 1 SCC (Cr) 1176, the evidence
show that the appellants variously armed, including the ﬁrearms assembled at one place and,
thereafter, came to the place of occurrence and started assault together and when protested by
the deceased, one of the members of the unlawful assembly shot the deceased dead and some
of them caused injury by ﬁrearm, gandasa, lathi, etc., to others. All of them have come and left

the place of occurrence together. Appellant held to be members of the unlawful assembly and
offence have been committed in pursuance of the common object. Each of them shall be liable
for the offence committed by any other member of the assembly. Also see Ranjit Singh v State of
MP, AIR 2011 SC 255 [LNIND 2010 SC 1057] : 2011 Cr LJ 283 : (2011) 4 SCC 336 [LNIND 2010
SC 1057] : (2011) 2 SCC (Cr) 227.
126.  C Chellappan, 1979 Cr LJ 1335 : AIR 1979 SC 1761 .
127.  Asharﬁ Lal v State of UP, AIR 1987 SC 1721 [LNIND 1987 SC 346] : 1987 Cr LJ 1885 : (1987)
3 SCC 224 [LNIND 1987 SC 346] . See also Lalji Singh v State of UP, AIR 1985 SC 1266 : 1985 Cr
LJ 1488 , charges under sections 302, 147, 148 and 149; and Dalip Singh v State of UP, 1985 SCC
(Cr) 486 : 1985 Supp SCC 471 : AIR 1986 SC 316 , charges under the same sections,

established. Kishan Singh v State of Rajasthan, 1995 Cr LJ 2027 (Raj), circumstances of the case
established unlawful assembly as well as common object. Poonma Ram v State of Rajasthan,
1995 Cr LJ 359 (Raj), unlawful assembly, death caused, but requisite intention for murder not
proved, conviction for culpable homicide and for forming unlawful assembly. Luku Pulke v State
of Orissa, 1995 Cr LJ 1207 (Ori), acquittal because of contradictory statements of witnesses as
to participation. Gajanan v State of Maharashtra, 1996 Cr LJ 2887 : AIR 1996 SC 3332 , the
accused persons caused death by assault and beating, also beating others who came to rescue,
showed common object of causing death.

128.  Sheikh Ajyub v State of Maharashtra, 1995 Cr LJ 420 : 1994 Supp (2) SCC 269 .
129.  Joseph v State of Karnataka, 1993 Cr LJ 3538 : 1993 AIR SCW 2900. State of UP v Man
Singh, AIR 2003 SC 62 [LNIND 2002 SC 657] , seven persons were variously armed, they
attacked and killed their victim whose severed body was thrown by them into river. The
witnesses recovered the body immediately after the attackers left. This established their
presence at the spot. The reversal of conviction by the High Court because of poor visibility
caused by fog was held to be improper. Shrawan Bhadaji Bhirad v State of Maharashtra, AIR 2003
SC 199 [LNIND 2002 SC 701] : 2003 Cr LJ 398 , seven persons armed with swords, attacked
their victim causing multiple injuries which were found to be suﬃcient to cause death, but saved
by a team of doctors. Conviction of the accused under the section was held to be proper. Alla
Chinna Apparao v State of AP, 2003 Cr LJ 17 : AIR 2002 SC 3648 [LNIND 2002 SC 647] , the

victim was attacked by accused persons who hacked his neck on two sides with coconut
cutting knives. Eye-witnesses. Conviction under section 300
130.  Umesh Singh v State of Bihar, AIR 2000 SC 2111 [LNIND 2000 SC 871] : 2000 Cr LJ 3167 .
131.  Ram Dular Rai v State of Bihar, (2003) 12 SCC 352 [LNIND 2003 SC 1032] : AIR 2004 SC
1043 [LNIND 2003 SC 1032] : 2004 Cr LJ 635 ; Chand v State of UP, (2004) 5 SCC 141 [LNIND
2004 SC 582] : AIR 2004 SC 2451 [LNIND 2004 SC 582] : 2004 All LJ 1871 : 2004 Cr LJ 2536 ,
number of convicted persons less than ﬁve. Eight persons were named. Two of them held
pistols. Shot ﬁred but did not hit the victim. The other's shot proved fatal. Unlawful assembly
was there. Acquittal of some of them on a technical ground did not wipe out application of
section 149.

132.  Kashirma v State of MP, (2002) 1 SCC 71 [LNIND 2001 SC 2369] .
133.  Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] ; Siyaram v State of MP,
(2009) 4 SCC 792 [LNIND 2009 SC 577] : (2009) 2 SCC (Cr) 602 : 2009 Cr LJ 2071 , statement of
principles to be followed by the appellate court in considering an appeal against acquittal. See
also State of Maharashtra v Tulshiram Bhanudas Kamble, (2007) 14 SCC 627 [LNIND 2007 SC
3167] : AIR 2007 SC 3042 [LNIND 2007 SC 3167] : (2007) Cr LJ 4319 .
134.  Yunis v State of MP, AIR 2003 SC 539 [LNIND 2002 SC 784] : 2003 Cr LJ 817 ; Re Ram
Pravesh Sharma, 2003 Cr LJ NOC 180 (Jhar) : 2003 AIR Jhar HCR 220.
135.  State of MP v Mishrilal, 2002 Cr LJ 2312 (SC).
136.  State of UP v Kishanpal, (2008) 16 SCC 73 [LNIND 2008 SC 1608] . Akbar Sheikh v State of

WB, (2009) 7 SCC 415 [LNIND 2009 SC 1106] : (2009) 3 SCC (Cr) 431, rule of prudence should
be applied. Something more than the persons concerned being cited as accused in a witness
box would be necessary. The court must have before it some materials to form an opinion that
they had shared the common object. Sheo Prasad Bhor v State of Assam, (2007) 3 SCC 120
[LNIND 2007 SC 19] : AIR 2007 SC 918 [LNIND 2007 SC 19] : 2007 Cr LJ 1423 , assignment of
independent parts to each member not necessary; if one is a member of the assembly, assault
and death caused by any one of them would make others liable.
137.  Ganga Ram Sah v State of Bihar, AIR 2017 SC 655 [LNINDU 2017 SC 31] .
138.  Najabhai Desurbhai Wagh v Valerabhai Deganbhai Vagh, (2017) 3 SCC 261 [LNIND 2017 SC
46] : 2017 (1) Crimes 270 (SC).

139.  Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018
SC 300] .
140.  Vinubhai Ranchhodbhai Patel v Rajivbhai Dudabhai Patel, AIR 2018 SC 2472 [LNIND 2018
SC 300] .
141.  Kabil Singh, (1869) 3 Beng LR (A Cr J) 1. See also State of Gujarat v Bharwad, 1990 Cr LJ
2531 (Guj), common object to belabour the members of a particular community, all liable under
sections 324 and 326 and not for murder. Teja v State of MP, 1990 Cr LJ 262 , common object to

insult, guilty under section 326 and not under section 302 though death was caused. Ramesh
Baburao Devaskar v State of Maharashtra, (2008) Cr LJ 372 : (2007) 13 SCC 501 [LNIND 2007 SC
1213] , name of only one accused mentioned in the FIR, PWs did not attribute any overt act to
the remaining accused persons, thus, there was some substance in the contention that others
did not share the common object.
142.  Kshudiram, 1972 Cr LJ 756 : AIR 1972 SC 1221 . See also Bharwad Bhikha Natha, 1977 Cr
LJ 1160 : AIR 1977 SC 1768 ; K Neelakanthee, 1978 Cr LJ 780 : AIR 1978 SC 1021 [LNIND 1978
SC 55] ; Bhudeo Mondla v State of Bihar, 1981 Cr LJ 725 : AIR 1981 SC 219 : (1981) 2 SCC 755
[LNIND 1981 SC 177] .
143.  Jhapsa Kabari v State of Bihar, AIR 2002 SC 312 [LNIND 2001 SC 2762] . Jadu Sahani v
State, 1999 Cr LJ 593 : 1999 AIR SCW 3985, no enmity between the conﬂicting groups, death
caused by one of them as an individual act, only he was convicted for murder. State of Punjab v

Harjit Singh, AIR 2002 SC 3040 [LNIND 2002 SC 501] , mere participation in the crime with others
is not suﬃcient to attribute common object or common intention to one of them of the others
involved in the incident. One accused person can be made liable criminally for the acts and
deeds of others only on proof of the subjective elements in common intention by the objective
test.
144.  Nawab Ali, 1974 Cr LJ 921 : AIR 1974 SC 1228 [LNIND 1974 SC 117] . See also Ram Anjore,
1975 Cr LJ 249 : AIR 1975 SC 185 [LNIND 1975 SC 87] ; Badruddin v State, 1981 Cr LJ 729 : AIR
1981 SC 1223 .
145.  Fatte, 1980 Cr LJ 829 : AIR 1979 SC 1504 . In a similar case, the assailant giving the fatal
blow was convicted under section 302 but co-accused under sections 326/149, Ram Swarup v

State of Haryana, AIR 1993 SC 2436 [LNIND 1993 SC 487] : 1993 Cr LJ 3540 : 1993 Supp (4) SCC
344 . Sukhbir Singh v State of Haryana, AIR 2002 SC 1168 [LNIND 2002 SC 134] , a sweeper while
working in a street happened to throw splashes of mud on the face of the accused. He abused
the sweeper. The latter's father slapped the accused. He went away threatening and came back
with others, but fatal injuries to the sweeper's father were inﬂicted by him alone, others kept only
standing. Held individual act and not a common object: Kajal Sen v State of Assam, AIR 2002 SC
617 [LNIND 2002 SC 31] , fatal blows given by main accused. Others could not be convicted for
offences punishable under section 302 read with sections 148 and 149. Tamaji Govind Misal v

State of Maharashtra, AIR 1998 SC 174 [LNIND 1997 SC 1211] : 1998 Cr LJ 340 , the motive of
the accused party was to remove babul trees from the land of the complainant party whatever
be the cost and cause injuries which might become necessary. But some of them started
assaulting immediately on reaching the spot. Others might not have known that the matter
would go to the extent of murder, they were punished under sections 326/149 and not 300/149.
Atmaram Zongarazi v State of Maharashtra, AIR 1997 SC 3573 [LNIND 1997 SC 1079] : 1997 Cr
LJ 4406 , proof showed only one man striking and not others, others acquitted. Chandubhai
Malubhai Parmar v State of Gujarat, AIR 1997 SC 1422 [LNIND 1997 SC 627] : 1997 Cr LJ 1909 ,
inter-community riot, accused armed with guns causing deaths, convicted under sections

300/149, but those who were busy only in burning property could not be convicted with others
under section 300/149. Naurangi Mahto v State, 2001 Cr LJ 1525 (Jhar), no common object
attributed to those who were just only present at the moment and had done no overt act.
Incident took place at the spur of the moment. Naththoo Ram v State of UP, 2000 Cr LJ 3870
(All), injuries caused with blunt side of the weapon. It could not be said that the common object
of the unlawful assembly was to cause death. Conviction was altered from under sections
302/149 to section 326/149.
State of UP v Rasid, AIR 2003 SC 1243 [LNIND 2003 SC 295] , accused persons who entered the
house and caused death, convicted for murder, but those remained posted outside given beneﬁt

of doubt. Basisth Roy v State of Bihar, AIR 2003 SC 1439 [LNIND 2003 SC 162] , witnesses
attributed overt act only to two out of 13 accused persons, convicted, others given beneﬁt of
doubt and acquitted. Jayantibhai Bhankarbhai v State of Gujarat, AIR 2002 SC 3569 [LNIND 2002
SC 565] , ﬁve convicted, only one appealed, he was acquitted, the Supreme Court allowed the
conviction of the non-appealing convicts to stand.
146.  Parusuram Pandey v State of Bihar, AIR 2004 SC 5068 [LNIND 2004 SC 1075] : (2004) 13
SCC 189 [LNIND 2004 SC 1075] .
147.  Mohan Lal, 1982 Cr LJ 1898 (All).
148.  Sarman v State of MP, AIR 1993 SC 400 : 1993 Cr LJ 63 : 1993 Supp (2) SCC 356 . Where
the only common object discovered on evidence was to beat the victim and not to cause death,
others were held not liable to be convicted for murder but only under section 149/324; Gopa
Ram v State of Rajasthan, 1996 Cr LJ 2987 (Raj).
149.  State of Karnataka v Bhojappa, 1994 Cr LJ 1543 (Kant). See also Anant Kumar v State of MP,

AIR 1994 SC 1639 : (1994) 2 Cr LJ 1585 , no speciﬁc acts were attributed to two of the accused
persons who also had no knowledge whether the others carried knives or that they were likely to
cause injuries, such two accused acquitted. Bhimrao v State of Maharashtra, 2003 Cr LJ 1204 :
AIR 2003 SC 1493 [LNIND 2003 SC 167] , the accused came to the house of the victim with a
common object, those who entered the house executed a different, held, their act could not be
attributed to those who were standing outside. State of Rajasthan v Sheo Singh, 2003 Cr LJ 1569
: AIR 2003 SC 1783 [LNIND 2003 SC 231] , a joint project of murder could not be proved. Basisth
Roy v State of Bihar, 2003 Cr LJ 1301 : AIR 2003 SC 1439 [LNIND 2003 SC 162] : (2003) 9 SCC 52
[LNIND 2003 SC 162] , murder on account of land dispute between the complainant and

deceased party, speciﬁc overt acts of lathi blows and gun shots were attributed only to two of
the accused persons, others could not be convicted for the same because there was no proof of
a shared common object to that effect. Bharosi v State of MP, AIR 2002 SC 3299 [LNIND 2002
SC 567] , six accused persons armed with lathis attacked the victim, death was due to one head
injury attributed to the main accused, others did not intend nor had any knowledge. They were
held to be not guilty of murder. They were guilty under section 147 for their individual acts.
Kishan Pal v State of UP, 2001 Cr LJ 2875 (All), unlawful assembly, eight members of a family
slaughtered in a day light attack. Witnesses untrustworthy. Acquittal.
Cases of no proof.—Baikunth Mahto v State of Bihar, 2003 Cr LJ 2135 (Jhar), the accused

persons attacked the deceased at midnight while he was asleep along with three other persons.
Two of them became hostile. The medical report was that death must have been instantaneous
with injury and so the deceased could not have named anybody. The persons sleeping there
could not have identiﬁed the assailants because of dark night. Evidence doubtful, acquittal.
Sunil Balkrishna Bhoil v State of Maharashtra, (2007) 14 SCC 398 : 2007 Cr LJ 3277 , unlawful
assembly originally formed to assault the victim, all of sudden accused two stabbed him
causing death, common object held to be not applicable, rest of them guilty of only house
trespass under section 452. They had been in custody for a long period. They were set at liberty.
Munna Chanda v State of Assam, 2006 Cr LJ 1632 : AIR 2006 SC 3555 [LNIND 2006 SC 128] :

(2006) 3 SCC 752 [LNIND 2006 SC 128] , prior concert is not required, common object can
develop at the spur of the moment, the deceased in this case, on being assaulted, ﬂed, he was
chased by some members of the party but who gave the fatal blow was not clear. Membership
of two of the accused could not be proved nor any overt act could be attributed to them. They
could not have been convicted under sections 302/149.

150.  Ranjit Singh v State of MP, AIR 2011 SC 255 [LNIND 2010 SC 1057] : 2011 Cr LJ 283 :
(2011) 4 SCC 336 [LNIND 2010 SC 1057] : (2011) 2 SCC (Cr) 227. See also Jhapsa Kabari v State
of Bihar, AIR 2002 SC 312 [LNIND 2001 SC 2762] at p 314, where YK Sabharwal, J explained the
position of a solitary witness.
151.  Charan Singh v State of UP, (2004) 4 SCC 205 [LNIND 2004 SC 308] : AIR 2004 SC 2828
[LNIND 2004 SC 308] .
152.  Nanak Chand v State of Punjab, AIR 1955 SC 274 [LNIND 1955 SC 3] : 1955 (1) SCR 1201
[LNIND 1955 SC 3] : 1955 Cr LJ 721 .
153.  Suraj Pal v State of UP, AIR 1955 SC 419 [LNIND 1955 SC 17] : 1955 (1) SCR 1332 [LNIND
1955 SC 17] : 1955 Cr LJ 1004 .
154.  Willie Slaney v State of MP, AIR 1956 SC 116 [LNIND 1955 SC 90] : 1955 (2) SCR 1140
[LNIND 1955 SC 90] : 1956 Cr LJ 291 .
155.  Subran v State, 1993 (3) SCC 32 [LNIND 1993 SC 162] : 1993 SCC (Cr) 583 : 1993 Cr LJ
1387 : 1993 (2) Crimes 15 [LNIND 1993 SC 162] .
156.  (supra).
157.  State of Rajasthan v Hazi Khan, AIR 2017 SC 4001 .

158.  Kanwarlal v State of MP, 2003 Cr LJ 62 : AIR 2002 SC 3690 [LNIND 2002 SC 558] .
159.  Shri Krishan v State of UP, (2007) 15 SCC 557 .
160.  Eknath Ganpat Aher v State of Maharashtra, (2010) 6 SCC 519 [LNIND 2010 SC 466] .
161.  Sudha Renukaiah v State of AP, AIR 2017 SC 2124 [LNIND 2017 SC 197] .
162.  Najabhai Desurbhai Wagh v Valerabhai Deganbhai Vagh, (2017) 3 SCC 261 [LNIND 2017 SC

[s 150] Hiring, or conniving at hiring, of persons to join unlawful assembly.
Whoever hires or engages or employs, or promotes, or connives at the hiring,
engagement or employment of any person to join or become a member of any
unlawful assembly, shall be punishable as a member of such unlawful assembly, and
for any offence which may be committed by any such person as a member of such
unlawful assembly in pursuance of such hiring, engagement or employment, in the
same manner as if he had been a member of such unlawful assembly, or himself had

committed such offence.
COMMENT—

163.  Vinit v State of Maharashtra, 1994 Cr LJ 1791 at pp 1804–1805, certain persons, who
constituted an unlawful assembly, were hired to eliminate a particular person. The eliminators
and their procurer were both held equally liable.
This section brings within the reach of the law those who are really the originators and
instigators of the offences committed by hired persons. It deals with the case of those
who are neither abettors of nor participators in the offence committed by an unlawful
assembly.
The section creates a speciﬁc offence. It intends to embrace all those who hire,
promote or connive at the employment of persons and render them punishable as
principal participators. Under the section, a person, though not actually a member of an
unlawful assembly himself, may be held guilty of being a member of the assembly and
may be held liable for the offence which may be committed by the assembly to the
same extent as if he had himself committed that offence. But this is possible only

when it is found that he hired or engaged or employed or promoted or connived at the
hiring, engagement or employment by any other person to join or become a member of
the assembly. There must have been an unlawful assembly which was composed of
persons so hired, etc., and an offence committed in the course of that assembly for
which he becomes equally liable. The word "promotes" denotes acceleration or
inducement. Though the word "employ" or "employment" is used, it does not mean
recruitment. It would mean calling of the service of the hired person without any
recruitment as a servant or agent to commit the offence.163.

[s 151] Knowingly joining or continuing in assembly of ﬁve or more persons
after it has been commanded to disperse.
Whoever knowingly joins or continues in any assembly of ﬁve or more persons likely
to cause a disturbance of the public peace, after such assembly has been lawfully
commanded to disperse, shall be punished with imprisonment of either description
for a term which may extend to six months, or with ﬁne, or with both.
E x p l a n a t i o n .—If the assembly is an unlawful assembly within the meaning of section

141, the offender will be punishable under section 145.
COMMENT—

164.  Yeshwant v State, 34 Cr LJ 705; See also Bealty v Gillbanks, (1882) 9 QBD 308 ; Kempe
Gowda, 1954 Cr LJ 490 (Mysore).
165.  R Deb, Principles of Criminology, Criminal Law and Investigation, 2nd Edn, vol II, p 834. See
also Re P Abdul Sattar, 1961 (1) Cr LJ 291 (Mysore).
166.  Kempe Gowda, 1954 Cr LJ 490 (Mysore), supra.
167.  Komma Neelakantha Reddy v State of AP, AIR 1978 SC 1021 [LNIND 1978 SC 55] : (1978) 2
SCC 473 [LNIND 1978 SC 55] : 1978 (3) SCR 75 [LNIND 1978 SC 55] : 1978 Cr LJ 780 : (1978) 1
SCC (Cr) 285.
Effect of command to disperse.—Section 145 punishes the continuance in an unlawful
assembly after it has been commanded to disperse. In this section the assembly need
not be an 'unlawful assembly' but if it is likely to cause a disturbance of the public
peace, then joining or continuing in such assembly after it has been commanded to
disperse is punishable. Section 129 of the Criminal Procedure Code confers on a
Magistrate and an oﬃcer in charge of a police-station the power to disperse an

unlawful assembly or any assembly of ﬁve or more persons likely to cause a
disturbance of the public peace. A bare reading of section 129, Cr PC, 1973, would
make it abundantly clear that a lawful procession or assembly cannot be regarded as
likely to cause a breach of the peace when it is admitted that not they but some other
body of persons is bent on attacking them. Whether an assembly is likely to cause a
disturbance of public peace has to be judged from its own acts and behaviour and not
from the behaviour of another hostile group whose physical opposition may cause a
breach of the peace.164. "Thus, if an assembly other than an unlawful assembly
behaves in such a manner as to provoke a breach of the peace by its own conduct or
action, there would be a justiﬁcation to order it to disperse under the powers given by

section 129 of the Criminal Procedure Code. But if a religious assembly or procession
remains peaceful in the enjoyment of its legitimate rights and privileges under the law,
it should not be ordered to disperse merely because a body of antagonistic persons
take it into their heads to attack it with a view to provoke a riot. In such a case, it is
rather that body of aggressive persons that constitutes an unlawful assembly and
requires to be sternly dealt with under the law".165. So where a peaceful group of
persons who were cutting crop on their own land refused to disperse on being
commanded to do so by an Inspector of Police merely because another hostile group
objected to the harvesting of the crop, it was held that as these persons were not
commanded lawfully to disperse under section 129, Cr PC, 1973, they could not be

convicted under section 151, IPC, 1860.166. In order to bring a case within the mischief
of this section there must be clear evidence to show that the assembly had been
"lawfully commanded" to disperse. Thus where the police oﬃcers in their evidence said
that they had merely warned the two warring factions, it could not be said that the
assembly had been commanded to disperse and as such there was no question of
invoking section 151, IPC, to prosecute the members of the assembly.167.

[s 152] Assaulting or obstructing public servant when suppressing riot, etc.
Whoever assaults or threatens to assault, or obstructs or attempts to obstruct, any
public servant in the discharge of his duty as such public servant, in endeavouring to
disperse an unlawful assembly, or to suppress a riot or affray, or uses, or threatens, or
attempts to use criminal force to such public servant, shall be punished with
COMMENT—

COMMENT—
Assault or obstruction of public servant.—The last section punished disobedience to
the order of a public servant commanding an assembly to disperse. This section

punishes more severely persons who assault a public servant endeavouring to disperse
an unlawful assembly. It is intended to prevent the use of force on a public servant in
order to prevent him from discharging his duty.

[s 153] Wantonly giving provocation with intent to cause riot—.
Whoever malignantly,1 or wantonly,2 by doing anything which is illegal, gives
provocation to any person intending or knowing it to be likely that such provocation
will cause the offence of rioting to be committed, shall, if the offence of rioting be
committed in consequence of such provocation, be punished with imprisonment of
either description for a term which may extend to one year, or with ﬁne, or with both;
if rioting be committed;if not committed.

and if the offence of rioting be not committed, with imprisonment of either
description for a term which may extend to six months, or with ﬁne, or with both.

COMMENT—
Provocation for rioting.—A person, who maliciously or recklessly gives provocation to
another by doing an illegal act knowing that such provocation will incite the other to
rioting, is punishable under this section. The offence under this section involves some
act of origination of a riot by doing an illegal act infuriating to the feelings of those who
ultimately come to riot. The expression "gives provocation" connotes such idea. This
section is intended to apply to such provocative words or acts as do not amount
directly to instigation or abetment.168. A mere chance provocation is not suﬃcient to
justify conviction under this section.169. The section is divided into two parts. If rioting
is committed the punishment is more severe.
[s 153.1] Essential Ingredients:
(a) The 'act' imputed against the accused is illegal,
(b) He has done such act malignantly or wantonly, and,
(c) He has given provocation to any person intending or knowing that such
provocation will cause the offence of rioting.170.

1. 'Malignantly'.— implies a sort of general malice.171. The adverbs 'maliciously' and
'malignantly' are synonymous. Malice is not, as in ordinary speech, only an expression
of hatred or ill-will to an individual, but means an unlawful act done intentionally
without just cause or excuse.172. Malignant means extreme malevolence or enmity;
violently hostile or harmful.
2. 'Wantonly'.— means recklessly, thoughtlessly, without regard for right or
consequences. This word gives to the offence contained in this section a far larger,
vaguer and more comprehensive scope, than would be implied by the word
'malignantly' standing alone. It occurs only in this section of the Code, while the word
'malignantly' occurs once again in section 270.
[s 153.2] CASES.—
The aﬃxing of the poster exhorting for boycotting the election, even if it is

objectionable, is not suﬃcient to show that by such aﬃxture provocation is given to any
person for causing the offence of rioting. Howsoever deplorable be the act of aﬃxing
the poster, to constitute the offence under section 153 of IPC, 1860, over and above the
provocation that is likely to give cause for rioting, it has to be shown that the act —
aﬃxing of the poster —is illegal.173.
Where the accused wrote a pamphlet in praise of a person who was opposed to the
High Priest of the Borah community in certain matters, but his real intention appeared
to be to show a grave insult to the High Priest, an insult which was likely to inﬂame the
feelings of the followers of the High Priest and to lead to a riot, it was held that he was
guilty under this section.174. Where a bride and bridegroom belonging to depressed

classes rode in palanquins through a village in spite of the protests of high caste
Hindus, it was held that this was not an illegal act for which they could be convicted
under this section.175. Where the accused unfastened the string of the National ﬂag
after ﬂag-hoisting ceremony and tried to trample on it, it was held that the accused was
guilty under this section as the act of the accused was deliberately insulting to the ﬂag

168.  Ahmed Hasham, (1932) 35 Bom LR 240 , 57 Bom 329.
169.  Dr RC Chowala, AIR 1966 Ori 192 [LNIND 1965 ORI 73] . Aroon Purie v HL Varma, 1999 Cr LJ
983 (Bom), in a debate on secularism, remarks were passed by some speakers touching
sentiments of others. It was held that a true publication of such remarks would not come within
the ambit of section 153, though they might constitute defamation. See also Baragur Ram
Chandrappa v State of Karnataka, 1998 Cr LJ 3639 (Kant—DB).
170.  Raju Thomas @ John Thomas v State, 2012 Cr LJ (NOC) 240 (Ker) : 2012 (4) Ker LT 499 ;
See also Manzar Sayeed Khan v State of Maharashtra, (2007) 5 SCC 1 [LNIND 2007 SC 437] : AIR
2007 SC 2074 [LNIND 2007 SC 437] : 2007 Cr LJ 2959 .
171.  Kahanji, (1893) 18 Bom 758, 775.[2012 Cr LJ (NOC) 240 (Ker) : 2012 (4) Ker LT 499 ].
172.  Bromage v Prosser, (1825) 4 B&C 247. [ 2012 Cr LJ (NOC) 240 (Ker) : 2012 (4) Ker LT 499 ].
173.  Advocate Manuel PJ v State, 2012 (4) Ker LT 708 . See also Raju Thomas @ John Thomas v

State, 2012 Cr LJ (NOC) 240 (Ker) : 2012 (4) Ker LT 499 .
174.  Rahimatalli Mahomedalli, (1919) 22 Bom LR 166 .
175.  Jasnami, (1936) 58 All 934 .
176.  Indra Singh v State, AIR 1962 MP 292 [LNIND 1957 MP 82] . Rajendra v State of Rajasthan,
2006 Cr LJ 173 (Raj).
and thereby the accused intended to wound the feelings and sentiments of the other
persons present.176.

177.[[s 153A] Promoting enmity between different groups on grounds of
religion, race, place of birth, residence, language, etc., and doing acts
prejudicial to maintenance of harmony.
(1) Whoever—
(a) by words, either spoken or written, or by signs or by visible
representations or otherwise, promotes or attempts to promote, on
grounds of religion, race, place of birth, residence, language, caste or
community or any other ground whatsoever, disharmony or feelings of
enmity, hatred or ill-will between different religious, racial, language or

regional groups or castes or communities, or
(b) commits any act which is prejudicial to the maintenance of harmony
between different religious, racial, language or regional groups or

castes or communities, and which disturbs or is likely to disturb the
public tranquillity, 178.[or]
179.[(c) organizes any exercise, movement, drill or other similar activity
intending that the participants in such activity shall use or be trained
to use criminal force or violence or knowing it to be likely that the
participants in such activity will use or be trained to use criminal
force or violence, or participates in such activity intending to use or
be trained to use criminal force or violence or knowing it to be likely
that the participants in such activity will use or be trained to use
criminal force or violence, against any religious, racial, language or
regional group or caste or community and such activity for any
reason whatsoever causes or is likely to cause fear or alarm or a
feeling of insecurity amongst members of such religious, racial,
language or regional group or caste or community,]
shall be punished with imprisonment which may extend to three

(2) Offence committed in place of worship, etc.
Whoever commits an offence speciﬁed in sub-section (1) in any place of
worship or in any assembly engaged in the performance of religious worship or
religious ceremonies, shall be punished with imprisonment which may extend
to ﬁve years and shall also be liable to ﬁne.]
COMMENT—
Promoting enmity.—This section replaces the old section. Sub-section (1)(c) has been
newly inserted by Act 31 of 1972. This section provides for enhanced punishment for
offences committed in a place of worship and making offences under this section
cognisable. Under this section promoting enmity between different groups on grounds
such as, place of birth, or residence are included and it also makes promotion of
disharmony or feelings of ill-will an offence punishable under it. The provision in clause

(b) of sub-section (1) to the section includes acts prejudicial to the maintenance of
harmony between different regional groups and sub-section (2) provides for enhanced
punishment for any offence speciﬁed in sub-section (1) when it is committed in a place
of worship, etc. With communal and ﬁssiparous tendencies on the increase this section
has now gained an added importance. The object of section 153-A is to prevent
breaches of the public tranquillity which might result from excited feelings of enmity
between classes of people. Absence of malicious intention is a relevant factor to judge
whether the offence is committed.180.
Section 153A of IPC, 1860, covers a case where a person by words, either spoken or
written, or by signs or by visible representations or otherwise, promotes or attempts to

promote, disharmony or feelings of enmity, hatred or ill-will between different religious,
racial, language or regional groups or castes or communities or acts prejudicial to the
maintenance of harmony or is likely to disturb the public tranquillity. The gist of the
offence is the intention to promote feelings of enmity or hatred between different
classes of people. The intention to cause disorder or incite the people to violence is the
sine qua non of the offence under section 153A of IPC and the prosecution has to prove
prima facie the existence of mens rea on the part of the accused.181. The intention to
cause disorder or incite people to violence is the sine qua non of the offence under
section 153A IPC and the prosecution has to prove the existence of mens rea in order

to succeed. In this case, the prosecution has not been able to establish any mens rea
on the part of the appellants as envisaged by the provisions of section 153A IPC, by
their raising casually the slogans a couple of times. The offence under section 153A
IPC is, therefore, not made out.182.
There must either be the intention to promote such feelings, or such feelings should be
promoted as the result of words spoken or written. The words promotes or tends to
promote feelings of enmity are to be read as connoting a successful or unsuccessful
attempt to promote feelings of enmity. It must be the purpose or parts of the purpose
of the accused to promote such feelings, and, if it is no part of his purpose, the mere
circumstance that there may be a tendency is not suﬃcient.183. The word classes
includes any deﬁnite and ascertainable class of people. Capitalists do not constitute a
class within the meaning of this section.184. To bring any body of persons within the

description of a class of people, the body of persons must possess a certain degree of
importance numerically, and must be ascertained with certainty and distinguished from
any other class. Every group of persons cannot be designated as a class.185. The
classes contemplated must be not merely clearly deﬁned and separable but also
numerous. A small and limited group of Zamindars cannot be regarded as constituting
a class.186. Petitioner published a sentence "Oriya is a younger sister of Bengal" in his
book. Subsequently petitioner published an apology in newspaper and deleted the
controversial statement. In view of this it cannot be said that alleged sentence
published to defame Oriya language or promote hatred between different linguistic
groups. Criminal proceeding are quashed.187.

The police force of the State cannot be brought within the purview of the term
"community".188.
[s 153A.1] Political Thesis.—
This section cannot be used even if an article causes or tends to cause hatred or
enmity between different political classes like the capitalists and the labour class or
between persons believing in different forms of Government, e.g., a democratic or
totalitarian rule. A bare reading of clause (a) of section 153A will show that a person
will be guilty under this section only where by words, either spoken or written, he
promotes or attempts to promote feelings of enmity or hatred between different
religious, racial, linguistic groups or castes or communities on grounds of religion, race,
language, caste or community, etc., and not otherwise.189. But where the author in the

guise of presenting a political thesis or historical truth wrote two articles describing the
Muslims as a basically violent race and further described today's Muslims as the
descendants of foul Moghuls rulers who were lustful perverts, rapists and murderers, it
was held that both the articles promoted feelings of enmity between Hindus and
Muslims and came within the mischief of section 153A IPC, 1860, whether or not the
Moghuls were really so.190. In ﬁne, this section does not contemplate the penalising of
political doctrines, even though of the extreme kind like communism, but only such
writings as directly promote feelings of hatred or enmity between classes. But if a
publication advocates forcible overthrow of all existing social conditions, and aims at

promoting class hatred and enmity, it comes under the purview of this section.191.
1. Historical Account.—If the writing is calculated to promote feelings of enmity or
hatred, it is no defence to a charge under section 153-A of IPC, 1860, that the writing
contains a truthful account of past events or is otherwise supported by good authority.
Adherence to the strict path of history is not by itself a complete defence to a charge
under section 153-A. It is no defence to a charge under section 153-A of IPC that the
writing contains a truthful account of past events or is otherwise supported by good
authority.192.

But it would be no offence if the author adheres to the historical part of his narrative,
however unpalatable it may be to the members of the other community, but if he uses
language which shows malice and is bound to annoy the members of the other
community so as to degrade them in the eyes of the other classes, he is promoting
feelings of enmity and hatred and is liable to be dealt with under this section and
section 295- A.193. It is, therefore, important to remember that criminality under section
153A does not attach to the thing said or done but to the manner in which it is said or
done. If the words spoken or written are couched in temperate language and do not
have the tendency to insult the feelings or the deepest religious convictions of any
section of the people, penal consequences do not follow.194. This appears also to be
the law in England in regard to blasphemous libel. Thus, in Lemon's case Lord Diplock
observed:

observed:
To publish opinion denying the truth of the established church or even of Christianity itself
was no longer held to amount to the offence of blasphemous libel so long as such opinions
were expressed in temperate language and not in terms of offence, insult or ridicule.195.
So what is said or written is not so important as how it is said or written or with what
intent it is said or written. Where, therefore, the article did not intend or exhibit any
insult to any religion but read as a whole projected a scholarly historical thesis showing
as to how in pre-Islamic times the ancient Hindu culture and Hindu religion were in
vogue in Arabia and how Islamic culture, religion and art were greatly inﬂuenced by
Indian culture and religion, it could not be said that the article came within the mischief

of section 153A, IPC, 1860, or section 95, Cr PC, 1973. The scope of section 153A, IPC,
cannot be enlarged to such an extent with a view to thwart history or historical
events.196.
Where an article in a newspaper bears a meaning that is calculated to produce hatred
and enmity between two classes, the natural inference from the publication of such an
article is that the person who published it had the malicious intention that it should
produce such hatred and enmity.197. A Hindu, who ridicules the Prophet of the
Mohammedans not out of any eccentricity but in the prosecution of a propaganda
started by a class of persons who are not Mohammedans, promotes feelings of enmity
and hatred between Hindus and Mohammedans, and is liable to punishment under the
section.198. In order to ascertain the intention of the accused, the offending article

must be read as a whole and the circumstances attending that publication must also
be taken into account.199.
An FIR was ﬁled against the author, publisher and printer of the book "Shivaji: Hindu
King in Islamic India" on the ground that certain passage were objectionable. This led
to blackening of the face of a local scholar, ransacking of a research institute and
destruction of manuscripts, etc. The members of the institute had helped the author
made contributions to enable the author to complete the work. The author was an
American professor based in the USA. He tendered apology, by fax and the publishers
immediately withdrew all the copies from the market. In proceedings against the
author, etc., it was held that the book was purely a scholarly pursuit. There was no

intention or motive to create trouble for the author and others. The State was directed
not to proceed against them. The Supreme Court explained the gist of the offence
under the section as follows:
The gist of the offence under section 153-A is the intention to promote feelings of
enmity or hatred between different classes of people. The intention to cause disorder
or incite the people to violence is the sine qua non of the offence under section 153-A
IPC, 1860, and the prosecution has to prove prima facie the existence of mens rea on
the part of the accused. The intention has to be judged primarily by the language of the
book and the circumstances in which the book was written and published. The matter
complained of to fall within the ambit of section 153-A must be read as a whole. One

cannot rely on strongly worded and isolated passage for proving the charge nor indeed
can one take a sentence here and a sentence there and connect them by a meticulous
process of inferential reasoning.
The effect of the words must be judged from the standards of reasonable, strong-
minded, ﬁrm and courageous men, and not those of weak and vacillating minds, nor of
those who scent danger in every hostile point of view. It is the standard of the ordinary
reasonable man or as they say in English law "the man on the top of a Clapham
omnibus".
The common feature in both the sections, viz., sections 153-A and 505(2), being
promotion of feeling of enmity, hatred or ill-will "between different" religious or racial or
linguistic or regional groups or castes and communities, it is necessary that at least
two such groups or communities should be involved. Merely inciting the feeling of one
community or group without any reference to any other community or group cannot

attract either of the two sections.200. In State of Maharashtra v Sangharaj Damodar
Rupawate,201. the Supreme Court again considered the question whether a notiﬁcation
issued by the Maharashtra Government to forfeit the book "Shivaji: Hindu King in
Islamic India". It was held that the notiﬁcation does not identify the communities
between which the book had caused or is likely to cause enmity. It cannot be found out
from the notiﬁcation as to which communities got outraged by the publication of the
book or it had had caused hatred and animosity between the particular communities or
groups—statement in the notiﬁcation to the effect that the book is 'likely to result in
breach of peace and public tranquillity and in particular between those who revere Shri
Chhatrapati Shivaji Maharaj and those who may not' is too vague a ground to satisfy the

aforesaid tests. The order quashing the notiﬁcation was upheld by the Supreme Court.
In Ramesh Chotalal Dalal v UOI,202. the Court held that TV serial "Tamas" did not depict
communal tension and violence and the provisions of section 153A of IPC, 1860, would
not apply to it. It was also not prejudicial to the national integration falling under
section 153B of IPC. Approving the observations of Vivian Bose, J in Bhagvati Charan
Shukla v Provincial Government,203. the Court observed that the effect of the words
must be judged from the standards of reasonable, strong-minded, ﬁrm and courageous
men, and not those of weak and vacillating minds, nor of those who scent danger in
every hostile point of view. It is the standard of ordinary reasonable man or as they say

in English Law, "the man on the clapham omnibus". Again in Bilal Ahmed Kaloo v State
of AP,204. it was held that the common feature in both the sections, viz., sections 153A
and 505 (2), being promotion of feeling of enmity, hatred or ill-will "between different"
religious or racial or linguistic or regional groups or castes and communities, it is
necessary that at least two such groups or communities should be involved. Further, it
was observed that merely inciting the feeling of one community or group without any
reference to any other community or group cannot attract either of the two sections.
2. Scurrilous attack on basic religious books.—Section 153A certainly affords
protection to the basic religious books of all the religions against scurrilous attacks. In

Chandanmal Chopra v State of WB,205. it was alleged that the Koran, the basic religious
book of Muslim religion promotes religious disharmony by advocating destructions of
idols, etc., and thereby outrages not only the religious feelings of non-Muslims but also
encourages hatred, disharmony, feeling of enmity between different religious
communities in India, and the petitioner sought for directing the State of West Bengal
to forfeit every copy of Koran. It was also alleged that the publication of Koran amounts
to commission of offences punishable under sections 153A and 295A of IPC, 1860. In
support of their contention the petitioners quoted some isolated passages from the
Koran. In rejecting this contention the High Court of Calcutta held that sections 153A
and 295A of the Code have no application in the present case. The book is the basic

text book of the Mohammedans and is held sacred by them like Bible to Christians and
Gita, Ramayana and Mahabharata to Hindus. Because of Koran no public tranquillity

177.  Subs. by Act 35 of 1969, sec. 2, for section 153A (w.e.f. 4-9-1969). Earlier section 153A
was substituted by Act 41 of 1961, sec. 2 (w.e.f. 12-9-1961).
178.  Ins. by Act 31 of 1972, section 2 (w.e.f. 14-6-1972).
179.  Ins. by Act 31 of 1972, section 2 (w.e.f. 14-6-1972).
180.  The Trustees of Safdar Hashmi Memorial Trust v Govt of Nct of Delhi, 2001 Cr LJ 3689 (Del).
181.  Manzar Sayeed Khan v State of Maharashtra, (2007) 5 SCC 1 [LNIND 2007 SC 437] : AIR
182.  Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : (1995) 3 SCC
214 [LNIND 1995 SC 1420] : (1995) 1 SCC (Cr) 432.
183.  Ram, (1924) Kant 31. Mens rea is a necessary requirement of this offence. State (Delhi
Admn) v Shrikanth Shastri, 1987 Cr LJ 1583 .
184.  Maniben Kara, (1932) 34 Bom LR 1642 ; Nepal Chandra Bhattacharjya, (1939) 1 Cal 299 .
185.  Narayan Vasudev Phadke, (1940) 42 Bom LR 861 .

has been disturbed up to now and there is no reason to apprehend such disturbance in
future. On the other hand the action of the petitioners may be said to have attempted to
promote, on grounds of religion, disharmony or feelings of enmity, hatred or ill-will
amongst different religions, i.e., Muslims on the one hand and non-Muslims on the
other within the meaning of section 153A, IPC, 1860. Forfeiture of Koran would go
against the Preamble of the Constitution and violate Article 25 of the Constitution
which guarantees freedom of conscience and religion to one and all.
3. Evidence of hatred, etc., not needed.—A Special Bench of the Bombay High Court
has held that under this section it is not necessary to prove that as a result of the
objectionable matter, enmity or hatred was in fact caused between the different

classes. Intention to promote enmity or hatred, apart from the writing itself, is not a
necessary ingredient of the offence. It is enough to show that the language of the
writing is of a nature calculated to promote feelings of enmity or hatred for a person
must be presumed to intend the natural consequences of his act. If a writing is
calculated to promote feelings of enmity or hatred, it is no defence to a charge under
this section that the writing contains a truthful account of past events or is otherwise
supported by good authority. Adherence to the strict path of history is not by itself a
complete defence to a charge under this section.206.
Immediately after the demolition of Babri masjid and violent riots in Bombay, editorials
appeared in the Marathi newspaper 'Samna' which were in high ﬂown and caustic

language but were not directed against the Muslim Community as a whole but only
against anti-national elements amongst them and also against the attitude of police,
army and Government. The articles were held to be not coming within the mischief of
section 153-A and section 153-B.207.
[s 153A.2] Previous Sanction:
Previous sanction under section 196 Cr PC, 1973, is a must before taking cognizance
of the offences under section 153 and 153B IPC, 1860.208.

186.  Banomali Maharana, (1942) 22 Pat 48.
187.  Express Publications (Madurai) Ltd v State of Orissa, 2006 Cr LJ 2548 (Ori).
188.  Hardik Bharatbhai Patel v State of Gujarat, 2016 Cr LJ 225 (Guj) : 2015 (4) Crimes 462 (Guj).
189.  Shiv Kumar, 1978 Cr LJ 701 (All).
190.  Baburao Patel, 1980 Cr LJ 529 : AIR 1980 SC 763 [LNIND 1980 SC 84] .
191.  Gautam, (1937) All 69 (SB).
192.  R V Bhasin v State of Maharashtra, 2012 Cr LJ 1375 (FB) (Bom); Gopal Godse v UOI, AIR
1971 Bom 56 [LNIND 1969 BOM 50] .
193.  Harnam Das, (1957) 1 All 528 (FB).
194.  Azizul Haque, 1980 Cr LJ 448 (SC).
195.  Rex v Lemon, (1971) 1 All ER 898 .
196.  Varsha Publications Pvt Ltd v State of Maharashtra, 1983 Cr LJ 1446 (Bom—SB); Nand
Kishore Singh v State of Bihar, 1985 Cr LJ 797 (Pat-SB).
197.  Kanchanlal Chunilal, (1930) 32 Bom LR 585 .
198.  Shib Sharma, (1941) 16 Luck 674 .
199.  Ghulam Sarwar, AIR 1965 Pat 393 .
200.  Manzar Sayeed Khan v State of Maharashtra, (2007) 5 SCC 1 [LNIND 2007 SC 437] : AIR

2007 SC 2074 [LNIND 2007 SC 437] : 2007 Cr LJ 2959 ; Sajjan Kumar v CBI, (2010) 9 SCC 368
[LNIND 2010 SC 892] : (2010) 3 SCC (Cr) 1371 : (2010) 11 SCR 669 : 2011 AIR (SCW) 3730, Anti-
Sikh Riots charges framed against Sajjan Kumar upheld by the SC. In S Khushboo v Kanniammal,
JT 2010 (4) SC 478 [LNIND 2010 SC 411] : 2010 (4) Scale 462 [LNIND 2010 SC 411] : (2010) 5
SCR 322 : 2010 Cr LJ 2828 : AIR 2010 SC 3196 [LNIND 2010 SC 411] : (2010) 2 SCC (Cr) 1299, it
is found that section 153A IPC, 1860, have no application to the present case since the
appellant was not speaking on behalf of one group and the content of her statement was not
directed against any particular group either.
201.  State of Maharashtra v Sangharaj Damodar Rupawate, (2010) 7 SCC 398 [LNIND 2010 SC

1557] : 2010 AIR (SCW) 4960 : (2010) 8 SCR 328 [LNIND 2010 SC 1557] : 2010 Cr LJ 4290 :
(2010) 3 SCC (Cr) 401. In Anand Chintamani Dighe v State of Maharashtra, 2002 Cr LJ 8 (Bom),
the Government of Maharashtra issued notiﬁcation under section 95(1) of the Code declaring
that every copy of the Marathi play entitled "Mee Nathuram Godse Bolto" be forfeited to the
Government. The notiﬁcation, inter alia, stated that the play in question contained derogatory
references towards Mahatma Gandhi and certain communities and was likely to disturb public
tranquillity and that it was written with a deliberate and malicious intention to outrage the
feelings of the followers of Mahatma Gandhi, The publication would be punishable under
sections 153-A and 295-A of IPC, 1860. The challenge to the notiﬁcation was repelled by the
Bombay High Court.

202.  Ramesh Chotalal Dalal v UOI, AIR 1988 SC 775 [LNIND 1988 SC 74]
203.  Bhagvati Charan Shukla v Provincial Government, AIR 1947 Nag 1 .
204.  Bilal Ahmed Kaloo v State of AP, (1997) 7 SCC 431 [LNIND 1997 SC 1060] .
205.  Chandanmal Chopra v State of WB, AIR 1986 Cal 104 [LNIND 1985 CAL 180] , 1986 Cr LJ
182 (Cal).
206.  Gopal, (1969) 72 Bom LR 871 (SB).
207.  Joseph Bain D'Souza v State of Maharashtra, 1995 Cr LJ 1316 Bom. The court relied on
Varsha Publications Pvt Ltd v State of Maharashtra, 1983 Cr LJ 1446 but distinguished; Babu Rao
Patel v State (Delhi Admn), AIR 1980 SC 763 [LNIND 1980 SC 84] : 1980 Cr LJ 529 . Trustees of
Safdar Hashmi Memorial Trust v Govt of NCT of Delhi, 2001 Cr LJ 3689 (Del), the object of the

provision is to prevent breaches of public tranquillity which might result from excited feelings of

enmity between classes of people. Malicious intention or mens rea has to be proved. Mohd
Khalid Hussain v State of AP, 2000 Cr LJ 2949 (AP), offence of promoting enmity between people
on the ground of religion. There was nothing to show the actual words uttered or acts
committed. There were only vague allegations. FIR quashed. Bilal Ahmed Kaloo v State of AP,
1997 Cr LJ 4091 : AIR 1997 SC 3483 [LNIND 1997 SC 1060] , inciting the feelings of one group
without any reference to another, attracts neither section 153A nor section 505.
208.  Swaraj Thackeray v State of Jharkhand, 2008 Cr LJ 3780 (Jhar); Shailbhadra Shah v Swami
Krishna Bharti, 1981 Cr LJ 113 (Guj).

182 (Cal).

209.[s 153-AA] Punishment for knowingly carrying arms in any procession or
organising, or holding or taking part in any mass drill or mass training with
arms.
Whoever knowingly carries arms in any procession or organizes or holds or takes part
in any mass drill or mass training with arms in any public place in contravention of
any public notice or order issued or made under section 144-A of the Code of Criminal
Procedure, 1973 (2 of 1974) shall be punished with imprisonment for a term which

may extend to six months and with ﬁne which may extend to two thousand rupees.
Explanation.—"Arms" means articles of any description designed or adapted as
weapons for offence or defence and includes ﬁre - arms, sharp edged weapons, lathis,
dandas and sticks.]

209.  Ins. by Cr PC (Amendment) Act, 2005 (25 of 2005), section 44(a).
COMMENT.—
Cr PC (Amendment) Act 2005—clause 44.—This clause amends IPC as follows,
namely:—
Clause 16 is intended to enable the District Magistrate to prohibit mass drill (or
training) with arms in public places. A new section 153-AA is, therefore, being added to
the Indian Penal Code to prescribe punishment with imprisonment upto six months and
ﬁne upto two thousand rupees for the contravention of the prohibitory order. [Notes on
Clauses].

210.[[s 153B] Imputations, assertions prejudicial to national integration.
(1) Whoever, by words either spoken or written or by signs or by visible
representations or otherwise,—
(a) makes or publishes any imputation that any class of persons cannot, by
reason of their being members of any religious,
racial, language or regional group or caste or community, bear true faith
and allegiance to the Constitution of India as by law established or
uphold the sovereignty and integrity of India, or

(b) asserts, counsels, advises, propagates or publishes that any class of
persons shall, by reason of their being members of any religious, racial,
language or regional group or caste or community, be denied or
deprived of their rights as citizens of India, or

(c) makes or publishes any assertion, counsel, plea or appeal concerning
the obligation of any class of persons, by reason of their being members
of any religious, racial, language or regional group or caste or
community, and such assertion, counsel, plea or appeal causes or is
likely to cause disharmony or feelings of enmity or hatred or ill-will
between such members and other persons,
shall be punished with imprisonment which may extend to three years,
or with ﬁne, or with both.
(2) Whoever commits an offence speciﬁed in sub-section (1), in any place of
210.  Ins. by Act 31 of 1972, section 2 (w.e.f. 14-6-1972).
* Effective date yet to be notiﬁed.
211.  State of Karnataka v Pastor P Raju, 2000 Cr LJ 4045 SC.
COMMENT—
Prejudicing national integration.—This section has been newly added by Act 31 of

COMMENT—
1972. This is a cognizable and non-bailable offence.
[s 153B.1] Sanction for prosecution.—
The allegation was that of instigating Hindus to convert to Christianity. The Court said
that the previous sanction of the Central Government was necessary. But it was
necessary for the court to take cognizance of the offence. The bar of sanction does not
apply against registration of a criminal case or investigation by a police agency. The
police asserted the accused and produced him before the Magistrate. The Magistrate
remanded him to judicial custody. The passing of order of remand did not amount to
taking of cognizance.211.

[s 154] Owner or occupier of land on which an unlawful assembly is held.
Whenever any unlawful assembly or riot takes place, the owner or occupier of the land
upon which such unlawful assembly is held, or such riot is committed, and any person
having or claiming an interest in such land, shall be punishable with ﬁne not
exceeding one thousand rupees, if he or his agent or manager, knowing that such
offence is being or has been committed, or having reason to believe it is likely to be

committed, do not give the earliest notice thereof in his or their power to the principal
oﬃcer at the nearest police-station, and do not, in the case of his or their having
reason to believe that it was about to be committed, use all lawful means in his or
their power to prevent it, and, in the event of its taking place, do not use all lawful
means in his or their power to disperse or suppress the riot or unlawful assembly.

212.  M&M 128.
213.  Kazi Zeamuddin Ahmed, (1901) 28 Cal 504 ; Payag Singh, (1890) 12 All 550 .
214.  Rule 252, Bengal Police Regulations, vol I 1943, p 108.
215.  MK Ibrahim, 1979 Cr LJ 175 (Kant); Indu Bhushan v State, 1995 Cr LJ 1180 (Cal).
COMMENT—
Liability of owner or occupier of land used for unlawful assembly.— Many duties of the
police are by law imposed on land-holders. The present section proceeds apparently
upon a presumption that, in addition to any such duty, the owner or occupier of land is
cognizant in a peculiar way of the designs of those who assemble on his land, and is
able not only to give the police notice, but also to prevent and to disperse and suppress
the assembly.212.
Section 45 of the Cr PC, 1973, casts upon the owners and occupiers of land the duty of
preventing a riot on their lands.
Knowledge, on the part of the owner or occupier of the land, of the acts or intentions of
the agent, is not an essential element of an offence under this section, and he may be

convicted under it though he may be in entire ignorance of the acts of his agent or
manager.213. According to some Police Regulations the Police are required to serve a
warning notice on the landlord, owner, occupier or his agent or other person claiming
interest in landed property contemplated in this and the two subsequent sections so
that they may adopt every means in their power to prevent the unlawful assembly or
rioting taking place on such property.214. This being a laudable objective there can
possibly be no objection to the issuance of such a notice. It should, however, be
remembered that a police-oﬃcer cannot and should not in the name of serving such a
notice injunct the owner or occupier, even temporarily, from enjoying his property.215.
The police have no such power under the law. To make a person cognizant about his

duties under the law is one thing and to restrain the owner from enjoying his property is
entirely a different thing.

[s 155] Liability of person for whose beneﬁt riot is committed.
Whenever a riot is committed for the beneﬁt or on behalf of any person who is the
owner or occupier of any land, respecting which such riot takes place or who claims
any interest in such land, or in the subject of any dispute which gave rise to the riot, or
who has accepted or derived any beneﬁt therefrom, such person shall be punishable
with ﬁne, if he or his agent or manager, having reason to believe that such riot was

likely to be committed or that the unlawful assembly by which such riot was
committed was likely to be held, shall not respectively use all lawful means in his or
their power to prevent such assembly or riot from taking place, and for suppressing
and dispersing the same.

COMMENT—
Liability of beneﬁciary of riot.—Under the preceding section the owner of land is
punishable for the taking place of an unlawful assembly or riot on his land. This section
requires that the unlawful assembly or riot should take place in the interest of the
owner or any person claiming interest in the land. The section, therefore, imposes
unlimited ﬁne. The preceding section refers to an unlawful assembly, as well as a riot;
this section refers to riot only.
The principle on which this and the following sections proceed is to subject to ﬁne all
persons in whose interest a riot is committed and the agents of such persons, unless it
can be shown that they did what they lawfully could to prevent the offence.

[s 156] Liability of agent of owner or occupier for whose beneﬁt riot is
owner or occupier of any land respecting which such riot takes place, or who claims
who has accepted or derived any beneﬁt therefrom,
the agent or manager of such person shall be punishable with ﬁne, if such agent or

manager, having reason to believe that such riot was likely to be committed, or that
the unlawful assembly by which such riot was committed was likely to be held, shall
not use all lawful means in his power to prevent such riot or assembly from taking
place and for suppressing and dispersing the same.

COMMENT—
The provisions of the last two sections are made applicable by this section to the agent
or manager of the owner or occupier of land.

[s 157] Harbouring persons hired for an unlawful assembly.
Whoever harbours, receives or assembles, in any house or premises in his occupation
or charge, or under his control any persons, knowing that such persons have been
hired, engaged, or employed, or are about to be hired, engaged, or employed, to join or
become members of an unlawful assembly, shall be punished with imprisonment of
either description for a term which may extend to six months, or with ﬁne, or with
both.
COMMENT—

both.
COMMENT—
Harbouring hired persons.—Section 150 makes the hiring of persons to join an
unlawful assembly punishable, whereas this section makes punishable the harbouring

216.  Radharaman Shaha, (1931) 58 Cal 1401 .
of such hired persons. It has a wider application.
The section clearly refers to some unlawful assembly in the future and provides for an
occurrence which may happen, not which has happened. An act of harbouring a
person, with the knowledge that, in some time past, he had joined or was likely to have
been a member of an unlawful assembly, is not an offence under this section.216.

[s 158] Being hired to take part in an unlawful assembly or riot;.
Whoever is engaged, or hired, or offers or attempts to be hired or engaged, to do or
assist in doing any of the acts speciﬁed in section 141, shall be punished with
imprisonment of either description for a term which may extend to six months, or with
ﬁne, or with both,
or to go armed.
and whoever, being so engaged or hired as aforesaid, goes armed, or engages or
offers to go armed, with any deadly weapon or with anything which used as a

weapon of offence is likely to cause death, shall be punished with imprisonment
of either description for a term which may extend to two years, or with ﬁne, or
with both.

COMMENT—
This section is intended to punish those persons who hire themselves out as members
of an unlawful assembly or assist any such members. It is divided into to two parts.
Higher penalty is awarded where the accused is armed with a deadly weapon.

[s 159] Affray.
When two or more persons1, by ﬁghting in a public place, 2 disturb the public peace,3
they are said to "commit an affray".
COMMENT—
The offence of affray in essence consists of the following ingredients—
(a) ﬁghting by two or more persons,
(b) the ﬁghting must take place in a public place

217.  Gadadhar Guru v State of Orissa, 1989 Cr LJ 2080.
(c) such ﬁghting must also result in disturbance of the public peace. Only if such
ingredients are satisﬁed, an offence of affray can be said to have occasioned for
which the persons causing the same would be responsible. In a prosecution
under section 159, IPC, 1860, there must be positive evidence of public peace
having been disturbed which would mean that, by the action of the accused the
even tempo of life of the public was disturbed resulting in affecting the peace
and tranquillity of the locality.217.

[s 160] Punishment for committing affray.
Whoever commits an affray, shall be punished with imprisonment of either description
for a term which may extend to one month, or with ﬁne which may extend to one
hundred rupees, or with both.
COMMENT—
Affray.—The word 'affray' is derived from the French word affraier, to terrify, and in a
legal sense it is taken for a public offence to the terror of the people. The essence of
the offence consists in the terror it is likely to cause to the public. The Criminal

Procedure Code, 1973 has now made it a cognizable offence.

[s 160.1] Ingredients.—
This section requires three things—
1. Two or more persons must ﬁght.
2. They must ﬁght in a public place.
3. They must disturb the public peace.
The ﬁrst basic ingredient of section 159, IPC, 1860, is ﬁghting between two or more
persons. The next ingredient is that the ﬁghting should have been in public place and
the last ingredient is that the ﬁghting should have disturbed public peace.218.
1. 'Two or more persons'.—An affray requires two persons at the least. An unlawful
assembly requires ﬁve. The offence of Affray is a ﬁght, i.e., a bilateral act, in which two
parties participate and it will not amount to an affray when the party who is assaulted
submits to the assault without resistance. Again, there must be a deﬁnite disturbance
of the public peace due to the ﬁght in the public place to make the offence affray.219.
2. 'Fighting in a public place'.—'Public place' is a place where the public go, no matter

whether they have a right to go or not. Many shows are exhibited to the public on
private property, yet they are frequented by the public—the public go there.220.
The expression 'Fighting' in section 159, IPC, 1860, is used in its ordinary sense and it
means a combat or quarrel involving exchange of some force or violence, if not blows.
Mere verbal quarrel or vulgarly abusing sans violence cannot be construed as ﬁghting
which contemplates bilateral use of violence by two competing parties. Even if there is
no exchange of blows, there should be exchange of some violence between the two
contending parties before it can be said that the parties are ﬁghting. If one person uses
violence against another and the other person merely remains passive, it cannot be

said that there is a ﬁghting, so also, if neither person uses violence against the other
but both the persons indulge in verbal abuses, it does not amount to ﬁghting.221. Mere
causing inconvenience to the public is not suﬃcient.222.
3. 'Disturb the public peace'.—An affray is an offence against the public peace because
it is committed in a public place and is likely to cause general alarm and disturbance.
Mere causing public inconvenience is not enough.223. Before a conviction can be
entered under section 160, IPC, 1860, there must be a clear ﬁnding by the court that the
place of occurrence was a public place. If there is no such ﬁnding the accused persons
must be acquitted.224.
[s 160.2] Affray and riot.—An affray differs from a riot.
(1) An affray cannot be committed in a private place, a riot can be.

(2) An affray can be committed by two or more persons, a riot, by ﬁve or more.
[s 160.3] Affray and assault.—An affray differs from an assault.—
(1) The former must be committed in a public place; the latter may take place
anywhere.

218.  K Ranganna s/o K Narasappa v State, 2010 Cr LJ 1275 (AP).
219.  C Subbarayudu v State of AP, 1996 Cr LJ 1472 (AP).
220.  Wellard v State, (1884) 14 QBD 63 , 66, 67.
221.  Mangam Chinna Subbarayudu v State, SHO, Nandyal Town PS, 1975 All LT, vol 34, p 332.
222.  C Subbarayudu v State of AP, 1996 Cr LJ 1472 (AP).
223.  Podan, (1962) 1 Cr LJ 339 . See also C Subbarayudu v State of AP, 1996 Cr LJ 1472 (AP);
and Mahant Kaushalya Das v State of Madras, AIR 1966 SC 22 [LNIND 1965 SC 169] : 1966 Cr LJ
66 .
224.  Re Thommeni Nadar, 1974 Cr LJ 1116 (Mad). Gadadhar Guru v State of Orissa, 1989 Cr LJ
2080 (Ori), no positive evidence of disturbance of public peace or annoyance to public though
there was a ﬁght between two groups.
(2) The former is regarded as an offence against the public peace; the latter,
against the person of an individual. An affray is nothing more than an assault
committed in a public place and in a conspicuous manner, and is so called
because it affrighteth and maketh men afraid.

CHAPTER IX OF OFFENCES BY OR RELATING TO PUBLIC SERVANTS
This chapter deals with two classes of offences, of which one can be committed by
public servants alone, and the other comprises offences which relate to public
servants, though they are not committed by them.
Deletion of provisions.—Sectio ns 161–165A stand omitted by the Prevention of
Corruption Act, 1988, section 31 (w.e.f. 9 September 1988).
The relevant portion from the Statement of Objects and Reasons appended to the
Prevention of Corruption Act, 1988 relating to the omission of sections 161 to 165A of
Indian Penal Code, 1860 (IPC, 1860) is given below:
3. The Bill inter alia, envisages widening the scope of the deﬁnition of the expression
"public servant", incorporation of offences under sections 161–165A of the Indian
Penal Code, enhancement of penalties provided for these offences and incorporation
of a provision that the order of the trial court upholding the grant of sanction for

prosecution would be ﬁnal if it has not already been challenged and the trial has
commenced. In order to expedite the proceedings, provisions for day-to-day trial of
cases and prohibitory provisions with regard to grant of stay and exercise of powers of
revision on interlocutory orders have also been included.
4. Since the provisions of section 165A are incorporated in the proposed legislation
with an enhanced punishment, it is not necessary to retain those sections in the Indian
Penal Code. Consequently, it is proposed to delete those sections with the necessary
saving provision.
Sections 161 to 165-A.— Repealed by the Prevention of Corruption Act (Act 49
of 1988), section 31 (w.e.f. 9 September 1988).

[s 166] Public servant, disobeying law, with intent to cause injury to any
person.
Whoever, being a public servant, knowingly disobeys any direction of the law as to the
way in which he is to conduct himself as such public servant, intending to cause, or

person.
knowing it to be likely that he will, by such disobedience, cause injury to any person,
shall be punished with simple imprisonment for a term which may extend to one year,
A, being an oﬃcer directed by law to take property in execution, in order to satisfy a
decree pronounced in Z's favour by a Court of Justice, knowingly disobeys that
direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has
COMMENT—
Disobedience of law by public servant.—The offence under this section consists in a
wilful departure from the direction of the law, intending to cause injury to any person.
Mere breach of departmental rules will not bring a public servant within the purview of

1.  K K Patel v State of Gujarat, AIR 2000 SC 3346 [LNIND 2000 SC 889] : 2000 Cr LJ 4592 : JT
2000 (7) SC 246 [LNIND 2000 SC 889] : (2000) 6 SCC 195 [LNIND 2000 SC 889] : (2000) 4
Supreme 160 .
2.  Prabhakara Panicker M B v State of Kerala, 2010 Cr LJ 4117 (Ker) : 2010 (3) KHC 152 .
3.  BS Thind v State of HP, 1992 Cr LJ 2935 ; People's Union for Civil Liberties v State of
Maharashtra, 1998 Cr LJ 2138 (Bom).
[s 166.1] Ingredients.—
(i) The accused was a public servant at the relevant time;
(ii) There was a direction of law as to how such public servant should conduct
himself;
(iii) The accused had disobeyed such direction;
(iv) By such disobedience he had intended to cause or knew it would likely cause
injury to any person.
The indispensable ingredient of the offence is that the offender should have done the
act "being a public servant". The next ingredient close to its heels is that such public
servant has acted in disobedience of any legal direction concerning the way in which

he should have conducted as such public servant. For the offences under sections 167
and 219 of IPC, 1860 the pivotal ingredient is the same as for the offence under section
166 of IPC, 1860.1. If in carrying out the direction of law the accused gave information
which according to the complainant was untrue, that by itself cannot attract the
offence punishable under section 166 IPC, 1860 unless it is shown that the replies
given by the accused were untrue.2. Where an investigating oﬃcer recorded his
satisfaction in writing that the search of a particular premises was necessary because
disputed documents might be found there, his entry into such premises was held to be
not in disobedience of law and therefore, he could not be prosecuted without sanction
under section 197 Code of Criminal Procedure, 1973 (CrPC, 1973).3. To make out an

offence under this provision, it has to be stated that the public servant knowingly
disobeyed any particular direction of the law which he was bound to obey and further
that such disobedience would cause injury to any person to the knowledge of the
public servant.

4.[[s 166A] Public servant disobeying direction under law.
Whoever, being a public servant,—
(a) knowingly disobeys any direction of the law which prohibits him from requiring
the attendance at any place of any person for the purpose of investigation into

an offence or any other matter, or
(b) knowingly disobeys, to the prejudice of any person, any other direction of the
law regulating the manner in which he shall conduct such investigation, or
(c) fails to record any information given to him under sub-section (1) of section
154 of the Code of Criminal Procedure, 1973 (2 of 1974), in relation to
cognizable offence punishable under section 326A, section 326B, section 354,
section 354B, section 370, section 370A, section 376, section 376A, 5.[section
376AB, section 376B, section 376C, section 376D, section 376DA, section
376DB], section 376E or section 509,
shall be punished with rigorous imprisonment for a term which shall not be
less than six months but which may extend to two years, and shall also be
liable to ﬁne.]

4.  Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 3 (w.r.e.f. 3-2-2013).
5.  Subs. by Act 22 of 2018, section 2, for "section 376B, section 376C, section 376D" (w.r.e.f.
21-4-2018).

6.[[s 166B] Punishment for non-treatment of victim.
Whoever, being in charge of a hospital, public or private, whether run by the Central
Government, the State Government, local bodies or any other person, contravenes the

provisions of section 357C of the Code of Criminal Procedure, 1973 (2 of 1974), shall
be punished with imprisonment for a term which may extend to one year or with ﬁne
or with both.]
6.  Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 3 (w.r.e.f. 3-2-2013).
COMMENT—
Sections 166A and 166B are enacted based on the recommendations given by the
Justice J.S. Verma Committee, constituted in the aftermath of the December 2012
Delhi Rape Case by the Criminal Law (Amendment) Act, 2013 (Nirbhaya Act, 2013).

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 6. Ins. by the Criminal Law (Amendment) Act, 2013 (13 of
2013), section 3 (w.r.e.f. 3-2-2013). [[s 166B] Punishment for non-treatment of victim.
 
[s 167] Public servant framing an incorrect document with intent to cause
injury.
Whoever, being a public servant, and being, as 7.[such public servant, charged with the
preparation or translation of any document or electronic record, frames, prepares or

injury.
translates that document or electronic record] in a manner which he knows or
believes to be incorrect, intending thereby to cause or knowing it to be likely that he
may thereby cause injury to any person, shall be punished with imprisonment of either
description for a term which may extend to three years, or with ﬁne, or with both.
COMMENT—
The preceding section deals generally with the disobedience of any direction of law;
this section deals with a speciﬁc instance, viz., that of framing an incorrect document
with intent to cause injury. It is similar to section 218, which deals also with cases of
framing incorrect record or writing with intent to save person from punishment or
property from forfeiture, whereas section 167 deals with cases of framing incorrect

document only with intent to cause injury. In a case, the allegation that the accused,
who is a Deputy Superintendent of Police, suppressed the statement recorded under
section 161 of the CrPC, 1973 in a criminal case registered by the police and produced
a fabricated statement along with the charge sheet before the Magistrate. The Court
held that section 167 is attracted only when a public servant prepares a document in a

7.  Subs. by the Information Technology Act (Act 21 of 2000), section 91 and First Schedule for
the words "such public servant, charged with the preparation or translation of any document,
frames or translates that document", w.e.f. 17-10-2000. The words "electronic record" have been
deﬁned in section 29A.
8.  Joseph v State of Kerala, 2013 Cr LJ 749 : 2012 (4) KHC 157 .
manner which he thinks or believes to be incorrect. Essentially, the petitioner's
allegation is that the accused suppressed the real statement prepared under section
161 of the Criminal Procedure Code and produced along with the charge sheet a
fabricated statement. That comes only within the purview of section 193. Therefore,
section 167 is not attracted to the allegations raised by the petitioner in his
complaint.8.

[s 168] Public servant unlawfully engaging in trade.
Whoever, being a public servant, and being legally bound as such public servant not to
engage in trade, engages in trade, shall be punished with simple imprisonment for a

term which may extend to one year, or with ﬁne, or with both.
COMMENT—
Public servant engaging in trade.—This section punishes those public servants who
are legally bound not to engage in trade. If public servants were allowed to trade they
would fail to perform their duties with undivided attention. Being in oﬃcial position they
could easily obtain unfair advantages over other traders.
The word 'trade' covers every kind of trade, business, profession, or occupation.9. This
proposition of law no longer seems to be correct in view of the Supreme Court's
decision in Mahesh Kumar Dhirajlal's case10. wherein their Lordships held that trade in
its narrow sense means "exchange of goods for goods or for money with the object of
making proﬁt" and in its widest sense means "any business with a view to earn proﬁt".

Thus, where a tracer in the oﬃce of Sub-divisional Soil Conservation Oﬃcer took
earned leave and during that period of leave obtained training as an Electrical Signal
Maintainer from the Railway Administration, it was held that he could not be convicted
under this section as he had not engaged himself in any trade even though he was

9.  Mulshankar Maganlal, (1950) Bom 706 : (1950) 52 Bom LR 648 .
10.  State of Gujarat v Mahesh Kumar Dhirajlal, AIR 1980 SC 1167 [LNIND 1980 SC 69] : 1980 Cr
LJ 919 .
11.  State of Gujarat v Mahesh Kumar Dhirajlal, AIR 1980 SC 1167 [LNIND 1980 SC 69] : 1980 Cr
LJ 919 . See also Rasik Behari Mathur v State of Rajasthan, 2007 Cr LJ 3108 (Raj).
12.  State of Maharashtra v Chandrakant Solanki, (1995) 1 Cr LJ 832 (Bom).
13.  Kanwarjit Singh Kakkar v State of Punjab, 2011 CrLJ 3360 : SCC 158 : (2012) 1 SCC (Cr) 805.
receiving stipend from the Railways during the period of his training.11. Following this
ruling, it has been held that engaging oneself as an agent of an insurance company on
commission basis does not amount to engaging in trade.12.
[s 168.1] Private Practice of Government Doctors.—
In Kanwarjit Singh Kakkar v State of Punjab,13. the Supreme Court examined the
question whether the indulgence in private practice of Government Doctors would

amount to indulgence in 'trade' while holding the post of a government doctor, so as to
constitute an offence under section 168 of the IPC, 1860. The Supreme Court held that
"in our view, offence under Section 168 of the IPC, 1860 cannot be held to have been
made out against the appellants even under this Section as the treatment of patients
by a doctor cannot by itself be held to be engagement in a trade as the doctors' duty to
treat patients is in the discharge of his professional duty which cannot be held to be a
'trade' so as to make out or constitute an offence under Section 168 of the IPC, 1860".

[s 169] Public servant unlawfully buying or bidding for property.
Whoever, being a public servant, and being legally bound as such public servant, not
to purchase or bid for certain property, purchases or bids for that property, either in

his own name or in the name of another, or jointly, or in shares with others, shall be
punished with simple imprisonment for a term which may extend to two years, or with
ﬁne, or with both; and the property, if purchased, shall be conﬁscated.
COMMENT—
Buying or holding property.—This section is merely an extension of the principle
enunciated in the last section. It prohibits a public servant from purchasing or bidding
for property which he is legally bound not to purchase.
It is necessary that there should be some statutory law or rules or regulations framed
under the law and not merely some administrative instructions or guidelines prohibiting
public servants from purchasing certain property. In this case, a Code of Conduct was
issued by the State Government in the exercise of its executive power under Article 162

of the Constitution under which Ministers were prohibited from buying Government
properties. There were no mandatory terms providing for any action in case of non-
compliance. It was held that the Code of Conduct did not have the effect of law. Its
violation could not generate legal proceedings there being nothing unlawful illegal

14.  R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND 2003 SC 1023] : 2004 Cr LJ 286 :
(2004) 2 SCC 9 [LNIND 2003 SC 1023] .
15.  R Sai Bharathi v J Jayalalitha, AIR 2004 SC 692 [LNIND 2003 SC 1023] : (2004) 2 SCC 9
[LNIND 2003 SC 1023] .
within the meaning of section 43. The purchase of property of a Government company
by a ﬁrm in which the then Chief Minister was a partner did not constitute an offence
under section 169 in the absence of any law debarring the Chief Minister from making
such a purchase.14.
[s 169.1] TANSI land deal case.—
The allegation was that the Tamil Nadu Chief Minister, Ms. Jayalalithaa, while holding
the chief minister's post, had violated the code of conduct and purchased 3.0786 acres
of land and buildings to the state-owned Tamil Nadu State Industries Corporation for
Jaya Publications. While reversing the conviction passed by the High Court, the
Supreme Court held that the offence under section 169 IPC, 1860 is incomplete without

the assistance of some other enactment which imposes the legal prohibition required.
Therefore, in order to come within the clutches of section 169 IPC, 1860, there should
be a law which prohibits a public servant from purchasing certain property and if he
does it, it becomes an offence under section 169 IPC, 1860. Section 481 of the Criminal
Procedure Code, section 189 of the Railways Act, 1989 and section 19 of the Cattle
Trespass Act, 1871 and instances of that nature in several enactments are available in
which persons mentioned therein shall not directly or indirectly purchase any property
at a sale under those Acts. Similarly section 136 of the Transfer of Property Act, 1882
provides that no Judge, legal practitioner, or oﬃcer connected with any Court of Justice

shall buy or traﬃc in, or stipulate for, or agree to receive any share of, or interest in, any
actionable claim and no Court of Justice shall enforce, at his instance, or at the
instance of any person claiming by or through him, any actionable claims so dealt with
by him as stated above. Thus, in these circumstances where a law has prohibited
purchase of property or to bid at an auction, the prohibition contained therein will be
attracted and will become an offence under section 169 IPC, 1860. The Code of
Conduct not having a statutory force and not enforceable in a Court of law, nor having
any sanction or procedure for dealing with a contravention thereof by the Chief
Minister, cannot be construed to impose a legal prohibition against the purchase of

property of the Government so as to give rise to a criminal offence under section 169
IPC, 1860.15.

[s 170] Personating a public servant.
Whoever pretends to hold any particular oﬃce as a public servant,1 knowing that he
does not hold such oﬃce or falsely personates any other person holding such oﬃce,

and in such assumed character does or attempts to do any act 2 under colour of such
oﬃce,3 shall be punished with imprisonment of either description for a term which
[s 170.1] Ingredients.—
The section requires two things—
1. A person (a) pretending to hold a particular oﬃce as a public servant, knowing
that he does not hold such oﬃce, or (b) falsely personating any other person
holding such oﬃce.
2. Such person in such assumed character must do or attempt to do an act under
colour of such oﬃce.
COMMENT—

16.  Aziz-ud-din v State, (1904) All 294 .
Personating public servant.—Mere personation is not an offence under this section.
The person personating must do or attempt to do some act under colour of the oﬃce
of the public servant whom he personates. Section 140 punishes the person who
wears the garb or carries the token used by a soldier. This section punishes a person
who does any act in the assumed character of a public servant.
1. 'Pretends to hold any particular oﬃce as a public servant'.—It must be an existing
oﬃce. If it is uncertain who legally ﬁlls the oﬃce, a person doing an oﬃcial act, in
pursuance of what he honestly believes to be his lawful title to the oﬃce, does not
come within this section.
2. 'Any act'.—It is not necessary that the act done or attempted to be done should be
such an act as might legally be done by the public servant personated. The accused
was arrested when he was demanding one anna's worth of fruit from a fruit-seller for

one pie on the representation that he was a head constable, which in fact he was not. It
was held that if he pretended to be a police-oﬃcer and tried as such police-oﬃcer to
extort money or things from a fruit-seller, he was guilty of an offence under this
section.16. A person who poses as a Government servant and by so doing obtains of
another's services, which he would not otherwise have obtained and which the other
person was bound to give on demand by a Government oﬃcer, commits an offence
under this section.17.
3. 'Under colour of such oﬃce'.—An act is done 'under colour of an oﬃce,' if it is an act
having some relation to the oﬃce, which the actor pretends to hold. If it has no relation
to the oﬃce, as if A pretending to be a servant of Government, travelling through a

district, obtains money, provisions, etc., the offence may amount to cheating under
section 415, but is not punishable under this section.18. The act done under colour of
oﬃce must be an act which could not have been done without assuming oﬃcial
authority.
Where the accused posed as a police oﬃcer and in that garb looted certain articles
from the complainant and the stolen articles, one police ballot and monogram were
recovered from him, his conviction under the section was held to be proper.19.
[s 170.2] Retired IAS oﬃcer using IAS with his name.—
To constitute an offence under section 170, a person must either pretend to hold a
particular oﬃce as a public servant knowing that he does not hold such oﬃce or falsely
personate any other person holding such oﬃce. Over and above that, that person in

such assumed character must do or attempt to do an act under the colour of such
oﬃce. There must be pretension or false personation to be a particular person, that too
a public servant, which he is not, and then doing of or attempt to do some act under
colour of such oﬃce of that public servant, to proceed against a person under section
170 of the Indian Penal Code. Thus, where a retired IAS oﬃcer, had used IAS in his
letterhead when he continued as Director of CAPE and also corresponded in that
manner, is no ground to impute that he has committed an offence under section 170 of
the Penal Code.20.

17.  Bashirullakhan, (1942) Nag 484. Ajitender Singh v State of Punjab, 2000 Cr LJ 1827 (P&H) :
2000 (2) RCR (Criminal) 34, mere assumption of the character of a public servant is not enough,
there must also be an attempt to commit an oﬃcial act. Jata Shanker Jha v State of Rajasthan,
2000 Cr LJ 2108 (Raj) : 2000 (4) WLC 75 , accused personated as secret ASI in the Education
Department used forged papers to divert the salary of others to himself. Conviction. Pratap
Singh v State, 1998 Cr LJ 633 (P&H), acting under colour of oﬃce as Lambardar, offence under
the section made out because the accused identiﬁed parties in sale deeds as an oﬃcer and also
had certain sureties arrested.
18.  M&M 142.
19.  Karuna Krishna Biswas v State of WB, 1996 Cr LJ 2823 (Cal).
20.  Premachandra Kurup v State, 2013 Cr LJ 1465 .

[s 171] Wearing garb or carrying token used by public servant with fraudulent
intent.
Whoever, not belonging to a certain class of public servants, wears any garb or carries
any token resembling any garb or token used by that class of public servants, with the

intent.
intention that it may be believed, or with the knowledge that it is likely to be believed,
that he belongs to that class of public servants, shall be punished with imprisonment
of either description for a term which may extend to three months, or with ﬁne which
may extend to two hundred rupees, or with both.
COMMENT—
Wearing garb or token of public servant.—Under this section the offence is complete,
although no act is done or attempted in the assumed oﬃcial character. The mere
circumstance of wearing a garb, or carrying a token, with the intention or knowledge
supposed, is suﬃcient. It is not necessary that something should pass in words. If any
act is done then the preceding section will apply.
Under section 140 IPC, 1860, wearing the garb or carrying the token of a soldier is
made punishable.

1.[CHAPTER IX-A OF OFFENCES RELATING TO ELECTIONS
[s 171A] "Candidate", "Electoral right", deﬁned.
For the purposes of this Chapter—
2.[(a) "candidate" means a person who has been nominated as a candidate at an
election;1]
(b) "electoral right" means the right of a person to stand, or not to stand as, or to
withdraw from being, a candidate or to vote or refrain from voting at any
election.
1.  Chapter IXA (containing of sections 171A to 171-I) ins. by Act 39 of 1920, section 2.
2.  Subs. by Act 40 of 1975, section 9, for clause (a) (w.e.f. 6-8-1975).
3.  Statement of Objects and Reasons. Gazette of India, 1920, Part V, p 135, section 4. Bhupinder
Singh v State, 1997 Cr LJ 1416 (P&H), accused snatched ballot papers from the custody of a
polling oﬃcer and tore them. This amounted to use of criminal force.
4.  For a comparison between the sections 171A to 171E with the provisions of Representation
of People Act, 1950. See Indira Nehru Gandhi v Raj Narain, AIR 1975 SC 2299 [LNIND 1975 SC

432] : (1975) Supp SCC 1 : 1976 (2) SCR 347 [LNIND 1975 SC 432] .
COMMENT—
Candidate, electoral right.—This chapter was introduced in the Code by the Indian
Elections Offences and Inquiries Act (XXXIX of 1920). It seeks to make punishable
under the ordinary penal law, bribery, undue inﬂuence, and personation, and certain
other malpractices at elections not only to the Legislative bodies, but also to
membership of public authorities where the law prescribes a method of election; and,
further, to debar persons guilty of malpractices from holding positions of public
responsibility for a speciﬁc period. 3.This chapter has to be read along with the
Representation of the People Act, 1951 as it contains additional penalties for certain
offences under this chapter, e.g., sections 171E and 171F of this Code. Thus, a

conviction under section 171E or section 171F, IPC, 1860, amounts to a disqualiﬁcation
under section 8 of the Representation of the People Act, 1951.4.
1. 'Election'.—'Election' is deﬁned as including election to all classes of public bodies
where such a system is prescribed by law (vide Explanation 3 to section 21 supra).

[s 171B] "Bribery".
(i) gives a gratiﬁcation to any person with the object of inducing him or any
other person to exercise any electoral right or of rewarding any person
for having exercised any such right; or
(ii) accepts either for himself or for any other person any gratiﬁcation as a
reward for exercising any such right or for inducing or attempting to
induce any other person to exercise any such right; commits the offence
of bribery:
P r o v i d e d  that a declaration of public policy or a promise of public action
shall not be an offence under this section.
(2) A person who offers, or agrees to give, or offers or attempts to procure, a
gratiﬁcation shall be deemed to give a gratiﬁcation.
(3) A person who obtains or agrees to accept or attempts to obtain a gratiﬁcation
shall be deemed to accept a gratiﬁcation, and a person who accepts a
gratiﬁcation as a motive for doing what he does not intend to do, or as a reward

for doing what he has not done, shall be deemed to have accepted the
gratiﬁcation as a reward.
COMMENT—
Bribery.—This section deﬁnes the offence of bribery at an election.
'Bribery' is deﬁned primarily as the giving or acceptance of a gratiﬁcation either as a
motive or as a reward to any person, either to induce him to stand, or not to stand as, or
to withdraw from being, a candidate or to vote or refrain from voting at an election. It
also includes offers or agreements to give or offer and attempts to procure a
gratiﬁcation for any person. 'Gratiﬁcation' is already explained in section 161 of the
Penal Code and is not restricted to pecuniary gratiﬁcations or to gratiﬁcations
estimated in money.5. Section 171-B(1)(i) of Indian Penal Code provides that if
gratiﬁcation is given to any person inducing him or any other person to exercise any

electoral right, then it will amount to bribery. The term "Electoral right" deﬁned under
clause (b) of section 171-A of Indian Penal Code clearly indicates that the electoral
right is of deﬁnite nature and it is to be exercised by individual. So, the gratiﬁcation has
to be given to an individual. Here, the offer is made to the party (RPI) and not to any
individual. Furthermore, there is nothing in the offer which indicates that any inﬂuence
is being brought on any individual with respect to exercising his electoral right, that
means, to stand, or not to stand as, or to withdraw from being, a candidate or to vote or
to refrain from voting at the election. Seeking support of a political party, during the
course of election and making an offer to political party of some share in political

5.  Statement of Objects and Reasons, Gazette of India, 1920, Part V, p 135, section 8.
6.  Deepak Ganpatrao v Government of Maharashtra, 1999 Cr LJ 1224 (Bom).
7.  Iqbal Singh v Gurdas Singh, AIR 1976 SC 27 [LNIND 1975 SC 354] : (1976) 3 SCC 284 [LNIND
1975 SC 354] : 1976 (1) SCR 884 [LNIND 1975 SC 354] .
8.  Ibid.
9.  S Subramaniam Balaji v Government of Tamil Nadu, 6 Mad LJ 307 : 2013 (8) Scale 249 [LNIND
2013 SC 627] .
power for giving such support cannot be called as giving gratiﬁcation as contemplated
under section 171-B of Indian Penal Code.6. The word 'gratiﬁcation' should be deemed
to refer only to cases where a gift is made of something which gives a material
advantage to the recipient. There is hardly any need to say that giving of anything
whose value is estimable in money is bribery. A gun licence gives no material
advantage to its recipient. It might gratify his sense of importance if he has a gun

licence in a village where nobody else has a gun licence. So might be the conferment of
an honour like Padma Bhushan. A praise from a high quarter might gratify the sense of
vanity of a person. But the word 'gratiﬁcation' as used in section 123 (1) does not refer
to such gratiﬁcation any more than in section 171-B of the Indian Penal Code.7.
[s 171B.1] Sub-clause (2).—'Offers'.—
By this clause the attempt to corrupt is made equivalent to the complete act.
[s 171B.2] Treating.—
Treating will be bribery if refreshment is given or accepted with the intent required by
law.8. The gist of the offence of treating is the corrupt inducement to the voter or to
refrain from voting, which may be given at any time, although for obvious reasons it is
usually given at or shortly before the election. 'Treating' is deﬁned in section 171E.

[s 171B.3] Supreme Court on 'freebies'.—
In S Subramaniam Balaji v Government of Tamil Nadu,9. the Supreme Court held that
freebies promised by political parties in their election manifestos shake the roots of
free and fair polls, and directed the Election Commission to frame guidelines for
regulating contents of election manifestos and undue inﬂuence at elections.

[s 171C] Undue inﬂuence at elections.
(1) Whoever voluntarily interferes or attempts to interfere with the free exercise of
any electoral right commits the offence of undue inﬂuence at an election.
(2) Without prejudice to the generality of the provisions of sub-section (1),
whoever—
(a) threatens any candidate or voter, or any person in whom a candidate or
voter is interested, with injury of any kind, or
(b) induces or attempts to induce a candidate or voter to believe that he or
any person in whom he is interested will become or will be rendered an
object of Divine displeasure or of spiritual censure,
shall be deemed to interfere with the free exercise of the electoral right
of such candidate or voter, within the meaning of sub-section (1).
(3) A declaration of public policy or a promise of public action, or the mere
exercise of a legal right without intent to interfere with an electoral right, shall

not be deemed to be interference within the meaning of this section.
COMMENT.—
Exercise of undue inﬂuence.—This section deﬁnes 'undue inﬂuence at elections'.
Undue inﬂuence at an election is deﬁned as the voluntary interference or attempted
interference with the right of any person to stand, or not to stand as, or withdraw from
being, a candidate, or to vote or refrain from voting. This covers all threats of injury to
person or property and all illegal methods of persuasion and any interference with the
liberty of the candidates or the electors. The inducing or attempting to induce a person
to believe that he will become the object of divine displeasure is also interference.10.
Where an attempt or threat is proved, it is unnecessary to prove that any person was in
fact prevented from voting because the offence is complete.

The expression 'free exercise of his electoral right' does not mean that a voter is not to
be inﬂuenced. This expression has to be read in the context of an election in a
democratic society and the candidates and their supporters must naturally be allowed
to canvass support by all legal and legitimate means. This exercise of the right by the
candidate or his supporters to canvass support does not interfere or attempt to
interfere with the free exercise of an electoral right.11. The Supreme Court has
accepted the proposition that something more than a mere act of canvassing would be
necessary and that something more is speciﬁed in clauses (a) and (b) of the section.
Applying this to the facts, the court laid down that the appeal, even if true, of the
Chairman of the Minorities Commission who happened to be the retired judge of the

10.  Ram Dial v Sant Lal, AIR 1959 SC 855 [LNIND 1959 SC 73] : 1959 Supp (2) SCR 748 .
11.  Shiv Kirpal Singh v VV Giri, AIR 1970 SC 2097 [LNIND 1970 SC 367] : (1970) 2 SCC 567
[LNIND 1970 SC 367] . See also M Anbalagan v State, 1981 Cr LJ 1179 (Mad), Babu Rao Patel,
AIR 1968 SC 904 [LNIND 1967 SC 314] : 1968 (2) SCR 133 [LNIND 1967 SC 314] .
12.  Charan Lal Sahu v Giani Zail Singh, AIR 1984 SC 309 [LNIND 1983 SC 371] : (1984) 1 SCC
390 [LNIND 1983 SC 371] .
13.  M Anbalagan, Supra.
14.  Raj Raj Deb v Gangadhar, AIR 1964 Ori 1 [LNIND 1962 ORI 29] : 1964 Cr LJ 57 .
15.  Deepak Ganpatrao v Government of Maharashtra, 1999 Cr LJ 1224 (Bom).
Supreme Court, to the voters to cast their votes in favour of a particular candidate [who
was returned], does not make out the offence enumerated in this section.12. A
message sent to the secretary of a party to boycott the election does not amount to

interference within the meaning of this section as members of the party are still free to
vote as they like.13.
[s 171C.1] CASES.—
A candidate informed the voters that he was Chalanti Vishnu and representative of Lord
Jagannath himself and that any person who did not vote for him would be a sinner
against the Lord and the Hindu religion; it was held that such propaganda would
amount to an offence under section 171F read with this section.14.
The statement was made by a member of the ruling party to the Republican party of
India (RPI) that if it supported the alliance in parliamentary elections, the latter would
make one member of the RPI as Deputy Chief Minister of State. It was held that this did
not amount to giving offer to any individual for inducing him to exercise his electoral
right in a particular manner.15.

[s 171D] Personation at elections.
Whoever at an election applies for a voting paper or votes in the name of any other
person, whether living or dead, or in a ﬁctitious name, or who having voted once at
such election applies at the same election for a voting paper in his own name, and
whoever abets, procures or attempts to procure the voting by any person in any such
way, commits the offence or personation at an election:
16.[P r o v i d e d  that nothing in this section shall apply to a person who has been
authorised to vote as proxy for an elector under any law for the time being in force in
so far as he votes as proxy for such elector.]
16.  Ins. by the Election Laws (Amendment) Act, 2003 (Act 24 of 2003), section 5 (w.e.f. 22-9-
2003).
17.  Venkayya, (1929) 53 Mad 444.
18.  E Anoop v State, 2007 Cr LJ 2968 : 2006 (3) Ker LJ 50 .
COMMENT.—

2003).
COMMENT.—
Personation.—This section deﬁnes 'personation at elections'. It covers a person who
attempts to vote in another person's name or in a ﬁctitious name, as well as a voter
who attempts to vote twice and any person who abets, procures, or attempts to
procure, such voting.
The accused must have been actuated by a corrupt motive.17.
What is to be proved in a prosecution for the offence under section 171-D is that the
indictee "applied for voting (ballot) paper" in the name of any person. It is not the law
that it must be proved invariably that he had voted or had attempted to vote in the
election. All that need be proved is that the indictee had applied for a voting paper. The
legislature appears to have carefully worded the statutory provision.18. The applicant
was accused of having abetted the personation of a voter at a Municipal election in

that, not being himself acquainted with the person who came forward to vote, he had,
on the advice of others, put his name to a "signature sheet" in token that the thumb
mark made by the voter was that of the person entitled to vote under a certain name on
the electoral roll. It was held that, inasmuch as the acts done by the applicant
apparently constituted the speciﬁc offence provided for by section 171F, he could only
be tried for that offence, and could not be tried for abetment of the general offence
provided for by section 465.19.

19.  Ram Nath, (1924) 47 All 268 . See Achcha Bhoomanna v Court of Distt. Munsif (Election
Court), AIR 1992 AP 157 [LNIND 1991 AP 162] .

[s 171E] Punishment for bribery.
Whoever commits the offence of bribery shall be punished with imprisonment of
either description for a term which may extend to one year, or with ﬁne, or with both:
P r o v i d e d  that bribery by treating shall be punished with ﬁne only.
E x p l a n a t i o n .—"Treating" means that form of bribery where the gratiﬁcation consists in
food, drink, entertainment, or provision.

[s 171F] Punishment for undue inﬂuence or personation at an election.
Whoever commits the offence of undue inﬂuence or personation at an election shall
one year or with ﬁne, or with both.
20.  Court on its Own Motion v UOI, 2001 Cr LJ 225 (P&H) : (2000) ILR 2 P&H 288. The Court
could not direct the Magistrate to take cognizance under section 190 because of the bar under
section 197. Aggrieved party would have to launch prosecution.
21.  Iqbal Singh v Gurdas Singh, AIR 1976 SC 27 [LNIND 1975 SC 354] : (1976) 3 SCC 284 [LNIND
22.  E Anoop v State, 2007 Cr LJ 2968 : 2006 (3) Ker LJ 50 .
COMMENT.—
Punishment for bribery, personation.— The Chief Minister of a State was campaigning

COMMENT.—
for himself on a date before elections. He was directed by the Election Commissioner
under threat of taking drastic action to return to his State headquarters. He was
prevented by the order from exercising his voting right at the place where he was
registered as a voter. There was no allegation that he used any violence in the election
process. Directions were also oral and no reasons were given. It was held that the
directions constituted a violation of section 171F.20. The words "all forms of
entertainment" in the Explanation to section 123 (1) of the Representation of the
People Act apparently refer to offence of treating found in section 171-E of the Indian
Penal Code.21. Accused entered into a polling booth and handed over a slip showing
the name of a voter other than himself. He could not give any explanation as to why he

entered into the polling booth. His conduct of appearing before polling oﬃcials and
handing over the slip which does not relate to him, is suﬃcient declaration of his
intention to apply vote for him. It was held that offence committed by him required a
deterrent substantive sentence of imprisonment.22.

[s 171G] False statement in connection with an election.
Whoever with intent to affect the result of an election makes or publishes any
statement purporting to be a statement of fact which is false and which he either
knows or believes to be false or does not believe to be true, in relation to the personal
character or conduct of any candidate shall be punished with ﬁne.
23.  AS Radhakrishna Ayyar v Emperor, AIR 1932 Mad 511 : 1932 Mad WN 1086.
24.  Bhagolelal Kwalchand Darji v Emperor, AIR 1940 Nag 249 : [1942] ILR Nag 208.
COMMENT.—
False statements in elections.—False statements of fact in relation to the personal
character or conduct of a candidate are penalised by this section. General imputations
of misconduct unaccompanied by any charges of particular acts of misconduct cannot

properly be described as statements of fact within the meaning of this section.23.
An offence under this section is not a species of the more general offence of
defamation. There may be cases under this section which do not fall under section 499
and vice versa.24.

[s 171H] Illegal payments in connection with an election.
Whoever without the general or special authority in writing of a candidate incurs or
authorises expenses on account of the holding of any public meeting, or upon any
advertisement, circular or publication, or in any other way whatsoever for the purpose
of promoting or procuring the election of such candidate, shall be punished with ﬁne
which may extend to ﬁve hundred rupees:
P r o v i d e d  that if any person having incurred any such expenses not exceeding the
amount of ten rupees without authority obtains within ten days from the date on
which such expenses were incurred the approval in writing of the candidate, he shall
be deemed to have incurred such expenses with the authority of the candidate.
COMMENT.—
Illegal payments in elections.—This section makes it illegal for any one, unless

COMMENT.—
authorized by a candidate, to incur any expenses in connection with the promotion of
the candidate's election.

[s 171-I] Failure to keep election accounts.
Whoever being required by any law for the time being in force or any rule having the
force of law to keep accounts of expenses incurred at or in connection with an
election fails to keep such accounts shall be punished with ﬁne which may extend to
ﬁve hundred rupees.]
COMMENT.—
Failure to keep accounts.—This section punishes failure to keep accounts of expenses
incurred in connection with an election, if such accounts are required to be kept by any
law or rule having the force of law.

CHAPTER X OF CONTEMPTS OF THE LAWFUL AUTHORITY OF PUBLIC
SERVANTS
This Chapter contains penal provisions intended to enforce obedience to the lawful
authority of public servants. Contempt of the lawful authority of Courts of Justice, of
Oﬃcers of Revenue, Oﬃcers of Police, and other public servants are punishable under
this head.
[s 172] Absconding to avoid service of summons or other proceeding.
Whoever absconds1 in order to avoid being served with a summons, notice or order,2
proceeding from any public servant, legally competent, as such public servant, to
issue such summons, notice or order, shall be punished with simple imprisonment for
a term which may extend to one month, or with ﬁne which may extend to ﬁve hundred
rupees, or with both;
or, if the summons or notice or order is to attend in person or by agent, or to 1.
[produce a document or an electronic record in a Court of Justice], with simple
imprisonment for a term which may extend to six months, or with ﬁne which may

extend to one thousand rupees, or with both.
COMMENT.—
Absconding to avoid summons.—Absconding to avoid service of summons or other
proceeding is similar to non-attendance in obedience to an order from a public servant.
The object of this section is to punish an offender for the contempt his conduct
indicates of the authority whose process he disregards.
The second clause applies where the summons or notice or order is (1) for attendance
in Court; or (2) for production of a document.
1. 'Absconds'.—This term is not to be understood as implying necessarily that a person
leaves the place in which he is. Its etymological and ordinary sense is to hide oneself;
and it matters not whether a person departs from a place or remains in it, if he
conceals himself. If a person, having concealed himself before process issues,

continues to do so after it is issued, he absconds.2.
2. 'Summons, notice or order'.—The summons, notice or order referred to, should be
addressed to the same person whose attendance is required and who absconds to
avoid being served with such a 'summons, notice or order'. A warrant is not an order
served on an accused; it is simply an order to the police to arrest him.3. It is not an
offence under this section to abscond to avoid arrest under a warrant.4.
[s 172.1] Bar to take Cognizance:
As per section 195(1)(a)(i) of the Code of Criminal Procedure 1973, (Cr PC, 1973) No
court shall take cognizance of any offence punishable under S. 172 to 188 (both
inclusive) of the Indian Penal Code (45 of 1860, except on the complaint in writing of
'the public servant concerned' or of some other public servant to whom he is

1.  Subs. by Act 21 of 2000, section 91 and Sch. I, for "to produce a document in a Court of
Justice" (w.e.f. 17-10-2000).
2.  Srinivasa Ayyangar, (1881) 4 Mad 393, 397.
3.  Lakshmi, (1881) Unrep. Cr C 152.
4.  Annawadin, (1923) 1 Ran 218.
5.  State of UP v Mata Bhikh, (1994) 4 SCC 95 [LNIND 1994 SC 311] : JT 1994 (2) SC 565 [LNIND
1994 SC 311] : (1994) 2 Scale 235 : (1994) 1 SCC (Cr) 831 : 1994 (2) SCR 368 [LNIND 1994 SC
311] .
administratively subordinate. When the Court in its discretion is disinclined to
prosecute the wrongdoers, no private complainant can be allowed to initiate any
criminal proceeding in his individual capacity as it would be clear from the reading of
the section itself which is to the effect that no Court can take cognizance of any
offence punishable under sections 172–188 of the Indian Penal Code (IPC, 1860)
except on the written complaint of 'the public servant concerned' or of some other
public servant to whom he is administratively subordinate.5.

SERVANTS
this head.
[s 173] Preventing service of summons or other proceeding, or preventing
publication thereof.
Whoever in any manner intentionally prevents the serving on himself, or on any other
person, of any summons, notice or order proceeding from any public servant legally
competent, as such public servant, to issue such summons, notice or order,
or intentionally prevents the lawful aﬃxing to any place of any such summons, notice
or order,
or intentionally removes any such summons, notice or order from any place to which
it is lawfully aﬃxed,
or intentionally prevents the lawful making of any proclamation, under the authority of

any public servant legally competent, as such public servant, to direct such
proclamation to be made,
shall be punished with simple imprisonment for a term which may extend to one
month, or with ﬁne which may extend to ﬁve hundred rupees, or with both;
or, if the summons, notice, order or proclamation is to attend in person or by agent, or
6.[to produce a document or electronic record in a Court of Justice], with simple
COMMENT.—
Preventing service of summons.—This section punishes intentional prevention of the
service of summons, notice or order.
A refusal to sign a summons,7. a refusal to receive a summons8. and the throwing

down of a summons after service,9. do not constitute the offence of intentionally
preventing the service of a summons under this section. Under the Cr PC, 1973 the
mere tender of a summons is suﬃcient and a refusal by a person to receive it does not
expose him to the penalty of this section. Actual delivery is not necessary to complete
the service.10. Chapter X, sections 172–190 of the IPC, 1860 deal with the offences
constituting "Contempts of the Lawful authority of Public Servants". A Magistrate could
be covered by the deﬁnition of a 'Public Servant' given by section 21 of the IPC, 1860.
But the sections given in Chapter X of the IPC, 1860 relate to particular kinds of
contempt of the lawful authority of Public Servants and none of these cover the kind of

6.  Subs. by Act 21 of 2000, section 91 and Sch. I, for "to produce a document in a Court of
7.  Kalya Fakir, (1868) 5 BHC (Cr C) 34; Krishna Gobinda Das, (1892) 20 Cal 358 .
8.  Punamatai, (1882) 5 Mad 199.
9.  Arumuga Nadan, (1882) 5 Mad 200 (n), 1 Weir 79.
10.  Sahedeo Rai, (1918) 40 All 577 .
11.  Waryam Singh v Sadhu Singh, AIR 1972 SC 905 : (1972) 1 SCC 796 : 1972 Cr LJ 635 : (1972)
1 SCC (Cr) 477; TN Godavarman Thirumulpad (89) v UOI. (2006) 10 SCC 486 : (2007) 9 Scale 272
.
acts which were committed by the accused with the object of the stiﬂing a
prosecution.11.

SERVANTS
this head.
[s 174] Non-attendance in obedience to an order from public servant.
Whoever, being legally bound to attend in person or by an agent at a certain place and
time in obedience to a summons, notice, order or proclamation proceeding from any
public servant legally competent, as such public servant, to issue the same,
intentionally omits to attend at that place or time, or departs from the place where he
is bound to attend before the time at which it is lawful for him to depart,
month, or with ﬁne which may extend to ﬁve hundred rupees, or with both,

or, if the summons, notice, order or proclamation is to attend in person or by agent in
a Court of Justice, with simple imprisonment for a term which may extend to six
months, or with ﬁne which may extend to one thousand rupees, or with both.
(a) A, being legally bound to appear before the 12.[High Court] at Calcutta, in
obedience to a subpoena issuing from that Court, intentionally omits to appear.
A has committed the offence deﬁned in this section.
(b) A, being legally bound to appear before a 13.[District Judge] as a witness, in
obedience to a summons issued by that 14.[District Judge], intentionally omits
to appear. A has committed the offence deﬁned in this section.
COMMENT.—
Non-attendance.—The offence contemplated by this section is an intentional omission
to appear—
(1) at a particular speciﬁed15. place in India,16.

COMMENT.—
to appear—
(2) at a particular time,
(3) before a speciﬁed public functionary,
(4) in obedience to a summons, notice or order (written or verbal),17. not defective
in form,18. and

12.  Subs. by the A.O. 1950, for "Supreme Court".
13.  Subs. by the A.O. 1950, for "Supreme Court".
14.  Subs. by the A.O. 1950, for "Zila Judge".
15.  Ram Saran, (1882) 5 All 7.
(5) issued by an oﬃcer having jurisdiction19. in the matter.
A conviction cannot be had unless the person summoned
(1) was legally bound to attend, and
(2) refused or intentionally omitted to attend.20.
[s 174.1] CASES.—Wilful departure before, lawful time.—
Where a man in obedience to a summons attended a Magistrate's Court at 10 a.m., but
ﬁnding the Magistrate not present at the time mentioned in the summons, departed
without waiting for a reasonable time, it was held that he was guilty of an offence under
this section.21.
[s 174.2] Public servant absent.—
Where a public servant was absent on a date ﬁxed in the summons, the person
summoned could not be convicted, though he purposely failed to attend.22.
[s 174.3] Police Notice.—
If the accused were not within the jurisdiction of the police station or adjoining police

station while being served with an order under section 160, Cr PC, 1973, they were not
legally bound to attend before the requisitioning police-oﬃcer and as such on their
failure to attend, their conviction under section 174, IPC, 1860, could not be
maintained.23.
[s 174.4] Notice by Railway Protection Force.—
Enquiry conducted by an oﬃcer of the Railway Protection Force being in the nature of a
judicial proceeding under section 9 of the Railway Property (Unlawful Possession) Act,
1966, any person summoned by such oﬃcer to produce any document or give
evidence, shall be bound to produce such document and to state the truth in course of
his examination. Failure to do so or furnishing of false documents, etc., will entail
prosecution under sections 174, 175, 179, 180 and 193, IPC, 1860, as the case may
be.24.

16.  Paranga v State, (1893) 16 Mad 463.
17.  Guman, (1873) Unrep. Cr C 75 : (1870) 5 MHC (Appx) 15.
18.  Krishtappa, (1896) 20 Mad 31.
19.  Venkaji Bhaskar, (1871) 8 BHC (Cr C) 19 : (1865) 1 Weir 87.
20.  Sreenath Ghose, (1868) 10 WR (Cr) 33.
21.  Kisan Bapu, (1885) 10 Bom 93.
22.  Krishtappa, sup.
23.  Krishan, 1975 Cr LJ 620 (HP).
24.  BC Saxena, 1983 Cr LJ 1432 (AP).

SERVANTS
this head.
25.[[s 174-A] Non-appearance in response to a proclamation under section 82
of Act 2 of 1974.
Whoever fails to appear at the speciﬁed place and the speciﬁed time as required by a
proclamation published under sub-section (1) of section 82 of the Code of Criminal
Procedure, 1973 shall be punished with imprisonment for a term which may extend to
three years or with ﬁne or with both, and where a declaration has been made under
sub-section (4) of that section pronouncing him as a proclaimed offender, he shall be
punished with imprisonment for a term which may extend to seven years and shall
also be liable to ﬁne.]
COMMENT.—

COMMENT.—
Cr PC (Amendment) Act, 2005—Clause 44.—This clause amends the IPC, 1860 as
follows, namely:—
Clause 12 seeks to insert new sub-sections (4) and (5) in section 82 of the Code to
provide for the declaration of a person as proclaimed offender, if he fails to appear in
spite of the proclamation published under sub-section (1) of that section. In order to
curb the tendency on the part of criminals not to attend the Court in response to
proclamation published under sub-section (1) or further proclamation issued under
sub-section (4) declaring the accused as "Proclaimed Offender" a new section 174-A is
being added to the Indian Penal Code to prescribe punishment for such offender.
[Notes on Clauses.]
If Investigating Oﬃcer submits charge sheet without arresting the accused persons

(unless he is on bail), it can be submitted only if he has been declared absconder and
the case under section 174-A IPC, 1860 has also been registered as a result of this
proclamation.26.
The offence under section 174A IPC, 1860 which arises out of the proceedings
conducted during the main case can be tried and disposed of by the same Court.
Lodging of separate FIR for commission of offence under section 174 IPC, 1860 is not
always required.27.

25.  Ins. by Cr PC (Amendment) Act, 2005 (25 of 2005), section 44(b) (w.e.f. 23-6-2006 vide
Notfn. No. SO 923(E), dated 21 June 2006.
26.  Iqbal v State of UP, 2013 Cr LJ 1332 (All).
27.  A Krishna Reddy v CBI, 2017 (5) ADR 635.

SERVANTS
this head.
[s 175] Omission to produce 28.[document or electric record] to public servant
by person legally bound to produce it.
Whoever, being legally bound to produce or deliver up any 29.[document or electronic
record] of any public servant, as such, intentionally omits so to produce or deliver up
the same, shall be punished with simple imprisonment for a term which may extend to
one month, or with ﬁne which may extend to ﬁve hundred rupees, or with both,
or, if the 30.[document or electronic record] is to be produced or delivered up to a
Court of Justice, with simple imprisonment for a term which may extend to six

A, being legally bound to produce a document before a 31.[District Court], intentionally
omits to produce the same. A has committed the offence deﬁned in this section.
28.  Subs. by Act 21 of 2000, section 91 and Sch. I, for "document" (w.e.f. 17-10-2000).
29.  Subs. by Act 21 of 2000, section 91 and Sch. I, for "document" (w.e.f. 17-10-2000).
30.  Subs. by Act 21 of 2000, section 91 and Sch. I, for "document" (w.e.f. 17-10-2000).
31.  Subs. by the A.O. 1950, for "Zila Court".
32.  Arun Paswan v State of Bihar, AIR 2004 SC 721 [LNIND 2003 SC 1085] : (2004) 5 SCC 53
[LNIND 2003 SC 1085] .
COMMENT—
This section punishes persons who refuse to produce documents which they are
legally bound to produce before a public servant. From reading of section 345 of the Cr

COMMENT—
PC, 1973, it is clear that offences under sections 175, 178, 179, 180 or 228 would
constitute contempt, only if they are committed in the view or presence of the Court.
This would also show that offences under sections 175, 178, 179, 180 or 228 per se do
not amount to contempt. They are contempt only if they are committed "in the view or
presence of the Court"; otherwise they remain offences under the IPC, 1860
simpliciter.32.

SERVANTS
this head.
[s 176] Omission to give notice or information to public servant by person
legally bound to give it.
Whoever, being legally bound to give any notice or to furnish information on any
subject to any public servant, as such, intentionally omits to give such notice or to
furnish such information in the manner and at the time required by law, shall be
punished with simple imprisonment for a term which may extend to one month, or
with ﬁne which may extend to ﬁve hundred rupees, or with both;
or, if the notice or information required to be given respects the commission of an
offence, or is required for the purpose of preventing the commission of an offence, or

in order to the apprehension of an offender, with simple imprisonment for a term
which may extend to six months, or with ﬁne which may extend to one thousand
33.[or, if the notice or information required to be given is required by an order passed
under sub-section (1) of section 565 (now 356) of the Code of Criminal Procedure,
1898 (now 1973)34. with imprisonment of either description for a term which may
extend to six months, or with ﬁne which may extend to one thousand rupees, or with
both.]
COMMENT.—
Omission to give notice or information.—This section applies to persons upon whom
an obligation is imposed by law to furnish certain information to public servants, and
the penalty which the law provides is intended to apply to parties who commit an

intentional breach of such obligation,35. and not where the public servants have already
obtained the information from other sources.36.
A doctor is not obliged to inform the police when he treats a patient who has met with
vehicle accident.37.
[s 176.1] CASE.—
It was not within the scope of the Magistrate to hold investigative oﬃcer guilty for
violation of his oﬃcial duties who had already sought extension to complete the
investigation. Omission on the part of IO to complete the investigation within 60 days
from date of arrest is not covered under provisions of section 176, IPC, 1860.38. Under
section 39 (i)(v) Cr PC, 1973, where a person is aware of commission or an intention to
commit an offence under sections 302, 303 and 304, IPC, 1860, he is bound to give

33.  Added by Act 22 of 1939, section 2.
34.  Now see section 356 of the Code of Criminal Procedure, 1973 (2 of 1974).
35.  Phool Chand Brojobassee, (1871) 16 WR (Cr) 35.
36.  Sashi Bhusan Chuckrabutty, (1878) 4 Cal 623 ; Pandya, (1884) 7 Mad 436; Gopal Singh,
(1982) 20 Cal 316 .
37.  SN Naik v State of Maharashtra, 1996 Cr LJ 1463 (Bom).
38.  Manoj Kumar Gautam v State of UP, 2009 Cr LJ 3176 (Pat).
39.  TS John v State, 1984 Cr LJ 753 (Ker). See also Geetha v Sub-Inspector of Excise, Mudigere,
2007 Cr LJ 3496 (Kar).
information to the nearest Magistrate or police-oﬃcer of such commission or intention
and failure to do so is punishable under this section. Where the mother of a murder
suspect merely said that her son and daughter-in-law went to bed at about 10 P.M. and
that early next morning, her son came out and ran away and she found her daughter-in-
law lying dead on the bed, it was held that her failure to inform the police did not

constitute an offence under section 176, IPC, 1860, as she was neither aware that a
murder was going to be committed nor aware that a murder had been committed.39.

SERVANTS
this head.
[s 177] Furnishing false information.
Whoever, being legally bound to furnish information on any subject to any public
servant, as such, furnishes, as true, information on the subject which he knows or has
reason to believe to be false, shall be punished with simple imprisonment for a term
or, if the information which he is legally bound to give respects the commission of an
in order to the apprehension of an offender, with imprisonment of either description

(a) A, a landholder, knowing of the commission of a murder within the limits of his
estate, wilfully misinforms the Magistrate of the district that the death has
occurred by accident in consequence of the bite of a snake. A is guilty of the
(b) A, a village watchman, knowing that a considerable body of strangers has
passed through his village in order to commit a dacoity in the house of Z, a
wealthy merchant residing in a neighbouring place, and being bound under
clause, 5, section VII, Regulation III, 1821,40. of the Bengal Code, to give early
and punctual information of the above fact to the oﬃcer of the nearest police
station, wilfully misinforms the police oﬃcer that a body of suspicious

characters passed through the village with a view to commit dacoity in a certain
distant place in a different direction. Here A is guilty of the offence deﬁned in
the later part of this section.
41.[E x p l a n a t i o n .—In section 176 and in this section the word "offence" includes
any act committed at any place out of 42.[India], which, if committed in 43.
[India], would be punishable under any of the following sections, namely, 302,
304, 382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457,
458, 459 and 460; and the word "offender" includes any person who is alleged
to have been guilty of any such act.]
COMMENT.—

40.  Rep. by Act 17 of 1862.
41.  Added by Act 3 of 1894, section 5.
42.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
Act 3 of 1951, section 3 and Sch. (w.e.f. 1-4-1951), to read as above.
43.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
44.  Ashok Kumar Mittal v Ram Kumar Gupta, (2009) 2 SCC 656 [LNIND 2009 SC 33] : (2009) 1
SCC (Cr) 836 : (2009) 1 KLT 398 [LNIND 2009 SC 33] : (2009) 1 CHN 184 (SC) : (2009) 234 ELT
193 .
45.  Veeranna v State of Karnataka, 2013 Cr LJ (NOC) 335 (Kar).
46.  State of Karnataka v G M Sumanabai, 2004 Cr LJ 4112 (Kar).
47.  Amita Trivedi v State of Rajasthan, 2013 Cr LJ (NOC) 240 (Raj). See also Jayalalithaa v
Kuppusamy, 2013 Cr LJ 839 (SC) : 2012 (11) Scale 432 [LNIND 2012 SC 756] .
48.  Bishan Dass v State of Punjab, 2015 Cr LJ 281 : 2014 (9) Scale 690 [LNINDORD 2014 SC

21072] . See also State of Karnataka v G M Sumanabai, 2004 Cr LJ 4112 (Kar).
49.  Lakpa Sherpa v State of Sikkim, 2004 Cr LJ 3488 (Sik). See also Ram Dhan v State of UP,
2012 (4) Scale 259 [LNIND 2012 SC 1057] : 2012 AIR(SCW) 2500 : 2012 Cr LJ 2419 : (2012) 5
Furnishing false information.—Section 176 deals with the omission to give information;
this section deals with the giving of false information. Persons who are not under a
legal obligation to furnish information cannot be dealt with under these sections.44.
Furnishing false information is distinct from omission to give information. Omission to
mention about a two-wheeler in the statement of assets and liabilities by a public
servant is not an offence under section 177 IPC, 1860.45. It is clear that the accused

having been aware of the fact that she belongs to "Havyak Brahmin" by caste, furnished
false information to the authority and obtained admission by producing false caste
certiﬁcate. The ingredients of section 177 are proved.46. In a case where the allegation
was that the complainant ﬁled false information in nomination paper, it was held that a
complaint by the Returning oﬃcer is mandatory.47.
The appellant being a Sarpanch of the Gram Panchayat was legally bound to give
correct information and issue a correct certiﬁcate but he issued a false certiﬁcate in
favour of one Lal Chand that he does not own any land except the land which he has
made ﬁt for cultivation, in fact, though Lal Chand owned 13 kanals, 13 marlas and also
his wife owned lands in the village Baruhi. Therefore, the ingredients of section 177 of

the Code were proved as against him.48.
[s 177.1] Application of Section 195 and 340 Cr PC, 1973.—
Section 195(1), Cr PC, 1973 lays down that no Court shall take cognizance of any
offence punishable under sections 172–188, IPC, 1860 except on the complaint in
writing of the public servant concerned or some other public servant to whom he is
administratively subordinate. The provision of section 195(1), Cr PC, 1973 is
mandatory.49.

SCC 536 [LNIND 2012 SC 1057] : AIR 2012 SC 2513 [LNIND 2012 SC 1057] relied on Sachida
Nand Singh v State of Bihar, (1998) 2 SCC 493) [LNIND 1998 SC 138] .

SERVANTS
this head.
[s 178] Refusing oath or aﬃrmation when duly required by public servant to
make it.
Whoever refuses to bind himself by an oath 50.[or aﬃrmation] to state the truth, when
required so to bind himself by a public servant legally competent to require that he
shall so bind himself, shall be punished with simple imprisonment for a term which
may extend to six months, or with ﬁne which may extend to one thousand rupees, or
with both.
50.  Ins. by Act 10 of 1873, section 15.
51.  Kiran Bedi and Inder Singh v Committee of Inquiry, AIR 1989 SC 714 [LNIND 1989 SC 833] :
1989 Cr LJ 903 : (1989) 1 SCR 20 [LNIND 1989 SC 833] : (1989) 1 SCC 494 [LNIND 1989 SC 10] .
COMMENT.—

COMMENT.—
Refusal to take oath.—The refusal to take an oath amounts to contempt of Court. The
person refusing may be dealt with under section 345 of the Cr PC, 1973 summarily or
the Court may proceed under section 195 of the same Code. The penalty of this section
would not be attracted where the refusal to take oath is justiﬁable. This observation of
the Supreme Court occurs in Kiran Bedi and Inder Singh v Committee of Inquiry.51. The
justiﬁcation available to the police-oﬃcers in question was that they were sought to be
cross-examined under oath at the very outset of the inquiry, whereas other oﬃcers
similarly placed were to ﬁgure in the cross-examination at a subsequent stage. This
procedure was discriminatory, hence, the justiﬁcation. The Court accordingly held that

the committee should not have directed a complaint to be ﬁled against them under this
section.

SERVANTS
this head.
[s 179] Refusing to answer public servant authorised to question.
Whoever, being legally bound to state the truth on any subject to any public servant,
refuses to answer any question demanded of him touching that subject by such public
servant in the exercise of the legal powers of such public servant, shall be punished
with simple imprisonment for a term which may extend to six months, or with ﬁne
which may extend to one thousand rupees, or with both.
COMMENT.—
Refusing to answer questions.—The offence under this section consists in the refusal
to answer a question which is relevant to the subject concerning which the public

COMMENT.—
servant is authorised to inquire, or which at least touches that subject. Under sections
121–132 of the Indian Evidence Act a witness is exempted from answering certain
questions. If a person gives false answers, then he will be guilty under section 193 and
not under this section.
Refusing to answer the question of a police-oﬃcer investigating a case under section
161 of the Criminal Procedure Code is not an offence under this section.52. This
section also applies to the accused as the words used in section 161(1) Cr PC, 1973,
are "any person acquainted with facts and circumstances of the case". Thus, the
accused too is bound to answer a question put by a police-oﬃcer in course of his
examination. However, the answer to a question has a tendency to incriminate him; he

can claim protection under Article 20(3) of the Constitution and refuse to answer. Of
course, it is a matter which has to be ultimately decided by the Court.53.
The matter is entirely different so far the oﬃcers of the Railway Protection Force are
concerned ﬁrst, they are not police-oﬃcers54. and second, the enquiry conducted by
them under sections 8 and 9 of the Railway Property (Unlawful Possession) Act, 1966
is not a police investigation but should be deemed to be a judicial proceeding.55.
Section 9 of this special Act speciﬁcally lays down that during such enquiry by an RPF
oﬃcer, persons summoned have to obey summons and state the truth and, therefore,
by refusing to answer, such persons would make themselves liable under section 179,
IPC, 1860. The question of invoking Article 20(3) of the Constitution does not arise in

such a case, as till the complaint is ﬁled under section 190(1)(a), Cr PC, 1973 by the
RPF oﬃcer, a person cannot be regarded as "accused of an offence" within the
meaning of Article 20(3) of the Constitution.56.

52.  Mawzanagyi, (1930) 8 Ran 511.
53.  Nandini Satpathy v PL Dani, 1978 Cr LJ 968 : AIR 1978 SC 1025 .
54.  State of MP v Chandan Singh, 1980 Cr LJ 1024 (MP); R Muthu v Asst. SI, RPF, 1983 Cr LJ
1309 (Mad); State of UP v Durga Prasad, 1974 Cr LJ 1465 : AIR 1974 SC 2136 [LNIND 1974 SC
248] .
55.  Durga Prasad, Supra; BC Saxena, 1983 Cr LJ 1432 (AP).
56.  BC Saxena, Supra; Mohd. Dastgir, 1960 Cr LJ 1159 : AIR 1960 SC 758 .

SERVANTS
this head.
[s 180] Refusing to sign statement.
Whoever refuses to sign any statement made by him, when required to sign that
statement by a public servant legally competent to require that he shall sign that
statement, shall be punished with simple imprisonment for a term which may extend
to three months, or with ﬁne which may extend to ﬁve hundred rupees, or with both.
57.  Basavaraj Shivarudrappa Sirsi v State of Karnataka, 2011 Cr LJ 4809 (Kar).
58.  Durga Prasad, and BC Saxena, Supra.
59.  Basavaraj Shivarudrappa Sirsi v State of Karnataka 2011 Cr LJ 4809 (Kar).
COMMENT—
The essential ingredients to constitute the offence under this Section are:—

COMMENT—
(i) The accused made a statement before a public servant.
(ii) The accused was required by public servant to sign such statement.
(iii) Public servant was legally empowered or competent to require the accused to
sign that statement, and
(iv) That the accused refused to sign statement.57.
[s 180.1] Refusal to sign.—
The statement must be such a one as the accused can be legally required to sign, e.g.,
a statement recorded under the provisions of sections 164 and 281(5) of the Cr PC,
1973 or a statement under sections 8 and 9 of the Railway Property (Unlawful
Possession) Act, 1966.58. To attract the offence under section 180 of IPC, 1860, the
person accused of such offence should be under a legal obligation or compulsion to
sign the statement or submissions.59.

SERVANTS
this head.
[s 181] False statement on oath or aﬃrmation to public servant or person
authorised to administer an oath or aﬃrmation.
Whoever, being legally bound by an oath 60.[or aﬃrmation] to state the truth on any
subject to any public servant or other person authorized by law to administer such
oath 61.[or aﬃrmation], makes, to such public servant or other person as aforesaid,
touching the subject, any statement which is false, and which he either knows or
believes to be false or does not believe to be true, shall be punished with
imprisonment of either description for a term which may extend to three years, and

60.  Ins. by Act 10 of 1873, section 15.
COMMENT.—
False statement on oath.—This section should be compared with section 191. Under it
a false statement to any public servant, or other person, authorised to administer oath
or aﬃrmation, is punishable.62. It does not apply where the public servant administers
the oath in a case wholly beyond his jurisdiction63. or where he is not competent to
make a statement on solemn aﬃrmation.64.
[s 181.1] Failure to administer oath.—
In view of sections 4 and 5 of the Oaths Act, 1969, it is always desirable to administer
oath or statement may be recorded on aﬃrmation of the witness. The Supreme Court
in Rameshwar v State of Rajasthan,65. has categorically held that the main purpose of
administering of oath is to render persons who give false evidence, liable to

prosecution and further to bring home to the witness the solemnity of the occasion and
to impress upon him the duty of speaking the truth, further such matters only touch
credibility and not admissibility. However, in view of the provisions of section 7 of the
Oaths Act, 1969, the omission of administration of oath or aﬃrmation does not
invalidate any evidence.66.

61.  Ins. by Act 10 of 1873, section 15.
62.  Niaz Ali, (1882) 5 All 17 .
63.  Andy Chetty, (1865) 2 MHC 438 .
64.  Subba, (1883) 6 Mad 252.
65.  Rameshwar v State of Rajasthan, AIR 1952 SC 54 [LNIND 1951 SC 76] .
66.  State of Rajasthan v Darshan Singh, (2012) 5 SCC 789 [LNIND 2012 SC 334] : 2012 AIR
(SCW) 3036 : 2012 Cr LJ 2908 : 2012 (5) Scale 570 [LNIND 2012 SC 334] .

SERVANTS
this head.
67.[[s 182] False information, with intent to cause public servant to use his
lawful power to the injury of another person.
Whoever gives to any public servant any information 1 which he knows or believes to
be false, intending thereby to cause, or knowing it to be likely that he will thereby
cause, such public servant—
(a) to do or omit anything2 which such public servant ought not to do or omit if the
true state of facts respecting which such information is given were known by
him, or
(b) to use the lawful power of such public servant to the injury or annoyance of any
person,
shall be punished with imprisonment of either description for a term which

him, or
person,
may extend to six months, or with ﬁne which may extend to one thousand
rupees, or with both.]
(a) A informs a Magistrate that Z, a police-oﬃcer, subordinate to such Magistrate,
has been guilty of neglect of duty or misconduct, knowing such information to
be false, and knowing it to be likely that the information will cause the
Magistrate to dismiss Z. A has committed the offence deﬁned in this section.
(b) A falsely informs a public servant that Z has contraband salt in a secret place,
knowing such information to be false, and knowing that it is likely that the
consequence of the information will be a search of Z's premises, attended with
annoyance to Z. A has committed the offence deﬁned in this section.
(c) A falsely informs a policeman that he has been assaulted and robbed in the

neighbourhood of a particular village. He does not mention the name of any
person as one of his assaitants, but knows it to be likely that in consequence of
this information the police will make enquiries and institute searches in the
village to the annoyance of the villages or some of them. A has committed an
offence under this section.]
COMMENT.—

Object.—The object of this section is that a public servant should not be falsely given
information with the intent that he should be misled by a person who believed that
information to be false, and intended to mislead him. This section does not require that
action must always be taken if the person who makes the public servant knows or
believes that action will be taken.68.
[s 182.1] Ingredients.—
(1) Giving of an information to a public servant.
(2) Information must have been known or believed to be false by the giver.
(3) Such false information was given with intention to cause, or knowing that it is likely
to cause such public servant (a) to do or omit anything which he ought not to do or
omit to do if the true facts were known to him, or (b) to use his lawful power to the
injury or annoyance of any person.69.
1. 'Any information'.—The Bombay and the Patna High Courts have ruled that any 'false
information' given to a public servant, with the intent mentioned in the section, is

punishable under it whether that information is volunteered by the informant or is given
in answer to questions put to him by the public servant.70. Where a driver of a motor
vehicle, who had no licence with him, on being asked his name by a police-oﬃcer, gave
a ﬁctitious name, it was held that he had committed an offence under this section.71.
The section makes no distinction between information relating to a cognizable offence
and one relating to a non-cognizable offence, nor is there anything in the section to
justify the conclusion that it applies only to cases in which the information given to any
public servant relates to a cognizable offence.72.
2. 'To do or omit anything'.—It is not necessary that the public servant to whom false
information is given should be induced to do anything or to omit to do anything in

consequence of such information. The gist of the offence is not what action may or
may not be taken by the public servant to whom false information is given, but the
intention or knowledge (to be inferred from his conduct) of the person supplying such
information.73. Section 182 does not require that action must always be taken if the
person who moves the public servant knows or believes that action would be taken.74.
Under this clause it is not necessary to show that the act done would be to the injury or
annoyance of any third person.75.
[s 182.2] Condition precedent for prosecution.—
This section has to be read in conjunction with section 195(1)(a) of the Cr PC, 1973
which requires a complaint for offences under sections 172–188, IPC, 1860, to be ﬁled
by the public servant concerned or by some other public servant to whom he is

administratively subordinate.76. It is mandatory to follow the procedure prescribed
under section 195 of the Code while initiating action against an accused for an offence
punishable under section 182, IPC, 1860 else such action is rendered void ab initio.77.
Thus, investigation into an offence under section 182, IPC, 1860 can be done only on
the complaint given by a competent public servant; taking note of the fact that the
procedure contemplated is not complied within the line with section 195, Cr PC, 1973
as well as the settled legal position evolved through the decisions of the Apex Court,
the cognizance assumed by the Magistrate for the offence under section 182, IPC,
1860 is erroneous and not sustainable in law.78. Similar view has been expressed by

the Hon'ble Supreme Court in PD Lakhani v State of Punjab,79. relying upon its earlier
judgment in Daulat Ram's case (supra) and Mata Bhikh's case.80. It is held that:
no complaint, therefore, could be lodged before the learned Magistrate by the Station House
Oﬃcer. Even assuming that the same was done under the directions of SP, Section 195, in
no uncertain terms, directs ﬁling of an appropriate complaint petition only by the public
servant concerned or his superior oﬃcer. It, therefore, cannot be done by an inferior oﬃcer.
It does not provide for delegation of the function of the public servant concerned81.
[s 182.3] Private Complaint.—
Since the offence under section 182 is covered by the bar of section 195 Cr PC, 1973
there is absolutely no scope for ﬁling a private complaint. The embargo in section 195
Cr PC, 1973 takes away the right to prosecute in respect of the aforesaid offences by
way of ﬁling a private complaint. Going by section 195 Cr PC, 1973 no Court shall take

cognizance except in the manner contemplated by section 195 Cr PC, 1973 and
consequently, no jurisdiction to refer the case under section 156(3) Cr PC, 1973 to the
Police for investigation or to issue a direction to proceed under the aforesaid sections
to the Police on a private person's complaint.82.
[s 182.4] Mala ﬁde Prosecution.—
The Supreme Court has laid down that proceedings can be taken under this section as
well as under sections 211 and 500 against persons who initiate prosecution against a
person in high position with a view to wreaking vengeance for a private and personal
grudge.83.
[s 182.5] CASES.—Causing public servant to do what he ought not to do.—
Mere non-mentioning of the complaint already ﬁled in the Court of Chief Judicial
Magistrate, in the petition ﬁled under section 156(3) Cr PC, 1973 before the Special

Sessions Judge, would not be enough to attract the section.84. The accused falsely
telegraphed to a District Magistrate that the town had been attacked by a gang of 200
robbers, but the Magistrate put no faith in the telegram and took no action; it was held
that the accused were guilty of an offence under this section.85. A personated B at an
examination and passed the examination and obtained a certiﬁcate in B's name. B,
thereupon, applied to have his name entered in the list of candidates for Government
service. He attached to this application the certiﬁcate issued in his name, and his name
was ordered to be entered on the list of candidates. It was held that he was guilty of an
offence under this section.86. Where the ulterior motive of the accused in making a

false report of burglary was to suppress certain documents by pleading that they were
stolen, it was held that the act of the accused was not punishable under this section.87.
Where a resolution was passed in a public meeting condemning police inaction in
regard to an assault case and copies of the said resolution were sent to various
authorities including the Superintendent of Police and the oﬃcer-in-charge, but the
oﬃcer-in-charge took exception to it and ﬁled a complaint in Court under sections 182
and 211, IPC, 1860, it was held that forwarding of the resolution did not amount to
institution of criminal proceeding and no offence either under section 182 or section
211, IPC, 1860, was committed. It was further observed that police should not be so
sensitive over public criticism.88.

67.  Subs. by Act 3 of 1895, section 1, for section 182.
68.  Daulat Ram, AIR 1962 SC 1206 [LNIND 1962 SC 28] : 1962 (2) Cr LJ 286 .
69.  Jiji Joseph v Tomy Ignatius, 2013 Cr LJ 828 (Ker).
70.  Ramji Sajabarao, (1885) 10 Bom 124; Lachman Singh, (1928) 7 Pat 715.
71.  Lachman Singh, (1928) 7 Pat 715.
72.  Thakuri, (1940) 16 Luck 55 .
73.  Budh Sen v State, (1891) 13 All 351 ; Raghu Tiwari, (1893) 15 All 336 .
74.  Sham Lal Thukral v State of Punjab, 2009 Cr LJ 189 (PH) relying on AIR 1962 SC1206
[LNIND 1962 SC 28] : (1962 (2) Cr LJ 286) .
75.  Ganesh Khanderao, (1889) 13 Bom 506.
76.  Daulat Ram, 1962 (2) Cr LJ 286 : AIR 1962 SC 1206 [LNIND 1962 SC 28] ; TS Venkateswaran,
1982 Cr LJ NOC 68 (Ker); See also State of Rajasthan v Chaturbhuj, 1983 Cr LJ NOC 56 (Raj).
77.  Saloni Arora v State of NCT of Delhi, AIR 2017 SC 391 [LNIND 2017 SC 23] .
78.  EK Palanisamy v DySP, 2010 Cr LJ 1802 (Mad); Geetika Batra v OP Batra, 2009 Cr LJ 2687
(Del).
79.  PD Lakhani v State of Punjab, 2008 AIR SCW 3357.

(Del).
80.  Mata Bhikh's case, (1994) 4 SCC 95 [LNIND 1994 SC 311] : (1994 AIR SCW 1935).
81.  Also see Sham Lal Thukral v State of Punjab, 2009 Cr LJ 189 (PH); Randhir v State of
Haryana, 2004 Cr LJ 479 (PH).
82.  Loid Jude Manakkat v State, 2013 (2) KLT 931 : 2013 (3) KLJ 53 .
83.  State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992 SC 604 : 1992 Cr LJ 527 .
84.  Subhash Chandra v State of UP, (2000) 9 SCC 356 [LNIND 1999 SC 1565] : JT 2000 (2) SC 26
: 2000 AIR(SCW) 4947.
85.  Budh Sen, supra.
86.  Ganesh Khanderao, supra.
87.  Shambhoo Nath, AIR 1959 All 545 [LNIND 1958 ALL 203] .
88.  Shiv Kumar Prasad Singh, 1984 Cr LJ 1417 (Pat).
89.  Harbhajan Singh Bajwa v Senior Superintendent of Police, Patiala, 2000 Cr LJ 3297 (PH).
[s 182.6] Period of Limitation.—
Since the offence under section 182 IPC, 1860 is punishable with imprisonment for a

period of six months only, the authority should ﬁle the complaint under section 182 IPC,
1860 within one year from the date when that authority found that the allegations made
in the complaint were false. Since more than four years was elapsed from the date
when the authority found the allegations were false, no question of ﬁling any complaint
under section 182 IPC, 1860 at this belated stage arises.89.

SERVANTS
this head.
[s 183] Resistance to the taking of property by the lawful authority of a public
servant.
Whoever offers any resistance to the taking of any property by the lawful authority of
any public servant, knowing or having reason to believe that he is such public servant,
both.
COMMENT—
This section makes it penal to offer resistance to the taking of property by the lawful
authority of any public servant. The Bombay High Court has held that there are no

both.
COMMENT—
words in the section as there are in section 99, extending the operation of the section
to acts which are not strictly justiﬁable by law. Resistance to an act of a public oﬃcer
acting bona ﬁde though in excess of his authority may give rise to some charge in the
nature of assault, but it cannot afford any foundation for a prosecution under this
section.90. The Madras High Court is of opinion that this section should be read in
conjunction with section 99. Taking the two together, if an oﬃcer acts in good faith
under colour of his oﬃce the mere circumstance that his "act may not be strictly
justiﬁable by law" cannot affect the lawfulness of his authority. In this case, property
had been seized in execution by the oﬃcer of the Court, and it was held that as the

oﬃcer was acting bona ﬁde, though he had wrongly seized the property of the accused,
the accused could be convicted under this section for resisting the execution.91. This
view of the law receives substantial support from the decision of the Supreme Court in
Keshoram's case92. where too it has been held that merely because no prior notice was
served on the accused before seizing his cattle under the Delhi Municipal Act for
recovering arrears of milk tax, it could not be said that the municipal oﬃcer's action
was entirely illegal and as such the accused had the right of private defence against
the bona ﬁde act of the public servant. In the instant case the accused was held to have
been rightly convicted under sections 353/332/333, IPC, 1860, for assaulting the public

servant. On a parity of reasoning it can be said that had the accused been prosecuted
under section 183 of the Code, he could have also been convicted under that section as
well.
[s 183.1] Lawful authority wanted.—
Where a person resisted an oﬃcial in attaching property under a warrant, the term of
which had already expired,93. or which did not specify the date on or before which it
was to be executed,94. it was held that he was not guilty under this section. If the

90.  Sakharam Pawar, (1935) 37 Bom LR 362 .
91.  Tiruchitrambala Pathan, (1896) 21 Mad 78.
92.  Keshoram, 1974 Cr LJ 814 : AIR 1974 SC 1158 [LNIND 1974 SC 130] .
93.  Anand Lal Bera v State, (1883) 10 Cal 18 .
94.  Mohini Mohan Banerji, (1916) 1 PLJ 550 , 18 Cr LJ 39.
95.  Ibid.
96.  Gazi Aba Dore, (1870) 7 BHC (Cr C) 83.
warrant is executed by a Court oﬃcial when it is addressed to a peon, resistance to the
Court oﬃcial is not illegal.95.
If a bailiff breaks open the doors of a third person in order to execute a decree against
a judgment-debtor, he is a trespasser if it turns out that the person or goods of the
debtor are not in the house; and under such circumstances the owner of the house
does not by obstructing the bailiff, render himself punishable under section 183 or
section 186.96.

SERVANTS
this head.
[s 184] Obstructing sale of property offered for sale by authority of public
servant.
Whoever intentionally obstructs any sale of property offered for sale by the lawful
authority of any public servant, as such, shall be punished with imprisonment of either
description for a term which may extend to one month, or with ﬁne which may extend
to ﬁve hundred rupees, or with both.
97.  Provincial Govt. CP & Berar v Balaram, (1939) Nag 139.
COMMENT—
This section punishes intentional obstruction of the sale of any property conducted
under the lawful authority of a public servant. No physical obstruction is necessary.

COMMENT—
Use of abusive language by a person at an auction-sale conducted by a public servant
makes him liable to be convicted of an offence under this section.97.

SERVANTS
this head.
[s 185] Illegal purchase or bid for property offered for sale by authority of
Whoever, at any sale of property1 held by the lawful authority of a public servant, as
such, purchases or bids for any property on account of any person, whether himself or
any other, whom he knows to be under a legal incapacity to purchase that property at
that sale, or bids for such property not intending to perform the obligations under
which he lays himself by such bidding, shall be punished with imprisonment of either
to two hundred rupees, or with both.
98.  2nd Rep., section 110.

99.  Bishan Prasad, (1914) 37 All 128 .
COMMENT—
This section makes it penal to bid at a public sale of property on account of a party
who is under a legal incapacity to purchase it, or to bid for it not intending to complete
the purchase or as it is expressed to perform the obligations under which the bidder
lays himself by such "bidding".98.
1. 'Property'.—This word is used in its wide sense. The right to sell drugs is a monopoly
granted for a certain area and comes within the deﬁnition of property. A person who
bids at an auction of the right to sell drugs within a certain area under a false name
and, when the sale is conﬁrmed in his favour, denies that he has ever made any bid at
all, is guilty of an offence under this section.99.

SERVANTS
this head.
[s 186] Obstructing public servant in discharge of public functions.
Whoever voluntarily obstructs any public servant in the discharge of his public
functions, shall be punished with imprisonment of either description for a term which
may extend to three months, or with ﬁne which may extend to ﬁve hundred rupees, or
with both.
State Amendment
Andhra Pradesh.— Offence under section 186 is cognizable.
[Vide A.P.G.O. Ms. No. 732, dated 5th December, 1991].
COMMENT—
This section provides for voluntarily obstructing a public servant in the discharge of his
duties. It must be shown that the obstruction or resistance was offered to a public

COMMENT—
servant in the discharge of his duties or public functions as authorised by law. The
mere fact of a public servant believing that he was acting in the discharge of his duties
will not be suﬃcient to make resistance or obstruction to him amount to an
offence.100. If the public servant is acting in good faith under colour of his oﬃce there
is no right of private defence against his act.101.
The word "obstruction" connotes some overt act in the nature of violence or show of
violence.102. To constitute "obstruction", it is not necessary that there should be actual
criminal force. It is suﬃcient if there is either a show of force or a threat or any act
preventing the execution of any act by a public servant.103. Though an offence under
this section is a non-cognizable one, by virtue of powers vested in the State

Government under section 10 of the Criminal Law Amendment Act, 1932, it can be
made a cognizable offence in a speciﬁed area by means of a notiﬁcation, while such
notiﬁcation remains in force.
[s 186.1] Initiation of Prosecution.—
To initiate prosecution under this section it is necessary to see that the complaint is
ﬁled under section 195(1)(a), Cr PC, 1973, by the concerned public servant or his
superior oﬃcer to whom he is administratively subordinate (See also discussion under
sub-head "Condition precedent for Prosecution under section 182 ante.) It is also not
possible to bypass the requirements of section 195(1)(a), Cr PC, 1973, by merely
changing the label of the offence, say from section 186 to section 353, IPC, 1860.104.

[s 186.2] Offences with bar under section 195 Cr PC, 1973 with some offences
without the bar.—
Where an accused commits some offences which are separate and distinct from those
contained in section 195 of the Cr PC, 1973, section 195 will affect only the offences
mentioned therein unless such offences form an integral part so as to amount to
offences committed as a part of the same transaction, in which case the other
offences also would fall within the ambit of section 195 of the Code.105. It is a well-
accepted proposition of law that when an accused commits some offences which are
separate and distinct from those contained in section 195; section 195 will affect only
the offences mentioned therein unless such other offences form an integral part of the
same so as to amount to offences committed as a part of the same transaction. That
in such case the other offences would also fall within the ambit of section195 of the
Code. In other words, the offences charged against the petitioners under section143,

147, 148, 149, 332, 333 and 307 of IPC, 1860, cannot be split from the complaint for a
separate offence in the facts and circumstances of the present case, and thereby
cognizance in respect to said offences are also barred under section 195(1)(a)(i) of the
Code.106.
[s 186.3] CASES.—Obstruction.—
A Circle Inspector went into the compound of the accused with a village servant to
remove a portion of the hedge which was an encroachment. When the servant put his
scythe to the hedge to cut it, the accused caught hold of the scythe and threatened
him. It was held that the accused was guilty of an offence under this section, since his
laying hold of the scythe amounted to physical obstruction, and the obstruction offered
to the servant was tantamount to obstruction to the Circle Inspector under whose

orders he was acting.107. The daughter of the tenant of the accused died of
electrocution. The police-oﬃcers entered the premises with permission to check fresh
wiring and leakage of current. They were prevented from taking photographs by the
accused and also not allowed to leave the house. The Court said that this amounted to
obstruction within the meaning of section 186 and wrongful conﬁnement within the
meaning of section 342.108. Section 186 contemplates obstruction of a public servant
in the discharge of his public duty and section 332 contemplates voluntarily causing
hurt to him to deter him from performing his public duty. The gravity of the offences is
different. Offence under section 332 is cognizable. The requirement of making a
complaint in writing as postulated by section 195, Cr PC, 1973, cannot be extended to

the case of an offence under section 332.109.
[s 186.4] Section 186 and Section 353: Distinction between.—
Sections 186 and 353, IPC, 1860 relate to two distinct offences and while the offence
under the latter section is a cognizable offence the one under the former section is not
so. The ingredients of the two offences are also distinct. Section 186, IPC, 1860 is
applicable to a case where the accused voluntarily obstructs a public servant in the
discharge of his public functions but under section 353, IPC, 1860 the ingredient of
assault or use of criminal force while the public servant is doing his duty as such is
necessary. The quality of the two offences is also different. Section 186 occurs in
Chapter X of the IPC, 1860 dealing with Contempts of the lawful authority of public

servants, while section 353 occurs in Chapter XVI regarding the Offences affecting the
human body. It is well established that section 195 of the Cr PC, 1973 does not bar the
trial of an accused person for a distinct offence disclosed by the same set of facts but

100.  Lilla Singh, (1894) 22 Cal 286 ; Tulsiram v State, (1888) 13 Bom 168.
101.  Poomalai Udayan, (1898) 21 Mad 296; Pukot Kotu, (1896) 19 Mad 349.
102.  Phudki, AIR 1955 All 104 [LNIND 1954 ALL 119] .
103.  Babulal, (1956) 58 Bom LR 1021 .
104.  Oduvil Devaki Amma, 1982 Cr LJ NOC 11 (Ker).
105.  State of UP v Suresh Chandra Srivastava, AIR 1984 SC 1108 [LNIND 1984 SC 575] : 1984 Cr
LJ 926 .
106.  Ramji Bhikha Koli v State of Gujarat, 1999 Cr LJ 1244 (Guj).
107.  Bhaga Mana, (1927) 30 Bom LR 364 . See also Gyan Bahadur v State of MP, 2013 Cr LJ
1729 (MP).
108.  Veena Ranganekar v State, 2000 Cr LJ 2543 (Del).
109.  State of HP v Vidya Sagar, 1997 Cr LJ 3893 (HP).
110.  Durgacharan Naik v State of Orissa, AIR 1966 SC 1775 [LNIND 1966 SC 59] : 1966 Cr LJ
1491 (SC).
111.  Ashok v The State, 1987 Cr LJ 1750 (MP); Mrityunjoy Das v State, 1987 Cr LJ 909 (Cal).
which is not within the ambit of that section.110. If in truth and substance the offence in

1491 (SC).
question falls in the category of sections mentioned in section 195 of the Code and it
was not open to bypass its provisions even by choosing to prosecute under section
353, IPC, 1860 only.111.

SERVANTS
this head.
[s 187] Omission to assist public servant when bound by law to give
assistance.
Whoever, being bound by law to render or furnish assistance to any public servant in
the execution of his public duty, intentionally omits to give such assistance, shall be
with ﬁne which may extend to two hundred rupees, or with both;
and if such assistance be demanded of him by a public servant legally competent to
make such demand for the purposes of executing any process lawfully issued by a
Court of Justice, or of preventing the commission of an offence, or of suppressing a

riot, or affray, or of apprehending a person charged with or guilty of an offence, or of
having escaped from lawful custody, shall be punished with simple imprisonment for
a term which may extend to six months, or with ﬁne which may extend to ﬁve hundred
rupees, or with both.
COMMENT—
This section provides, ﬁrst in general terms for the punishment when a person, being
bound by law to render assistance to a public servant in the execution of his public
duty, intentionally omits to assist; and second, for the punishment when the assistance
is demanded for certain speciﬁed purposes.112.
This section speaks of assistance to be rendered to public servants, just as sections
176 and 177 speak of furnishing true information. A case was registered against the
accused/ Sub-Inspector of Police under section 187 of the IPC, 1860 for not assisting

the Assisting Sessions Judge, in the service of summons to witnesses and
administration of justice. In the light of the language employed in sections 195(1) of Cr
PC, 1973, the prosecution initiated at the instance of the Assistant Sessions Judge
cannot be sustained for the reason that the Sub-Inspector of Police is not subordinate
to the said Oﬃcer. Unless a complaint is made by the competent oﬃcer as speciﬁed
under section 195(1) of the Code, the prosecution cannot be further proceeded with.
Apart from this aspect of the matter, in as much as the service of summons, being in
discharge of the oﬃcial duties of the Sub-Inspector, sanction under section 197 of the
code is also required.113.

112.  Ramaya Naika, (1903) 26 Mad 419, (FB).
113.  Paleti Anil Babu v State, 2006 Cr LJ 3084 (AP).

SERVANTS
this head.
[s 188] Disobedience to order duly promulgated by public servant.
Whoever, knowing that, by an order promulgated by a public servant lawfully
empowered to promulgate such order, he is directed to abstain from a certain act, or
to take certain order with certain property in his possession or under his
management, disobeys such direction,
shall, if such disobedience causes or tends to cause obstruction, annoyance or injury,
or risk of obstruction, annoyance or injury, to any person lawfully employed, be
punished with simple imprisonment for a term which may extend to one month or with
ﬁne which may extend to two hundred rupees, or with both;

and if such disobedience causes or tends to cause danger to human life, health or
safety, or causes or tends to cause a riot or affray, shall be punished with
ﬁne which may extend to one thousand rupees, or with both.
E x p l a n a t i o n . —It is not necessary that the offender should intend to produce harm, or
contemplate his disobedience as likely to produce harm. It is suﬃcient that he knows
of the order which he disobeys, and that his disobedience produces, or is likely to
produce, harm.
An order is promulgated by a public servant lawfully empowered to promulgate such
order, directing that a religious procession shall not pass down a certain street. A
knowingly disobeys the order, and thereby causes danger of riot. A has committed the

COMMENT—
Ingredients.—To constitute this offence it is necessary to show—
(1) a lawful order promulgated by a public servant empowered to promulgate it;
(2) knowledge of the order which may be general or special;
(3) disobedience of such order; and
(4) the result that is likely to follow from such disobedience.

The offence under this section has now been made a cognizable offence under the Cr
PC, 1973. Though a bailable offence, it can be made non-bailable by a notiﬁcation by
the State Government under section 10(2) of the Criminal Law Amendment Act, 1932.
There must be evidence that the accused had knowledge of the order with the
disobedience of which he is charged. Mere proof of a general notiﬁcation promulgating
the order does not satisfy the requirements of the section.114. "Promulgation" does not
require publication in newspapers or by posters.115. Mere disobedience of an order
does not constitute an offence in itself; it must be shown that the disobedience has or
tends to a certain consequence,116. namely, annoyance, obstruction, etc. The
annoyance has to be proved as a fact; mere mental annoyance of the authorities
concerned is not enough.117. It is also necessary to see that the order was not only
lawfully made but duly promulgated and the accused had knowledge of the order, else

his conviction cannot be sustained.118. Where a standing crop was attached by means
of an order under section 145 Cr PC, 1973 and the accused, who had come to know the
order, reaped and removed the crop, an offence under this section was held to have
been committed. It was a disobedience packed with a tendency to cause riot or
affray.119. The complaint of this offence must disclose that the disobedience of the
order led to the consequences narrated in clauses (2) and (3) of section 188, IPC, 1860,
otherwise no cognizance can be taken on such a complaint.120. It is not necessary that,
if the order disobeyed was that of a civil Court, a complaint should be received from
that Court. A criminal Court can entertain a complaint of disobedience from any other
source.121.

It is open to a person charged under this section to plead in defence that the order,
though made with jurisdiction, was utterly wrong or improper on merits.122.
[s 188.1] Necessary particulars in the complaint.—
In order to attract the provisions of section 186 IPC, 1860, it has to be seen whether the
public servant in the discharge of his public functions has been voluntarily obstructed
or not. It is reiterated that what was mentioned in the complaint was that the
government administration was disrupted for half an hour. Mere disruption of
government administration without there being a speciﬁc mention that the public
servants were obstructed from voluntarily discharging their public functions would not
attract section 186 IPC, 1860.123.
Knowledge of orders.—The offence of disobedience of the orders of a public servant is

not committed where there is nothing to show that the accused person had knowledge
of the order.124.
[s 188.2] Curfew Order and Shoot to kill.—
Violation of a curfew order under section 144, Cr PC, 1973, is a minor offence
punishable under section 188, IPC, 1860, and as such the executive instruction to
"Shoot to Kill" for violation of a prohibitory order under section 144 Cr PC, 1973, is ultra
vires section 144 Cr PC, 1973, section 188 IPC, 1860, Articles 20(1) and 21 of the
Constitution and is, therefore, void and unlawful.125.
[s 188.3] Prohibitory order under Food and Safety Standards Act, 2006.—

114.  Ramdas Singh, (1926) 54 Cal 152 .
115.  Srimati Tugla, (1955) 2 All 547 .
116.  Lachhmi Devi, (1930) 58 Cal 971 .
117.  Pradip, AIR 1960 Assam 20 ; DN Ramaiah, 1972 Cr LJ 1158 (Mysore); Saroj Hazra, 48 Cr LJ
747 (Cal); Bharat Raut, 1953 Cr LJ 1787 24.(Pat); Dalganjan, 1956 Cr LJ 1176 (All); Fakir Charan
Das, 1957 Cr LJ 1151 (Ori); Pradip Choudhury, 1960 Cr LJ 251 (Assam); Ram Manohar Lohia;
1968 Cr LJ 281 (All).
118.  K Papayya v State, 1975 Cr LJ 1784 (AP).
119.  Bhagirathi Shrichandan v Damodar, 1987 Cr LJ 631 (Ori).
120.  Padan Pradhan, 1982 Cr LJ 534 (Pat).
121.  Thavasiyappan v Periasamy Nadar, 1992 Cr LJ 283 .
122.  Bachuram v State, AIR 1956 Cal 102 [LNIND 1955 CAL 186] .
123.  Anurag Thakur v State of HP, 2016 Cr LJ 3363 : I L R 2016 (III) HP 1314.
124.  Bhoop Singh Tyagi v State, 2002 Cr LJ 2872 (Del).
125.  Jayantilal v State, 1975 Cr LJ 661 (Guj); see also R Deb : Op Cit, pp 840-841.
126.  Ganesh Pandurang Jadhao v The State of Maharashtra, 2016 Cr LJ 2401 : III (2016) CCR
334 (Bom).

334 (Bom).
127.  State of UP v Mata Bhikh, (1994) 4 SCC 95 [LNIND 1994 SC 311] : JT 1994 (2) SC 565
[LNIND 1994 SC 311] : (1994) 2 Scale 235 : (1994) 1 SCC (Cr) 831 : 1994 (2) SCR 368 [LNIND
1994 SC 311] . See also C Muniappan v State of TN, (2010) 9 SCC 567 [LNIND 2010 SC 809] : AIR
2010 SC 3718 [LNIND 2010 SC 809] : (2010) 3 SCC (Cr) 1402 : 2010 (8) Scale 637 : JT 2010 (9)
SC 95 [LNIND 2010 SC 809] .
Disobedience to a prohibitory order issued by the Food and Safety Commissioner from
possessing or transporting Gutka or Pan Masala would not cause breach of law and
order. The Commissioner's order is not an order contemplated under Chapter 10 of the
IPC, 1860. Besides, the prohibitory order issued under section 30 of the FSS Act, 2006
and its violation, would amount to offence only under section 55 of the FSS Act, 2006.

This speciﬁc provision is made in the special enactment, which is a law in itself. It
would not permit any one to apply section 188 of the IPC, 1860 for such breach or
violation.126.
[s 188.4] Complaint.—
A written complaint by a public servant concerned is sine qua non to initiate a criminal
proceeding under section 188 of the IPC, 1860 against those who, with the knowledge
that an order has been promulgated by a public servant directing either 'to abstain from
a certain act, or to take certain order, with certain property in his possession or under
his management' disobey that order.127.

SERVANTS
this head.
[s 189] Threat of injury to public servant.
Whoever holds out any threat of injury to any public servant, or to any person in whom
he believes that public servant to be interested, for the purpose of inducing that
public servant to do any act, or to forbear or delay to do any act, connected with the
exercise of the public functions of such public servant, shall be punished with
Andhra Pradesh.— In Andhra Pradesh offence under section 189 is cognizable.
COMMENT—

COMMENT—
Under this section there must be a threat of injury either to the public servant or to any
one in whom the accused believes the public servant to be interested. What the section
deals with are menaces which would have a tendency to induce the public servant to
alter his action. See section 503 which deﬁnes criminal intimidation and applies in all
cases. This section deals with criminal intimidation of a public servant. Threats of
violence to a public servant who accepted bribe money but did not do the promised
work are not covered by this section. A public servant deserves protection, since in the
performance of his duties, he is likely to cause disappointment to many and invite their
wrath. That is why under sections 189 and 353 and various other sections of the IPC,

1860, a public servant is strongly protected and punishment for offences against him is
made deterrent. However if a public servant has gone astray and indulged in
malpractices, more especially by way of taking bribe, he would necessarily become
subject to public criticism and private accountability. What appears then at the
forefront is not the performance of duty by the public servant, but the non-performance
of some contract dehors the normal functions of the public servant. If that illegal
contract gives rise to any act of violence at any stage, such acts cannot constitute by
any stretch of imagination acts contemplated and punished under sections 353 and
189, IPC, 1860.128.
Where workers of Communist Party (Marxist) went to a police station to protest

against the arrest of their party workers and in the process asked the police-oﬃcer to
release them on threat of dire consequences, it was held that the accused had
committed an offence under this section.129. By a notiﬁcation under section 10 of the

128.  Duraikhannu v State of TN, 1987 Cr LJ 1461 (Mad); Mrityunjoy Das v State, 1987 Cr LJ 909
(Cal).
129.  De Cruz, (1884) 8 Mad 140.
Criminal Law Amendment Act, 1932, the State Government can make this section a
cognizable offence for a speciﬁed area.

SERVANTS
this head.
[s 190] Threat of injury to induce person to refrain from applying for protection
to public servant.
Whoever holds out any threat of injury to any person for the purpose of inducing that
person to refrain or desist from making a legal application for protection against any
injury to any public servant legally empowered as such to give such protection, or to
cause such protection to be given, shall be punished with imprisonment of either
description for a term which may extend to one year, or with ﬁne, or with both.
Andhra Pradesh.—Offence under section 190 is cognizable.
COMMENT—

COMMENT—
The object of this section is to prevent persons from terrorising others with a view to
deter them from seeking the protection of public servants against any injury. Where a
clergyman, knowing that a civil suit was pending against a person for the possession of
certain church property, excommunicated him for withholding it, it was held that the
clergyman had committed no offence under this section. By a notiﬁcation under
section 10(1) of the Criminal Law Amendment Act, 1932 the State Government can
make this offence a cognizable one for a speciﬁed area while such notiﬁcation remains
in force.

CHAPTER XI OF FALSE EVIDENCE AND OFFENCES AGAINST PUBLIC
JUSTICE
Under the Indian Penal Code, 1860 offences relating to false evidence and offences
against public justice are contained in Chapter XI. In relation to proceeding in any
Court, the offences enumerated are: giving false evidence or fabricating false evidence
(sections 191–193); giving or fabricating false evidence with intent to procure
conviction (sections 194 and 195); threatening any person to give false evidence
(section 195A); using evidence known to be false (section 196); using as true a
certiﬁcate known to be false (section 198); making a false statement in a declaration
which is by law receivable as evidence (section 199); using as true any declaration
receivable as evidence, knowing it to be false (section 200); causing disappearance of
evidence of offence, or giving false information to screen offender (section 201);
intentional omission to give information of offence by person bound to inform (section

202); giving false information in respect of an offence (section 203); destruction of
document or electronic record to prevent its production as evidence (section 204);
false personation (section 205); fraudulent removal/concealment of property (section
206); fraudulent claim to property (section 207); fraudulently suffering or obtaining
decree for sum not due (section 208 and section 210); dishonestly making a false
claim in Court (section 209); and intentional insult or interruption to public servant
sitting in judicial proceedings (section 228). Section 195 of Code of Criminal Procedure
provides that no Court shall take cognizance of any offence punishable under section
172–188 (dealing with the contempt of the lawful authority of public servants) or
section 193–196, 199, 200, 205–211 and 228, when such offence is alleged to have

been committed in, or in relation to, any proceeding in any Court, except on the
complaint in writing of that Court by such oﬃcer of the Court as that Court may
authorise in writing in this behalf, or of some other Court to which that Court is
subordinate.1.
[s 191] Giving false evidence.
Whoever, being legally bound by an oath or by an express provision of law to state the
truth, or being bound by law to make a declaration upon any subject,1 makes any
statement which is false,2. and which he either knows or believes to be false or does
not believe to be true,3. is said to give false evidence.
E x p l a n a t i o n  1.—A statement is within the meaning of this section, whether it is made
verbally or otherwise.
E x p l a n a t i o n  2.—A false statement as to the belief of the person attesting is within the

meaning of this section, and a person may be guilty of giving false evidence by
stating that he believes a thing which he does not believe, as well as by stating that he
knows a thing which he does not know.
(a) A, in support of a just claim which B has against Z for one thousand rupees,
falsely swears on a trial that he heard Z admit the justice of B's claim. A has
given false evidence.
(b) A, being bound by an oath to state the truth, states that he believes a certain

signature to be the handwriting of Z, when he does not believe it to be the
handwriting of Z. Here A states that which he knows to be false, and therefore
gives false evidence.
(c) A, knowing the general character of Z's handwriting, states that he believes a
certain signature to be the handwriting of Z; A in good faith believing it to be so.
Here A's statement is merely as to his belief, and is true as to his belief, and
therefore, although the signature may not be the handwriting of Z, A has not
(d) A, being bound by an oath to state the truth, states that he knows that Z was at
a particular place on a particular day, not knowing anything upon the subject. A
gives false evidence whether Z was at that place on the day named or not.
(e) A, an interpreter or translator, gives or certiﬁes as a true interpretation or
translation of a statement or document which he is bound by oath to interpret or
translate truly, that which is not and which he does not believe to be a true

interpretation or translation. A has given false evidence.
COMMENT.—
Ingredients.—The offence under this section involves three ingredients:—
(1) A person must be legally bound;
(a) by an oath, or any express provision of law, to state the truth; or
(b) to make a declaration upon any subject.
(2) He must make a false statement.
(3) He must;
(a) know or believe it to be false, or
(b) not believe it to be true.
1. 'Legally bound by an oath or by an express provision of law, etc.'— In case the
recourse to a false plea is taken with an oblique motive, it would deﬁnitely hinder,
hamper or impede the ﬂow of justice and prevent the Courts from performing their
legal duties.2 The Courts have to follow the procedures strictly and cannot allow a
witness to escape the legal action for giving false evidence before the Court on mere

explanation that he had given it under the pressure of the police or for some other
reason. Whenever the witness speaks falsehood in the Court, and it is proved
satisfactorily, the Court should take a serious action against such witnesses.3 It is
necessary that the accused should be legally bound by an oath before a competent
authority. If the Court has no authority to administer an oath the proceeding will be
coram non judice and a prosecution for false evidence will not stand.4. Similarly, if the
Court is acting beyond its jurisdiction it will not be sustained.5. For the essentiality of
section 191, petitioner must have been legally bound to speak truth or make a
declaration and he must have stated or declared what is false. He must also know or
believe what he has stated or declared is false or he has believed it true. If there is no

compulsion to make any declaration as required by law, Section 191 will not have any

application. The information given by him is not on any oath nor was he bound to give
such information under any provision of Law.6.
[s 191.1] 'By an oath'.—
An oath or a solemn aﬃrmation is not a sine qua non in the offence of giving false
evidence.7. The offence may be committed although the person giving evidence has
been either sworn or aﬃrmed.8. Whenever in a Court of law a person binds himself on
oath to state the truth, he is bound to state the truth and he cannot be heard to say that
he should not have gone into the witness box or should not have made an aﬃdavit. It is
no defence to say that he was not bound to enter the witness box.9.
[s 191.2] 'By an express provision of law'.—
Under this clause sanction of an oath is not necessary; there must be a speciﬁc
provision of law compelling a person to state the truth. Where the accused is not bound
by an express provision of law to state the truth he cannot be charged with giving false
evidence.10.
[s 191.3] 'Declaration upon any subject'.—

In certain cases the law requires a declaration from a person of veriﬁcation in a
pleading—and if such a declaration is made falsely it will come under this clause. The
words 'any subject' denote that the declaration must be in connection with a subject
regarding which it was to be made.
2. 'Any statement which is false'.—It is not necessary that the false evidence should be
material to the case in which it is given.11. If the statement made is designedly false,
the accused is liable whether the statement had a material bearing or not upon the
matter under enquiry before the Court.12.
3. 'Knows or believes to be false or does not believe to be true'.—The matter sworn to
must be either false in fact, or, if true, the accused must not have known it to be so. The
making of a false statement, without knowledge as to whether the subject-matter of

the statement is false or not, is legally the giving of false evidence.13. Where a man
swears to a particular fact, without knowing at the time whether the fact be true or
false, it is as much perjury as if he knew the fact to be false, and equally indictable.14.
However, a man cannot be convicted of perjury for having acted rashly, or for having
failed to make reasonable inquiry with regard to the facts alleged by him to be true.15.
[s 191.4] Two Contradictory Statements.—
Merely because a person makes two contradictory statements, one of which must be
false, it does not make out a case of perjury unless the falsity of one of the two
statements as charged in the indictment is positively proved to be so.16. In India a
prosecution for perjury seems to be possible in such a case by virtue of illustration (e)

of section 221, The Code of Criminal Procedure, 1973, it has been held to be
inexpedient to do so in the interest of justice. Thus, where a person made one
statement under section 164 Cr PC, 1973 and a diametrically opposite statement in
Court during the enquiry or trial, he could in view of this illustration be charged in the

alternative and convicted of intentionally giving false evidence, although it cannot be
proved which of these contradictory statements was false. But to do so may be to tie
him down to his previous false statement under section 164 Cr PC, 1973, and
preventing him from telling the truth even belatedly at the later stage of enquiry or trial.
The Supreme Court too has felt that a witness whose statement has been recorded
under section 164 Cr PC, 1973, feels tied to his previous statement and as such his
evidence has to be approached with caution.17. In the instant case as it could not be
shown that the earlier statements of the witnesses recorded under section 164 Cr PC,
1973 were true and those given before the Magistrate in course of the enquiry were
false, the complaints of perjury ﬁled against the witnesses were directed to be
withdrawn.18.
[s 191.5] As to expert opinion.—
A scientiﬁc expert was asked to give his opinion regarding two cartridges, whether

those were ﬁred from one ﬁrearm or from two different ones, without sending the
suspected ﬁrearm to him. He gave opinion, inter alia, that no deﬁnite opinion could be
offered in order to link the ﬁrearm unless the ﬁrearm was made available to him. During
the examination, the Court insisted him to give a deﬁnite opinion that too without
examining the ﬁrearm. At that time, he opined that the cartridges appeared to have
been ﬁred from two separate ﬁrearms. Considering that there was a deliberate
deviation in his opinion the High Court initiated proceedings against him under section
340 Cr PC, 1973 for perjury. The Supreme Court held that it is unjust, if not unfair, to
attribute any motive to the appellant that there was a somersault from his original
stand in the written opinion.19.
[s 191.6] Written statements and applications.—

A person ﬁling a written statement in a suit is bound by law to state the truth, and if he
makes a statement which is false to his knowledge or belief, or which he believes not
be to true, he is guilty of this offence.20. Signing and verifying an application for
execution containing false statements is an offence under this section, and it makes no
difference that at the time when the signature and veriﬁcation were appended the
application was blank.21. But the veriﬁcation of an application, in which the applicant
makes a false statement, does not subject him to punishment for this offence, if such
application does not require veriﬁcation.22.
[s 191.7] Incriminating statement no justiﬁcation.—
When a party makes a false statement while legally bound by solemn aﬃrmation, the

fact that the statement was one tending to incriminate himself will not justify his
acquittal on a charge of giving false evidence.23.
[s 191.8] Illegality of trial does not purge perjury.—
The fact that the trial in which false evidence is given is to be commenced de novo
owing to irregularity does not exonerate the person giving false evidence in that trial
from the obligation to speak the truth, and he is liable for giving false evidence.24.

[s 191.9] Prosecution for perjury.—
It has been held by the Supreme Court that the courts should sanction the prosecution
for perjury only in those cases where perjury appears to be deliberate and where it
would be expedient in the interest of justice to punish the delinquent and not merely
because there is some inaccuracy in the statement.25.
[s 191.10] Accused not liable for giving false evidence.—
The authors of the Code observe:
We have no punishment for false evidence given by a person when on his trial for an
offence, though we conceive that such a person ought to be interrogated... If A stabs Z,
and afterwards on his trial denies that he stabbed Z, we do not propose to punish A as
a giver of false evidence.26.
The accused shall not render himself liable to punishment by refusing to answer questions
put by the Court or by giving false answers to them.27.
[s 191.11] CASES.—
In a case, where the allegation was that the Attorney General and Chief Vigilance

Oﬃcer gave consent to prosecute the Complainant without due care and without
proper application of mind. The Supreme Court held that it cannot be said that the
document conveying consent was a 'false document' or that giving of 'consent'
amounted to giving of 'false evidence' or 'fabricating false evidence' at any stage of
judicial proceeding.28. A person could only be held guilty of an offence under section
191 if false evidence is knowingly given or when the statement is believed to be not
true.29. A witness falsely deposing in another's name;30. and a person falsely verifying
his plaint;31. and an oﬃcial making a false return of the service of summons,32. were
held guilty of giving false evidence. The Supreme Court has held that where a false
aﬃdavit is sworn by a witness in a proceeding before a Court the offence would fall

under this section and section 192. It is the offence of giving false evidence or of
fabricating false evidence for the purpose of being used in a judicial proceeding.33.
Where a notice of perjury was issued to certain eye-witnesses but it could not be
shown with certainty that they were liars, it was held that the issue of notices was not
proper. The Court used its inherent powers and quashed the notices. The challenge
was presented by only one of the witnesses on his own behalf as well as that of
others.34.
[s 191.12] Aﬃdavit.—
An aﬃdavit is evidence within the meaning of section 191 of the IPC, 1860. It was
alleged about an aﬃdavit ﬁled in a Court that it contained false statements. The
aﬃdavit was ﬁled by the party suo motu and not under direction from the Court. Such

an aﬃdavit could not be termed as evidence. Hence, no action could be taken against
him under the IPC, 1860.35. Process Server while he takes information from the
neighbours is not expected to get a sworn statement from them. It is neither an
aﬃdavit nor a sworn statement. It is only an information, which he has collected to
show his bona ﬁdes that he made attempts to serve the notice on the party. If on the
request of process server if any such information is given that information cannot be

treated as false evidence or fabricating evidence nor it could be treated as certiﬁcate
nor a declaration under any of the provisions of this section.36.
[s 191.13] Abetment.—
Where an accused asked a witness to suppress certain facts in giving his evidence
against him (accused), it was held that he was guilty of abetment of giving false
evidence in a stage of a judicial proceeding.37. Where C falsely represented himself to
be U, and the writer of a document signed by U, and T, knowing that C was not U and
had not written such document, adduced C as U, the writer of that document, it was
held that T was guilty of abetment of giving false evidence.38.
[s 191.14] Bar under section 195 Cr PC, 1973.—
Section 195 of the Code lays down the procedure for prosecution for contempt of
lawful authority of public servants for offences against public justice and for offences
against public documents given in the form of evidence. As per this provision, Court is

debarred from taking cognizance of any of the offences punishable under sections
193–196, 199, 200, 205–211 and section 228, when such offence is alleged to have
been committed in, or in relation to, any proceedings in any Court except on the
authorise in writing in that behalf or of some other Court to which that Court is
subordinate. The term "Court" in the section means a Civil, Revenue or Criminal Court
and includes a tribunal. Section 340 of the Code prescribes the procedure to be
followed for offences mentioned in section 195 of the Code. Therefore, the summoning
orders of the Magistrate against the petitioners under sections 193/191/209 IPC, 1860
are hit by provisions of section 195 of the Code and the cognizance taken by the

Magistrate of the offences is, therefore, without jurisdiction.39. Sections 191 and 192 of
the IPC, 1860 are the sections that deﬁne offences for which punishment is provided
for in sections 193 and 195 as mentioned in section 195(1)(b) (i), Criminal Procedure
Code. So the bar to initiate proceedings is applicable to sections 191 and 192 also.40.
[s 191.15] Procedure.—
A combined reading of the aforequoted provisions of Cr PC, 1973 and IPC, 1860 as
also sub-section (3) of section 195, Cr PC, 1973 makes this legal position quite clear
that they are applicable to any legal proceeding before a Civil Court or a Criminal Court,
including a Tribunal constituted by Central, Provincial or State Acts, if declared by that
particular Act to be a Court for the purpose of section 195, Cr PC, 1973. Therefore, if

the Family Court ﬁnds that any party to the proceeding or a witness therein has
intentionally given false evidence at any stage of a judicial proceeding or fabricated
false evidence for the purpose of being used in any stage of the proceeding, and the
Family Court is of the opinion that it is expedient in the interest of justice that an
enquiry should be made into any evidence referred to in clause (b) of sub-section (1) of
section 195, Cr PC, 1973 it may hold a preliminary enquiry and if it thinks necessary
then it may record a ﬁnding to that effect and then proceed to make a complaint in
respect of the particular offence/offences stipulated in clause (b) of section 195, Cr
PC, 1973 to the concerned Magistrate having jurisdiction against the said person.41.

1.  S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10 SCC
664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] .
2.  Chandra Shashi v Anil Kumar Verma, 1995 (1) SCC 421 [LNIND 1994 SC 1604] .
3.  Mishrilal v State of MP, (2005)10 SCC 701 [LNIND 2005 SC 1165] : 2005 SCC (Cr) 1712.
4.  Abdul Majid v Krishna Lal Nag, (1893) 20 Cal 724 ; Niaz Ali, (1882) 5 All 17 ; Mata Dayal (1897)
24 Cal 755 ; Subba, (1883) 6 Mad 252; Fatteh Ali, (1894) PR No. 15 of 1894.
5.  Chait Ram, (1883) 6 All 103 ; Bharma, (1886) 11 Bom 702 (FB).
6.  D Jothi v K P Kandasamy, 2000 Cr LJ 292 (Mad).
7.  (1865) 2 WR (CrL) 9.
8.  Gobind Chandra Seal, (1892) 19 Cal 355 ; Shava v State, (1891) 16 Bom 359; contra, Maru,
(1888) 10 All 207 .
9.  Ranjit Singh, 1959 Cr LJ 1124 : AIR 1959 SC 843 [LNIND 1959 SC 63] .
10.  Hari Charan Singh, (1900) 27 Cal 455 .
11.  Parbutty Churn Sircar, (1866) 6 WR (Cr) 84; Damodhar P Kulkarni, (1868) 5 BHC (CrC) 68.
12.  Mohammad Khudabux, (1949) Nag 355.

13.  Echan Meeah, (1865) 2 WR (Cr) 47. Mohammod Hussein v State of Maharashtra, 1995 Cr LJ
2364 (Bom).
14.  Mawbey, (1796) 6 TR 619, 637; Schlesinger, (1847) 10 QB 670 .
15.  Muhammad Ishaq, (1914) 36 All 362 .
16.  Cross & Jones: Introduction to Criminal Law, 9th Edn, p 275.
17.  Ramcharan, 1968 Cr LJ 1473 : AIR 1968 SC 1267 [LNIND 1968 SC 29] ; Balak Ram, 1974 Cr
LJ 1486 : AIR 1974 SC 2165 [LNIND 1974 SC 236] .
18.  Ibid. Kuriakose v State of Kerala, 1995 Cr LJ 2687 : 1994 Supp (1) SCC 602 , contradictory
statements as to contents of panchanama by an attesting witness does not make him liable to
be prosecuted under the section, gravity of the false statement has also to be taken into
account.
19.  Prem Sagar Manocha v State (NCT of Delhi), 2016 Cr LJ 1090 : (2016) 4 SCC 571 [LNIND
2016 SC 9] .

account.
2016 SC 9] .
20.  Mehrban Singh, (1884) 6 All 626 ; Padam Singh, (1930) 52 All 856 .
21.  Ratanchand v State, (1904) 6 Bom LR 886 .
22.  Kasi Chunder Mozumdar, (1880) 6 Cal 440 .
23.  (1867) 3 MHC (Appx.) XXXIX.
24.  Virasami v State, (1896) 19 Mad 375; Batesar Mandal, (1884) 10 Cal 604 .
25.  State (Govt. of NCT of Delhi) v Pankaj Chaudhary, AIR 2018 SC 5412 [LNIND 2018 SC 565] .
26.  Note G, p 131.
27.  Criminal Procedure Code, section 313 (3).
28.  Buddhi Kota Subbarao v K Parasaran, AIR 1996 SC 2687 [LNIND 1996 SC 1254] : (1996) 5
SCC 530 [LNIND 1996 SC 1254] .
29.  Indian Structural Engineering Company Pvt Ltd v Pradip Kumar Saha, 2009 Cr LJ 4229 (Cal).
30.  Prema Bhika (1863) 1 BHC 89.
31.  Luxumandas, (1869) Unrep CrC 25.
32.  Shama Churn Roy, (1867) 8 WR (Cr) 27.

33.  Baban Singh v Jagdish Singh, AIR 1967 SC 68 [LNIND 1966 SC 47] : 1967 Cr LJ 6 ; MP Paul,
1973 Cr LJ 1284 (Ker).
34.  State v Manoher Yeshwant Paul, 1997 Cr LJ 3114 (Bom).
35.  Delhi Lotteries v Rajesh Agarwal, AIR 1998 : 1332 (Del).
36.  D Jothi v K P Kandasamy, 2000 Cr LJ 292 (Mad).
37.  Andy Chetty, (1865) 2 MHC 438 .
38.  Chundi Churn, Nauth, (1867) 8 WR (Cr) 5.
39.  Kusum Sandhu v Sh Ved Prakash Narang, 2009 Cr LJ 1078 (Del).
40.  Premjit Kaur v Harsinder Singh, (1982) 2 SCC 167 : (1982) 1 SCC (Cr) 379 : 1982 CrLR 318.
41.  Arun Kumar Agarwal v Mrs. Radha Arun, 2001 Cr LJ 3561 (KAR).

[s 192] Fabricating false evidence.
Whoever causes any circumstance to exist or 42.[makes any false entry in any book or
record or electronic record or makes any document or electronic record containing a
false statement], intending that such circumstance, false entry or false statement
may appear in evidence in a judicial proceeding,1 or in a proceeding taken by law
before a public servant2 as such, or before an arbitrator, and that such circumstance,
false entry or false statement so appearing in evidence, may cause any person who in

such proceeding is to form an opinion upon the evidence, to entertain an erroneous
opinion touching any point material3 to the result of such proceeding, is said "to
fabricate4 false evidence".
(a) A, puts jewels into a box belonging to Z, with the intention that they may be
found in that box, and that this circumstance may cause Z to be convicted of
theft. A has fabricated false evidence.
(b) A makes a false entry in his shop-book for the purpose of using it as
corroborative evidence in a Court of Justice. A has fabricated false evidence.

(c) A, with the intention of causing Z to be convicted of a criminal conspiracy, writes
a letter in imitation of Z's handwriting, purporting to be addressed to an
accomplice in such criminal conspiracy, and puts the letter in a place which he
knows that the oﬃcers of the Police are likely to search. A has fabricated false
evidence.
COMMENT.—
The wording of this section is so general as to cover any species of crime, which
consists in the endeavour to injure another by supplying false data upon which to rest a
judicial decision.
[s 192.1] Ingredients.—
The offence deﬁned in this section has three ingredients:—
(1) Causing any circumstance to exist, or making any false entry in any book or
record, or making any document containing a false statement.
(2) Doing one of the above acts with the intention that it may appear in evidence in
a judicial proceeding, or in a proceeding taken by law before a public servant or
an arbitrator.
(3) Doing such act with the intention that it may cause any person, who in such

proceeding, is to form an opinion upon the evidence to entertain an erroneous
opinion touching any point material to the result of such proceeding.43. From a
careful reading of section 192, IPC, 1860, what transpires is that whoever forges
a document, containing false statement or false entry, intending that such false
entry or false statement may appear in evidence in a judicial proceeding, or in a
proceeding taken by law before a public servant as such, so appearing in
evidence, may cause any person, who, in such proceeding, is to form an opinion
upon the evidence, to entertain an erroneous opinion in such proceeding, he is
said to fabricate false evidence.44.
1. 'Judicial proceeding'.—The Code of Criminal Procedure says that 'judicial
proceeding' includes any proceeding in the course of which evidence is or may be

legally taken on oath [section 2(i)]. The power to take evidence on oath, which includes
aﬃrmation as well,45. is the characteristic test of 'judicial proceeding'. 'Judicial
proceeding' means nothing more or less than a step taken by a Court in the course of
administration of justice in connection with a case.46. Execution proceedings are
judicial proceedings.47.
It is not essential that there should be any judicial proceeding pending at the time of
fabrication. It is enough that there is a reasonable prospect of such a proceeding
having regard to the circumstances of the case and that the document in question is
intended to be used in such a proceeding.48.
2. 'Public servant'.—The provisions of this section are not conﬁned to false evidence to

be used in judicial proceedings, but to any proceeding before a public servant. A
Government correspondence was stealthily removed by accused No. 1 and handed
over to the pleader of accused Nos. 2 and 3. The correspondence was replaced by
accused No. 1. It was afterwards discovered that some papers had disappeared from
the correspondence whilst others had been either mutilated or altered. It was held that
accused Nos. 2 and 3 were guilty of offences under sections 466 and 193.49.

3. 'Material'.—The false evidence under this section should be material to the case in
which it is given though not so under section 191.50. The word 'material' means of such
a nature as to affect in any way, directly or indirectly, the probability of anything to be
determined by the proceeding, or the credit of any witness, and a fact may be material
although evidence of its existence was improperly admitted.51.
4. 'Fabricate'.—The term fabrication refers to the fabrication of false evidence; and if
the evidence fabricated is intended to be used in a judicial proceeding, the offence is
committed as soon as the fabrication is complete; it is immaterial that the judicial
proceeding has not been commenced,52. or that no actual use has been made of the
evidence fabricated. The mere fabrication is punishable under section 193; the use of
the fabricated evidence is punishable under section 196.
The evidence fabricated must be admissible evidence.53.
[s 192.2] Liability of accused for fabricating false evidence.—

It has been held by the High Courts of Calcutta54. and Bombay55. that an offender who
fabricates false evidence to screen himself from punishment is liable to be convicted
under this section. The Allahabad High Court56. has veered round to the same view,
after distinguishing an earlier case57. to the contrary.
[s 192.3] Vicarious liability.—
Neither section 192 IPC, 1860 nor section 199 IPC, 1860, incorporate the principle of
vicarious liability, and therefore, it was incumbent on the complainant to speciﬁcally
aver the role of each of the accused in the complaint.58. Penal Code does not contain
any provision for attaching vicarious liability on the part of the managing Director or the
Director for the Company when the accused is the company. Vicarious liability arise

provided any provision exits in that behalf in the statute. It is obligatory on the part of
the complainant to make requisite allegations which would attract the provision
constituting vicarious liability.59.
[s 192.4] CASES.—Fabrication of evidence to be used in judicial proceeding.—
The brother of an accused person applied to the Court on behalf of the accused asking
that the witnesses for the prosecution might ﬁrst be made to identify the accused. The
Court assenting to this request, he produced before the Court ten or twelve men, none
of whom could be identiﬁed as the accused by any of the witnesses. Upon being asked
by the Court where the accused was, he pointed out a man who was not the accused. It
was held that he was guilty of fabricating false evidence.60. The accused, who was in

possession of the complainant's house as a yearly tenant, about the time the tenancy
came to an end, prepared another rent-note for a period of four years and got it
registered without the complainant's knowledge. It was held that the accused had
fabricated false evidence inasmuch as the rent-note, which contained an admission
against the interest of the accused, could be admitted in evidence on his behalf.61. By
swearing a false aﬃdavit the accused makes himself prima facie liable under section
193 read with sections 191 and 192 of the IPC, 1860.62. In order to have the value of
CFC excluded for the purpose of excise duty, letters were fabricated and the same were

42.  Subs. by The Information Technology Act, 2000 (Act 21 of 2000) section 91 and First Sch,
w.e.f. 17 October 2000, for the words "makes any false entry in any book or record, or makes any
document contained on false statement". The words "electronic record" have been deﬁned in
section 29A.
43.  Babu Lal v State of UP, (1964) 1 Cr LJ 555 : AIR 1964 SC 725 [LNIND 1963 SC 218] .
Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd, (2010) 10 SCC 479
[LNIND 2010 SC 979] : 2011 CR LJ. 8 : (2010) 12 SCR 551 : (2011) 1 SCC (Cr) 68; See State of
MP v Asian Drugs, 1990 Cr LJ 105 MP, the defence exposing fabrication by Inspectors under The
Drugs and Cosmetics Act, 1940 (23 of 1940).
44.  Sushanta Sarkar v State of Nagaland 2012 Cr LJ 4467 (Gau).
45.  The General Clauses Act, 1897 (X of 1897), section 3 (37)

46.  Venkatachalam Pillai, (1864) 2 MHC 43 ; Tulja v State, (1887) 12 Bom 36, 42.
47.  Govind Pandurang, (1920) 22 Bom LR 1239 , 45 Bom 668.
48.  Rajaram, (1920) 22 Bom LR 1229 [LNIND 1920 BOM 119] ; Govind Pandurang, Ibid.
49.  Vallabhram Ganpatram, (1925) 27 Bom LR 1391 .
seized in a raid. Fifteen months later, taking up a notice of motion, High Court directed
ﬁling of criminal complaints against the appellant under section 192. While agreeing
that the Division Bench was not wrong in making the direction, which it did on the
merits of the case, Supreme Court held that the High Court did not appear to have
bestowed suﬃcient attention while deciding upon the expediency contemplated by
section 340.63.
[s 192.5] No fabrication if no erroneous opinion could be formed touching any
point material to result of proceeding.—

It is now well settled that prosecution for perjury should be sanctioned by the Court
only in those cases where there is a prima facie case of deliberate and conscious
falsehood on a matter of substance and the conviction is reasonably probable or
likely.64. It is also very necessary that the portions of the witness's statement in regard
to which he has, in the opinion of the Court, perjured himself, should be speciﬁcally set
out in or form annexure to the show cause notice issued to the accused so that he is in
a position to furnish adequate and proper reply in regard thereto and be able to meet
the charge.65.
[s 192.6] No fabrication of evidence fabricated is inadmissible.—
The mere fact that a document would be ultimately inadmissible in evidence does not
necessarily take it out of the mischief of section 193.66.

50.  Tookaram, (1862) Unrep. CrC 2.
51.  Stephen's Digest, Art 148; SP Kohli, 1978 Cr LJ 1804 : AIR 1978 SC 1753 [LNIND 1978 SC
235] .
52.  Mula, (1879) 2 All 105 .
53.  Zakir Husain, (1898) 21 All 159 .
54.  Superintendent and Remembrancer of Legal Affairs, Bengal v Taraknath Chatterji, (1935) 62
Cal 666 .
55.  Rama Nana, (1921) 46 Bom 317, 23 Bom LR 987.
56.  Bhagirath Lal, (1934) 57 All 403 .
57.  Ram Khilawan, (1906) 28 All 705 .
58.  Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd, (2010) 10 SCC 479
59.  Maksud Saiyed v State of Gujarat, (2008) 5 SCC 668 [LNIND 2007 SC 1090] : JT 2007 (11) SC
276 [LNIND 2007 SC 1090] : 2008 (5) SCR 1240 : (2008) 6 Scale 81 [LNIND 2008 SC 848] :
(2008) 2 SCC (Cr) 692.
60.  Cheda Lal, (1907) 29 All 351 .
61.  Rajaram, (1920) 22 Bom LR 1229 [LNIND 1920 BOM 119] .
62.  Baban Singh, 1967 Cr LJ 6 : AIR 1967 SC 68 [LNIND 1966 SC 47] .

63.  Phiroze Dinshaw Lam v UOI, 1996) 8 SCC 209 : (1996) 1 SCC (Cr) 575.
64.  SP Kohli, 1978 Cr LJ 1804 : AIR 1978 SC 1753 [LNIND 1978 SC 235] .
65.  Ibid.
66.  Mahesh Chandra Dhupi, (1940) 1 Cal 465 .

[s 193] Punishment for false evidence.
Whoever intentionally gives false evidence in any stage of a judicial proceeding, or
fabricates false evidence for the purpose of being used in any stage of a judicial
proceeding,1 shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to ﬁne, and whoever
intentionally gives or fabricates false evidence in any other case,2 shall be punished
with imprisonment of either description for a term which may extend to three years,
and shall also be liable to ﬁne.

E x p l a n a t i o n  1.—A trial before a Court-martial; 67. [***] is a judicial proceeding.
E x p l a n a t i o n  2.—An investigation directed by law preliminary to a proceeding before a
Court of Justice, is a stage of a judicial proceeding, though that investigation may not
take place before a Court of Justice.
A, in an enquiry before a Magistrate for the purpose of ascertaining whether Z ought to
be committed for trial, makes on oath a statement which he knows to be false. As this
enquiry is a stage of a judicial proceeding, A has given false evidence.

E x p l a n a t i o n  3.—An investigation directed by a Court of Justice according to law, and
conducted under the authority of a Court of Justice, is a stage of a judicial
proceeding, though that investigation may not take place before a Court of Justice.
A, in any enquiry before an oﬃcer deputed by a Court of Justice to ascertain on the
spot the boundaries of land, makes on oath a statement which he knows to be false.
As this enquiry is a stage of a judicial proceeding. A has given false evidence.
COMMENT.—
Sections 191 and 192 deﬁne the offences punishable under this section. The ﬁrst
paragraph applies only to cases in which the false evidence is given in a judicial
proceeding, the second to all other cases. If the offence is committed in any stage of a
judicial proceeding it is more severely punishable than when it is committed in a non-
judicial proceeding.
Intention is the essential ingredient in the constitution of this offence. If the statement

was false, and known or believed by the accused to be false, it may be presumed that
in making that statement he intentionally gave false evidence. In order to make a
person liable for perjury it is necessary that he should have made a statement on oath
regarding the facts on which his statement was based and then deny those facts on
oath on a subsequent occasion.68. The mere fact that a deponent has made
contradictory statements at two different stages in a judicial proceeding is not by itself
always suﬃcient to justify a prosecution for perjury under section 193 but it must be
established that the deponent has intentionally given false statement in any stage of
the 'judicial proceeding' or fabricated false evidence for the purpose of being used in
any stage of the 'judicial proceeding'.69.

It is not necessary that the false statement should be material to the case. The gist of
the offence is the giving or fabrication of false evidence intentionally. Where knowledge
of falsity is proved, intention is readily presumed.70.
1. 'Any stage of a judicial proceeding'.—The recording of a statement under section
161 itself is a judicial proceeding in view of Explanation 2 to section 193 in so far as
recording of a statement is part of the investigation directed by law preliminary to a
proceeding before a Court of justice and therefore is a stage of the judicial
proceedings. Mere failure to support contention made in said FIR while giving evidence
under section 164 Cr PC, 1973, can't conclusively lead to hold that he had given false
evidence by departing from contentions made in FIR.71. Where a witness in Sessions

trial deposing contrary to what he had said in a statement recorded under section 164,
recourse to section 340 cannot be taken without ﬁrst deciding whether the earlier
statement was false.72. In the course of proceedings for execution of a decree in a
Court which had no jurisdiction to entertain such proceedings the judgment-debtor
made a false statement and produced a forged receipt. The Court made a complaint
under section 195 of the Criminal Procedure Code for prosecution of the judgment-
debtor in respect of the said offences; it was held that if during the course of the
proceedings which were ultra vires and illegal any offence under section 471 of the
Code was committed, it could not be said that it was committed in or in relation to, or
by a party to, any judicial proceedings, in which evidence could be legally taken, and

therefore the complaint must be dismissed.73. Since enquiry conducted by an oﬃcer of
the Railway Protection Force is a judicial proceeding under section 9 of The Railway
Property (Unlawful Possession) Act, 1966, furnishing of false documents in course of

such an enquiry would amount to an offence under section 193, IPC, 1860.74. Giving
false evidence in support of the prosecution case during the course of trial falls within
the ambit of sections 193 and 195, IPC, 1860, and not under section 211, IPC, 1860, as
there is no institution of criminal proceeding in such a case.75. (See Comments under
sub-head "Falsely Charges" under section 211 infra.) Where the accused abetted the
offence of forgery by creating a false document with a view to use it in a suit but did
not use it in the suit, it was held that there was no question of prosecuting him under
section 193, IPC, 1860, nor was a Court complaint under section 195(1) (b) (i), Cr PC,
1973, necessary in the case. The accused could be safely prosecuted under section
467 read with section 114, IPC, 1860, on a private complaint.76.
Where the accused police-oﬃcer asked a police oﬃcial to forge the signature of his
superior on the carbon copy of the counter-aﬃdavit containing false averments and the

same was ﬁled in the Supreme Court with that forged signature, the accused was held
guilty of an offence under section 192.77.
Questions which a person is compelled to answer and the answers which have a
tendency to incriminate, cannot be the sole basis of a charge of perjury.78.
[s 193.1] Court Complaint: When?—
In Iqbal Singh Marwah v Meenakshi Marwah,79. the Constitution Bench held that the
section 195(1)(b)(ii) -Cr PC, 1973 which mandates that 'no Court shall take cognizance
of offences relating to documents given in evidence except on the complaint in writing
of that Court, or of some other Court to which that Court is subordinate', would be
attracted only when the offences enumerated in the said provision have been
committed with respect to a document after it has been produced or given in evidence

in a proceedings in any Court, i.e., during the time when the documents was in c u s t o d i a l 
l e g i s .80. Though the Rent Controller discharges quasi-judicial functions, he is not a
Court, as understood in the conventional sense and he cannot, therefore, make a
complaint under section 340 Cr PC, 1973.81.
[s 193.2] Belated complaint.—
A witness made false statement before a competent Court and the accused were
convicted. The appellate Court (Sessions Court) held that the witness had given false
statement and directed that a notice be issued to him to show cause why a complaint
under section 193, IPC, 1860 be not ﬁled against him. The notice was issued and after
hearing him, the Court directed that a complaint be ﬁled. The High Court found that the
notice issued to him was no notice because it did not specify the portions that were

found to be false, besides the statement was recorded ten years ago. The Court held
that it was not proper to ﬁle a complaint at that stage. The Court set aside the order of
the Sessions Judge.82.
[s 193.3] Supreme Court cannot convert itself into trial Court.—
The accused ﬁled a forged aﬃdavit before the Supreme Court. It was held by the three
Judge Bench that the Supreme Court could not try and convict the accused. The order
of the Supreme Court convicting the accused and sentencing him to three months'
imprisonment was liable to be set aside because of non-compliance of procedure
prescribed by sections 195 and 340, Cr PC, 1973 and also because of lack of original
jurisdiction to try a criminal offence under section 193, IPC, 1860. Directions to the

competent authority to proceed in the matter were not issued because the accused
had already served out the sentence of imprisonment imposed on him.83.
[s 193.4] False Aﬃdavits.—
The swearing of false aﬃdavits in judicial proceedings not only has the tendency of
causing obstruction in the due course of judicial proceedings but has also the tendency
to impede, obstruct and interfere with the administration of justice. The due process of
law cannot be permitted to be slighted nor the majesty of law be made a mockery by
such acts or conduct on the part of the parties to the litigation or even while appearing
as witnesses. Anyone who makes an attempt to impede or undermine or obstruct the
free ﬂow of the unsoiled stream of justice by resorting to the ﬁling of false evidence
commits criminal contempt of the Court and renders himself liable to be dealt with in
accordance with the Act. On facts, High Court found that apart from committing

contempt of Court the accused-1 has also committed an offence of perjury punishable
under section 193, IPC, 1860 committed in relation to proceedings of the Court. Court
directed the Registrar (Judicial) under section 340(3)(b), Cr PC, 1973 to ﬁle a complaint
before the jurisdictional Magistrate in this regard.84.
[s 193.5] CASES.—
A father handed over the custody of his minor daughter to the accused woman for
household chores, but thereafter his efforts to get back his daughter failed. He ﬁled a
habeas corpus petition and the Court directed the respondent to produce the girl in
response to which the respondent produced some other girl of the same name to
mislead the Court. The Court directed that a complaint under sections 193, 196 and
199 be lodged against the respondent.85. Declaration in an application ﬁled under

section 482 of Cr PC, 1973 that the applicant had not approached the Supreme Court
or the High Court earlier is not perjury, though applicant had ﬁled for anticipatory Bail
before the Sessions Court.86.
[s 193.6] Hostile witness.—
In a prosecution under sections 489B and 489C, all prosecution witnesses who were
police oﬃcials turned hostile. Subsequently they ﬁled aﬃdavits stating that they were
threatened by higher oﬃcers not to support their previous statements during
investigation. Court set aside the order of acquittal of the accused, ordered re-trial and
directed to proceed under sections 193 and 195A.87. After a long span of time, the
prosecution witnesses ﬁled a false aﬃdavit stating that they were coerced and tutored
by police. They were held liable for perjury.88.

2. 'In any other case'.—A statement made in the course of a public investigation under
section 164 of the Code of Criminal Procedure comes within these words.89. Whether
the accused has really made a false statement or not is a question of fact, which can
be decided at the trial and not in quashing proceeding, when the allegations, which
have been made against the accused do make out a prima facie case under section
193, IPC, 1860.90. A person married the daughter of his maternal uncle, after converting
to Christianity. If they married before conversion this marriage would have come under
'Sapindas relations' which is prohibited under the Hindu Marriage Act, 1955. After
conversion into Christianity the marriage does not fall under 'Sapinda' relationship. It

cannot be said that there was any false declaration. It is held that offence punishable
under section 193 of IPC, 1860 is not made out.91.
[s 193.7] Section 193 IPC, 1860 and Section 125A of the Representation of
Peoples Act, 1950.—
Where a speciﬁc penal provision is made under the Act providing a penalty for ﬁling
false aﬃdavit under section 125A of the Act, without anything more, for ﬁling such a
false aﬃdavit, that alone, no prosecution under the general penal provision of section
193 of the Penal Code is entertainable. Furthermore, the penal provision under section
193 IPC, 1860 has to be understood giving signiﬁcance to the expressions 'intentionally
giving or fabricating false evidence', 'in any stage of a judicial proceeding' or 'in any
other case.' Giving or fabricating false evidence in the aforesaid section whether it be in
the judicial proceeding or in any other case must have been intended to form an
opinion on the evidence erroneously and such forming of opinion should be touching

the point material to the result of such proceeding. Viewed in that angle the declaration
to be made by a candidate in his aﬃdavit ﬁled with his nomination paper over the
matters prescribed by the election commission when he contests an election, it cannot
be stated that the candidate is giving evidence by aﬃdavit but at best only a
declaration on the particulars sought for. If the candidate fails to furnish information or
gives false information which he knows or has reason to believe to be false or conceals
any information he is liable to be prosecuted only for the offence under section 125A of
the Act, and not for the penal offence under section 193 IPC, 1860.92.
[s 193.8] Section 193 IPC, 1860 and proceedings under section 340 Cr PC,
1973.—
Power to punish under section 344 Cr PC, 1973 and section 193 Cr PC, 1973 are

1973.—
distinct. Section 344 Cr PC, 1973 calls for summary trial, whereas under section 193
IPC, 1860 offender is to be tried as warrant case. Section 344 Cr PC, 1973 vests powers
in the Courts to summarily try and punish the accused. It is for this reason that section
344 Cr PC, 1973 prescribes sentence also. The Judge either should have convicted the
petitioner under section 344 Cr PC, 1973 or ought not to have invoked section 193 IPC,
1860. Once, the Judge opted to try the petitioner for the offence under section 193 IPC,
1860, it was incumbent upon him to hold an inquiry under section 340 Cr PC, 1973 and
then to frame a charge and try the offender for a warrant case as minimum sentence
prescribed under section 193 IPC, 1860 is three years.93. Before lodging a complaint as

provided by section 340 of the Code, the Court has to record a ﬁnding of any (i) prima
facie case and deliberate falsehood on a matter of substance; (ii) there is reasonable
foundation for the charge; and (iii) it is expedient in the interest of justice that a
complaint should be ﬁled.94. An enquiry when made, under section 340 (1) Cr PC, 1973,
is really in the nature of affording a locus paenitentiae to a person and if at that stage
the Court chooses to take action, it does not mean that he will not have full and
adequate opportunity in due course of the process of justice to establish his
innocence. When the trial of the appellant commences under section 193, IPC, 1860
the reasons given or those in the order passed under section 340 (1), Cr PC, 1973
should not weigh with the criminal Court in coming to its independent conclusion

whether the offence under section 193, IPC, 1860 has been fully established against
the appellant beyond reasonable doubt.95.

67.  The words "or before a Military Court of Request" omitted by Act 13 of 1889, section 2 and
Sch.
68.  Ismail Khan v State of Karnataka, 1992 Cr LJ 3566 (Kant).
69.  KTMS Mohd v UOI, AIR 1992 SC 2199 : 1992 Cr LJ 2781 .
70.  Sadasiba, (1956) Cut 87; Pravinchand v Ibrahim Md, 1987 Cr LJ 1795 (Bom).
71.  Bimal Das v The State of Tripura, 2012 Cr LJ 1252 (Gau).
72.  Thomman v IInd Addl Sessions Judge, 1994 Cr LJ 48 (Ker).
73.  Sumat Prasad v State, (1942) All 42 .
74.  BC Saxena, 1983 Cr LJ 1432 (AP).
75.  Santosh Singh v Izahar Hussain, 1973 Cr LJ 1176 : AIR 1973 SC 2190 [LNIND 1973 SC 160] .
76.  State of Karnataka v Hemareddy, 1981 Cr LJ 1019 : AIR 1981 SC 1417 [LNIND 1981 SC 44] :
(1981) 2 SCC 185 [LNIND 1981 SC 44] .
77.  Afzal v State of Haryana, AIR 1996 SC 2326 [LNIND 1996 SC 130] : 1996 Cr LJ 1679 .

78.  NSR Krishna Prasad v Directorate of Enforcement LBK Market, 1992 Cr LJ 1888 (AP). See
section 132, The Indian Evidence Act, 1972.
79.  Iqbal Singh Marwah v Meenakshi Marwah, (2005) 4 SCC 370 [LNIND 2005 SC 261] : AIR 2005
SC 2119 [LNIND 2005 SC 261] .
80.  Sushanta Sarkar v State of Nagaland, 2012 Cr LJ 4467 (Gau).
81.  Iqbal Singh Narang v Veeran Narang, AIR 2012 SC 466 [LNIND 2011 SC 1189] : (2012) 2 SCC
60 [LNIND 2011 SC 1189] ;2012 AIR (SCW) 730 : (2012) 1 SCC (Cr) 740.
82.  Jagdish Prasad Singhal v State of Rajasthan, 1994 Cr LJ 759 (Raj).
83.  Randhir Singh v State of Haryana, AIR 2000 SC 544 [LNIND 2000 SC 27] : 2000 Cr LJ 755 .
Another ruling to the same effect, MS Ahlawat v State of Haryana, AIR 2000 SC 168 [LNIND 1999
SC 1395] : (2000) Cr LJ 388 ; Mohammed Zahid v Govt. of NCT of Delhi, 1998 Cr LJ 2908 : AIR
1998 SC 2023 [LNIND 1998 SC 557] .

84.  Advocate General,Karnataka v Chidambara, 2004 Cr LJ 493 (Kant).
85.  R Rathinam v Kamla Vaiduriam, 1993 Cr LJ 2661 (Mad).
86.  Rajkumar Dhanuji Bombarde v Madhukar Wankhede, 2008 Cr LJ 661 (Bom).
87.  Court on Its Own Motion v State of Punjab, 2012 Cr LJ 2240 (PH).
88.  State of MP v Badri Yadav, 2006 Cr LJ 2128 : AIR 2006 SC 1769 [LNIND 2006 SC 229] :
(2006) 9 SCC 549 [LNIND 2006 SC 229] .
89.  Purshottam Ishvar, (1920) 23 Bom LR 1 ; 45 Bom 834 (FB). Mohammed Zahid v Govt. of NCT
of Delhi, AIR 1998 SC 2023 [LNIND 1998 SC 557] : 1998 Cr LJ 2908 , false entries in case diary,
interpolations, cooking up false case against the accused, show-cause notices issued against
the concerned police oﬃcer for the offence.
90.  Sushanta Sarkar v State of Nagaland, 2012 Cr LJ 4467 (Gau).
91.  O P Gogne v State, 2012 Cr LJ 1718 (Del).

92.  Ganesh Kumar v PK Raju, 2013 (2) Ker LT 434 : 1 LR 2013 (2) Ker 710 .
93.  Jaskaran v State of Haryana, 2008 Cr LJ 4261 (PH).
94.  Rit Lai Khatway v State of Bihar, 2007 Cr LJ 593 (Pat). See also State (Govt. of NCT of Delhi) v
Pankaj Chaudhary, AIR 2018 SC 5412 [LNIND 2018 SC 565] .

95.  K Karunakaran v TV Eachara Warrier, AIR 1978 SC 290 [LNIND 1977 SC 319] : (1978) 1 SCC
18 [LNIND 1977 SC 319] .

[s 194] Giving or fabricating false evidence with intent to procure conviction of
capital offence.
Whoever gives or fabricates false evidence, intending thereby to cause, or knowing it
to be likely that he will thereby cause, any person to be convicted of an offence which
is capital 96.[by the law for the time being in force in 97.[India]] shall be punished with
98.[imprisonment for life], or with rigorous imprisonment for a term which may extend
to ten years, and shall also be liable to ﬁne;
if innocent person be thereby convicted and executed.

and if an innocent person be convicted and executed in consequence of such
false evidence, the person who gives such false evidence shall be punished either
with death or the punishment hereinbefore described.
COMMENT.—
This is an aggravated form of the offence of giving or fabricating false evidence made
punishable by section 193.

96.  Subs. by the A.O. 1948, for "by the law of British India or England".
97.  Subs. by Act 3 of 1951, section 3 and Sch, for "the States" (w.e.f. 1 April 1951).
98.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
99.  Sur Nath Bhaduri, (1927) 50 All 365 .
100.  Suresh Chandra Sharma v State of MP, AIR 2009 SC 3196 ; 2009 Cr LJ 4288 (SC).
101.  Darshan Singh, 1985 Cr LJ NOC 71 (P&H). See also Baij Nath Dubey v Avas Evam Vikas
Parishad, 1997 Cr LJ 2681 (All).
To constitute an offence under this section the accused must give false evidence
intending thereby to cause some person to be convicted of a capital offence. A person
who brings before a Court a witness whom he has tutored to tell a false story
concerning a murder case before it, commits an offence under this section.99.

[s 194.1] CASE.—
Where the Investigating Oﬃcer fabricated false evidence by manipulating the records in
large number of documents to get the accused persons convicted and the time was
not mentioned in documents prepared during investigation conviction under section
194 was held proper.100. Where the Investigating Inspector concocted false evidence
with the help of two sarpanchas and villagers to rope in an innocent man in a false
murder case which led to his conviction by the Sessions Court and during the course of
hearing of the appeal in the High Court the so-called murdered man appeared in person
before the High Court, it was held that the Inspector, the sarpanchas and the other
witnesses were liable to be prosecuted under section 194, IPC, 1860, read with section
340, Cr PC, 1973.101.

[s 195] Giving or fabricating false evidence with intent to procure conviction of
offence punishable with imprisonment for life or imprisonment.
Whoever gives or fabricates false evidence intending thereby to cause, or knowing it
102.[by the law for the time being in force in 103.[India]] is not capital, but punishable
with 104.[imprisonment for life], or imprisonment for a term of seven years or
upwards, shall be punished as a person convicted of that offence would be liable to be
punished.

punished.
A gives false evidence before a Court of Justice, intending thereby to cause Z to be
convicted of a dacoity. The punishment of dacoity is 105.[imprisonment for life], or
rigorous imprisonment for a term which may extend to ten years, with or without ﬁne.
A, therefore, is liable to 106.[imprisonment for life] or imprisonment, with or without
ﬁne.
COMMENT.—

102.  Subs. by the A.O. 1948, for "by the law of British India or England".
103.  Subs. by Act 3 of 1951, section 3 and Sch, for "the States" (w.e.f. 1 April 1951).
104.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
105.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
106.  Subs. by Act 26 of 1955, section 117 and Sch., for "such transportation" (w.e.f. 1 January
1956).
107.  Bhugwan Ahir, (1867) 8 WR (Cr) 65.
108.  Rameshar Rai, (1877) 1 All 379 .
This section is similar to the preceding section except as regards the gravity of the
offence in respect of which the perjury is committed. The preceding section deals with
perjury in the case of an offence punishable with death, this section deals with perjury

of an offence punishable with imprisonment for life or imprisonment for a term of
seven years or upwards. In the case of a person who burnt his own house and charged
another with the act, it was held that he should not be convicted under this section, but
under section 211,107. but where A, with a view to having B convicted, assisted in
concealing stolen railway pins in his house and ﬁeld, it was held that A was properly
convicted of an offence under this section.108. Giving false evidence in support of the
prosecution case amounts to an offence under sections 193 and 195, IPC, 1860, and
not under section 211, IPC, 1860.109. Misstatement of facts and concealment of an
essential fact in a writ petition amounts to giving false evidence. The petitioner was
liable to face proceedings for giving false evidence.110. It is not necessary that

fabrication of false evidence takes place only inside the Court as it can also be
fabricated outside the Court though has been used in the Court.111.
A Disciplinary Proceedings Tribunal is not a Court for the purposes of this section. It is
not "a court in the accepted sense of that term, though it may possess some of the
trappings of a court."112. A party giving an answer to a question put under Order 10 r. 2
of the CPC when not under oath and when not being examined as a witness, cannot
attract section 195 IPC, 1860.113. Police-oﬃcers fabricated the evidence in order to
book the appellant under TADA. From the materials on record, Supreme Court was of
the opinion that it is expedient in the interest of justice that an enquiry should be made
in accordance with sub-section (1) of section 340, Cr PC, 1973 into the commission of

offences under sections 193, 195 and 211.114.
[s 195.1] St. Kitts (Chandraswamy) Case.—
The respondent, was at the relevant time, serving as Director (Enforcement) with the
government of India. The respondent was a public servant at the time of the
commission of the alleged offence, no cognizance of the offence could have been
taken against him in the absence of sanction under section 197 Criminal Procedure
Code.115.

109.  Santokh Singh, 1973 Cr LJ 1176 : AIR 1976 SC 2190 .
110.  Dehri Cooperative Development v State of Bihar, 2002 Cr LJ 3396 (Pat); Mohommed Zahid v
Govt. NCT of Delhi, 1998 Cr LJ 2908 : AIR 1998 SC 2023 [LNIND 1998 SC 557] : (1998) 5 SCC
419 [LNIND 1998 SC 557] , for note on the case see under section 193. Also see Harrianna
Gowda v State of Karnataka, 1998 Cr LJ 4756 (Kant).
111.  Ram Dhan v State of UP, 2012 (4) Scale 259 [LNIND 2012 SC 1057] : 2012 AIR (SCW) 2500 :
2012 Cr LJ 2419 : (2012) 5 SCC 536 [LNIND 2012 SC 1057] : AIR 2012 SC 2513 [LNIND 2012 SC
1057] relied on Sachida Nand Singh v State of Bihar, (1998) 2 SCC 493) [LNIND 1998 SC 138] .
112.  R Venkat Reddy v State of AP, 1992 Cr LJ 414 .
113.  Kapil Corepacks Pvt Ltd v Harbans Lal, 2 AIR 2010 SC 2809 [LNIND 2010 SC 697] : 2010 (7)
Scale 558 [LNIND 2010 SC 697] : (2010) 9 SCR 500 [LNIND 2010 SC 697] : (2010) 3 SCC (Cr)
924.
114.  Mohd Zahid v Govt. of NCT of Delhi, AIR 1998 SC 2023 [LNIND 1998 SC 557] : (1998) 5 SCC
419 [LNIND 1998 SC 557] .

924.
115.  State through Central Bureau of Investigation v B L Verma, (1997) 10 SCC 772 ; See also
Asha Sunder Shivdasani v Aruna Ramesh Kriplani, 2001 Cr LJ 2146 (Bom) - proceedings quashed
as hit by section 195 Cr PC, 1973.

116.[s 195A] Threatening or any person to give false evidence.
[Whoever threatens another with any injury to his person, reputation or property or to
the person or reputation of any one in whom that person is interested, with intent to
cause that person to give false evidence shall be punished with imprisonment of
either description for a term which may extend to seven years, or with ﬁne, or with
both;
and if innocent person is convicted and sentenced in consequence of such false
evidence, with death or imprisonment for more than seven years, the person who

both;
threatens shall be punished with the same punishment and sentence in the same
manner and to the same extent such innocent person is punished and sentenced.]
directed to proceed under sections 193 and 195A.117.

116.  New section 195A Ins. by The Criminal Law (Amendment) Act, 2005 (Act No. 2 of 2006),
section 2 (w.e.f. 16 April 2006 vide Notfn. No. SO 523(E), dated 12 April 2006.
117.  Court on Its Own Motion v State of Punjab, 2012 Cr LJ 2240 (PH).

[s 196] Using evidence known to be false.
Whoever corruptly uses or attempts to use as true or genuine evidence any evidence
which he knows to be false or fabricated, shall be punished in the same manner as if
he gave or fabricated false evidence.
COMMENT.—
This section applies to those who make use of such evidence as is made punishable by
sections 193, 194 and 195. It must be read with sections 191 and 192, and can only
apply to the use of evidence which was false evidence within the meaning of section
191, or fabricated evidence within the deﬁnition laid down in section 192.118. Where an

expert witness deposing on behalf of the defence claimed to be a diploma holder in
criminology from the Imperial College of Science and Technology, London and it was
found that the said claim was totally false and the diploma produced by him was a
forged document, it was held he committed an offence in relation to Court proceedings
under sections 193 and 196, IPC, 1860, and as such a Court complaint under section
195 (1)(b)(i), Cr PC, 1973, was necessary to prosecute him.119.

118.  Lakshmaji, (1884) 7 Mad 289, 290.
119.  Dr. S Dutt, 1966 Cr LJ 459 : AIR 1966 SC 595 [LNIND 1965 SC 196] .
120.  Bibhuranjan Gupta, (1949) 2 Cal 440 .
The word 'corruptly' in this section means something different from "dishonestly" or
"fraudulently". Although the user may not be dishonest or fraudulent, it may
nevertheless be corrupt, if the user is designed to corrupt or prevent the course of
justice. A person who ﬁles rent receipts alleged to have been granted by one of the
landlords, who actually signs the receipts to support a false case of a tenancy under
the landlord, does not commit an offence under section 471, but is guilty of corruptly
using as true or genuine evidence which he knows to be false within the meaning of
this section.120.

[s 197] Issuing or signing false certiﬁcate.
Whoever issues or signs any certiﬁcate required by law to be given or signed, or
relating to any fact of which such certiﬁcate is by law admissible in evidence, knowing
or believing that such certiﬁcate is false in any material point, shall be punished in the
same manner as if he gave false evidence.
COMMENT.—
Several laws require a certiﬁcate of some matter to be given. The offence of certifying
in any of these, knowing or believing that the certiﬁcate is false, is put on the same

COMMENT.—
footing as the offence of giving false evidence. The certiﬁcate must, however, be false
in a material point. The issuing or signing must be by the oﬃcer or person authorized to
certify.
[s 197.1] Ingredients.—
The section has two essentials:—

121.  Mangtu Ram v State of Rajasthan, 2003 Cr LJ 4733 (Raj).
122.  D Jothi v KP Kandasamy, 2000 Cr LJ 292 (Mad).
123.  Mahabir Thakur, (1916) 23 CLJ 423; Kumar Choudhari v State, (1936) 16 Pat 21; Prafulla
Kumar Khara, (1942) 1 Cal 573 . A caste certiﬁcate issued by an MLA to a student to enable him
to get a pre-matric scholarship has been held to be not a certiﬁcate within the meaning of this
section. Haladhara Karji v Dileswar Subudhi, 1989 Cr LJ 629 (Ori), no caste was mentioned in the
1. Issuing or signing of a certiﬁcate—
(a) required by law to be given or signed, or
(b) relating to a fact of which such certiﬁcate is by law admissible in
evidence.
2. Such certiﬁcate must have been issued or signed knowing or believing that it is
false in any material point.

evidence.
Before convicting a person for offence under section 197, IPC, 1860 the prosecution
must prove the following facts:-—
(i) that the document in question purports to be a certiﬁcate;
(ii) that such certiﬁcate is required by law to be given or signed, or that it related to
some fact of which such certiﬁcate is by law admissible in evidence;
(iii) that such certiﬁcate is false;
(iv) that it is false in a material point;
(v) that the accused issued or signed the same;
(vi) that he, when doing so, knew or believed, such certiﬁcate to be false.121.
[s 197.2] Certiﬁcate.—
As per section 197, certiﬁcate contemplated therein is a certiﬁcate, which is required
not to be given or signed for the use in the Court's administration of Justice. That
means, certiﬁcate is issued as required by some law and it has some reference to

some statutory requirements. Information given by petitioner to Process Server is that
he has not heard about the Noticee for the last two years and his whereabouts are not
known. That is not a certiﬁcate contemplated under any statute. Therefore, section 197
also will have no application.122. The expression "by law admissible in evidence"
means that the certiﬁcate should by some provision of law be admissible in evidence
as such a certiﬁcate without further proof.123. A medical certiﬁcate is not such a
certiﬁcate and the issue or use of a false medical certiﬁcate does not render a person
liable under this section or section 198.124.

certiﬁcate. Premlata v State of Rajasthan, 1998 Cr LJ 1430 (Raj), a statement would become a
false certiﬁcate if the law requires the issue of such a certiﬁcate as a legal proof. In this case
the certiﬁcate was issued by the headmaster, though he was not authorised to do so. The
candidate used the certiﬁcate for obtaining an appointment. A prima facie case under section
198 was made out against the headmaster.
124.  Prafulla Kumar Khara, Ibid.

[s 198] Using as true a certiﬁcate known to be false.
Whoever corruptly uses or attempts to use any such certiﬁcate as a true certiﬁcate,
knowing the same to be false in any material point, shall be punished in the same
manner as if he gave false evidence.
COMMENT.—
This section is connected with section 197 just as section 196 is connected with
sections 193, 194 and 195.125. Appellant used the duplicate certiﬁcate with changes,
as a true certiﬁcate knowing it to be false in material particular and thereby got

admission in Polytechnic. Therefore, there is no reason to interfere with the conviction.
However, looking to the nature of the offence and the fact that the appellant's past and
present records have been good and the fact that he has already lost his career and is
now married, reduced the sentence to that already undergone.126.

125.  Premlata v State of Rajasthan, 1998 Cr LJ 1430 (Raj), for notes on the case see under
section 197.
126.  Tulsibhai Jivabhai Changani v State of Gujarat, (2001) 1 SCC 719 [LNIND 2000 SC 2333] :
2001 Cr LJ 741 .

[s 199] False statement made in declaration which is by law receivable as
evidence.
Whoever, in any declaration made or subscribed by him, which declaration any Court
of Justice, or any public servant or other person, is bound or authorised by law to
receive as evidence of any fact, makes any statement which is false, and which he
either knows or believes to be false or does not believe to be true, touching any point
material to the object for which the declaration is made or used, shall be punished in
the same manner as if he gave false evidence.
COMMENT.—

COMMENT.—
This section makes the penalty attached to the offence of giving false evidence
applicable to declarations which, although not compellable, have, on being made, the
same effect as the compulsory declarations referred to in sections 51 and 191.127.
Voluntary declarations are thus placed on the same level as compulsory declarations.
The Supreme Court has said that the complaint for an offence under section 199, IPC,
1860, must make out the offence by singling out false averment in the complaint. Thus,
where the allegation was that the accused had used a false aﬃdavit before the Rent

127.  A Vedamuttu, (1868) 4 MHC 185 ; Asgarali v State, (1943) Nag 547.
128.  Chandrapal Singh, 1982 Cr LJ 1731 : AIR 1982 SC 1238 : (1982) 1 SCC 466 . Shiv Raman
Gaur v Madan Mohan Kanda, 1990 Cr LJ 1033 P&H.
129.  Maharashtra State Electricity Distribution Co Ltd v Datar Switchgerar Ltd, (2010) 10 SCC 479
[LNIND 2010 SC 979] : 2011 Cr LJ 8 L : (2010) 12 SCR 551 : (2011) 1 SCC (Cr) 68.
130.  Chandrapal Singh v Maharaj Singh, AIR 1982 SC 1238 (1982) 1 SCC 466 .
131.  D Jothi v KP Kandasamy, 2000 Cr LJ 292 (Mad).
Controller but the complaint did not set out a single averment from the said aﬃdavit,
which is said to be false, it was held that the complaint was not maintainable.128.
[s 199.1] Ingredients.—
This section requires three essentials:—
1. Making of a declaration that a Court or a public servant is bound or authorised by

law to receive in evidence.
2. Making of a false statement in such declaration knowing or believing it to be
false.
3. Such false statement must be touching any point material to the object for which
the declaration is made or used.129. Section 199 provides punishment for making
a false statement in a declaration that is by law receivable in evidence. Rival
contentions set out in aﬃdavits accepted or rejected by Courts with reference to
onus probandi do not furnish foundation for a charge under section 199, IPC,
1860.130. A declaration before it could be made the foundation of charge under
section 199 of IPC, 1860, it is necessary that it must be admissible in evidence as
proof of the fact declared under any law in consequence of which the Court is
bound or authorised to receive it as such.131.

[s 200] Using as true such declaration knowing it to be false.
Whoever corruptly uses or attempts to use as true any such declaration, knowing the
same to be false in any material point, shall be punished in the same manner as if he
gave false evidence.
E x p l a n a t i o n .—A declaration which is inadmissible merely upon the ground of some
informality, is a declaration within the meaning of sections 199 to 200.
COMMENT.—
This section is connected with the last section just as section 198 is with section 197
or section 196 with sections 193, 194 and 195. The person who uses a false

COMMENT.—
declaration is made liable as one who makes it.

[s 201] Causing disappearance of evidence of offence, or giving false
information to screen offender—.
Whoever, knowing or having reason to believe that an offence has been committed,1
causes any evidence of the commission of that offence to disappear, with the
intention of screening the offender2 from legal punishment, or with that intention
gives any information respecting the offence which he knows or believes to be false;
if a capital offence;
shall, if the offence which he knows or believes to have been committed is

punishable with death, be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to ﬁne;
if punishable with imprisonment for life;
and if the offence is punishable with 132.[imprisonment for life], or with
imprisonment which may extend to ten years, shall be punished with
imprisonment of either description for a term which may extend to three years,
and shall also be liable to ﬁne;

if punishable with less than ten years' imprisonment.
and if the offence is punishable with imprisonment for any term not extending to
ten years, shall be punished with imprisonment of the description provided for the
offence, for a term which may extend to one-fourth part of the longest term of the
imprisonment provided for the offence, or with ﬁne, or with both.
A, knowing that B has murdered Z, assists B to hide the body with the intention of
screening B from punishment. A is liable to imprisonment of either description for
seven years, and also to ﬁne.
COMMENT.—
Object.—This section relates to the disappearance of any evidence of the commission
of an offence and includes also the giving of false information with the intention of
screening an offender. Sections 202 and 203 relate to the giving or omitting to give
such information, and section 204 to the destruction of documentary evidence.
There are three groups of sections in the Code relating to the giving of information.

First, sections 118–120 deal with concealment of a design to commit an offence;
second sections 176, 177, 181 and 182 deal with omission to give information and with
the giving of false information; and, third, sections 201–203 deal with causing the
disappearance of evidence.
[s 201.1] Scope.—
The Supreme Court has held that this section is not restricted to the case of a person
who screens the actual offender; it can be applied even to a person guilty of the main
offence, though as a matter of practice a Court will not convict a person both of the
main offence and under this section.133.
But, if the commission of the main offence is not brought home to the accused, then he
can be convicted under this section.134. Where it is impossible to say deﬁnitely that a
person has committed the principal offence he cannot escape conviction under this

section merely because there are grounds for suspicion that he might be the principal
culprit.135. A woman's husband and in-laws could not be convicted of murdering her
because there was no evidence whatsoever. They were convicted under this section
because they gave no reasonable explanation of the unnatural death and had also
disposed of the body in suspicious circumstances (dead body found near railway
track).136. The fact that the accused persons cannot be convicted for offence
punishable under section 302 IPC, 1860 does not extricate them from the offence
under section 201 IPC, 1860.137. In a case of bride burning, where the post-mortem
report was that death was due to throttling, burning her subsequently was held to be a
clear proof of the fact that the evidence of strangulation was sought to be destroyed by

the accused husband by pouring kerosene and setting her ablaze. The conviction of the
husband under sections 201, 302 and 498-A was held to be proper.138.
A statement given by a person in the course of an investigation by the police cannot
amount to an offence under this section and section 203, even if it ultimately turns out
to be false.139. The allegation against the appellant was that, he had deliberately
shielded the real offenders in the murder case and was accordingly liable for the
offence under section 201 of the IPC, 1860. Supreme Court acquitted the accused

holding that it is not possible on the evidence to ascertain, as to whether the appellant
was, in fact, guilty of the offence alleged against him.140.
The Supreme Court has held that where the evidence showed that a person had died
and his body was found in a trunk and discovered in a well, and that the accused had
taken part in the disposal of the body but there was no evidence to show the cause of
his death, or the manner or circumstances in which it came about, it was held that the
accused could not be convicted for an offence under this section.141. In other words,
the mere secreting of a dead body without ﬁrst proving that the corpse secreted was
the corpus delicti of a murder case is no offence under section 201, IPC, 1860.142.
[s 201.2] Independent offence.—
A charge under section 201 of the IPC, 1860 can be independently laid and conviction
maintained also, in case the prosecution is able to establish that an offence had been

committed, the person charged with the offence had the knowledge or the reason to
believe that the offence had been committed, the said person has caused
disappearance of evidence and such act of disappearance has been done with the
intention of screening the offender from legal punishment. Mere suspicion is not
suﬃcient, it must be proved that the accused knew or had a reason to believe that the
offence has been committed and yet he caused the evidence to disappear so as to
screen the offender. The offender may be either himself or any other person.143. It has
been held that the offence under the section is of independent nature, though it cannot
be separated from the substance of the main offence. Accordingly, a conviction under
the section can be recorded even though the commission of the main offence is not

established. The Court, however, pointed out that such cases are likely to be very small
in number. Applying this to the facts of the case, the Court held that the accused was
guilty of offence under this section because he had buried the dead body of his wife in
his ﬁeld and misguided the police of her disappearance, though, because of
decomposition, it could not be proved that he was responsible for her death.144.
[s 201.3] Ingredients.—
To bring home a charge under section 201, IPC, the prosecution must prove:—
(1) That an offence has been committed.
(2) That the accused knew or had reason to believe the commission of such an
offence.
(3) That with such knowledge or belief he
(a) caused any evidence of the commission of that offence to disappear, or
(b) gave any information relating to that offence which he then knew or
believed to be false.

(4) That he did so as aforesaid with the intention of screening the offender from
legal punishment.
(5) If the charge be of an aggravated form, it must be further proved that the
offence in respect of which the accused did as in (3) and (4) supra, was
punishable with death or imprisonment for life or imprisonment extending to ten
years.145.

1. 'Knowing or having reason to believe that an offence has been committed'.—It must
be proved that an offence, the evidence of which the accused is charged with causing
to disappear, has actually been committed,146. and that the accused knew, or had
information suﬃcient to lead him to believe, that the offence had been committed.147.
Unless the prosecution was able to establish that the accused person knew or had
reason to believe that an offence has been committed and had done something
causing the offence of commission of evidence to disappear, he cannot be
convicted.148.
Where the accused committed rape on a seven-year-old minor girl at his studio, killed
her and disposed of her dead body in a carton. The dead body of the deceased was
found in the carton, which the accused procured from witness. Conviction under
sections 302, 376 and 201 IPC, 1860 is maintained.149.
The charge framed was for causing disappearance for evidence. The fact that

concealment was the likely effect of the Act is not enough. There was no evidence to
attribute the knowledge of the death of the victim woman to the accused. Hence, the
essential ingredient of the offence was missing.150.
[s 201.4] Causing disappearance by preventing information from reaching
police.—
Where after raping a girl of 11 years the accused persons thrust a stick into her private
part of which she died and they falsely told the mother of the victim that they had
already reported the matter to the police and in the meantime there was disappearance
of evidence, they were held liable under this section.151. Where the Court has no case
that there is any intentional omission to give information by the accused to the police,
the conviction under section 201 cannot be maintained only on the ground that no

communication was given to the police and that the post-mortem had not been
performed. It is also no case of the complainant that he had requested for post-
mortem of the body and that intimation should have been given to the police before the
last rites were performed and there is also no charge under section 202 of the IPC,
1860 of intentionally omitting to give information of the unnatural death to the
police.152.
2. 'Intention of screening offence of offender'.—The intention to screen the offender
must be the primary and sole object of the accused. The fact that the concealment was
likely to have that effect is not suﬃcient.153. The accused person killed his brother and
his whole family in order to avoid partition of the joint family property. There was no
evidence to show that his son had common intention with him or participated in the

commission of the crime. But because he had seen his father commit multiple
murders, he tried to destroy the evidence by throwing away certain articles on two
occasions from over a bridge. It seemed obvious that he had done that with the
primary object of saving his father. He was convicted under this section.154.
Where a man shot down his wife with his pistol, his companion, who played no other
role, but concealed the authorship of the homicide, he was held guilty under this
section.155. Where the co-accused persons told the investigating oﬃcer that the
deceased was not present in the house at the material time, it was held that this
amounted to the offence of screening the offender.156.
[s 201.5] Cases.—

In the Jessica Lal murder Case157. the Supreme Court upheld the conviction of co-
accused under section 201 read with section 120-B IPC, 1860 considering the evidence
relating to their presence at the time of incident, removal of Tata Safari, his call details
etc. as well as the evidence of PWs 30 and 101. In another case where the accused
committed murder of his wife assaulting on her head with a chopper did cause the
evidence to disappear by setting ﬁre to the dead body after pouring kerosene on her, it
is found that the accused has committed an offence punishable under sections 302
and 201 of IPC, 1860.158. Where unnatural conduct of appellants to dispose of dead
body of victim without having awaited for victim's husband who was already on his way
to home and the evidence shows that victim died under unnatural circumstances,
conviction under sections 302 and 201 IPC, 1860 is upheld.159. Where the accused
husband strangulated his young wife to death and attempted to destroy evidence by

burning her dead body, the order of acquittal of the accused of the offence under
sections 300 and 201 was reversed by the Apex Court.160.
[s 201.6] Help rendered to conceal crime.—
Where a person through fear did not interpose to prevent the commission of a murder,
and afterwards helped the murderers in concealing the body, it was held that he was
not guilty of abetment of murder but was guilty of an offence under this section.161. A
person who assists the actual murderers in removing the corpse of their victim to a
distance from the place where the murder was committed is prima facie guilty of an
offence under this section, until he can establish that he acted under compulsion.162.
Where it appeared from the statement of the accused that he took from the men who,
according to him committed the murder, a jewel which was unquestionably the

property of the deceased and he hid it and produced it later, it was held that the
accused, when he hid the jewel, had the intention of screening the offender, whoever he
was, from legal punishment and so was guilty of an offence under this section.163. The
death of a woman was caused on the ﬁrst ﬂoor of the house and her mother-in-law, the
only other occupant of the house at the time of the occurrence, was residing on the
ground ﬂoor. The place of incident was intermeddled and bamboo pieces, rafters, and
broken tiles were thrown over the dead body with a view to cause disappearance of
evidence and to screen the offender. It was held that it was not possible without the
complicity of the mother-in-law and hence though she could not be held guilty of
murder or abetting it, she was guilty of an offence under section 201.164.
[s 201.7] Death in custody.—

Where there was death of a person in the police custody while he was detained there
for interrogation and his dead body was not traced, however, the evidence of other
witnesses who were also beaten up and injured by the police, categorically established
that the deceased became unconscious on receipt of injuries inﬂicted by the police and
died, it was held that an irresistible inference could be drawn that the police personnel
who caused the death, must also have caused the disappearance of the body.165.
[s 201.8] Bride burning.—
In a bride burning case, the victim was murdered and thereafter her body was burnt to
screen the offence. The guilt of the accused mother-in-law and that of the husband of
the victim as particeps criminis was established beyond any shadow of doubt. The

order of acquittal passed by the High Court from the offence of murder was reversed
and set aside and that of the trial Court convicting both the accused under section 300
was upheld. The mother-in-law was also convicted under section 201.166.
[s 201.9] False explanation by wife of death of husband.—
The accused wife attempted to explain away the death of her husband by saying that
he was attempting suicide and while she attempted to save him, he fell, down to death.
A search of her house showed evidence of murder. The Court said that even if she had
not herself caused death, she was in know of things and attempted to explain away the
incident by false explanations. The ﬁnding of guilt and her conviction under the section
could not be interfered with.167.
[s 201.10] Kidnapping, murder and concealment.—
The charge was that of Kidnapping the girl, murdering her and then concealing the
dead body. The police brought the accused to his house. He himself dug the place from

where the body was exhumed. The accused admitted that the house belonged to him.
The accused failed to explain how the body came to be buried in his house. The
Supreme Court conﬁrmed his conviction under sections 300, 364 and 201.168.
[s 201.11] Disposal of dead body by burning.—
The fact that the accused, after killing his two minor daughters, threw their dead bodies
in the river, which amounted to causing disappearance of the evidence of murder.169.
[s 201.12] Failure of doctor to give information.—
The failure on the part of the doctor to give information to police for six days after the
admission of a burnt patient has been held not to constitute any offence under section
201 by itself.170.
[s 201.13] Threat to approver.—
Oral threat or inducement given by the two lady lawyers to the approver not to give any

statement against the petitioner, cannot amount to commission of an offence under
section 201 IPC, 1860.171.
[s 201.14] Sanction under section 197 Cr PC, 1973.—
In a case where the allegation was that HIV contaminated blood was supplied to the
Government Medical College Hospital and as a result, some patients who were given
blood transfusion had tested HIV positive. Accused tampered with the entries made in
oﬃcial register, tearing of pages from the different oﬃcial registers and stowing them

away in house. The acts cannot be related to the discharge of his oﬃcial duties and
hence sanction for prosecution under section 197 Cr PC, 1973 not required.172.
[s 201.15] Acquittal for main offence, conviction under section 201.—
One Palvinder Kaur was tried for offence under sections 302 and 201 Penal Code and
was convicted under section 302 IPC, 1860 but no verdict was recorded regarding the
charge under section 201 Penal Code. In appeal, High Court acquitted her of the charge
of murder, but convicted under section 201 of Penal Code. In the appeal before
Supreme Court, it was held that in order to establish the charge under section 201 IPC,
1860 it is essential to prove that substantive offence has been committed and the
accused knew or had reason to believe that such offence has been committed with
requisite knowledge and intention of screening the offender from such legal
punishment, caused any evidence of the commission of that offence to disappear or

gave any information respecting such offence or having such knowledge or believed to
be false. She is acquitted under section 201 IPC, 1860.173. Conviction for causing
disappearance of evidence is possible even if nobody has been convicted for the main
offence.174. Where the allegation was that the appellant killed his wife with a bamboo
stick and buried her dead body in dry portion of pond located in his compound and
there was no mark of injury found on the dead body; Court held that the possibility that
deceased committed suicide by consuming poison cannot be ruled out. Though he was
acquitted under section 302, but was convicted under section 201 IPC, 1860.175.
[s 201.16] Main accused died during pendency of trial.—
Where main accused died during pendency of trial, conviction of co-accused for
causing disappearance of evidence is held not proper.176.

[s 201.17] CASES.—
however, submitted with respect that having regard to the decisions of the Supreme
Court in the cases of Om Prakash,177. and Abhayanand,178. where it has been held that
to constitute an attempt to commit an offence it is not essential that the last proximate
act must be done by the accused, in the instant case too the accused could perhaps be
held guilty of an attempt to cause disappearance of the evidence of murder under
sections 201/511, IPC, 1860, as they, in fact, did all that lay within their power to do
towards causing disappearance of the evidence of murder but the plot failed as the
police intervened in the matter. Where the members of an unlawful assembly
indiscriminately killed ﬁve persons, dragged the dead bodies over a distance, beheaded

the victims and threw their limbs and bodies in the raging ﬁre, they not only committed
an offence under section 201, IPC, 1860, but were also liable under sections 302/149,
IPC, 1860.179. If murder of an illegitimate child remains unproved, mere secreting of the
dead body of the child does not constitute an offence under section 201 IPC, 1860.180.
Where the complaint ﬁled under section 201, IPC, 1860, besides mentioning the section
did not contain a single word as to how the evidence of the crime was destroyed, it was
held that no cognizance could be taken on such a complaint as it did not even contain
allegations to constitute the offence under section 201, IPC, 1860.181. Mere removal of
dead body from one place to another does not by itself amount to causing
disappearance of evidence under section 201, IPC, 1860.182. Where the dead bodies

were disposed of by some of the members of the unlawful assembly, all of them could

132.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1-1-1956).
133.  Kalawati, (1953) SCR 546 [LNIND 1953 SC 5] , at p 557. Followed in VL Tresa v State of
Kerala, AIR 2001 SC 953 [LNIND 2001 SC 364] , wife of the deceased concealing the real
circumstances of death. Ram Singh v State of HP, 1997 Cr LJ 1829 : 1997 SCC (Cr) 729, for
notes see under section 120-B.
134.  Nebti Mandal, (1939) 19 Pat 369.
135.  Public Prosecutor v Venkatamma, (1932) 56 Mad 63.
136.  Bakhora Chowdhary v State of Bihar, 1991 Cr LJ 91 (Pat). A father-in-law convicted for
lodging report of suicide of his daughter-in-law when he knew it was murder. Brij Kishore v State
of UP, 1989 Cr LJ 616 (All).
137.  Asar Mohammad v State of UP, AIR 2018 SC 5264 .
138.  Deepak v State of Maharashtra, (1995) 2 Cr LJ 2219 (Bom).

139.  Markose, (1962) 1 Cr LJ 610 .
140.  Rathinam v State of TN, (2011) 3 SCC (Cr) 111 : (2011) 11 SCC 140 [LNIND 2009 SC 1873] :
2010 (11) Scale 6 [LNINDORD 2009 SC 542]
141.  Palvinder Kaur, (1953) SCR 94 [LNIND 1952 SC 54] : 1953 Cr LJ 154 : AIR 1952 SC 354
[LNIND 1952 SC 54] . See Bhupendra Singh v State of UP, AIR 1991 SC 1083 [LNIND 1991 SC
151] : 1991 Cr LJ 1337 : 1991 All LJ 379 : (1991) 2 SCC 750 [LNIND 1991 SC 151] . See also
State of UP v Kapil Deo, AIR 1991 SC 2257 [LNIND 1991 SC 397] : 1991 Cr LJ 3321 : 1991 Supp
(2) SCC 170 ; Suleman Rahiman v State of Maharashtra, AIR 1968 SC 829 [LNIND 1967 SC 354] :
1968 Cr LJ 1013 ; Roshan Lal v State of Punjab, AIR 1965 SC 1413 [LNIND 1964 SC 339] : 1965
(2) Cr LJ 426 ; Batapa Bada Seth v State of Orissa, 1987 Cr LJ 1976 (Ori); Sardar Singh v State

(Delhi Admn.), AIR 1993 SC 1696 [LNIND 1993 SC 153] : 1993 Cr LJ 1489 : 1993 Supp (2) SCC
393 . Ram Saran Mahto v State of Bihar, 1999 Cr LJ 4311 : AIR 1999 SC 3435 [LNIND 1999 SC
782] ; Gati Bahera v State of Orissa, 1997 Cr LJ 4331 (Ori).
142.  Basanti v State of HP, AIR 1987 SC 1572 : 1987 Cr LJ 1869 : (1987) 3 SCC 227 . For other
examples of acquittals under beneﬁt of doubt, see Kedar Nath v State of UP, AIR 1991 SC 1224 :
1991 Cr LJ 989 ; Kishore Chand v State of HP, AIR 1990 SC 2140 [LNIND 1990 SC 468] : 1990 Cr
LJ 2289 . Sudhir Mondal v State of WB, 1988 Cr LJ 569 (Cal); State of Rajasthan v Kamla, AIR
1991 SC 967 : 1991 Cr LJ 602 .
143.  Dinesh Kumar Kalidas Patel v State of Gujarat, AIR 2018 SC 951 .
144.  Suresh v State of Karnataka, 2002 Cr LJ 3273 (Kant).

145.  K Purnachandra Rao, 1975 Cr LJ 1671 : AIR 1975 SC 1925 [LNIND 1975 SC 316] . Sukhram
v State of Maharashtra, (2007) 7 SCC 502 [LNIND 2007 SC 969] : AIR 2007 SC 3050 [LNIND 2007
SC 969] , the Supreme Court restated the ingredients of the offence.
be convicted under section 201 read with section 149, IPC, 1860.183. Where the
accused cremated the dead body of his wife who had committed suicide without
informing the police, the accused was held liable under section 201 in spite of he being
acquitted under sections 304-B and 498-A.184.

146.  Abdul Kadir v State, (1880) 3 All 279 (FB).
147.  Matuki Misser, (1885) 11 Cal 619 . Hanuman v State of Rajasthan, AIR 1994 SC 1307
[LNIND 1993 SC 992] : (1994) 2 Cr LJ 2092 : 1994 Supp (2) SCC 39 , where it was not proved
that the dead body in question was that of the victim of murder or that the accused persons
were themselves the assailants or knew the assailants, the Supreme Court held that it was not
safe to convict them only on the ground that they performed the ceremonies for cremation of
the body and took part in cremation. Arbind Singh v State of Bihar, AIR 1994 SC 1068 : 1994 Cr
LJ 1227 (SC), another case where the participants in a cremation were acquitted because they
had no knowledge or reason to believe that the death was homicidal.
148.  Dinesh Kumar Kalidas Patel v State of Gujarat, AIR 2018 SC 951 .
149.  Samir Bhowmik v State of Tripura, 200 Cr LJ 3018 (Gau).
150.  Vijaya v State of Maharashtra, (2003) 8 SCC 296 [LNIND 2003 SC 739] : AIR 2003 SC 3787
[LNIND 2003 SC 739] .

151.  Ghuraiyaa v State of MP, 1990 Cr LJ 1129 . Naba Kumar Das v State of Assam, 2002 Cr LJ
1950 (Gau).
152.  Dinesh Kumar Kalidas Patel v State of Gujarat, AIR 2018 SC 951 .
153.  Jamnadas, (1963) 1 Cr LJ 433 ; Dr. Ravindra Kumar v State of Bihar, 1991 Cr LJ 3052 (Pat).
154.  Prakash Dhawal Khairnar v State of Maharashtra, AIR 2002 SC 340 [LNIND 2001 SC 2841] at
348.
155.  Bhanu Pratap Tewari v State of UP, 2002 Cr LJ 1243 (All).
156.  Vithal Thukaram More v State of Maharashtra, AIR 2002 SC 2715 [LNIND 2002 SC 449] ;
Hargovindas Devrajbhai Patel v State of Gujarat, 1998 Cr LJ 662 : AIR 1998 SC 370 [LNIND 1997
SC 1443] . In Rabin Mallick v State of West Bengal, 2011 Cr LJ 3801 (Cal) the body of the
deceased boy was concealed in a place in the exclusive knowledge of accused. Conviction was

held proper but in Udaimanik Jamatia v The State of Tripura, 2011 Cr LJ 4167 (Gau) accused was
acquitted though there was recovery of skeleton at the instance of accused.
157.  Sidhartha Vashisht v State (NCT of Delhi), AIR 2010 SC 2352 [LNIND 2010 SC 367] : (2010)
2 SCC (Cr) 1385.
158.  Channaraja v State of Karnataka, 2012 Cr LJ 159 (Kar) Sk Waheed v State of Bihar, 2010 Cr
LJ 1870 (Pat).
159.  Diwan Singh v State of Uttaranchal, 2012 Cr LJ 3256 (Utt) But in Ramakanta Patel v State of
Orissa, 2011 Cr LJ 600 (Ori). See also Netrananda Naik v State of Orissa, 2011 Cr LJ 813 (Ori).
160.  Mulakh Raj v Satish Kumar, AIR 1992 SC 1175 [LNIND 1992 SC 322] : 1992 Cr LJ 1529 .
Turuku Budha Karkaria v State of Orissa, 1994 Cr LJ 552 (Ori), killing a woman, removing her

ornaments, concealing her body in a bush in deep forest, killers guilty under the section,
sentenced under section 302.
161.  Goburdhun Bera, (1866) 6 WR (Cr) 80.
162.  Autar, (1924) 47 All 306 ; Begu, (1925) 52 IA 191 , 6 Lah 226, 27 Bom LR 707, followed in
Mata Din v State, (1929) 5 Luck 255 . Raveendran v State of Kerala, 1994 Cr LJ 3562 (Ker), the
accused offered a helping hand to the main accused in disposing of the dead body, conviction
under section 201.
163.  Public Prosecutor v Munisami, (1941) Mad 503.
164.  Vinod Bhalla v State of MP, 1992 Cr LJ 3527 (MP). See also Sankarapandian v State of TN,
1992 Cr LJ 3662 (Mad); Budhan Singh v State of Bihar, 2006 Cr LJ 2451 SC : AIR 2006 SC 1959
[LNIND 2006 SC 300] .
165.  Bhagwan Singh v State of Punjab, AIR 1992 SC 1689 [LNIND 1992 SC 396] : 1992 Cr LJ
3144 .

166.  Sarojini v State of MP, 1993 AIR SCW 817 : 1993 Cr LJ 1648 (SC). See also Bhuneshwar Pd
Chaurasia v Bhuneshwar Chaurasia, 2001 Cr LJ 3541 (Pat), a married woman died of poisoning,
she was cremated hurriedly during the same night without informing police or her relatives.
Those who participated in the activity were held guilty under the section; Shambir Gowada v
State of WB, 2000 Cr LJ 1602 (Cal); SK Usman v State of Maharashtra, 2000 Cr LJ 3301 (Bom).
167.  VL Tresa v State of Kerala, AIR 2001 SC 953 [LNIND 2001 SC 364] .
168.  Damodar v State of Karnataka, AIR 2000 SC 50 [LNIND 1999 SC 884] : 2000 Cr LJ 175 .
169.  State of West Bengal v Rakesh Singh, (2016)1 CALLT 178 (HC) : 2015 Cr LJ 3847 .
170.  KK Patnayak (Dr) v State of MP, 1999 Cr LJ 4911 (MP).
171.  Sri Jayendra Saraswathy Swamigal v State of TN, AIR 2006 SC 6 [LNIND 2005 SC 815] :
(2005) 8 SCC 771 [LNIND 2005 SC 815] : 2005 Cr LJ 4626 .
172.  State of Maharashtra v Devahari Devasingh Pawar, AIR 2008 SC 1375 [LNIND 2008 SC 103] :

(2008) 2 SCC 540 [LNIND 2008 SC 103] : 2008 AIR (SCW) 815 : 2008 Cr LJ 1593 .
173.  Palvinder Kaur v State of Punjab, AIR 1952 SC 354 [LNIND 1952 SC 54] .
174.  State of Karnataka v Madesha, (2007) 7 SCC 35 [LNIND 2007 SC 918] : AIR 2007 SC 2917
[LNIND 2007 SC 921] ; Sukhram v State of Maharashtra, (2007) 7 SCC 502 [LNIND 2007 SC 969] :
AIR 2007 SC 3050 [LNIND 2007 SC 969] , conviction under section 201 possible despite
acquittal from the main offence.
175.  Suman Rajowar v State of Assam, 2011 Cr LJ 2984 (Gau).
176.  Keshave Kishore Sinha v State of Bihar, 2013 Cr LJ (NOC)7 (Pat).
177.  Om Prakash, 1961 (2) Cr LJ 848 : AIR 1961 SC 1782 [LNIND 1961 SC 201] .
178.  Abhayanand, 1961 (2) Cr LJ 822 .
179.  State of UP v Mahendra Singh, 1975 Cr LJ 425 : AIR 1975 SC 455 [LNIND 1974 SC 320] .

180.  Re Sumitra Sherpani, 1975 Cr LJ 169 (Gau), See also Mazahar Ali, 1976 Cr LJ 1629 (J&K).
181.  Chandrapal Singh, 1982 Cr LJ 1731 : AIR 1982 SC 1238 : (1982) 1 SCC 466 .
182.  Bhagaban Kirshani, 1985 Cr LJ 868 (Ori).
183.  Ram Avtar, 1985 Cr LJ 1865 (SC) : AIR 1985 SC 880 [LNIND 1985 SC 4] .
184.  Sunkara Suri Babu v State of AP, 1996 Cr LJ 1480 (AP).

[s 202] Intentional omission to give information of offence by person bound to
inform.
Whoever, knowing or having reason to believe that an offence has been committed,
intentionally omits to give any information respecting that offence which he is legally
bound to give, shall be punished with imprisonment of either description for a term
which may extend to six months, or with ﬁne, or with both.
COMMENT.—
This section punishes the illegal omission to give information of those who are by
some law bound to give information, when such omission is intentional. It is similar to

COMMENT.—
section 176. See sections 39 and 40, Criminal Procedure Code, as to the persons
legally bound to give information. The word "whoever" in section 202, IPC, 1860, refers
to persons other than the offender.185. Moreover to compel a criminal to incriminate
himself would violate the spirit of Article 20(3) of the Constitution. Where the duty to
inform arises ﬁrst and is not performed, the liability under this section would arise and
it would be no defence that subsequent to the breach of duty there was involvement of

the accused person in some crimes. The person who knew or had reason to believe
that death was not natural was obliged under the section to give information.186.
[s 202.1] Essential Ingredients.—
To sustain a conviction under the above quoted section 202 of the Penal Code, it is
necessary for the prosecution to prove:
(1) that the accused had knowledge or reason to believe that some offence had been
committed,
(2) that the accused had intentionally omitted to give information respecting that
offence and
(3) that the accused was legally bound to give that information.187.
332 The Indian Penal Code [Chapter XI
[s 202.2] CASES.—
The accused persons who raped a girl of 11 years and caused her death by thrusting a
stick into her private part were under no obligation to ﬁle information of their own
criminality, they became liable under this section because by falsely telling the mother
of the victim that they had already reported the matter, they prevented her from lodging
report with the police.188.

This section has also no application where the principal offence has not been
established.189.
[s 202.3] Failure of doctor to give information.—
The allegation was the Accused, a dentist treated one of the injured assailants by
suturing (stitching) his wound on the back after applying local anaesthesia pursuance
of a previous plan that if and when any of the assailants got injured in the attack then
immediate medical treatment would be given by the accused to the injured. The
accused stitched the back of an assailant, which is not the job of a dentist. Offence
under section 201 prima facie made out.190. The failure on the part of the doctor to give
information to the police (in this case information was given after a gap of six days)
has been held not to constitute any offence under section 202. It would have to be
shown that doctors were duty bound to give such information that there was

knowledge that in the burning of the lady some offence was involved. Even where this
would be so, it would be a separate offence. The doctors cannot be prosecuted jointly
with the main accused.191.

185.  HS Rathod, 1979 Cr LJ 1025 : AIR 1979 SC 1232 [LNIND 1979 SC 43] .
186.  Bhagwan Swarup v State of Rajasthan, AIR 1991 SC 2062 [LNIND 1991 SC 416] : 1991 Cr LJ
3123 .
187.  HS Rathod, (supra).
188.  Ghuraiyaa v State of MP, 1990 Cr LJ 1129 . State of Rajasthan v Chhote Lal, 2012 Cr LJ
1214 (SC) : 2011 (6) Scale 526 : 2012 AIR (SCW) 1159.
189.  HS Rathod, supra.
190.  State of Kerala v Raneef, (2011) 1 SCC 784 [LNIND 2011 SC 3] : AIR 2011 SC 340 [LNIND
2011 SC 3] : 2011 Cr LJ 982 : (2011) 1 SCC (Cr) 409.
191.  KK Patnayak (Dr) v State of MP, 1999 Cr LJ 4911 (MP).

[s 203] Giving false information respecting an offence committed.
Whoever knowing or having reason to believe that an offence has been committed,
gives any information respecting that offence which he knows or believes to be false,
192.[E x p l a n a t i o n .—In sections 201 and 202 and in this section the word "offence",
includes any act committed at any place out of 193.[India], which, if committed in 194.

[India], would be punishable under any of the following sections, namely, 302, 304,
382, 392, 393, 394, 395, 396, 397, 398, 399, 402, 435, 436, 449, 450, 457, 458, 459
and 460.]
COMMENT.—
The liability under this section attaches to anyone who gives false information whether
he is legally bound to furnish such information or not. The object of the Legislature is
to discourage and punish the giving of false information to the police concerning
offences which are actually committed and which the person charged with knows, or

192.  Added by Act 3 of 1894, section 6.
193.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
194.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
Act 3 of 1951, section 3 and Sch (w.e.f. 1 April 1951), to read as above.
195.  Bhagguram, 1982 Cr LJ 106 (MP).
196.  Jiji joseph v Tomy Ignatius, 2013 Cr LJ 828 (Ker).
197.  Kumar v State of Kerala, 2012 Cr LJ 3193 (Ker).
198.  Nagireddi Siva v State of AP, 1992 Cr LJ 1339 (AP).
has reason to believe, have been actually committed. The section contemplates
information volunteered by some person.
[s 203.1] Ingredients.—
To secure a conviction under section 203, IPC, 1860, the prosecution must prove,
(1) that an offence has been committed;

(2) that the accused knew or had reason to believe that such offence had been
committed;
(3) that he gave the information with respect to that offence;
(4) that the information so given was false;
(5) that when he gave such information he knew or believed it to be false.195.
A complaint against the petitioners/accused for committing an offence under section
203 of the IPC, 1860 would lie only in a case where such accused had voluntarily given
false information in respect of an offence committed knowing or believing it to be
false. Statements given by them to police during investigation of the crime and
recorded under section 161 of the Code even if it is false, will not constitute an offence
under section 203 of the IPC, 1860.196. Where two nuns died due to fall of bricks lifted

by hoist lift without protective measures at construction site. Deed of settlement
purportedly made in the name of a ﬁctitious person so as to save the culpability of the
contractor. Offence made out.197. Where the accused were prosecuted for throttling a
man to death and also for giving for the purpose of screening murder wrong
information that he died of excessive drinking, there being no direct evidence for the
offence of murder, the accused were acquitted of the offence of murder and their
conviction under section 201 was modiﬁed into one under section 203 for giving false
information.198. Where petitioners were charged under section 203 and section 211,
IPC, 1860 by the police only to cover up their mishandling of the investigation and their

having falsely charged the petitioners of a crime which never took place, Court ordered
compensation to the petitioners.199.

199.  Peruboyina Satyanarayana v State of AP, 2006 Cr LJ 3027 (AP).

[s 204] Destruction of document to prevent its production as evidence.
Whoever secretes or destroys any 200.[document or electronic record] which he may
be lawfully compelled to produce as evidence in a Court of Justice, or in any
proceeding lawfully held before a public servant, as such, or obliterates or renders
illegible the whole or any part of such 201.[document or electronic record] with the
intention of preventing the same from being produced or used as evidence before
such Court or public servant as aforesaid, or after he shall have been lawfully

summoned or required to produce the same for that purpose, shall be punished with
COMMENT.—
Section 175 deals with omission to produce or deliver up any document to any public
servant, this section deals with secretion or destruction of a document which a person
may lawfully be compelled to produce in a Court. A person may secrete a document
not only when the existence of the document is unknown to other persons and for the

200.  Subs. by The Information Technology Act, 2000 (Act 21 of 2000), section 91 and First Sch,
w.e.f. 17 October 2000, for the word "document". The words "electronic record" have been
201.  Subs. by The Information Technology Act, 2000 (Act 21 of 2000), section 91 and First Sch.,
202.  Susenbihari Ray, (1930) 58 Cal 1051 (SB).
203.  Subramania Ghanapati, (1881) 3 Mad 261.
204.  Muhammad Shah Khan, (1898) 20 All 307 . See also Jagdish v State of Rajasthan, 2002 Cr
LJ 2171 .
purpose of preventing the existence of the document coming to the knowledge of
anybody, but also when the existence of the document is known to others.202.
The offence under this section is an aggravated form of the offence punishable under

section 175. The section applies whether the proceeding is of a civil or criminal nature.
[s 204.1] CASES.—Secreting document.—
Where the plaintiff in a suit referred to arbitration by consent, with a view to prevent a
witness from referring to an endorsement on a bond, snatched up the bond which was
lying beside the arbitrator, ran away, and refused to produce it, it was held that he had
committed this offence.203.
[s 204.2] Destroying document.—
Where a police-oﬃcer took down at ﬁrst the report of the commission of a dacoity
made to him, but subsequently destroyed that report and framed another and a false
report of the commission of a totally different offence, he was held guilty of this
offence.204.

[s 205] False personation for purpose of act or proceeding in suit or
prosecution.
Whoever falsely personates another, and in such assumed character makes any
admission or statement, or confesses judgment, 1 or causes any process to be issued
or becomes bail or security, or does any other act in any suit or criminal prosecution,
extend to three years, or with ﬁne, or with both.
COMMENT.—
The offence punishable under this section is not merely cheating by using a ﬁctitious

COMMENT.—
name, but by falsely assuming to be some other real person and in that character
making an admission, confessing judgment, or causing any process to be issued, etc.
Any fraudulent gain or a beneﬁt to the offender is not an essential element of this
offence.205. Where A personated B at a trial with B's consent, which was given to save
himself from the trouble of making an appearance in person before a Magistrate, it was
held that A was guilty of an offence under this section, and B was guilty of abetment of

205.  Suppakon, (1863) 3 MHC 450 ; Kalya, (1903) 5 Bom LR 138 .
206.  Suppakon, supra.
207.  Jawahar Yadav v State of Chhattisgarh, 2006 Cr LJ 2078 (Chh).
208.  Bhitto Kahar, (1862) 1 Ind Jur OS 128. See also K M Chitharanjan v P M Kunhunni, 2005 Cr
LJ 4434 (Ker).
209.  Kadar Ravuttan, (1868) 4 MHC 18 . By virtue of the provision in section 195 Cr PC, 1973,
cognizance of an offence under this section is barred except on a complaint by the court where
the offence is committed. Sardul Singh v State of Haryana, 1992 Cr LJ 354 (P&H).
the offence.206. Act of impersonating another for purpose of giving evidence in Court
falls under section 205 IPC, 1860. Section 205, IPC, 1860 is squarely covered under
section 195(b)(i) of the Code of Criminal Procedure and cognizance could be taken

only by a Court on the complaint in writing of that Court in which such offence was
committed.207.
1. 'Confesses judgment'.—Allows a decree to be passed against himself.
[s 205.1] Personation of imaginary person.—
There is a conﬂict of opinion on the point whether a person commits an offence under
this section by personating a purely imaginary person. The Calcutta High Court has
held that a person by such personation commits an offence under this section.208. The
Madras High Court, dissenting from the above ruling, has held that it is not enough to
show the assumption of a ﬁctitious name; it must also appear that the assumed name
was used as a means of falsely representing some other individual.209.

[s 206] Fraudulent removal or concealment of property to prevent its seizure as
forfeited or in execution.
Whoever fraudulently removes, conceals, transfers or delivers to any person any
property or any interest therein, intending thereby to prevent that property or interest
therein from being taken as a forfeiture or in satisfaction of a ﬁne, under a sentence
which has been pronounced, or which he knows to be likely to be pronounced, by a
Court of Justice or other competent authority, or from being taken in execution of a

decree or order which has been made, or which he knows to be likely to be made by a
Court of Justice in a civil suit, shall be punished with imprisonment of either
description for a term which may extend to two years, or with ﬁne, or with both.
COMMENT.—
The concealment or removal of property contemplated in this section must be to
prevent the property from being taken. Where the property is already taken and the
removal is subsequent, the offence under this section is not committed.210. The word
'taken' has been used in the sense of 'seized' or 'taken possession of'.211. Where the

210.  Murli v State, (1888) 8 AWN 237.
211.  Sahebrao Baburao, (1936) 38 Bom LR 1192 .
212.  Kudumban v Dinakaran, 1962 Cr LJ 555 .
213.  Appa Mallya, (1876) Unrep CrC 110.
214.  MS Ponuswami, (1930) 8 Ran 268.
removal was open and without any element of secrecy or deception, it was held that
the removal was not "fraudulent removal" and hence this section could not apply.212.
A creditor commits no fraud who anticipates other creditors and obtains a discharge of
his debt by the assignment of any property which has not already been attached by
another creditor.213.
Sections 206, 207 and 208 have the effect of rendering criminal all collusive modes by
which creditors, or lawful claimants may be defeated of their just remedies. Sections
421–424 deal with fraudulent transfers.

Under this and the next section a civil suit must be actually pending before a Court, and
not merely intended to be ﬁled.214.

[s 207] Fraudulent claim to property to prevent its seizure as forfeited or in
execution.
Whoever fraudulently accepts, receives or claims any property or any interest therein,
knowing that he has no right or rightful claim to such property or interest, or practices
any deception touching any right to any property or any interest therein, intending
thereby to prevent that property or interest therein from being taken as a forfeiture or
in satisfaction of a ﬁne, under a sentence which has been pronounced, or which he
knows to be likely to be pronounced by a Court of Justice or other competent

authority, or from being taken in execution of a decree or order which has been made,
or which he knows to be likely to be made by a Court of Justice in a civil suit, shall be
COMMENT.—
This section deals with the receiver, acceptor, or claimer of property who tries to
prevent its seizure as a forfeiture. It punishes the accomplice just as the preceding
section punishes the principal offender.

[s 208] Fraudulently suffering decree for sum not due.
Whoever fraudulently causes or suffers a decree or order to be passed against him at
the suit of any person for a sum not due or for a larger sum than is due to such person
or for any property or interest in property to which such person is not entitled, or
fraudulently causes or suffers a decree or order to be executed against him after it
has been satisﬁed, or for anything in respect of which it has been satisﬁed, shall be

A institutes a suit against Z. Z, knowing that A is likely to obtain a decree against him,
fraudulently suffers a judgment to pass against him for a larger amount at the suit of B,
who has no just claim against him, in order that B, either on his own account or for the
beneﬁt of Z, may share in the proceeds of any sale of Z's property which may be made
under A's decree. Z has committed an offence under this section.
COMMENT.—

This section prevents the abuse of getting someone to ﬁle a collusive suit for recovery
of the whole property and suffering a decree to be passed. It punishes persons making
ﬁctitious claims in order to secure the property of the defendant against person to
whom he may become indebted in future.

[s 209] Dishonestly making false claim in Court.
Whoever fraudulently or dishonestly, or with intent to injure or annoy any person,
makes in a Court of Justice any claim which he knows to be false, shall be punished
with imprisonment of either description for a term which may extend to two years, and
COMMENT.—
This section relates to false and fraudulent claims in a Court of Justice. It is much
wider than the last section as it applies to a person who is acting fraudulently or
dishonestly. Not only must the claim be false to the knowledge of the person making it,

but the object of it must be to defraud, to cause wrongful loss or wrongful gain, to
injure or to annoy. The section punishes the making of a false claim. The offence will
be complete as soon as a suit is ﬁled. If a person applies for the execution of a decree
which has already been executed his act will be an offence under the next section.215.
Where the Court took cognizance of a complaint against dishonestly making a false
claim in a Court without complaint of the concerned civil judge, the cognizance was
held to be not justiﬁed by reason of section 195(b)(ii), Cr PC, 1973 that covers such

215.  Beegum Mahtoon, (1869) 12 WR (Cr) 37; Bismilla Khan v Rambhau, (1946) Nag 686.
Cognizance of an offence under this section can be taken on a complaint by the court
concerned. See section 195 Cr PC, 1973. Sardul Singh v State of Haryana, 1992 Cr LJ 354 P&H.
216.  Babu Lal v State, 1998 Cr LJ 3595 (Raj). See also Vinod Kumar v State, 1997 Cr LJ 2893
(P&H).
217.  Kusum Sandhu v Sh Ved Prakash Narang, 2009 Cr LJ 1078 (Chh); Babu Lal v State of
Rajasthan, 2009 Cr LJ 3595 (Raj).
offences.216. The Court had no jurisdiction to take cognizance of offence under
sections 193/ 209/34 IPC, 1860 without having received any complaint under section
195 from the concerned civil Court.217.

[s 210] Fraudulently obtaining decree for sum not due.
Whoever fraudulently obtains 1 a decree or order against any person for a sum not
due or for a larger sum than is due, or for any property or interest in property to which
he is not entitled, or fraudulently causes a decree or order to be executed against any
person after it has been satisﬁed 2 or for anything in respect of which it has been
satisﬁed or fraudulently suffers or permits any such act to be done in his name, shall

two years, or with ﬁne, or with both.
COMMENT.—
This section is the counterpart to section 208 in respect of fraudulent decrees, just as
section 207 is the counterpart to section 206 in respect of fraudulent transfers and
conveyances, the object of the Code being to strike both parties alike with the same
penalty. This section, taken together with section 208, will enable both plaintiff and
defendant to a fraudulent or collusive suit or execution to be dealt with alike.
1. 'Obtains'.—The offence is committed when the decree is fraudulently obtained and
the fact that the decree has not been set aside, though admissible to prove that there

218.  Molla Fuzla Karim, (1905) 33 Cal 193 .
219.  Shama Charan Das v Kasi Naik, (1896) 23 Cal 971 .
220.  Hikmat-ullah Khan v Sakina Begam, (1930) 53 All 416 .
221.  Bismilla Khan v Rambhau, (1946) Nag 686.
222.  Madhub Chunder Mozumdar v Novodeep Chunder Pandit, (1888) 16 Cal 126 ; Mutturaman
Chetti, (1881) 4 Mad 325; Pillala, (1885) 9 Mad 101.
was no fraud, is not a bar to a prosecution under the section.218.
2. 'Causes a decree or order to be executed...after it has been satisﬁed'.—The mere
presentation of an application for the execution of a decree already executed will not
be suﬃcient. The accused must have caused the decree to be executed against the
opposite party after it had been satisﬁed;219. or obtained an order for attachment for a
sum already paid.220. Where the decree-holder does not want to proceed with the

execution and gets his execution application dismissed he cannot be convicted of an
offence under this section.221.
The fact that the satisfaction is of such a nature that the Court executing the decree
could not recognize it does not prevent the decree-holder from being convicted of an
offence under this section.222.

[s 211] False charge of offence made with intent to injure.
Whoever, with intent to cause injury1 to any person, institutes or causes to be
instituted any criminal proceedings2 against that person, or falsely charges3 any
person with having committed an offence, knowing that there is no just or lawful
ground4 for such proceeding or charge against that person, shall be punished with
ﬁne, or with both; and if such criminal proceeding be instituted5 on a false charge of

an offence punishable with death, 223.[imprisonment for life], or imprisonment for
seven years or upwards, shall be punishable with imprisonment of either description
for a term which may extend to seven years, and shall also be liable to ﬁne.
COMMENT.—
This section includes two distinct offences:—
(1) Actually instituting or causing to be instituted false criminal proceeding against
a person.224.

(2) Preferring a false charge against a person.
The ﬁrst assumes the second, but the second may be committed where no criminal
proceedings follow.
The necessary ingredients to constitute either of the above offences are—
(1) the criminal proceedings must be instituted, or the false charge made with
intent to injure;
(2) the criminal proceedings must be instituted, or the false charge must be made,
without just or lawful ground, in other words, it must be made maliciously.
Difference is made in punishment according as the charge relates to offences
punishable with imprisonment which may extend to seven years or more or otherwise.
The mere making of a false charge is punishable under the ﬁrst part of the section. If a
case gets no further than a police inquiry, it falls within that part. But under the second
part there should be an actual institution of criminal proceedings on a false charge.225.
Two conditions are necessary before the enhanced punishment provided in the second

paragraph could be inﬂicted: (1) proceedings on the false charge should have been
actually instituted, and (2) the false charge must be in respect of an offence punishable
with death, imprisonment for life, or imprisonment for seven years or upwards.
[s 211.1] Sections 182 and 211.—
According to the Bombay High Court there is a clear distinction between a false charge
that falls under section 211 and false information given to the police, in which latter
case the offence falls under section 182. A person prosecuting another under section
182 need not prove malice and want of reasonable and probable cause except so far
as they are implied in the act of giving information known to be false, with the
knowledge or likelihood that such information would lead a public servant to use his

power to the injury or annoyance of the complainant. In an inquiry under section 211,
on the other hand, proof of the absence of just and lawful ground for making the
charge is an important element.226. If the information conveyed to the police amounts
to the institution of criminal proceedings against a deﬁned person or amounts to the
falsely charging of a deﬁned person with an offence, then the person giving such
information is guilty of an offence under section 211. In such a case, section 211 is,
and section 182 is not, the appropriate section under which to frame a charge. Section
182, when read with section 211, must be understood as referring to cases where the
information given to the public servant falls short of amounting to institution of
criminal proceedings against a deﬁned person and falls short of amounting to the

falsely charging of a deﬁned person with an offence as deﬁned in the Penal Code.227.
The Calcutta, the Madras, the Allahabad and the Patna High Courts differ from this
view of the Bombay High Court. The Calcutta High Court has ruled that a prosecution
for a false charge may be under section 182 or section 211, but if the false charge was
a serious one, the graver section 211 should be applied and the trial should be full and
fair.228. Where a false charge is made to the police of a cognizable offence the offence
committed by the person making the charge falls within the meaning of section 211
and not section 182.229.
The Madras High Court has held that there is no error in a conviction under section 182,
when the false charge made before the police was punishable under the ﬁnal clause of

section 211. The High Court may quash the conviction and sentence for the minor
offence and direct a trial before a tribunal having jurisdiction for the graver offence.

Whether it will do so, or not, is a question, not of law, but of expediency on the facts of
the particular case.230.
The Allahabad High Court had held that where a speciﬁc false charge is made, the
proper section, for proceedings to be adopted under section 211.231. Although it is
diﬃcult to see what case would arise under section 211 to which section 182 could not
be applied yet section 182 would apply to a case that might not fall under section 211.
The offence under section 182 is complete when false information is given to a public
servant by a person who believes it to be false, but who intends thereby to cause such
public servant to institute criminal proceedings against a third person. The offence is
complete although the public servant takes no steps towards the institution of such
criminal proceedings. There is no restriction imposed by the Penal Code or by the
Criminal Procedure Code upon the prosecution of an offence either under section 182

or section 211. It appears that it has been left to the discretion of the Court to
determine when and under what circumstances prosecution should be proceeded with
under sections 182 and 211.232. The soundness of this view is doubted in subsequent
cases.233.
The Patna High Court has followed the view of the Calcutta High Court.234.
The Lahore High Court has held that an offence under section 182 is included in the
more serious offence under section 211 and a prosecution for a false charge may be
either under section 182 or section 211, though clearly if section 211 does apply and
the false charge is serious, the prosecution should be under section 211.235.
1. 'Intent to cause injury'.—This is an essential part of the offence.236.
2. 'Institutes or causes to be instituted any criminal proceedings'.—The word

"proceedings" is used in this section in the ordinary sense of a prescribed mode of
action for prosecuting a right or redressing a wrong. It is not used in the technical
sense of a proceeding taken in a Court of law.237. Neither the proceedings before the
Disciplinary Committee of the Bar Council of India, is a criminal proceeding nor was the
charge in the Disciplinary Proceedings in relation to an offence. Charge in the
Disciplinary Proceedings before the Bar Council of India is only in respect of
professional misconduct and not offence as such.238. Under this section 'instituting a
criminal proceeding' may be treated as an offence in itself apart from 'falsely charging'
a person with having committed an offence. There are two modes in which a person
aggrieved may seek to put the criminal law in motion: (1) by giving information to the

police (Criminal Procedure Code, section 154) and (2) by lodging a complaint before a
Magistrate (Criminal Procedure Code, sections 190, 200). A person who sets the
criminal law in motion by making to the police a false charge in respect of a cognizable
offence institutes criminal proceedings.239. But as the police have no power to take any
proceedings in non-cognizable cases without orders from a Magistrate, a false charge
of such offence, made to the police, is not an institution of criminal proceedings, but
merely a false charge.240. The distinction between cognizable and non-cognizable
offences relates to the powers of the police only, and it will, therefore, seem that the
false charge of any offence, whether cognizable or non-cognizable, before a Magistrate
is an institution of criminal proceedings.

3. 'Falsely charges'.—The word 'charges' means something different from 'gives
information'. The true test seems to be, does the person who makes the statement that
is alleged to constitute the 'charge' do so with the intention and object of setting the
criminal law in motion against the person against whom the statement is directed?
Such object and intention may be inferred from the language of the statement and the
circumstances in which it is made.241. The false charge must be made to a Court, or to
an oﬃcer who has power to investigate and send it up for trial.242. Where the tribunal

before whom the complaint is made is not competent to take any action direct or
indirect to punish the persons complained against, it cannot be said that the accused
'charged' such persons with any offence or that his intention necessarily was that
action should be taken against them.243. A false petition to the Superintendent of
Police, praying for the protection of the petitioners from the oppression of a Sub-
Inspector, which may be effected by some departmental action, does not amount to
such a false charge.244. It is enough that a false charge is made though no prosecution
is instituted thereon.245. Where a person who gives false information as to the
commission of an offence merely states that he suspected a certain other person to be
the offender, it may be that he would not be liable under this section, but where it is
clear that the informant's intention was not merely that the police should follow up a
clue but that they should put the alleged offender on trial, the informant is guilty of an

offence under this section.246. The Calcutta High Court has held that the meaning of
the expression 'falsely charges' is simply 'falsely accuses' and as the section stands
there is no necessity of this false accusation being made in connection with a criminal
proceeding.247.
[s 211.2] Giving false Evidence: No false charge.—
The words "falsely charges" in this section cannot mean giving false evidence against
the accused as a prosecution witness during the course of a trial. To "falsely charge"
must refer to the criminal or initial accusation putting or seeking to put in motion the
machinery of criminal investigation and not when seeking to prove the false charge by
making deposition in support of the charge framed in that trial. The words "falsely
charges" have to be read along with the expression "institution of criminal

proceedings". The false charge must, therefore, be made initially to a person in
authority or to someone who is in a position to get the offender punished by
appropriate proceedings. In other words it must be embodied either in a complaint or in
a report of a cognizable offence to the police-oﬃcer or to an oﬃcer having authority
over the person against whom the allegations are made. Giving false evidence in
course of a trial amounts to an offence under sections 193 and 195 and not under
section 211, IPC, 1860.248.
[s 211.3] Bare statement is not false charge.—
A statement to the police of a suspicion that a particular person has committed an
offence is not a charge within the meaning of this section, nor does it amount to
institution of criminal proceedings; and a conviction cannot be had on proof that the

suspicion was unfounded.249. The accused made a report to the police that his buffalo
had been poisoned and that he suspected two persons whom he named of having
administered the poison. The police made an inquiry and reported that there was no
case of poisoning and the charge was struck off. One of the persons then brought a
complaint under this section against the accused. It was held that the report to the
police did not amount to a charge of a criminal offence.250.
[s 211.4] Statement under section 162, Criminal Procedure Code.—
A statement under section 162, Criminal Procedure Code, in answer to questions put by
a police-oﬃcer making an investigation under section 161 of the Code, cannot be made

the basis of a prosecution under this section.251. False identiﬁcation in a Test
Identiﬁcation Parade is not falsely charging.252.
4. 'Knowing that there is no just or lawful ground'.—This expression is the equivalent of
the English technical phrase "without reasonable or probable cause," which means an
honest belief in the guilt of the accused based upon a full conviction, founded upon
reasonable grounds, of the existence of a state of circumstances, which, assuming
them to be true, would reasonably lead any ordinarily prudent and cautious man, placed
in the position of the accuser, to the conclusion that the person charged was probably
guilty of the crime imputed. There must be:
First, an honest belief of the accuser in the guilt of the accused;
Second, such belief must be based on an honest conviction of the existence of the
circumstances which led the accuser to that conclusion;
Third, such belief must be based upon reasonable grounds; that is, such grounds as

would lead any fairly cautious man in the defendant's situation so to believe;
Fourth, the circumstances so believed and relied on by the accuser must be such as
amount to reasonable ground for belief in the guilt of the accused.253.
A person may, in good faith, institute a charge that is subsequently found to be false, or
he may, with intent to cause injury to an enemy, institute criminal proceedings against
him, believing there are good grounds for them but in neither case has he committed
an offence under this section. To constitute this offence it must be shown that the
person instituting criminal proceedings knew there was no just or lawful ground for
such proceedings.254.
In the absence of any special circumstances to rebut it, the judgment of one competent
tribunal against the complainant affords very strong evidence of reasonable and
probable cause.255.

5. 'If such criminal proceeding be instituted'.—There is a divergence of views between
the Calcutta, the Madras and the Patna High Courts on the one hand, and the Allahabad
and the Lahore High Courts on the other, on the question whether the latter part of the
section applies to such cases of complaints to the police which are disposed of
without a formal magisterial inquiry. A Full Bench of the Calcutta High Court has held
that the latter part would apply to such cases where the charge related to the more
serious offence.256. This case is followed by the Madras257. and the Patna258. High
Courts. The test to apply is,—did the person who made the charge intend to set the
criminal law in motion against the person on whom the charge is made.259.

The Allahabad High Court has, on the other hand, held that to constitute the offence
deﬁned in the second paragraph of this section, it is necessary that criminal
proceedings should be instituted. Where the offence committed does not go further
than the making of a false charge to the police, the making of such charge does not
amount to institution of criminal proceedings, and the offence committed will fall
within the ﬁrst paragraph, notwithstanding that the offence so falsely charged may be
one of those referred to in the second paragraph.260. The former Chief Court of the
Punjab held likewise.261.
[s 211.5] Complaint by Court: when.—

A complaint alleging commission of an offence punishable under section 211 IPC,
1860, "in or in relation to any proceedings in any Court", is maintainable only at the
instance of that Court or by an oﬃcer of that Court authorized in writing for that
purpose or some other Court to which that Court is subordinate, is abundantly clear
from the language employed in the provision.262. When the offence under section 211,
IPC, 1860, is committed in relation to Court proceedings, cognizance without Court's
complaint is barred by section 195 (1)(b)(i), Cr PC, 1973.263. Since an order of a
Magistrate discharging an accused on submission of a police report under section 173,
Cr PC, 1973, is a judicial and not administrative order, a complaint by the Magistrate or
his superior Court under section 195(1)(b)(i), Cr PC, 1973, would be necessary to take
cognizance of an offence under section 211, IPC, 1860.264. Similarly, remand and bail
proceedings too have been held to be Court proceedings and as such a complaint by

the Court would be necessary to take cognizance of the offence under section 211,
IPC, 1860.265. This view of the law has now been aﬃrmed by the Supreme Court as
well.266.
[s 211.6] Proceedings in any Court.—
There are three situations that are likely to emerge while examining the question
whether there is any proceedings in any Court, namely,
(a) there might not be any proceeding in any Court at all,
(b) proceeding in a Court might actually be pending at the relevant time when
cognizance is sought to be taken of the offence punishable under section 211, IPC,
1860 and
(c) there might have been proceedings which had already been concluded though there
might not be any proceedings pending in any Court when cognizance of offence under
section 211, IPC, 1860 is taken. It is only in second and third situation that section

195(1), Cr PC, 1973 would apply. The fact that proceedings had been concluded would
not be material because section 195(1) does not require that proceedings in any Court
must actually be pending at the time when the question of applying the bar arises if the
offence under section 211, IPC, 1860 is alleged to have been committed in relation to
those proceedings.267. A complaint by the concerned Executive Magistrate could be
necessary under section 195(1)(a)(i), and there could be no suﬃcient reason for
dispensing with the necessity for a complaint by him for prosecution of an offence
under section 211, IPC, 1860 committed in relation to a proceeding before him under
section 144, Cr PC, 1973.268.
[s 211.7] Sections 211 and 500 IPC, 1860.—
If we read sections 211 and 500 of IPC, 1860 together, we would ﬁnd a clear

distinction. Section 211 imposes a punishment in case of a false charge or offence
made with the intent to injure someone before any Court of law, whereas section 500
provides for punishment in case of a defamation of a person by any one. Defamation
has been deﬁned under section 499 which provides inter alia whoever, by words either
spoken or intended to be read, or by signs or by visible representations, makes or
publishes any imputation concerning any person intending to harm, or knowing or
having reason to believe that such imputation will harm, the reputation of such person,
is said, except in the cases hereinafter excepted, to defame that person. Making a false
complaint before a Court of law would amount to committing fraud on Court. It is for

the Court to proceed against the erring person. The provision has been made to
preserve the sanctity of the Court. Section 500 gives right to sue to a person who is
defamed within the meaning of section 499 by the conduct of the accused. These two
provisions are totally distinct and can be tried in absence of each other.269.
[s 211.8] Civil remedy.—
A person aggrieved by a false charge may, if he chooses, sue in a civil Court for
damages for malicious prosecution, instead of taking criminal proceedings under this
section.
[s 211.9] CASES.—
It was alleged that petitioner's son was kidnapped by opposite party, petitioner's son
himself appeared and made his statement that he was not kidnapped, rather he had
himself voluntarily gone to marry with a girl. The girl also had appeared and made her
statement that petitioner's son and herself have married and for that reason the
petitioner threatening to kill them. It was held that the order, taking cognizance of

offences against petitioner for falsely implicating the opposite party, is proper.270.
[s 211.10] False charge should be made to Court or oﬃcer having jurisdiction
to investigate.—
A woman appeared before the Station Staff Oﬃcer and accused a non-commissioned
oﬃcer of rape, and, after a military inquiry, the military authority held that the charge
was false and directed the complainant to be prosecuted under this section. The
conviction was set aside, as the false charge was not made to a Court having
jurisdiction.271. Where the accused laid a charge of mischief by ﬁre at a police station,
which was reported to be false, and the District Magistrate, upon the receipt of a report
to the same effect from the Deputy Magistrate, to whom he had sent the case for a

judicial inquiry, passed an order to prosecute the accused, it was held that the order of
the District Magistrate was bad, as the matter of the false charge had not come before
him in the course of judicial proceedings.272.
Where a letter falsely charging a person with having committed an offence was written
and posted at Kumbakonam and was addressed to the Inspector-General of Police,
Madras, an offence under this section could be said to be completed only when the
letter reached the destination, i.e., the oﬃce of the Inspector-General of Police, Madras.
The communication of the false accusation was, in fact, the laying of the false charge
and, unless the matter was actually communicated to the superior oﬃcer, it could not
be said that a false charge had been made. So, the Magistrate at Kumbakonam would

have no territorial jurisdiction to try the case.273.

223.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1-1-1956).
224.  Jitendra v State of UP, 2000 Cr LJ 3087 (All), the accused was falsely implicated and
convicted for offences under IPC. The court directed the authorities to register case against the
prosecutrix and take necessary action; AN Gupta v State of Rajasthan, 1999 Cr LJ 4932 (Raj), FIR
lodged containing false and baseless allegations, intending prima facie to injure the reputation
of the complainant. Falsity was proved by the statements of the accused under section 313, Cr
PC, 1973. The order acquitting the accused under sections 500 and 211 was set aside; Rubin
Roy Chaudhury v State of WB, 1998 Cr LJ 1699 (Cal), order taking cognizance of offence was

held to be proper. The oﬃce bearers of an Institute hatched a plot to bring about expulsion of
the complainant and his wife, prima facie on false basis.
225.  Karsan Jesang, (1941) 43 Bom LR 858 , (1942) Bom 22.
226.  Per Ranade, J, in Raghavendra v Kashinathbhat, (1894) 19 Bom 717, 725.
227.  Apaya, (1913) 15 Bom LR 574 [LNIND 1913 BOM 44] .
228.  Sarada Prosad Chatterjee, (1904) 32 Cal 180 , followed in Gati Mandal, (1905) 4 CLJ 88.
229.  Giridhari Naik, (1901) 5 Cal WN 727.
230.  (1872) 7 MHC (Appx) 5.
231.  Jugal Kishore, (1886) 8 All 382 .
232.  Per Edge, CJ in Raghu Tiwari, (1893) 15 All 336 , 338.
233.  Kashi Ram, (1924) 22 ALJR 829; Samokhan, (1924) 26 Cr LJ 594 .
234.  Daroga Gope, (1925) 5 Pat 33.
235.  Nota Ram, (1941) 23 Lah 675. See Muthra v Roora, (1870) PR No. 16 of 1870; Todur Mal v

Mussammat Bholi, (1882) PR No. 14 of 1882.
236.  Gopal Dhanuk, (1881) 7 Cal 96 .
237.  Albert, AIR 1966 Kerala 11 [LNIND 1965 KER 172] (FB).
238.  Rajkumar Malpani v Akella Sreenivasa Rao, 2011 Cr LJ 2997 (AP).
239.  Jijibhai Govind, (1896) 22 Bom. 596; Karim Buksh, (1888) 17 Cal 574 , FB; Parahu, (1883) 5
All 598 ; Nanjunda Rau, (1896) 20 Mad 79; Mst Binia, (1937) Nag 338; Albert, AIR 1966 Kerala 11
[LNIND 1965 KER 172] (FB).
240.  Karim Buksh, supra.
241.  Rayan Kutti, (1903) 26 Mad 640, 643; Nihala, (1872) PR No. 14 of 1872.
242.  Jamoona, (1881) 6 Cal 620 ; Sivan Chetti, (1909) 32 Mad 258, overruling Ramana Gowd,
(1908) 31 Mad 506; Mathura Prasad, (1917) 39 All 715 .
243.  Bhawani Sahai, (1932) 13 Lah 568.
244.  Abdul Hakim Khan Chaudhuri, (1931) 59 Cal 334 .

245.  Abdul Hasan, (1877) 1 All 497 ; Chenna Malli Gowda, (1903) 27 Mad 129.
246.  Parmeshwar Lal, (1925) 4 Pat 472.
247.  Dasarathi Mondal v Hari Das, AIR 1959 Cal 293 [LNIND 1959 CAL 1] . On appeal sub. nom.
Hari Das, AIR 1964 SC 1773 [LNIND 1964 SC 84] : 1964 (2) Cr LJ 737 .
248.  Santokh Singh, 1973 Cr LJ 1176 : AIR 1976 SC 1489 .
249.  Bramanund Bhuttacharjee, (1881) 8 CLR 233 ; Karigowda, (1894) 19 Bom 51; Ganpatram v
Rambai, (1950) Nag 208.
250.  Abdul Ghafur, (1924) 6 Lah 28.
251.  Ramana Gowd, (1908) 31 Mad 506.
252.  Ibid.
253.  Hicks v Faulkner, (1878) 8 QBD 167 , 171; Kapoor v Kairon, 1966 Cr LJ 115 .

254.  Chidda, (1871) 3 NWP 327; Murad, (1893) PR No. 29 of 1894.
255.  Parimi Bapirazu v Venkayya, (1866) 3 MHC 238 .
256.  Karim Buksh, (1888) 17 Cal 574 (FB).
257.  Nanjunda Rau, (1896) 20 Mad 79.
258.  Parmeshwar Lal, (1925) 4 Pat 472.
259.  Mallappa Reddi, (1903) 27 Mad 127, 128.
260.  Bisheshar, (1893) 16 All 124 ; Pitam Rai v State, (1882) 5 All 215 .
261.  Sultan, (1887) PR No. 3 of 1888; Khan Bahadar, (1888) PR No. 26 of 1888; Humayun, (1907)
PR No. 26 of 1908.
262.  Abdul Rehman v K M Anees-Ul-Haq, 2012 Cr LJ 1060 (SC) : 2011 (10)SCC 696 [LNIND 2011
SC 1156] . See also Harish Chandra Pathak v Anil Vats, 2008 Cr LJ 2965 (All).
263.  M Devasenapathi, 1984 Cr LJ NOC 34 (Mad); K Ramakrishnan, 1986 Cr LJ 392 (Ker).
264.  Narayan, 1972 Cr LJ 1446 (Del—FB).
265.  PC Gupta v State, 1974 Cr LJ 945 (All-FB).
266.  Kamalapati, 1979 Cr LJ 679 : AIR 1979 SC 777 [LNIND 1978 SC 383] .
267.  Geetika Batra v OP Batra, 2009 Cr LJ 2687 (Del). A private complaint cannot be ﬁled for an

offence under section 211-See Subhash Ramchandra Durge v Deepak Annasaheb Gat, 2000 Cr LJ
4774 (Bom).
268.  Rabin Roy Choudhury v State, 1997 Cr LJ 1699 (Cal); Dongari Venkatram v M Tirpathanna S I
of Police, Kodad 2006 Cr LJ 2697 (AP).
269.  Bir Chandra Das v Anil Kumar Sarkar, 2011 Cr LJ 3422 (Cal).
270.  Chintamani Paul (Kumhar) v State of Jharkhand, 2009 Cr LJ 2283 (Jhar).
271.  Jamoona, (1881) 6 Cal 620 ; See also Santokh Singh, 1973 Cr LJ 1176 : AIR 1973 SC 2190
[LNIND 1973 SC 160] .
272.  Haibat Khan, (1905) 33 Cal 30 .
273.  Sivaprakasam Pillai, (1948) Mad 893.

[s 212] Harbouring offender—.
Whenever an offence has been committed, whoever harbours or conceals a person
whom he knows or has reason to believe to be the offender, with the intention of
screening him from legal punishment;
If a Capital Offence;
shall, if the offence is punishable with death, be punished with imprisonment of
either description for a term which may extend to ﬁve years, and shall also be
liable to ﬁne;
if punishable with imprisonment for life, or with imprisonment.
and if the offence is punishable with 274.[imprisonment for life], or with

and if the offence is punishable with imprisonment which may extend to one year,
and not to ten years, shall be punished with imprisonment of the description

provided for the offence for a term which may extend to one-fourth part of the
longest term of imprisonment provided for the offence, or with ﬁne, or with both.
275.["Offence" in this section includes any act committed at any place out of 276.
[India], which, if committed in 277.[India], would be punishable under any of the
following sections, namely, 302, 304, 382, 392, 393, 394, 395, 396, 397, 398, 399,
402, 435, 436, 449, 450, 457, 458, 459 and 460 and every such act shall, for the
purposes of this section, be deemed to be punishable as if the accused person
had been guilty of it in 278.[India].]
Exception.—This provision shall not extend to any case in which the harbour or
concealment is by the husband or wife of the offender.
A, knowing that B has committed dacoity, knowingly conceals B in order to screen him
from legal punishment. Here, as B is liable to 279.[imprisonment for life], A is liable to
imprisonment of either description for a term not exceeding three years, and is also

liable to ﬁne.
COMMENT.—
Ingredients.—(i) the offence must have been committed, i.e., completed and there must
be an 'offender';
(ii) there must be harbouring or concealment of a person by the accused;
(iii) the accused knows or has reason to believe that such harboured or concealed
person is the offender;
(iv) there must be an intention on the part of the accused to screen the offender from
legal punishment.280.
[s 212.1] Offender.—
The word used is 'offender' and not 'accused' or a person convicted for that offence.
The person who is sheltering, harbouring or concealing that person must have
knowledge or has reason to believe that he is the 'offender'. The word "offender" is not
deﬁned under IPC, 1860. "Offender" as per the Dictionary, means "a person who has

committed a crime or offence." Hence, a person who is convicted or acquitted may be
an offender, for the purpose of section 212. An "offender" for the purpose of section
212 is neither a convict nor an accused, but he is a person who has actually committed
the offence. The failure of the prosecution to prove the identity of the person who
committed the offence does not render the person, who committed the offence, not an
offender. He can be said to be an offender whose guilt has not been proved in Court.
Yet, he is an offender, if he has committed an offence.281.
This section applies to the harbouring of persons who have actually committed some
offence under the Penal Code or an offence under some special or local law, when the
thing punishable under such special or local law is punishable with imprisonment for a

term of six months or upwards. It does not apply to the harbouring of persons, not
being criminals, who merely abscond to avoid or delay a judicial investigation.282.
Where there was no material to show that the accused had the knowledge or that he
reasonably believed that he was harbouring or concealing a person who was an

offender and the essential feature of secrecy was totally absent, it was held that no
offence under section 212 was made out.283. It is the knowledge or the reasonable
belief of the accused under section.212 that the person whom, he has harboured or
concealed to be the offender, which is relevant. But, such knowledge or belief must be
entertained by the accused, on the date on which he commits the offence by
harbouring or concealing him.284.
In the conspiracy for assassination of the former Prime Minister of India (Mr. Rajiv
Gandhi), some of the accused persons appeared at the scene after achievement of the
object. They played the role of harbouring and sheltering the main accused persons
with full knowledge of their involvement in the assassination. They also made efforts to
destroy evidence. Their conviction under section 212 was held to be proper.285.
[s 212.2] Exception.—
The Exception only extends to cases where harbour is afforded by a wife or husband.

No other relationship can excuse the wilful receipt or assistance of felons; a father
cannot assist his child, a child his parent, a brother his brother, a master his servant, a
servant his master.
[s 212.3] Section 212 IPC, 1860 and section 39 of Code of Criminal Procedure
1973.—
It is the duty of every citizen who is aware of commission of or of the intention of any
other person to commit any offence punishable under sections 302, 304, 449, etc., to
forthwith give information to the nearest Magistrate or police-oﬃcer of such
commission of offence or intention. This provision is mandatory unless there is a
reasonable excuse for omission or failure to inform. Section 39 of the Code of Criminal
Procedure speciﬁcally provides that public "shall" give information to the police or the

nearest Magistrate regarding commission of certain offences referred to in the said
section. Section 39 is only a procedural section, violation of which is not made
punishable under any penal statute, but, if a person who has knowledge or reasonable
belief that a person is the offender can be treated as a person who is aware of the
commission of the offence and even if he is not punishable for violating section 39 of
the Code of Criminal Procedure when he harbours or conceals such an offender, he
must certainly be guilty for offence under section 212.286.
[s 212.4] Conviction of the person concealed–whether mandatory.—
Nowhere in section 212 it is stated that the person concealed should be convicted for
an offence. Even if the main offender leaves unpunished by the Court, the object of the

provision under section 212 requires that the person who has concealed or harboured
the offender whom he believes and knows has committed the offence shall not leave
unpunished if the other ingredients are established. The criminality lies in the act of
concealment committed with the knowledge or belief that the person who is harboured
or concealed is the offender and also with the criminal intention of screening him from
legal punishment.287.

274.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
275.  Ins. by Act 3 of 1894, section 7.
276.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
277.  Ibid.
278.  Ibid.
279.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
280.  Sujith v State of Kerala, 2008 Cr LJ 824 (Ker), Aleem v State of AP, (1995) 1 Cr LJ 866 (AP).
See also State v Siddarth Vashisth, (alias Manu Sharma), 2001 Cr LJ 2404 (Del), the co-accused
had knowledge that the accused had committed murder, both of them were fellow directors in a
company. He sent the car to pick up the accused from the place of occurrence to facilitate his

escape. Liable to be punished under the section.
281.  Sujith v State of Kerala, 2008 Cr LJ 824 (Ker).
282.  Ramraj Choudhury, (1945) 24 Pat 604; Mir Faiz Ali v State of Maharashtra, 1992 Cr LJ 1034
(Bom).
283.  State v Sushil Sharma, 2007 Cr LJ 4008 (Del); Niranjan Ojha v State of Orissa, 1992 Cr LJ
1863 (Ori); Also see Durga Shankar v State of Madhya Pradesh, 2006 Cr LJ 2494 (MP).
284.  Sujith v State of Kerala, 2008 Cr LJ 824 (Ker).
285.  State of TN v Nalini, AIR 1999 Cr LJ 3124 : AIR 1999 SC 2640 [LNIND 1999 SC 1584] .
286.  Sujith v State of Kerala, 2008 Cr LJ 824 (Ker).
287.  Sujith v State of Kerala, 2008 Cr LJ 824 (Ker).

[s 213] Taking gift, etc., to screen an offender from punishment—.
Whoever accepts or attempts to obtain, or agrees to accept, any gratiﬁcation for
himself or any other person, or any restitution of property to himself or any other
person, in consideration of his concealing an offence or of his screening any person
from legal punishment for any offence, or of his not proceeding against any person
for the purpose of bringing him to legal punishment,

either description for a term which may extend to seven years, and shall also be
and if the offence is punishable with imprisonment for life, or with imprisonment
which may extend to ten years, shall be punished with imprisonment of either
description for a term which may extend to three years, and shall also be liable to
ﬁne;

and if the offence is punishable with imprisonment not extending to ten years,
shall be punished with imprisonment of the description provided for the offence
for a term which may extend to one-fourth part of the longest term of
COMMENT.—
The compounding of a crime, by some agreement not to bring the criminal to justice if
the property is restored or a pecuniary or other gratiﬁcation is given, is the offence
punished by this and the following sections. It is the duty of every State to punish
criminals. No individual has, therefore, a right to compound a crime because he himself
is injured and no one else.
[s 213.1] Ingredients.—
The section has two essentials:
1. A person accepting or attempting to obtain any gratiﬁcation or restitution of property
for himself or any other person.
2. Such gratiﬁcation must have been obtained in consideration of (a) concealing an

offence, or (b) screening any person from legal punishment for an offence, or (c) not
proceeding against a person for the purpose of bringing him to legal punishment. The
most important ingredient of the charge, under section 213, viz., is that the payment
was in relation to the interference with the course of a judicial proceeding and the
tampering with the evidence.288.
[s 213.2] Scope.—
According to the Calcutta High Court this section applies only where there has been an
actual concealment of an offence, or screening of a person from legal punishment, or
abstention from proceeding criminally against a person, and, as consideration for the
same, there has been an acceptance of, or attempt to obtain, or agreement to accept,
any gratiﬁcation or restitution of property. It has no application where only an
acceptance of or attempt to obtain, or agreement to accept, any gratiﬁcation or

restitution on a promise to conceal, screen or abstain, is proved and nothing more.289.
The Bombay High Court has dissented from this view and has held that this section
does not require the actual concealment of an offence or the screening of any person
from legal punishment or the actual forbearing of taking any proceedings. It is
suﬃcient if an illegal gratiﬁcation is received in consideration of a promise to conceal
an offence or screen any person from legal punishment or desist from taking any
proceedings.290.
The section does not apply where the compounding of an offence is legal.
[s 213.3] Mere suspicion.—
This section is applicable only when it is proved that the person screened or attempted
to be screened from legal punishment has been guilty of an offence, and not when
there is merely a suspicion of his having committed some offence.291.

288.  Mir Faizali Shaheen v The State of Maharashtra, 1991 Cr LJ 1034 (Bom).
289.  Hemachandra Mukherjee, (1924) 52 Cal 151 .
290.  Biharilal Kalacharan, (1949) 51 Bom LR 564 .
291.  Girish Myte, (1896) 23 Cal 420 ; Sanalal; Gordhandas, (1913) 15 Bom LR 694 [LNIND 1913
BOM 68] , 37 Bom 658, there must be knowledge that such person was an offender; Sumativijay
Jain v State of MP, 1992 Cr LJ 97 (MP)

[s 214] Offering gift or restoration of property in consideration of screening
offender—.
Whoever gives or causes, or offers or agrees to give or cause, any gratiﬁcation to any
person, or 292.[restores or causes the restoration of] any property to any person, in
consideration of that person's concealing an offence, or of his screening any person
for the purpose of bringing him to legal punishment;

and if the offence is punishable with 293.[imprisonment for life], or with

294.[Exception.—The provisions of sections 213 and 214 do not extend to any
case in which the offence may lawfully be compounded.]
Illustrations. [Rep. by Act 10 of 1882, section 2 and Sch I.]
292.  Subs. by Act 42 of 1953, section 4 and Sch III, for "to restore or cause the restoration of"
(w.e.f. 23 December 1953).
293.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
294.  Subs. by Act 8 of 1882, section 6, for Exception.
295.  Mohd Aslam, 1981 Cr LJ 1285 : AIR 1981 SC 1735 .
COMMENT.—

1956).
COMMENT.—
The preceding section punishes the receiver of a gift in consideration of compromising
an offence, whereas this section punishes the offerer of the gift.
[s 214.1] Ingredients.—
This section has two essentials—
1. Offering any gratiﬁcation or restoration of property to some person.
2. Such offer must have been in consideration of the person's (a) concealing an
offence, or (b) of his screening any person from legal punishment for an offence, or (c)
of his not proceeding against a person, for the purpose of bringing him to legal
punishment. The section presupposes the actual commission of an offence or the guilt
of the person screened from punishment. Where the accused, an overseer who was
charged with preparing false muster rolls and misappropriating Government money
allegedly tried to bribe someone with a view to prevent action being taken against him

and was thus prosecuted under sections 165A and 214, IPC, 1860, but was acquitted of
the offence under section 165A, IPC, 1860, for want of evidence, he could not also be
convicted in view of inﬁrmities of the case of an offence under section 214, IPC,
1860.295.
Section 320(1) of the Criminal Procedure Code enumerates the offences that can be
lawfully compounded.

[s 215] Taking gift to help to recover stolen property, etc.
Whoever takes or agrees or consents to take 1 any gratiﬁcation under pretence or on
account of helping any person to recover any movable property of which he shall have
been deprived by any offence punishable under this Code, shall, unless he uses all
means in his power to cause the offender to be apprehended 2 and convicted of the
offence, be punished with imprisonment of either description for a term which may
COMMENT.—

COMMENT.—
Scope.—This section is intended to apply to someone who, being in league with the
thief, receives some gratiﬁcation on account of helping the owner to recover the stolen
property, without at the same time using all the means in his power to cause the thief
to be apprehended and convicted of the offence. There is nothing in this section that
should exclude an actual thief from liability under it if in addition to committing theft he
also tried to realise money by a promise to return the stolen article. An actual thief or a
person suspected to be the thief can be convicted under this section.296.

296.  Mukhtara, (1924) 46 All 915 ; Deo Suchit Rai, (1947) ALJ 48 (FB); overruling Muhammad Ali,
(1900) 23 All 81 and Mangu, (1927) 50 All 186 .
297.  Yusuf Mian v State, (1938) All 681 .
298.  Hargayan v State, (1922) 45 All 159 .
299.  Deo Suchit Rai, 1947 All LJ 48 (FB); DK Balai, 1959 Cr LJ 1438 .
[s 215.1] Ingredients.—
This section has three essentials—
1. Taking or agreeing or consenting to take any gratiﬁcation under pretence or on
account of helping any person to recover any movable property.
2. The owner of such property must have been deprived of it by an offence
punishable under the Penal Code.
3. The person taking the gratiﬁcation must not have used all means in his power to
cause the offender to be apprehended and convicted of the offence.
[s 215.2] Object.—

The primary aim of this section is to punish all traﬃcking by which a person, knowing
that property has been obtained by crime, and knowing the criminal, makes a proﬁt out
of the crime while screening the offender from justice. The clear meaning of the
section is that it is an offence to receive money for helping any person to recover
property stolen or misappropriated and that there is an exception only in favour of the
man who can show that he used all means in his power to cause the apprehension of
the offender.297.
1. 'Takes or agrees or consents to take'.—These words imply that the person taking the
gratiﬁcation and the person giving it have agreed not only as to the object for which the
gratiﬁcation is to be given, but also as to the shape or form the gratiﬁcation is to
take.298.

take.298.
2. 'Unless he uses all means in his power to cause the offender to be apprehended'.—
It is not for the prosecution to prove the negative that the accused did not use all his
power to cause the offender to be apprehended. It is for the defence to establish that
the accused did all in his power to cause the offender to be apprehended.299.

[s 216] Harbouring offender who has escaped from custody or whose
apprehension has been ordered—.
Whenever any person convicted of or charged with an offence, being in lawful custody
for that offence, escapes from such custody;
or whenever a public servant, in the exercise of the lawful powers of such public
servant, orders a certain person to be apprehended for an offence, whoever, knowing
of such escape or order for apprehension, harbours of conceals that person with the
intention of preventing him from being apprehended, shall be punished in the manner
following that is to say,—

if the offence for which the person was in custody or is ordered to be
apprehended is punishable with death, he shall be punished with imprisonment of

if the offence is punishable with 300.[imprisonment for life], or imprisonment for
ten years, he shall be punished with imprisonment of either description for a term
which may extend to three years, with or without ﬁne;
and if the offence is punishable with imprisonment which may extend to one year
and not to ten years, he shall be punished with imprisonment of the description
longest term of the imprisonment provided for such offence, or with ﬁne, or with
both.
301.["Offence" in this section includes also any act or omission of which a person
is alleged to have been guilty out of 302.[India], which, if he had been guilty of it in
303.[India], would have been punishable as an offence, and for which he is, under
any law relating to extradition, 304.[***] or otherwise, liable to be apprehended or
detained in custody in 305.[India]; and every such act or omission shall, for the

had been guilty of it in 306.[India].]
Exception.—This provision does not extend to the case in which the harbour or
concealment is by the husband or wife of the person to be apprehended.
COMMENT.—
To establish an offence under this section it must be shown, (1) that there has been an
order for the apprehension of a certain person as being guilty of an offence; (2)
knowledge by the accused party of that order, and (3) the harbouring or concealing by
the accused of the person with the intention of preventing him from being
apprehended.307. It would not be safe to convict the appellant for the offence
punishable under section 216 IPC, 1860 in absence of evidence in this regard.308.
This section may be compared with section 212. The latter deals with the offence of

harbouring an offender who having committed an offence absconds. This section
deals with harbouring an offender who has escaped from custody after being actually
convicted or charged with the offence, or whose apprehension has been ordered; the
latter offence is in the eye of the law more aggravated, and a heavier punishment is,
therefore, awarded for it. It is thus an aggravated form of the offence punishable under
section 212.
The section only takes into consideration cases where the man who is harboured is
wanted for an offence for which a maximum sentence of at least one year's
imprisonment is provided. No provision is made for cases where he is wanted for
offences for which the maximum sentence is less than one year.309. Where certain
persons were apprehended for gaming and they escaped from police custody, it was

held by the Supreme Court that this section was not applicable because they were
neither charged nor convicted of any offence and that the conviction should have been
under section 224.310.

300.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
301.  Ins. by Act 10 of 1886, section 23.
302.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
303.  Ibid.
304.  The words "or under the Fugitive Offenders Act, 1881," omitted by Act 3 of 1951, section 3
and Sch (w.e.f. 1 April 1951).
305.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
306.  Ibid.
307.  Easwaramurthi, (1944) 71 IA 83 , 46 Bom LR 844, (1945) Mad 237.
308.  Anadharaj v State of TN, (2000) 9 SCC 45 : JT 2000 (3) SC 368 : 2000 AIR (SCW) 4957;
(2000) 1 SCC (Cr) 1154.

306.  Ibid.
309.  Deo Baksh Singh, (1942) 18 Luck 617 .
310.  Ajab v State of Maharashtra, AIR 1989 SC 827 : 1989 Cr LJ 954 : 1989 Supp (1) SCC 601 .

311.[s 216A] Penalty for harbouring robbers or dacoits.
Whoever, knowing or having reason to believe that any persons are about to commit
or have recently committed robbery or dacoity, harbours them or any of them, with the
intention of facilitating the commission of such robbery or dacoity or of screening
them or any of them from punishment, shall be punished with rigorous imprisonment
E x p l a n a t i o n .—For the purposes of this section it is immaterial whether the robbery or

dacoity is intended to be committed, or has been committed, within or without 312.
[India].
Exception.—This provision does not extend to the case in which the harbour is by the
husband or wife of the offender.]
COMMENT.—
This section enables the Court to inﬂict enhanced punishment, where the persons
harboured are robbers or dacoits or where they intended to commit robbery or dacoity.

311.  Ins. by Act 3 of 1894, section 8.
312.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
313.  Subramanya Ayyar, (1947) Mad 793.See for acquittal under section 216A, acquitted on
fact, State of Madhya Pradesh v Veeru Singh, 2010Cr LJ 2896 (MP)
Where a person charged with the substantive offence of dacoity or robbery has been
acquitted of that offence, another person who is said to have intended to screen him
from legal punishment in respect of that offence cannot be held guilty of harbouring
the alleged offender under this section.313.

[s 216B] [ R e p e a l e d ] 
314.[***] Deﬁnition of "harbour" in sections 212, 216 and 216A. [Repealed by Indian
Penal Co de (Amendment) Act, 1942 (VIII of 1942), section 3].
314.  Ins. by Act 3 of 1894, section 8.

[s 217] Public servant disobeying direction of law with intent to save person
from punishment or property from forfeiture.
way in which he is to conduct himself as such public servant, intending thereby to
save, or knowing it to be likely that he will thereby save, any person from legal
punishment, or subject him to a less punishment than that to which he is liable, or
with intent to save, or knowing that he is likely thereby to save, any property from

forfeiture or any charge to which it is liable by law, shall be punished with
COMMENT.—
This section and the three following sections deal with disobedience on the part of
public servants in respect of oﬃcial duty.
This section punishes intentional disobedience of any direction of law on the part of a
public servant to save a person from punishment. It is not necessary to show that, in
point of fact, the person so intended to be saved had committed an offence, or was

315.  Amiruddeen v State, (1878) 3 Cal 412 , 413.See Anup Singh v State of HP, AIR 1995 SC 1941
; 1995 Cr LJ 3223 (SC) in which conviction under the section upheld by SC
316.  Jungle v State, (1873) 19 WR (Cr) 40.
justly liable to legal punishment. A public servant charged under this section is equally
liable to be punished, although the intention, which he had of saving any person from
legal punishment, was founded upon a mistaken belief as to that person's liability to
punishment.315.
[s 217.1] 'Legal punishment'
does not include departmental punishment.316.

[s 218] Public servant framing incorrect record or writing with intent to save
person from punishment or property from forfeiture.
Whoever, being a public servant, and being as such public servant, charged with the
preparation of any record or other writing, frames that record or writing in a manner
which he knows to be incorrect, with intent to cause, or knowing it to be likely that he
will thereby cause, loss or injury to the public or to any person, or with intent thereby
to save, or knowing it to be likely that he will thereby save, any person from legal

punishment, or with intent to save, or knowing that he is likely thereby to save, any
property from forfeiture or other charge to which it is liable by law, shall be punished
with imprisonment of either description for a term which may extend to three years, or
with ﬁne, or with both.
COMMENT.—
This section deals with intentional preparation by a public servant of a false record with
the object of saving or injuring any person or property. The correctness of the record is
of the highest importance to both the State and the public. The intention with which the
public servant does the act mentioned in the section is an essential ingredient of the
offence punishable under it.

[s 218.1] Ingredients.—
1. Accused was a public servant;
2. He was entrusted with preparation of any record or writing in his capacity as
public servant;
3. He framed the record and writing incorrectly,
4. He did it intentionally,
5. He did so with the intention or knowledge that it will—
(i) cause loss or injury to someone,
(ii) Save any person from legal punishment and,
(iii) Save from property from forfeiture or other charges.317.
In order to sustain the conviction for making an incorrect entry in a record it is not
suﬃcient that the entries are incorrect but it is essential that the entry should have
been made with the intention to cause injury.318.
It is not necessary that the incorrect document should be submitted to another person,
or otherwise used by the writer.
A public servant commits the offence punishable under this section even if the person
whom he intends to save from legal punishment is himself.319.
[s 218.2] Actual commission of offence not necessary.—

The actual guilt or innocence of the alleged offender is immaterial if the accused
believes him guilty and intends to screen him.320.
The Supreme Court has held that if a police-oﬃcer has made a false entry in his diary
and manipulated other records with a view to save the accused from legal punishment
that might be inﬂicted upon him, the mere fact that the accused was subsequently
acquitted of the offence cannot make it any the less an offence under this section.321.
[s 218.3] CASES.—
Where the accused increased the marks of particular persons for pecuniary beneﬁts
during the course of preparing ﬁnal record for appointment of physical education
teacher, it is held that the offence alleged is clearly made out.322.
[s 218.4] Public servant framing incorrect record to save any person from legal
punishment.—
A Superintendent of Police gave a warrant under the Gambling Act, 1867 to D, a Sub-

Inspector, to arrest persons found gambling in a certain house. In order to save the
persons from the legal punishment for having committed an offence under the
Gambling Act, 1867 in that house, D framed a ﬁrst information and a special diary
incorrectly. It was held that he was properly charged with, and found guilty of, having

committed an offence under this section.323. A report of the commission of a dacoity
was made at a police station. The police-oﬃcer in charge of the station took down the
report which was made to him, but subsequently destroyed the report and framed
another and a false report of the commission of a totally different offence to which he
obtained the signature of the complainant, and which he endeavoured to pass off as
the original and correct report made to him by the complainant. It was held that the
police-oﬃcer was guilty of offences punishable under sections 204 and 218.324. Where
it was proved that the accused's intention in making a false report was to stave off the
discovery of the previous fraud and save himself or the actual perpetrator of that fraud
from legal punishment, it was held that he was guilty of this offence.325. Under this
section, substitution of one leaf by another so as to omit a given entry from the page
substituted is penal.326. Where a Sub-Inspector in his capacity as public servant

wrongly prepared certain notes in order to concoct a false defence for himself and his
colleagues, he was to be convicted under section 218, IPC, 1860.327. Where, however,
the main offence remains unproved the accused is entitled to have the beneﬁt of doubt
in regard to the offence under section 218, IPC, 1860.328.
[s 218.5] Section 218 and section 192—Difference.—
The offence of section 218 IPC, 1860 is not a minor offence included within section
192. There is some resemblance between sections 192 and 218 IPC, 1860, because
both deal with the preparation of a false record. There the resemblance ceases.
Whereas in section 192 the record is prepared for use in a judicial proceeding with the
intention that an erroneous opinion be formed regarding a material point, the offence in

section 218 is the preparation of a false record by a public servant with the intention of
saving or injuring any person or property.329.
[s 218.6] Bar under section 195 Cr PC, 1973 not applicable, private complaint
can be ﬁled.—
Section 218 is a distinct offence which can be proceeded against without the bar of
section 195 of the Code of Criminal Procedure. There could be a private complaint in
respect of an offence under section 218 IPC, 1860.330.
[s 218.7] Sanction under section 197 Cr PC, 1973.—
Issuing false certiﬁcate by the Deputy Civil Surgeon cannot be an oﬃcial act and as
such no sanction under section 197 of the Code of Criminal Procedure is required.331.
But in a particular case332. the Calcutta High Court took an opposite view and quashed
the proceedings under section 218 IPC, 1860 holding that in the absence of sanction,

the proceeding cannot be continued.

317.  Jayanta Mukherjee v State of West Bengal, 2009 Cr LJ 4178 (Cal).
318.  Raghubansh Lal, (1957) 1 All 368 : AIR 1957 SC 486 [LNIND 1957 SC 21] : 1957 Cr LJ 595
319.  Nand Kishore v State, (1897) 19 All 305 , overruling Gauri Shankar, (1883) 6 All 42 .
320.  Hurdut Surma, (1967) 8 WR (Cr) 68.
321.  Maulud Ahmad, (1964) 2 Cr LJ 71 : 1963 Supp (2) SCR 38 .
322.  Rakesh Kumar Chhabra v State of H P, 2012 Cr LJ 354 (HP).
323.  Deodhar Singh, (1899) 27 Cal 144 .
324.  Muhammad Shah Khan, (1898) 20 All 307 .
325.  Girdhari Lal, (1886) 8 All 633 .
326.  Madan Lal v Inderjit, AIR 1970 P&H 200 .
327.  Sarju Singh, 1978 Cr LJ NOC 286 (All).
328.  Natarajan Narayan Kurup, 1982 Cr LJ NOC 69 (Ker). See also DV Venkateswara Rao v State
of AP, 1997 Cr LJ 919 (AP).

329.  Kamla Prasad Singh v Hari Nath Singh, AIR 1968 SC 19 [LNIND 1967 SC 170] : 1967 (3) SCR
828 [LNIND 1967 SC 170] : 1968 Cr LJ 86 .
330.  Kamla Prasad Singh v Hari Nath Singh, AIR 1968 SC 19 [LNIND 1967 SC 170] : 1967 (3) SCR
331.  D V Venkateswara Rao v State of AP, 1997 Cr LJ 919 ; Dr Z U Ahmad v State of UP, 1998 Cr
LJ 2100 (All).
332.  Jayanta Mukherjee v State of West Bengal, 2009 Cr LJ 4178 (Cal).

[s 219] Public servant in judicial proceeding corruptly making report etc.
contrary to law.
Whoever, being a public servant, corruptly or maliciously makes or pronounces in any
stage of a judicial proceeding, any report, order, verdict, or decision which he knows
to be contrary to law, shall be punished with imprisonment of either description for a
term which may extend to seven years, or with ﬁne, or with both.
COMMENT.—
This section should be read in conjunction with section 77. It contemplates some wilful
excess of authority, in other words, a guilty knowledge superadded to an illegal act.

COMMENT.—
This section and the following one deal with corrupt or malicious exercise of the power
vested in a public servant for a particular purpose. From the language of section 219
IPC, 1860, it is clear that when any public servant corruptly or maliciously makes or
pronounces in any stage of judicial proceeding any report, order, verdict or decision
which he knows to be contrary to law, shall be punished.333.
[s 219.1] Case against judicial oﬃcers.—

333.  Pravin Niwritti Sawant v Hon'ble Shri J B Anandgaonkar Saheb, 2008 Cr LJ 984 (Bom).
334.  Pravin Niwritti Sawant v Hon'ble Shri J B Anandgaonkar Saheb, 2008 Cr LJ 984 (Bom).
In the present case, there was no allegation that any of the three respondents had
passed concerned orders corruptly or maliciously or knowing that they were contrary to
law. Merely because the ﬁrst order passed by the respondent No. 1 was set aside in the
revision ﬁled by the petitioner, it cannot be inferred that respondent No. 1 had acted
corruptly or maliciously and that too knowing that it was contrary to law.334.

[s 220] Commitment for trial or conﬁnement by person having authority who
knows that he is acting contrary to law.
Whoever, being in any oﬃce which gives him legal authority to commit persons for
trial or to conﬁnement, or to keep persons in conﬁnement, corruptly or maliciously
commits any person for trial or to conﬁnement, or keeps any person in conﬁnement,
in the exercise of that authority knowing that in so doing he is acting contrary to law,
extend to seven years, or with ﬁne, or with both.
COMMENT.—

COMMENT.—
This section is a further extension of the principle laid down in the preceding section. It
is general in its application, whereas the last section applies to judicial oﬃcers. In order
to bring home the charge under the section it must next be shown that the accused
corruptly or maliciously committed such person for trial or to conﬁnement or kept him
in conﬁnement in exercise of that authority knowing that in so doing he was acting
contrary to law. This analysis of the section by the Supreme Court occurs in a case in
which a police constable made the victims to alight from a bus and took them to a
nearby street. The Court said that at best it could amount to wrongful restraint but not

335.  Suryamoorthy v Govindaswamy, 1989 Cr LJ 1451 : AIR 1989 SC 1410 [LNIND 1989 SC 232]
at p 1415 : (1989) 3 SCC 24 [LNIND 1989 SC 232] .
336.  Pravin Niwritti Sawant v Hon'ble Shri J B Anandgaonkar Saheb, 2008 Cr LJ 984 (Bom).
to wrongful conﬁnement.335. Under section 220 IPC, 1860 it is necessary to establish
that the oﬃcer, who committed any person for trial or to conﬁnement, must have acted
corruptly or malicious and knowing that he was doing that act contrary to law.336.

[s 221] Intentional omission to apprehend on the part of public servant bound
to apprehend.
Whoever, being a public servant, legally bound as such public servant to apprehend or
to keep in conﬁnement any person charged with or liable to apprehended for an
offence, intentionally omits to apprehend such person, or intentionally suffers such
person to escape, or intentionally aids such person in escaping or attempting to
escape from such conﬁnement, shall be punished as follows, that is to say:—
with imprisonment of either description for a term which may extend to seven years,

with or without ﬁne, if the person in conﬁnement, or who ought to have been
apprehended, was charged with, or liable to be apprehended for, an offence
punishable with death; or
punishable with 337.[imprisonment for life] or imprisonment for a term which may
extend to ten years; or
with imprisonment of either description for a term which may extend to two years,

punishable with imprisonment for a term less than ten years.
337.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1-1-1956).
338.  Rampal, 1979 Cr LJ 711 : AIR 1979 SC 1184 .
339.  Younus Khan v State of Karnataka, 2013 Cr LJ 1040 (Kar)
COMMENT.—
Sections 221, 222 and 223 provide for intentional omission to apprehend, or negligently
suffering the escape of, offenders on the part of public servant bound to apprehend or
to keep in conﬁnement.
[s 221.1] CASE.—
Where a constable acting as a Court Moharrir instead of sending the accused to jail
custody as ordered by the Magistrate directed his release and thus allowed him to
escape, it was held that the release being in violation of his legal obligation to have the

accused detained in jail custody, the Moharrir was clearly liable under section 221, IPC,
1860.338. Accused was entrusted with escort duty for the convict to the Hospital.
Convict was the younger brother of accused's wife. Accused allowed him to escape
from Custody. The Karnataka High Court upheld the conviction under sections 221, 222
and 223.339.

[s 222] Intentional omission to apprehend on the part of public servant bound
to apprehend person under sentence or lawfully committed.
to keep in conﬁnement any person under sentence of a Court of Justice for any
offence 340.[or lawfully committed to custody], intentionally omits to apprehend such
person, or intentionally suffers such person to escape or intentionally aids such
person in escaping or attempting to escape from such conﬁnement, shall be punished
as follows, that is to say:—

with 341.[imprisonment for life] or with imprisonment of either description for a term
which may extend to fourteen years, with or without ﬁne, if the person in conﬁnement,
or who ought to have been apprehended, is under sentence of death; or
apprehended, is subject, by a sentence of a Court of Justice, or by virtue of a
commutation of such sentence, to 342.[imprisonment for life] 343.[***] 344.[***] 345.
[***] 346.[***] or imprisonment for a term of ten years or upwards; or
with ﬁne, or with both, if the person in conﬁnement, or who ought to have been

apprehended is subject, by a sentence of a Court of Justice, to imprisonment for a
term not exceeding to ten years [or if the person was lawfully committed to custody].
340.  Ins. by Act 27 of 1870, section 8.
341.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 April
1956).
342.  Ibid.
343.  The words "or penal servitude for life" omitted by Act 17 of 1949, section 2 (w.e.f. 6 April
1949).
344.  The words "or to" omitted by Act 36 of 1957, section 3 and Sch II (w.e.f. 17 September
1957).
345.  The word "transportation" omitted by Act 26 of 1955, section 117 and Sch (w.e.f. 1 January
1956).
346.  The words "or penal servitude" omitted by Act 17 of 1949, section 2 (w.e.f. 6 April 1949).
COMMENT.—
This section is similar to the last section with the exception that the person to be

1956).
COMMENT.—
apprehended has already been convicted or committed for an offence. It is thus an
aggravated form of the offence made punishable by the last section.

[s 223] Escape from conﬁnement or custody negligently suffered by public
servant.
Whoever, being a public servant legally bound as such public servant to keep in
conﬁnement any person charged with 347.[or convicted of any offence or lawfully
committed to custody], negligently suffers such person to escape from conﬁnement,
shall be punished with simple imprisonment for a term which may extend to two
COMMENT.—
This section further extends the principle laid down in the two preceding sections. It

COMMENT.—
punishes a public servant who negligently suffers any person charged with an offence
to escape from conﬁnement. The last two sections deal with intentional omission to
apprehend such person.
[s 223.1] Ingredients.—
In order to establish the charge under section 223, IPC, 1860 the following facts have to
be established:—

347.  Ins. by Act 27 of 1870, section 8.
348.  Banshidhar Swain v State of Orissa, 1987 Cr LJ 1819 (Ori).
349.  Debi, (1907) 29 All 377 .
350.  Girja Shankar Sahay, 1972 Cr LJ 988 (Pat).
351.  Banshidhar Swain v State of Orissa, 1987 Cr LJ 1819 (Ori).
352.  Tafaullah v State, (1885) 12 Cal 190 .
353.  Gurdeep Singh v State of Punjab, 2009 Cr LJ 3745 (PH).
(i) The accused was a public servant.
(ii) As such public servant he was bound to keep in conﬁnement any person.
(iii) Such person was charged with or convicted of an offence or lawfully committed
to custody.
(iv) The accused suffered such person to escape.
(v) The escape was due to the negligence of the public servant.348.
[s 223.2] Lawful custody.—
Unless the custody is lawful no offence under this section is committed. If a public

servant has no right to keep a person in custody, he is not guilty of allowing that person
to escape.349. Since the check post oﬃcer appointed under section 41(2) Bihar Sales
Tax Act had no power to detain personnel or driver of a truck which contravened the
provisions of the Act, he could not be prosecuted for an offence under section 223, IPC,
1860, for allowing detained person to escape especially because section 223 speaks of
"conﬁnement of persons charged with or convicted of any offence or lawfully
committed to custody". Even assuming that such a check post oﬃcer could detain a
person, still he could not be prosecuted as detention was not synonymous with
conﬁnement nor the persons escaping were charged or convicted of any offence.350. A
constable who moved about in a market place with the prisoner whom he was

supposed to bring to the Court and he escaped, the case was held to be ﬁt one for
imposing substantive punishment.351.
This section applies only to cases where the person who is allowed to escape is in
custody for an offence, or has been committed to custody, and not to cases where
such person has merely been arrested under a civil process.352. The latter case would
come under section 225A. Due to the negligence and carelessness of the police
constable one accused escaped from police lock-up. It is proved that the petitioner was
on duty at lock-up room when the accused escaped. Conviction is held proper.353.

[s 224] Resistance or obstruction by a person to his lawful apprehension.
Whoever intentionally offers any resistance or illegal obstruction to the lawful
apprehension of himself for any offence with which he is charged or of which he has
been convicted, or escapes or attempts to escape from any custody in which he is
lawfully detained for any such offence, 1 shall be punished with imprisonment of
either description for a term which may extend to two years, or with ﬁne, or with both.
Explanation.—The punishment in this section is in addition to the punishment for

which the person to be apprehended or detained in custody was liable for the offence
with which he was charged, or of which he was convicted.
COMMENT.—
This and the section following relate to resistance or illegal obstruction offered to the
lawful apprehension of any person. Sections 221–223 punish public servants who fail
to apprehend or conﬁne persons liable to be apprehended or conﬁned.
Section 224, IPC, 1860 has two distinct parts. The ﬁrst relates to resistance to
apprehension and the second part relates to escape from custody. In order to bring

354.  State of Orissa v Purna Chandra Jena, 2005 Cr LJ 505 (Ori).
home the guilt of the accused under ﬁrst part, the prosecution is to prove the following
ingredients:—
(1) that the accused was charged or convicted;
(2) that he offered resistance or obstruction to his apprehension;
(3) that such resistance or obstruction was illegal; and
(4) that the accused offered such resistance or obstruction illegally.
When the offence charged is that of escape or attempt to escape from custody, the
prosecution is to prove the following:
(1) that the accused was taken into custody for commission of an offence;
(2) that such detention in custody was lawful;
(3) that the accused escaped from such custody or made an attempt to do so; and
(4) that the accused did so intentionally.354.

1. 'Escapes...from any custody in which he is lawfully detained for any such offence'.—
Escape must be from the custody in which the person escaping has been detained
legally. A person of the same name as the offender was arrested, tried and acquitted.
Whilst under arrest he escaped from custody. It was held that he was not liable to be
convicted under this section because he was not lawfully detained for any offence.355.
It is only after a person has been arrested that the question of custody arises merely
because the person was brought to the thana for the purpose of interrogation it could
not be said that he was under lawful custody, even though two constables might be
sitting by his side.356. Where certain persons were apprehended for gaming and they
escaped from police custody, it was pointed out by the Supreme Court that they could

have been convicted under this section.357. Where the accused attacked the police
personnel and rescued a person from the legal custody of the police but the person
rescued neither resisted the arrest nor joined in the attack, he could only be convicted
under section 224 for taking advantage of his release.358. Where an accused lawfully
arrested escaped after causing a knife injury to the Head Constable, he was guilty
under section 224 and his friends who pelted stones at the police party with a view to
rescue him were guilty under section 225, IPC, 1860.359.
[s 224.1] Explanation.—
The Explanation does not require that a sentence of imprisonment must be made to
run consecutively to a sentence imposed for the main offence of which the accused
has been convicted.360.

355.  Ganga Charan Singh, (1893) 21 Cal 337 ; People's Union for Civil Liberties v State of
356.  Maheswar v State of UP, (1953) Cut 751.; 2003 Cr LJ 3663 (Bom).
357.  Ajab v State of Maharashtra, AIR 1989 SC 827 : 1989 Cr LJ 954 : 1989 Supp (1) 601 .
358.  Prithvi Nath Pandey v State of UP, 1994 Cr LJ 3623 (All).
359.  Vaghari Kala Bhikha, 1985 Cr LJ 237 (Guj).
360.  Chokhu, (1934) 36 Bom LR 963 .

[s 225] Resistance or obstruction to lawful apprehension of another person.
apprehension of any other person for an offence, or rescues or attempts to rescue any
other person from any custody in which that person is lawfully detained for an
offence, shall be punished with imprisonment of either description for a term which
may extend to two years, or with ﬁne, or with both;
or, if the person to be apprehended, or the person rescued or attempted to be rescued,

is charged with or liable to be apprehended for an offence punishable with 361.
[imprisonment for life] or imprisonment for a term which may extend to ten years,
extend to three years, and shall also be liable to ﬁne;
or, if the person to be apprehended or the person attempted to be rescued, is charged
with or liable to be apprehended for an offence punishable with death, shall be
seven years, and shall also be liable to ﬁne;
or, if the person to be apprehended or rescued, or attempted to be rescued, is liable
under the sentence of a Court of Justice, or by virtue of a commutation of such a
sentence, to 362.[imprisonment for life] 363.[***] 364.[***] 365.[***]or imprisonment, for

a term of ten years or upwards, shall be punished with imprisonment of either

description for a term which may extend to seven years, and shall also be liable to
ﬁne;
or, if the person to be apprehended or rescued, or attempted to be rescued, is under
sentence of death, shall be punished with imprisonment for life or imprisonment of
either description for a term not exceeding ten years, and shall also be liable to ﬁne.
361.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
362.  Ibid.
COMMENT.—
Persons who offer resistance or illegal obstruction to the apprehension of other
persons who have committed offences are punishable under this section. The
preceding section punishes the offenders themselves. Section 130 deals with rescuing
a prisoner of State or war and section 186, with rescuing in any other case.

'Rescue' is the act of forcibly freeing a person from custody against the will of those
who have him in custody.366. It has no application to a person who is in lawful custody
and who has offered no resistance or obstruction.367. It is also not necessary that the
rescuing should be done intentionally for in the second part of this section the word
"intentionally" has been deliberately omitted. Thus where a person even in order to
pacify a situation released an accused from the lawful custody of the chowkidar by
untying the turban with which the accused had been tied, it was held that the person so
releasing the accused was clearly guilty of an offence under section 225, IPC, 1860, for
rescuing an offender from lawful custody.368.
One can be held guilty for an offence under section 225 if he rescues a person who

was detained lawfully. Here the word 'rescue' though not deﬁned in the Code, will
always mean an act of getting a person free forcibly from custody against the will of
person in whose lawful custody he was. Therefore, some overt act needs to be there, if
one is said to have rescued a person from the lawful custody.369.
Where the accused obstructed the lawful apprehension of a person and wrongfully
conﬁned two police personnel and the evidence of the prosecution was amply
corroborated and supported by medical evidence, conviction and sentence of the
accused under sections 225, 332 and 342 was upheld.370. The act for which the person
rescued is detained must amount to an offence under the Code. Thus an escape from
custody when being taken before a Magistrate for the purpose of being bound over to
be of good behaviour,371. or an escape from arrest under section 41(2), Criminal

Procedure Code,372. will not fall under this section. If the apprehension is not lawful the
person resisting it will not be guilty of any offence.373.

363.  The words "or to" omitted by Act 36 of 1957, section 3 and Sch II (w.e.f. 17 September
1957).
364.  The word "transportation" omitted by Act 26 of 1955, section 117 and Sch (w.e.f. 1 January
1956).
365.  The words "penal servitude" omitted by Act 17 of 1949, section 2 (w.e.f. 6 April 1949).
366.  Vaghari Kala Bhikha, 1985 Cr LJ 237 (Guj).
367.  Salim, 1972 Cr LJ 1454 (Guj).
368.  Awadhesh Mahato, 1979 Cr LJ 1275 (Pat).
369.  Radha Sah v State of Jharkhand, 2007 Cr LJ 2805 (Jha).
370.  Prithvi Nath Pandey v State of UP, 1994 Cr LJ 3623 (All).
371.  Shasti Churn Napit, (1882) 8 Cal 331 .
372.  Kandhaia, (1884) 7 All 67 .
373.  PB Gosain v State, (1962) 1 Cr LJ 91 ; Kunju Kunju, (1962) 2 Cr LJ 437 . Matha Yadav v State
of Bihar, 2002 Cr LJ 2819 : AIR 2002 SC 2137 [LNIND 2002 SC 359] , the accused was caught
red-handed when he was uprooting the crops of the victim's family. They refused to release him
till he was brought before the village panchayat, They were not intending to hand him over to

police. It was held that their conviction under section 225 was not possible.

[s 225A] Omission to apprehend or sufferance of escape, on part of public
servant, in cases not otherwise provided for.
[Whoever, being a public servant legally bound as such public servant to apprehend, or
to keep in conﬁnement, any person in any case not provided for in section 221,
section 222 or section 223, or in any other law for the time being in force, omits to
apprehend that person or suffers him to escape from conﬁnement, shall be punished
—
(a) if he does so intentionally, with imprisonment of either description for a term

—
which may extend to three years, or with ﬁne, or with both; and
(b) if he does so negligently, with simple imprisonment for a term which may
extend to two years, or with ﬁne, or with both.]
COMMENT.—
This section punishes intentional or negligent omission to apprehend on the part of a
public servant not coming within the purview of sections 221, 222 or 223.

[s 225B] Resistance or obstruction to lawful apprehension, or escape or
rescue, in cases not otherwise provided for.
[Whoever, in any case not provided for in section 224 or section 225 or in any other
law for the time being in force, intentionally offers any resistance or illegal
obstruction to the lawful apprehension of himself or of any other person, or escapes
or attempts to escape from any custody in which he is lawfully detained, or rescues 1
or attempts to rescue any other person from any custody in which that person is

lawfully detained, shall be punished with imprisonment of either description for a
term which may extend to six months, or with ﬁne, or with both.]
COMMENT.—
This section is intended to meet cases not covered by section 224 or section 225.
Under section 225 a person, escaping from custody when being taken before a
Magistrate for the purpose of being bound over to be of good behaviour, or escaping
from a jail in which he is conﬁned by reason of his having failed to furnish security to
be of good behaviour,374. cannot be punished; under this section he can.

There must be an overt act of resistance or obstruction. If a person runs away to avoid
an arrest, his act does not amount to resistance or obstruction.375.
The apprehension or detention must be lawful. If the warrant is defective the rescue of
the person arrested under such warrant is no offence under this section. The liberty of
the subject cannot be triﬂed with, and every person can require by right that the Court
ordering his arrest shall observe the law.376.
1. 'Rescues'.—Rescuing indicates some positive overt act on the part of the accused by
which the liberation of the person arrested is effected.377.
[s 225B.1] CASES.—
Resistance to arrest without warrant justiﬁable.—An arrest by a police-oﬃcer, without
notifying the substance of the warrant to the person against whom the warrant is
issued, as required by section 80 of the Criminal Procedure Code, is not a lawful arrest,
and resistance to such an arrest is no offence under this section.378. A person, about to

be arrested, is entitled to know under what power the constable is arresting him and, if
he speciﬁes a certain power which the person knows the constable has not got, he is
entitled to object to such arrest and escape from custody, such custody not being a
lawful one. For a charge of escaping from lawful custody the prosecution must ﬁrst
establish that the constable who arrested the man had power to act under the speciﬁc
authority that he claimed to have.379.
[s 225B.2] Resistance to improper warrant justiﬁable.—
A person cannot be arrested under sections 225B and 353 when the warrant attempted
to be executed was addressed to the person with a wrong description to which he did
not answer,380. or when it was illegal owing to want of the seal of the Court,381. or

when it did not contain the name of the person to be arrested,382. or for any other
defect.383. But even if a Court has wrongly exercised its discretion in issuing a warrant,
an accused escaping from the custody of the peon apprehending him or obstructing
his apprehension would be guilty under this section.384. This is, however, not to say
that an outright illegality in issuing the warrant too would have no consequence. Thus,
where the warrant was signed by a sheristadar who had no authority to sign the
warrant, it was held by offering resistance to arrest under such an illegal warrant the
accused did not come under the mischief of this section.385.
[s 225B.3] Escape must be from lawful custody.—
The accused was arrested by a Process-Server, and after the arrest he managed to

escape from custody, went inside his house, shut himself up there, and refused to
come out. It was held that an offence under section 186 was not established, but that
the accused was guilty of the offence of escaping from lawful custody under this
section.386. But when the accused was merely requested by the Amin of the Civil Court
to accompany him to the Court and the accused was not informed that he was being
put under arrest, it was held that the accused committed no offence under this section
by refusing to accompany the Amin.387.

374.  Muli v State, (1920) 43 All 185 .
375.  Annaudin, (1923) 1 Ran 218.
376.  Fattu, (1932) 55 All 109 , 111, 112.
377.  Thangal, AIR 1961 Ker 331 [LNIND 1960 KER 261] .
378.  Satish Chandra Rai v Jodu Nandan Singh, (1899) 26 Cal 748 .
379.  Appasami Mudaliar, (1924) 47 Mad 442.
380.  Debi Singh, (1901) 28 Cal 399 .
381.  Mahajan Sheikh, (1914) 42 Cal 708 .
382.  Jogendra Nath Laskar v Hiralal, (1924) 51 Cal 902 .
383.  Gokal v State, (1922) 45 All 142 ; Gaman, (1913) PR No. 16 of 1913; Muhammad Baksh,
(1904) PR No. 16 of 1904.
384.  Puna Mahton, (1932) 11 Pat 743.
385.  I Venkayya v State, 1973 Cr LJ 245 (AP). See also Subbramaniah, AIR 1934 Mad 206 [LNIND
1934 MAD 4] .
386.  Jamna Das, (1927) 9 Lah 214.
387.  Heer Singh, AIR 1961 Raj 156 [LNIND 1960 RAJ 162] .

[s 226] [ O m i t t e d ] 
[* * *] [Omitted]. [by Act XXVI of 1955, section 117 and Sch.]

[s 227] Violation of condition of remission of punishment.
Whoever, having accepted any conditional remission of punishment, knowingly
violates any condition on which such remission was granted, shall be punished with
the punishment to which he was originally sentenced, if he has already suffered no
part of that punishment, and if he has suffered any part of that punishment, then with
so much of that punishment as he has not already suffered.
COMMENT.—
This section deals with those cases in which remission of punishment is made

COMMENT.—
conditional by Government under section 432 of the Code of Criminal Procedure.
Section 227 of the IPC, 1860 makes it a speciﬁc offence on the part of any person who
has accepted any conditional remission of punishment if he knowingly violates any
condition on which such remission was granted. In other words while the Code of
Criminal Procedure envisages arrest of a person who violates the conditions of
remission and remand straightway to jail, section 227 of the IPC, 1860 envisages for
the same act of violation of conditions, prosecution and the punishment, if the
prosecution succeeds, is the same, as the consequence contemplated under section
432 (3), namely, remanding of the person concerned for the rest of his term.388.

388.  Krishnan Nair v State, 1983 Cr LJ 87 .

[s 228] Intentional insult or interruption to public servant sitting in judicial
proceeding.
Whoever intentionally offers any insult, or causes any interruption to any public
servant, while such public servant is sitting in any stage of a judicial proceeding, shall
be punished with simple imprisonment for a term which may extend to six months, or
with ﬁne which may extend to one thousand rupees, or with both.
Andhra Pradesh.— Offence under section 228 is cognizable. [Vide A.P.G.O. Ms. No. 732,
dated 5th December, 1991].
COMMENT.—

COMMENT.—
The object of this section is to punish a person who intentionally insults in any way the
Court administering justice. It lays down the highest sentence that can be inﬂicted for
contempt of Court. By a notiﬁcation under section 10(1) of The Criminal Law
Amendment Act, 1932 the State Government can make an offence under section 228,
IPC, 1860, a cognizable offence for a speciﬁed area for such time as the notiﬁcation

remains in force. No Court shall take cognizance of the offence under section 228,
when such offence is alleged to have been committed in, or in relation to, any
proceeding in any Court, except on the complaint in writing of that Court by such oﬃcer
of the Court as that Court may authorise in writing in this behalf, or of some other Court
to which that Court is sub-ordinate.389.
[s 228.1] Ingredients.—
The essential ingredients of the offence under this section are— (1) intention, (2) insult
or interruption to a public servant and (3) the public servant insulted or interrupted
must be sitting in any stage of a judicial proceeding.390. The fact that the Court feels
insulted is no reason for holding that any insult is intended.391.
The whole sitting of a Court for the disposal of judicial work from the opening to the
rising of the Court is a judicial proceeding, and the necessary interval between the
conclusion of one case and the opening of another is a stage in a judicial
proceeding.392.

Acts, such as rude and contumelious behaviour, obstinacy, perverseness, prevarication,
or refusal to answer any lawful question, breach of the peace or any wilful disturbance
whatever, will amount to contempt of Court.
If the offence of contempt of Court is summarily dealt with under section 345 of the
Criminal Procedure Code, the maximum punishment that can be imposed is ﬁne not
exceeding Rs. 200.
The offence under the section is not punishable as contempt of Court. The deﬁnition of
"criminal contempt" in section 2(c) of The Contempt of Courts Act, 1971 includes acts
which constitute an offence under section 228, IPC, 1860 and also goes beyond such
acts, being wider than section 228.393.
[s 228.2] CASES.—Contempt.—
A person persisting in putting irrelevant and vexatious questions to a witness after

warning;394. a person making an impertinent threat to a witness in the box,395. a
person sentenced to two hours' imprisonment and ordered to be kept in custody
insulting the Judge in the grossest manner;396. a person calling the trial Judge as "a
prejudiced judge;"397. a person stating in an application for transfer of a case that the
Court had become hostile to him;398. and a person insisting upon staying in the Court
room after the presiding oﬃcer of the Court had asked him to leave the Court and after
he had been warned that action for contempt of Court would be taken against him,399.
were all held guilty of contempt of Court under this section. A Commissioner appointed
by the Court being a public servant a person who intentionally insults or interrupts him
while he is sitting in a judicial proceeding commits an offence under section 228, IPC,

1860, and should be punished under that section and not under section 345, Cr PC,
1973.400. Hurling of shoes by an Advocate at the presiding oﬃcer of the Court was
contempt. Where the party to a case shouted inside a Court room in offensive language
as the presiding oﬃcer told that after ﬁling of the rejoinder by the opposite party
arguments were closed, summary contempt proceedings under section 480 (now
section 345) Cr PC, 1973, read with section 228, IPC, 1860, were fully justiﬁed though in
view of the written apology tendered then and there the party should not be convicted
under section 228, IPC, 1860.401.

[s 228.3] Refusal to answer question.—
Prevarication by a witness and refusal to answer a question amount to intentional
interruption within the meaning of the section.402.
[s 228.4] No contempt.—
A person leaving the Court when ordered to remain;403. or making signs from outside
to a prisoner on his trial;404. a person listening to evidence after being told to leave the
Court;405. a person using vulgar language for the purpose of emphasis;406. a person
walking out of the Court without answering the question whether he had any
witness;407. a person giving away in marriage a minor girl while she was in the custody
of a guardian appointed by the Court;408. a person appearing as an assessor in Court
dressed in a shirt and a cap;409. a person writing a letter to a Judge imputing an
unlawful act causing loss to him,410. and a pleader saying that he 'resented' the remark
of the Court and that another remark was 'improper', and that a certain action of the

Court was 'strange',411. were held to have committed no offence under this section.
[s 228.5] Allocation of sitting accommodation in Court room.—
A litigant, conducting his case without the aid of counsel, was occupying the seat in the
Court room meant for the advocates while senior advocates were standing. He refused
to vacate the seat when asked to do so by the presiding oﬃcer. His conviction under
section 228 was upheld.412.
[s 228.6] Free legal assistance.—
It was held in Shrichand v State of MP that the right to free legal assistance has to be
conﬁned to the offences that are punishable with substantive sentence of
imprisonment. The right to free legal assistance at the State cost could not be
extended to an offence under section 228, IPC, 1860 of which the accused was being

tried summarily because on conviction he could not have been visited with any
substantive imprisonment.413.
[s 228.7] Insult to Court.—
Several accused persons faced a trial and were found guilty of various offences. One of
them, on hearing the judgment, addressed to the Court and uttered ﬁlthy abuses and
made contemptuous statements. The Court said that it amounted to an insult of the
Court. The Court had jurisdiction under the section to punish the accused.414. Where
an accused wrote a letter to the Magistrate asking him for the reasons as to why he
had returned the petition ﬁled by him and also requested him, to give a copy of the
document connected with the case, Magistrate found him to be guilty of offence under
section 228, IPC, 1860. But the Madras High Court set aside the judgment by holding

that it may not be said that the letter has been received by the judicial oﬃcer when he
was in any stage of the proceedings in Court and, therefore, the offence under section
228, IPC, 1860 is not be made out.415.

389.  S Palani Velayutham v District Collector Tirunvelveli TN, (2010) 1 SCC (Cr) 401 : (2009) 10
SCC 664 [LNIND 2009 SC 1659] : (2009) 12 SCR 1215 [LNIND 2009 SC 1659] : JT 2009 (12) SC
485 [LNIND 2009 SC 1659] : 2009 (11) Scale 658 [LNIND 2009 SC 1659] .
390.  Revashankar, AIR 1959 SC 102 [LNIND 1958 SC 110] : (1958) Cr LJ 251 .
391.  Pranlal, 1966 Cr LJ 1087 .
392.  Salig Ram v State, (1898) PR No. 16 of 1897.
393.  Daroga Singh v BK Pandey, (2004) 5 SCC 26 [LNIND 2004 SC 485] : 2004 Cr LJ 2084 : AIR
2004 SC 2579 [LNIND 2004 SC 485] .
394.  Azeemoola, (1867) PR No. 44 of 1867.
395.  Allu, (1922) 45 All 272 .
396.  Venkatasami, (1891) 15 Mad 131.
397.  Venkatrao v State, (1922) 24 Bom LR 386 [LNIND 1922 BOM 43] , 46 Bom 973.
398.  Narotam Das, (1943) All 186 .
399.  Rameshwar, 1960 Cr LJ 976 .
400.  CK Nanavati, 1978 Cr LJ 1040 (Guj).

401.  State of UP v Pateswari Prasad, 1980 Cr LJ NOC 1 (All).
402.  Jaimal Shravan, (1873) 10 BHC 69; Gopi Chand, (1917) PR No. 14 of 1918.
403.  (1870) 1 Weir 215.
404.  (1870) 1 Weir 214.
405.  Papa Naiken, (1882) 1 Weir 217.
406.  (1880) 1 Weir 216.
407.  Abdul Rahiman, (1899) 1 Weir 218.
408.  Kaulashia, (1932) 12 Pat 1, the offence committed was disobedience of a lawful order.
409.  Chhaganlal Ishwardas, (1933) 35 Bom LR 1025 .
410.  Subordinate Judge, Hoshangabad v Jawaharlal, (1941) Nag 304.
411.  Hakumat Rai, (1942) 24 Lah 791.
412.  Omana v State of Kerala, 1994 Cr LJ 687 (Ker). Another similar ruling is PC Jose v
Nandakumar, AIR 1997 Ker 243 [LNIND 1993 KER 251] .
413.  1993 Cr LJ 495 (MP).
414.  Ram Vishal Re, 1997 Cr LJ 3736 (MP).

415.  C R Rajasekaran, v Judicial Magistrate, Nagapattinam, 2003 Cr LJ 4024 (Mad).

416.[s 228A]— Disclosure of identity of the victim of certain offences, etc.
(1) Whoever prints or publishes the name or any matter which may make known
the identity of any person against whom an 417.[offence under section 376, 418.
[section 376AB, section 376B, section 376C, section 376D, section 376DA,
section 376DB] or section 376E] is alleged or found to have been committed
(hereafter in this section referred to as the victim) shall be punished with
imprisonment of either description for a term which may extend to two years

(2) Nothing in sub-section (1) extends to any printing or publication of the name or
any matter which may make known the identity of the victim if such printing or
publication is—
(a) by or under the order in writing of the oﬃcer-in-charge of the police
station or the police oﬃcer making the investigation into such offence
acting in good faith for the purposes of such investigation; or
(b) by, or with the authorisation in writing of, the victim; or
(c) where the victim is dead or minor or of unsound mind, by, or with the
authorisation in writing of, the next of kin of the victim:

P r o v i d e d  that no such authorisation shall be given by the next of kin to anybody
other than the chairman or the secretary, by whatever name called, of any
recognised welfare institution or organisation.
Explanation.—For the purposes of this sub-section, "recognised welfare
institution or organisation" means a social welfare institution or organisation
recognised in this behalf by the Central or State Government.
(3) Whoever prints or publishes any matter in relation to any proceeding before a
court with respect to an offence referred to in sub-section (1) without the
previous permission of such Court shall be punished with imprisonment of
either description for a term which may extend to two years and shall also be
Explanation.—The printing or publication of the judgment of any High Court or
the Supreme Court does not amount to an offence within the meaning of this
section.
COMMENT.—
This section has been introduced by The Criminal Law Amendment Act, 1983, section 2

section.
COMMENT.—
(43 of 1983) to prevent social victimisation or ostracism of the victim of a sexual
offence.
[s 228A.1] Exemption from prosecution.—
A complaint was ﬁled against the accused (petitioners) for the alleged disclosure of
identity of the victim of a rape in their newspaper. The reply notice showed that the
publication was made at the instance of a recognised welfare association. It was held
that the petitioners were exempt from prosecution.419. Publishing the photographs of
rape victims in newspapers, journals and magazines would certainly fall under the
category of making disclosure of identity of victim and such act would fall under
section 228-A of IPC, 1860.420.
[s 228A.2] Judgments.—
Section 228A IPC, 1860 makes disclosure of identity of victim of certain offences

punishable. Printing or publishing name of any matter which may make known the
identity of any person against whom an offence under sections 376, 376A, 376B, 376C
or 376D is alleged or found to have been committed can be punished. Keeping in view
the social object of preventing social victimisation or ostracism of the victim of a
sexual offence for which section 228A has been enacted, it would be appropriate that
in the judgments, be it of the Supreme Court, High Court or lower Court, the name of
the victim should not be indicated.421.

416.  Ins. by Act 43 of 1983, section 2 (w.e.f. 25 December 1983).
417.  Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 4 (w.e.f. 3
February 2013) for "offence under section 376, section 376A, section 376B, section 376C or
section 376D".
418.  Subs. by Act 22 of 2018, section 3, for "section 376A, section 376B, section 376C, section
376D" (w.r.e.f. 21 April 2018).
419.  R Lakshmipathi v Ramalingam, 1998 Cr LJ 3683 (Mad).
420.  National Federation of Indian Women v Government of Tamil Nadu, 2007 Cr LJ 3385 (Mad).
421.  S Ramakrishna v State, (2009) 1 SCC 133 [LNIND 2008 SC 2066] : (2009) 1 SCC Cri 487 :
AIR 2009 SC 885 [LNIND 2008 SC 2066] . See also Om Prakash v State of UP, 2006 Cr LJ 2913 :
AIR 2006 SC 2214 [LNIND 2006 SC 382] : (2006) 9 SCC 787 [LNIND 2006 SC 382] , it would be

appropriate that the name of victim of rape should not be disclosed be it a judgment of the
Supreme Court, High Court or lower court. This is necessary to prevent victimisation or
ostracism of the victim. To the same effect is Dinesh v State of Rajasthan, 2006 Cr LJ 1679 (SC),
Bhupinder Sharma v State of HP, (2003) 8 SCC 551 . State of Karnataka v Puttaraja, (2004 (1) SCC
475) [LNIND 2003 SC 1033] .

[s 229] Personation of a Juror or Assessor.
Whoever, by personation or otherwise, shall intentionally cause, or knowingly suffer
himself to be returned, empanelled or sworn as a juryman or assessor in any case in
which he knows that he is not entitled by law to be so returned, empanelled or sworn,
or knowing himself to have been so returned, empanelled or sworn contrary to law,
shall voluntarily serve on such jury or as such assessor, shall be punished with
COMMENT.—

COMMENT.—
This section was intended to punish personation of a juror or an assessor. It has now
become obsolete with the abolition of assessor or jury system of trial.

422.[s 229-A] Failure by person released on bail or bond to appear in Court.
[Whoever, having been charged with an offence and released on bail or on bond
without sureties, fails without suﬃcient cause (the burden of proving which shall lie
upon him), to appear in Court in accordance with the terms of the bail or bond, shall
one year, or with ﬁne, or with both.
Explanation.—The punishment under this section is—
(a) in addition to the punishment to which the offender would be liable on a

conviction for the offence with which he has been charged; and
(b) without prejudice to the power of the Court to order forfeiture of the bond].
COMMENT.—
Cr PC, 1973 (Amendment) Act 2005—clause 44.—This clause amends the IPC, 1860 as

422.  Ins. by Cr PC, 1973. (Amendment) Act, 2005 (25 of 2005), section 44(c) (w.e.f. 23 June
2006 vide Notfn. No. SO 923(E), dated 21 June 2006.
Under clause 37 an obligation is cast on the person released on bail or on bond to
appear and surrender to custody. In order to enforce this obligation, a new section 229-
A is being inserted in the IPC, 1860 to prescribe punishment for those who fail to do so.
[Notes on clauses.]

CHAPTER XII OF OFFENCES RELATING TO COIN AND GOVERNMENT
STAMPS
The offences described in this Chapter relate to (I) Coins and (II) Government Stamps.
(I) Coins.—
The offences relating to coins may be classiﬁed into three divisions:—
(1) Counterfeiting, (2) alteration, and (3) acts of mint employees.
1. Counterfeiting—
(1) Counterfeiting coins (sections 231, 232).
(2) Making or selling instrument for counterfeiting (sections 233, 234).
(3) Possession of instrument for counterfeiting (section 235).
(4) Abetting in India the counterfeiting of coin out of India (section 236).
(5) Importing or exporting of counterfeit coin (sections 237, 238).
(6) Delivering counterfeit coin knowing it to be so (sections 239, 240).
(7) Delivering counterfeit coin not known to be so when ﬁrst possessed
(section 241).
(8) Possession of counterfeit coin knowing it to be so (sections 242, 243).
2. Alteration—
(1) Diminishing the weight or altering the composition of any coin (sections
246, 247).

246, 247).
(2) Altering appearance of any coin to pass it off as a different coin (sections
248, 249).
(3) Delivering coin possessed with the knowledge that it is altered (sections
250, 251).
(4) Possessing altered coin knowing it to be so (sections 252, 253).
(5) Delivering altered coin which the deliverer did not know to be altered when
ﬁrst possessed (section 254).
3. Acts of mint employees—
(1) Persons employed in a mint causing coin to be of a different weight or
composition from that ﬁxed by law (section 244).
(2) Unlawful taking from a mint any coining instrument (section 245).
(II) Government Stamps.—
(1) Counterfeiting a stamp (section 255).
(2) Possession of an instrument for counterfeiting a stamp (section 256).

(3) Making or selling an instrument for counterfeiting a stamp (section 257).
(4) Sale of a counterfeit stamp (section 258).
(5) Possession of a counterfeit stamp (section 259).
(6) Using as genuine a stamp known to be counterfeit (section 260).
(7) Effacing any writing from a substance bearing a stamp or removing from a
document a stamp used for it, with intent to cause loss to Government (section
261).
(8) Using a stamp known to have been before used (section 262).
(9) Erasure of mark denoting that a stamp has been used (section 263).
(10) Making, uttering, or dealing in, or selling or using for postal purpose, any
ﬁctitious stamp; or possessing any ﬁctitious stamp; or making or possessing
any instrument for manufacturing ﬁctitious stamps (section 263A).
[s 230] "Coin" deﬁned.
1.[Coin is metal used for the time being as money, and stamped and issued by the
authority of some State or Sovereign Power in order to be so used.]
Indian coin.

2.[Indian coin is metal stamped and issued by the authority of the Government of
India in order to be used as money; and metal which has been so stamped and
issued shall continue to be Indian coin for the purposes of this Chapter,
notwithstanding that it may have ceased to be used as money.]
(a) Cowries are not coin.
(b) Lumps of unstamped copper, though used as money, are not coin.
(c) Medals are not coin, in as much as they are not intended to be used as money.
(d) The coin denominated as the Company's rupee is 3.[Indian coin].
4.[(e) The "Farukhabad rupee" which was formerly used as money under the
authority of the Government of India is 5.[Indian coin] although it is no longer
so used].
COMMENT.—
In view of the deﬁnition of "Indian coin" in this section, it is immaterial whether the

so used].
COMMENT.—
coins are still current or they have ceased to be used as money.6.

1.  Subs. by Act 19 of 1872, section 1, for the original ﬁrst paragraph.
2.  Subs. by A.O. 1950, for the former paragraph.
3.  Subs. by the A.O. 1950, for "the Queen's coin".
4.  Ins. by Act 6 of 1896, section 1.
5.  Subs. by the A.O. 1950, for "the Queen's coin".
6.  Ranchhod Mula v State, (1961) 2 Cr LJ 472 .

261).
[s 231] Counterfeiting coin.
Whoever counterfeits or knowingly performs any part of the process of counterfeiting
coin, shall be punished with imprisonment of either description for a term which may

Explanation.—A person commits this offence who intending to practise deception, or
knowing it to be likely that deception will thereby be practised, causes a genuine coin
to appear like a different coin.
7.  Qadir Bakhsh, (1907) 30 All 93 ; Premsookh Dass, (1870) PR 38 of 1870.
8.  Amrit Sonar, (1919) 4 PLJ 525 , 20 Cr LJ 439.
9.  Ranchhod Mula v State, (1961) 2 Cr LJ 472 .
COMMENT.—
It is not necessary under this section that the counterfeit coin should be made with the
primary intention of its being passed as genuine; it is suﬃcient if the resemblance to
genuine coin is so close that it is capable of being passed as such.7. It is not essential
for coins to be counterfeit that they should be of exact resemblances to genuine coins.
It is suﬃcient that they are such as to cause deception and may be passed as

genuine.8. But where the alleged counterfeit coins are such that none would be
deceived, these cannot be counterfeit coins within the meaning of this section.9.

261).
[s 232] Counterfeiting Indian coin.
Whoever counterfeits, or knowingly performs any part of the process of counterfeiting
10.[Indian coin], shall be punished with 11.[imprisonment for life], or with

10.  Subs. by the A.O. 1950, for "the Queen's coin".
11.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-1956).
COMMENT.—
The Code provides heavier punishment in cases of offences relating to Indian coin than
those relating to foreign coins.12.
The basic requirement for the prosecution to succeed against the accused in respect
of counterfeiting coins is that the witnesses examined by the prosecution must speak
of the manufacture of one coin resembling a genuine one. A presumption can also be
drawn under Explanation 2 of section 28 that a person is counterfeiting coins when he
causes one coin to resemble another so closely that the person intended to practice

deception or knew it would be likely to cause deception. Section 232 prescribes the
punishment for counterfeiting Indian coins. Section 235 prescribes the punishment for
a person who is in possession of any instrument or material used for counterfeiting
coins. Thus, a conviction under sections 232 or 235 would be maintained only if the
prosecution satisfactorily proves the ingredients of section 28. The prosecution must
establish that the coins manufactured resemble the original. It must also establish that
there is an intention to deceive, or the knowledge that deception would be caused by
such resemblance.13.
'Counterfeiting' means causing one thing to resemble another.14.

12.  Note I, p 134.
13.  Shahid Sultan Khan v State of Maharashtra, 2007 Cr LJ 568 (Bom).
14.  Muhammad Husain, (1901) 23 All 420 .

261).
[s 233] Making or selling instrument for counterfeiting coin.
Whoever makes or mends, or performs any part of the process of making or mending,
or buys, sells or disposes of, any die or instrument, for the purpose of being used, or

knowing or having reason to believe that it is intended to be used, for the purpose of
counterfeiting coin, shall be punished with imprisonment of either description for a
COMMENT.—
In this as well as in the following sections mere acts of preparation towards the
offence of coining are made substantive offences, such as the making of dies or other
instruments used in the manufacture of coin.

261).
[s 234] Making or selling instrument for counterfeiting Indian coin.

counterfeiting 15.[Indian coin], shall be punished with imprisonment of either
ﬁne.
15.  Subs. by the A.O. 1950, for "the Queen's coin".

261).
[s 235] Possession of instrument, or material for the purpose of using the
same for counterfeiting coin.
Whoever is in possession of any instrument or material, for the purpose of using the

same for counterfeiting coin, or knowing or having reason to believe that the same is
intended to be used for that purpose, shall be punished with imprisonment of either
description for a term which may extend to three years, and shall also be liable to ﬁne;
If Indian coin.
and if the coin to be counterfeited is 16.[Indian coin], shall be punished with
COMMENT.—
'Possession' connotes the intention to exercise power or control over the object
possessed and therefore necessarily implies that the possessor has been conscious of
the possibility of exercising that power or control. Mere possession of instruments and
materials capable of counterfeiting coins is no offence. Possession of such

instruments should be with the intention of counterfeiting coins and the intention must
be proved. The onus of proving the ﬁtness of the materials for the purpose of
counterfeiting coins was upon the prosecution.17. The minimum that would be required
for prosecution to establish a charge under sections 232 and 235 is that it establishes
that the coins seized resembled the original and that the resemblance is such that it
would deceive a person or that the accused knew that if the coin is used it would be
likely to deceive a person. Unless there is intrinsic evidence on record to show that the
coins indeed resemble genuine coins, it is diﬃcult to accept the case of the
prosecution.18.

16.  Subs. by the A.O. 1950, for "the Queen's coin".
17.  Khadim Hussain, (1924) 5 Lah 392.
18.  Shahid Sultan Khan v State of Maharashtra, 2007 Cr LJ 568 (Bom).

261).
[s 236] Abetting in India the counterfeiting out of India of coin.
Whoever, being within 19.[India], abets the counterfeiting of coin out of 20.[India], shall
be punished in the same manner as if he abetted the counterfeiting of such coin
within 21.[India].

19.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
20.  I b i d .
21.  I b i d . 
COMMENT.—
Any person in India, whether an Indian or a foreigner, who supplied instruments or
materials for the purpose of counterfeiting any coin, or assists in any other way, is
punishable under this section. Abetment in India must be complete.

261).
[s 237] Import or export of counterfeit coin.
Whoever imports into 22. [India], or exports therefrom, any counterfeit coin, knowing
or having reason to believe that the same is counterfeit, shall be punished with

22.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
COMMENT.—
The offence under this and the following section consists in an import or export, of any
coin known by the importer, or which he has reason to believe, to be counterfeit.

261).
[s 238] Import or export of counterfeits of Indian coin.
Whoever imports into 23.[India], or exports therefrom, any counterfeit coin, which he
knows or has reason to believe to be a counterfeit of 24.[Indian coin], shall be

punished with 25.[imprisonment for life], or with imprisonment of either description
for a term which may extend to ten years, and shall also be liable to ﬁne.
23.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
24.  Subs. by the A.O. 1950, for "the Queen's coin".
25.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-1956).

261).
[s 239] Delivery of coin, possessed with knowledge that it is counterfeit.
Whoever, having any counterfeit coin, which at the time when he became possessed
of it knew to be counterfeit, fraudulently or with intent that fraud may be committed,

delivers the same to any person, or attempts to induce any person to receive it shall
ﬁve years, and shall also be liable to ﬁne.
COMMENT.—
This section is directed against a person other than the coiner, who procures or obtains
or receives counterfeit coin, and not to the offence committed by the coiner.
Three classes of offences are created by sections 239–243:
(1) Delivery to another of coin, possessed with the knowledge that it is counterfeit
(sections 239, 240).
(2) Delivery to another of coin as genuine, which when ﬁ r s t  possessed, the deliverer
did not know to be counterfeit (section 241).
(3) Possession of counterfeit coin by a person who knew it to be counterfeit when
he became possessed thereof (sections 242, 243).

261).
[s 240] Delivery of Indian coin, possessed with knowledge that it is counterfeit.
Whoever, having any counterfeit coin which is a counterfeit of 26.[Indian coin], and
which, at the time when he became possessed of it, he knew to be a counterfeit of 27.

[Indian coin], fraudulently or with intent that fraud may be committed, delivers the
same to any person, or attempts to induce any person to receive it shall be punished
with imprisonment of either description for a term which may extend to ten years, and
26.  Subs. by the A.O. 1950, for "Queen's coin".
27.  Ibid.
28.  Ahmad Shah, (1892) PR No. 10 of 1892.
29.  Dost Mohammad, (1937) Nag 133.
COMMENT.—
The offence under this section is an aggravated form of the offence described in the
last section. This section does not apply to the actual coiner.28. It must be established
that the accused knew that the coins were counterfeit when he became possessed of
them.29.

261).
[s 241] Delivery of coin as genuine, which, when ﬁrst possessed, the deliverer
did not know to be counterfeit.
Whoever delivers to any other person as genuine, or attempts to induce any other

person to receive as genuine, any counterfeit coin which he knows to be counterfeit,
but which he did not know to be counterfeit at the time when he took it into his
possession, shall be punished with imprisonment of either description for a term
which may extend to two years, or with ﬁne to an amount which may extend to ten
times the value of the coin counterfeited, or with both.
A, a coiner, delivers counterfeit Company's rupees to his accomplice B, for the purpose
of uttering them. B sells the rupees to C, another utterer, who buys them knowing them
to be counterfeit. C pays away the rupees for goods to D, who receives them, not
knowing them to be counterfeit. D, after receiving the rupees, discovers that they are
counterfeit and pays them away as if they were good. Here D is punishable only under

this section, but B and C are punishable under section 239 or 240, as the case may be.
COMMENT.—
This section applies to a casual utterer of base coins. Section 239 deals with
professional utterers.

261).
[s 242] Possession of counterfeit coin by person who knew it to be counterfeit
when he became possessed thereof.
Whoever, fraudulently or with intent that fraud may be committed, is in possession of

counterfeit coin, having known at the time when he became possessed thereof that
such coin was counterfeit, shall be punished with imprisonment of either description
for a term which may extend to three years, and shall also be liable to ﬁne.
COMMENT.—
Mere possession of a counterfeit coin is an offence under this and the following
section, even though no attempt is made to pass it off, provided it was kept for a
fraudulent purpose and was originally obtained with guilty knowledge.

261).
[s 243] Possession of Indian coin by person who knew it to be counterfeit when
he became possessed thereof.

counterfeit coin, which is a counterfeit of 30.[Indian coin], having known at the time
when he became possessed of it that it was counterfeit, shall be punished with
imprisonment of either description for a term which may extend to seven years, and
30.  Subs. by the A.O. 1950, for "Queen's coin".
31.  Mohd Ibrahim v State, 1968 Cr LJ 1377 (Del).
32.  Ranchhod Mula v State, 1960 Cr LJ 472 (Guj).
COMMENT.—
For an offence under section 243, IPC, 1860, it has to be established by the prosecution
that accused fraudulently or with intent that fraud may be committed, came into
possession of counterfeit coins which were counterfeit of Indian coins, having known
at the time he became possessed of them that they were counterfeit.31. Where the

coins were not counterfeit coins but were in the process of being made counterfeit
coins, section 243 has no application.32.

261).
[s 244] Person employed in mint causing coin to be of different weight or
composition from that ﬁxed by law.
Whoever, being employed in any mint lawfully established in 33.[India], does any act,

or omits what he is legally bound to do, with the intention of causing any coin issued
from that mint to be of a different weight or composition from the weight or
composition ﬁxed by law, shall be punished with imprisonment of either description
33.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and
COMMENT.—
The object of this section is to secure purity of coinage and its exact conformity to the
legal standard against the act or omission of person employed in mints. The law has
ﬁxed the weight and composition of various coins and has declared in what cases they
shall be a legal tender.

261).
[s 245] Unlawfully taking coining instrument from mint.
Whoever, without lawful authority, takes out of any mint, lawfully established in 34.
[India], any coining tool or instrument, shall be punished with imprisonment of either

ﬁne.
34.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and

261).
[s 246] Fraudulently or dishonestly diminishing weight or altering composition
of coin.
Whoever fraudulently or dishonestly performs on any coin any operation which
diminishes the weight or alters the composition of that coin, shall be punished with

of coin.
Explanation.—A person who scoops out part of the coin and puts anything else into
the cavity alters the composition of that coin.

261).
[s 247] Fraudulently or dishonestly diminishing weight or altering composition
of Indian coin.
Whoever fraudulently or dishonestly performs on any 35.[Indian coin] any operation

which diminishes the weight or alters the composition of that coin, shall be punished
35.  Subs. by the A.O. 1950, for "any of the Queen's coin".

261).
[s 248] Altering appearance of coin with intent that it shall pass as coin of
different description.
Whoever performs on any coin any operation which alters the appearance of that coin,

with the intention that the said coin shall pass as a coin of a different description,
extend to three years, and shall also be liable to ﬁne.
COMMENT.—
This section refers to any operation which alters the appearance of a coin with the
intention that the said coin shall pass as a coin of a different description, e.g., gilding,
silvering. If the weight of the coin is diminished, either section 246 or section 247
applies.

261).
[s 249] Altering appearance of Indian coin with intent that it shall pass as coin
of different description.
Whoever performs on any 36.[Indian coin] any operation which alters the appearance

of that coin, with the intention that the said coin shall pass as a coin of a different
description, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to ﬁne.
36.  Subs. by the A.O. 1950, for "any of the Queen's coin".

261).
[s 250] Delivery of coin possessed with knowledge that it is altered.
Whoever, having coin in his possession with respect to which the offence deﬁned in
section 246 or 248 has been committed, and having known at the time when he

became possessed of such coin that such offence had been committed with respect
to it, fraudulently or with intent that fraud may be committed, delivers such coin to any
other person, or attempts to induce any other person to receive the same, shall be
punished with imprisonment of either description for a term which may extend to ﬁve
COMMENT.—
This and the following section are intended to punish persons who are traders in
spurious or altered coins. They correspond to sections 239 and 240. There must be
both possession with knowledge and fraudulent delivery.

261).
[s 251] Delivery of Indian coin possessed with knowledge that it is altered.
section 247 or 249 has been committed, and having known at the time when he

punished with imprisonment of either description for a term which may extend to ten

261).
[s 252] Possession of coin by person who knew it to be altered when he
became possessed thereof.

coin with respect to which the offence deﬁned in either of the section 246 or 248 has
been committed, having known at the time of becoming possessed thereof that such
offence had been committed with respect to such coin, shall be punished with
COMMENT.—
Possession of debased or altered coin by the professional dealer, with fraudulent
intention is made punishable by this section. This and the next section resemble
sections 242 and 243. Under sections 250 and 251 the accused is punished for
uttering, under this section and the next he is punished for possessing a coin in respect
of which the offence deﬁned either in section 246 or section 247 has been committed.

261).
[s 253] Possession of Indian coin by person who knew it to be altered when he

coin with respect to which the offence deﬁned in either of the section 247 or 249 has
been committed, having known at the time of becoming possessed thereof, that such
imprisonment of either description for a term which may extend to ﬁve years, and

261).
[s 254] Delivery of coin as genuine which, when ﬁrst possessed, the deliverer
did not know to be altered.
Whoever delivers to any other person as genuine or as a coin of a different description

from what it is, or attempts to induce any person to receive as genuine, or as a
different coin from what it is, any coin in respect of which he knows that any such
operation as that mentioned in section 246, 247, 248 or 249 has been performed, but
in respect of which he did not, at the time when he took it into his possession, know
that such operation had been performed, shall be punished with imprisonment of
either description for a term which may extend to two years, or with ﬁne to an amount
which may extend to ten times the value of the coin for which the altered coin is
passed, or attempted to be passed.
COMMENT.—
Section 241 corresponds to this section. Where possession is acquired innocently but
on subsequent knowledge that the coin is counterfeit if a person passes it off or

COMMENT.—
attempts to pass it off as a genuine coin, he will be punished under this section.

261).
[s 255] Counterfeiting Government stamp.
Whoever counterfeits, or knowingly performs any part of the process of
counterfeiting, any stamp issued by Government for the purpose of revenue, shall be

punished with 37.[imprisonment for life], or with imprisonment of either description
E x p l a n a t i o n .—A person commits this offence who counterfeits by causing a genuine
stamp of one denomination to appear like a genuine stamp of a different
denomination.
37.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
38.  L o w d e n , (1914) 1 KB 144 .
COMMENT.—
This and the remaining sections of the Chapter deal with offences relating to
Government stamps. These stamps are impressions upon paper, parchment, or any
material used for writing, made by the Government mostly for the purpose of revenue.
A stamp does not cease to be a stamp because it is cancelled. A person selling a

forged stamp, although it bears a cancellation mark commits an offence of selling
forged stamps.38.

261).
[s 256] Having possession of instrument or material for counterfeiting
Government stamp.
Whoever has in his possession any instrument or material for the purpose of being
used, or knowing or having reason to believe that it is intended to be used, for the

purpose of counterfeiting any stamp issued by Government for the purpose of
revenue, shall be punished with imprisonment of either description for a term which
may extend to seven years, and shall also be liable to ﬁne.
COMMENT.—
This section resembles section 235.

261).
[s 257] Making or selling instrument for counterfeiting Government stamp.
Whoever makes or performs any part of the process of making, or buys, or sells, or
disposes of, any instrument for the purpose of being used, or knowing or having

reason to believe that it is intended to be used, for the purpose of counterfeiting any
stamp issued by Government for the purpose of revenue, shall be punished with
COMMENT.—
This section corresponds to section 234.

261).
[s 258] Sale of counterfeit Government stamp.
Whoever, sells, or offers for sale, any stamp which he knows or has reason to believe
to be a counterfeit of any stamp issued by Government for the purpose of revenue,

261).
[s 259] Having possession of counterfeit Government stamp.
Whoever has in his possession any stamp which he knows to be a counterfeit of any
stamp issued by Government for the purpose of revenue, intending to use, or dispose

of the same as a genuine stamp, or in order that it may be used as a genuine stamp,
COMMENT.—
This section corresponds to section 243.

261).
[s 260] Using as genuine a Government stamp known to be counterfeit.
Whoever uses as genuine any stamp, knowing it to be counterfeit of any stamp issued
by Government for the purpose of revenue, shall be punished with imprisonment of

both.
COMMENT.—
This section corresponds to section 254.

261).
[s 261] Effacing writing from substance bearing Government stamp, or
removing from document a stamp used for it, with intent to cause loss to
Whoever, fraudulently or with intent to cause loss to the Government, removes or

effaces from any substance, bearing any stamp issued by Government for the
purpose of revenue, any writing or document for which such stamp has been used, or
removes from any writing or document a stamp which has been used for such writing
or document, in order that such stamp may be used for a different writing or
document, shall be punished with imprisonment of either description for a term which
may extend to three years, or with ﬁne, or with both.
COMMENT.—
This section may be compared with sections 246 and 248. It punishes (1) the effacing
of a writing from a stamp, and (2) removing of a stamp from a document.

261).
[s 262] Using Government stamp known to have been before used.
Whoever, fraudulently or with intent to cause loss to the Government, uses for any
purpose a stamp issued by Government for the purpose of revenue, which he knows

to have been before used, shall be punished with imprisonment of either description
COMMENT.—
Under this section the fraudulent use of a stamp already used is made punishable.

261).
[s 263] Erasure of mark denoting that stamp has been used.
Whoever, fraudulently or with intent to cause loss to Government, erases or removes
from a stamp issued by the Government for the purpose of revenue, any mark, put or

impressed upon such stamp for the purpose of denoting that the same has been used,
or knowingly has in his possession or sells or disposes of any such stamp from which
such mark has been erased or removed, or sells or disposes of any such stamp which
he knows to have been used, shall be punished with imprisonment of either
COMMENT.—
This section punishes (1) erasure or removal of a mark denoting that a stamp has been
used, (2) knowingly possessing any such stamp, and (3) selling or disposing of any
such stamp.

261).
[s 263A] Prohibition of ﬁctitious stamps.
(a) makes, knowingly utters, deals in or sells any ﬁctitious stamps, or
knowingly uses for any postal purpose any ﬁctitious stamp, or

(b) has in his possession, without lawful excuse, any ﬁctitious stamp, or
(c) makes or, without lawful excuse, has in his possession any die, plate,
instrument or materials for making any ﬁctitious stamp,
shall be punished with ﬁne which may extend to two hundred rupees.
(2) Any such stamps, die, plate, instrument or materials in the possession of any
person for making any ﬁctitious stamp 39.[may be seized and, if seized] shall
be forfeited.
(3) In this section "ﬁctitious stamp" means any stamp falsely purporting to be
issued by the Government for the purpose of denoting a rate of postage, or any
facsimile or imitation or representation, whether on paper or otherwise, of any
stamp issued by Government, for that purpose.
(4) In this section and also in sections 255 to 263, both inclusive, the word

"Government", when used in connection with, or in reference to, any stamp
issued for the purpose of denoting a rate of postage, shall, notwithstanding
anything in section 17, be deemed to include the person or persons authorized
by law to administer executive Government in any part of India, and also in any
part of Her Majesty's dominions or in any foreign country.
COMMENT.—
This section makes it an offence to manufacture ﬁctitious stamps, which are deﬁned to
be stamps purporting to be used for purposes of postage by any foreign Government. It

39.  Subs. by Act 42 of 1953, sec. 4 and Sch. III, for "may be seized and" (w.e.f. 23-12-1953).
was enacted for the purpose of stopping the use of ﬁctitious stamps on letters coming
from abroad.

CHAPTER XIII OF OFFENCES RELATING TO WEIGHTS AND MEASURES
[s 264] Fraudulent use of false instrument for weighing.
Whoever fraudulently uses any instrument for weighing which he knows to be false,
extend to one year, or with ﬁne, or with both.
1.  K a n a y a l a l , (1939) 41 Bom LR 977 .
COMMENT.—
Intention is an essential part of the offence under this section. The section requires two
things: (1) fraudulent use of any false instrument for weighing, and (2) knowledge that
it is false. The word 'false' in this and the following sections means different from the
instrument, weight, or measure, which the offender and the person defrauded have
ﬁxed upon, expressly or by implication, with reference to their mutual dealings. Where it
was agreed between the seller and purchaser that a particular measure was to be used
in measuring the commodity sold, it was held that, even though the measure was not of

the standard requirement, it was not 'false' and there was no fraudulent intent within
the meaning of this section.1.

[s 265] Fraudulent use of false weight or measure.
Whoever fraudulently uses any false weight or false measure of length or capacity, or
fraudulently uses any weight or any measure of length or capacity as a different
weight or measure from what it is, shall be punished with imprisonment of either
2.  Suwalal v State, 1962 (2) Cr LJ 693.
COMMENT.—
It is clear from the above deﬁnition that the prosecution must prove three essential
ingredients amongst others as
(1) a weight or measure is a false one,
(2) that the accused used such a weight or measure, and
(3) that he did so fraudulently.2.

[s 266] Being in possession of false weight or measure.
Whoever is in possession of any instrument for weighing, or of any weight, or of any
measure of length or capacity, which he knows to be false, 3.intending that the same
may be fraudulently used, shall be punished with imprisonment of either description
for a term which may extend to one year, or with ﬁne, or with both.
3.  The word and omitted by Act 42 of 1953, section 4 and Sch. III (w.e.f. 23-12-1953).
4.  K a n a y a l a l , (1939) 41 Bom LR 977 .
5.  H a m i r m a l , (1890) Unrep Cr C 514.
COMMENT.—
This section punishes a person who is in possession of a false weight or measure just
as sections 235, 239 and 240 punish a person who is in possession of a counterfeit
coin, and section 259 punishes a person who is in possession of a counterfeit stamp.
A measure is false if it is something other than what it purports to be. If both the

purchaser and seller are aware of the actual measure being used, there is no fraudulent
intent as required by this section. It is only when the seller purports to sell according to
a certain standard, and sells below that standard, that he can be said to be guilty of
fraud.4.
The mere possession of false weights or measures will not in itself raise any strong
presumption of fraud. It is necessary to show that the accused knew the scales to be
false and intended to use them fraudulently.5.

[s 267] Making or selling false weight or measure.
Whoever makes, sells or disposes of any instrument for weighing, or any weight, or
any measure of length or capacity which he knows to be false, in order that the same
may be used as true, or knowing that the same is likely to be used as true, shall be
punished with imprisonment of either description for a term which may extend to one
year, or with ﬁne, or with both.
COMMENT.—
The object of this section is to prevent the circulation of false scales, weights or
measures. It punishes a person who makes, sells, or disposes of a false balance,
weight or measure.

CHAPTER XIV OF OFFENCES AFFECTING THE PUBLIC HEALTH, SAFETY
CONVENIENCE, DECENCY AND MORALS
The following speciﬁc instances of nuisance are dealt with in this Chapter:—
1. Act likely to spread infection (sections 269–271).
2. Adulteration of food or drink (sections 272–273).
3. Adulteration of drugs (sections 274–276).
4. Fouling water of a public spring or reservoir (section 277).
5. Making atmosphere noxious to health (section 278).
6. Rash driving or riding (section 279).
7. Rash navigation (sections 280-282).
8. Exhibition of false light, mark or buoy (section 281).
9. Danger or obstruction in a public way or line of navigation (section 283).
10. Negligence in respect of poison (section 284), ﬁre (section 285) or explosive
substances (section 286).
11. Negligence in respect of machinery (section 287), building (section 288) or
animals (section 289).
12. Selling obscene literature and pictures (sections 292, 293) or doing obscene
acts (section 294).

13. Keeping a lottery oﬃce (section 294A).
[s 268] Public nuisance.
A person is guilty of a public nuisance, who does any act, or is guilty of an illegal
omission, which causes any common injury, danger, or annoyance to the public or to
the people in general who dwell or occupy property in the vicinity or which must
necessarily cause injury, obstruction, danger, or annoyance to persons who may have
occasion to use any public right.
A common nuisance is not excused on the ground that it causes some convenience or
advantage.
COMMENT.—
Nuisance is an inconvenience that materially interferes with the ordinary physical
comfort of human existence. It may be public or private nuisance. As deﬁned in section
268 Indian Penal Code, 1860 (IPC, 1860) public nuisance is an offence against public
either by doing a thing which tends to the annoyance of the whole community in

general or by neglect to do anything which the common good requires. On the
alternative it causes injury, obstruction, danger or annoyance to persons who may have

occasion to use public right. It is the quantum of annoyance or discomfort in contra
distinction to private nuisance which affects an individual is the decisive factor.1.
Nuisance is of two kinds: (1) public and (2) private.
(1) Public nuisance or common nuisance is an offence against the public either by
doing a thing, which tends to the annoyance of the whole community in general, or by
neglecting to do anything that the common good requires. It is an act affecting the
public at large, or some considerable portion of them and it must interfere with rights,
which members of the community might otherwise enjoy.
It is not a sine qua non that the annoyance should injuriously affect every member of
the public within its range of operation. It is suﬃcient that it should affect people in
general who dwell in the vicinity.2.
As to when an individual can bring a civil action in respect of a public nuisance, see the
authors' Law of Torts, 19th Edn, chapter XXI.

(2) Private nuisance is deﬁned to be anything done to the hurt or annoyance of the
lands, tenements or hereditaments of another, and not amounting to trespass. It is an
act affecting some particular individual or individuals as distinguished from the public
at large. It is in the quantum of annoyance that private nuisance differs from public. It
cannot be the subject of an indictment, but may be the ground of a civil action for
damages or an injunction or both.3.
[s 268.1] Liability of owner.—
Where the use of premises gives rise to a public nuisance it is generally the occupier
for the time being who is liable for it, and not the absent proprietor.4.
[s 268.2] Civil Remedy.—
'Private nuisance' affects some individuals as distinguished from the public at large.

The remedies are of two kinds–civil and criminal. The remedies under the civil law are
of two kinds. One is under section 91 of the Code of Civil Procedure, 1908. Under it, a
suit lies and the plaintiffs need not prove that they have sustained any special damage.
The second remedy is a suit by a private individual for a special damage suffered by
him.5.
[s 268.3] Criminal remedy.—
There are three remedies under the criminal law. The ﬁrst relates to the prosecution
under Chapter XIV of IPC, 1860. The second provides for summary proceedings under
sections 133–144 of the Code of Criminal Procedure, 1973 (Cr PC, 1973) and the third
relates to remedies under special or local laws. Sub-sections (2) of section 133 of Cr
PC, 1973 postulates that no order duly made by a Magistrate under this section shall be

called in question in any civil court. The provisions of Chapter X of the Cr PC, 1973
should be so worked as not to become themselves, a nuisance to the community at
large. A lawful and necessary trade ought not to be interfered with unless it is proved to
be injurious to the health or physical comfort of the community.6.

1.  Vasant Manga Nikumba v Baburao Bhikanna Naidu, (1995) Supp4 SCC 54 : (1996) 1 SCC (Cr)
27.
2.  Ibid.
3.  vide THE LAW OF TORTS, 19th Edn chapter XXI, by the author of this book.
4.  Bibhuti Bhusan v Bhuban Ram, (1918) 46 Cal 515 .
5.  Kachrulal Bhagirath Agrawal v State of Maharashtra, AIR 2004 SC 4818 [LNIND 2004 SC 960] :
(2005) 9 SCC 36 [LNIND 2004 SC 960] .
6.  Kachrulal Bhagirath Agrawal v State of Maharashtra, AIR 2004 SC 4818 [LNIND 2004 SC 960] :
7.  Noise Pollution (V), Re v. (2005) 5 SCC 733 : JT 2005 (6) SC 210 : AIR 2005 SC 3136 .
[s 268.4] Noise.—
Any noise which has the effect of materially interfering with the ordinary comforts of
life judged by the standard of a reasonable man is nuisance. How and when a nuisance
created by noise becomes actionable has to be answered with reference to its degree
and the surrounding circumstances, the place and the time.7.

[s 269] Negligent act likely to spread infection of disease dangerous to life.
Whoever unlawfully or negligently does any act which is, and which he knows or has
reason to believe to be, likely to spread the infection of any disease dangerous to life,
extend to six months, or with ﬁne, or with both.
COMMENT.—
This section is framed in order to prevent people from doing acts which are likely to
spread infectious diseases. Welfare of the society is the primary duty of every civilised
State. Section 269, IPC, 1860 makes the negligent act likely to spread infection or
disease dangerous to life as an offence. The essential ingredients are:
(1) that the accused does any act unlawfully or negligently; that such act is likely to

spread infection of any disease dangerous to life; and
(2) that he knows or had reasons to believe that the act is likely to cause such
infection.

8.  Dr. Meeru Bhatia Prasad v State, 2001 Cr LJ 1674 (Del).
9.  Dr. Prabha Malhotra v State, 1999 Cr LJ 549 (All).
Thus causing infection of the disease, which is dangerous to life, is covered by this
section.8. The expression "reason to believe" has been deﬁned under section 26 IPC,
1860 and it lays down that a person said to have "reason to believe" a thing, if he has
suﬃcient cause to believe that thing but not otherwise. A person can be supposed to
know where there is a direct appeal to his senses. Suspicion or doubt cannot be raised
to the level of "reason to believe".9.

[s 270] Malignant act likely to spread infection of disease dangerous to life.
Whoever malignantly does any act which is, and which he knows or has reason to
believe to be, likely to spread the infection of any disease dangerous to life, shall be
COMMENT.—
the preceding section.
In this section, the use of the word 'malignantly' indicates that the person spreading
infection should be actuated by malice.10.
There is no provision in the Prevention of Food Adulteration Act, 1954 which nulliﬁes
sections 270–273 of the IPC, 1860 or which make them dormant and non-
applicable.11.

10.  2nd Rep section 226.
11.  Mahesh Ramchandra Jadhav v State of Maharashtra, 1999 Cr LJ 2310 (Bom).
12.  Christy Fried Gram Industry v State of Karnataka, 2016 Cr LJ 482 (Kant) : 2016 (1) KCCR 83 .
[s 270.1] Confrontation with Special Law.—
Even if section 270 of IPC, 1860 is invoked for supply of substandard food articles the
special procedure laid down under Food Safety and Standards Act, 2006 for testing and
declaring the product as substandard should have been followed.12.

[s 271] Disobedience to quarantine rule.
Whoever knowingly disobeys any rule made and promulgated 13.[by the 14.[***]
Government 15.[***] for putting any vessel into a state of quarantine, or for regulating
the intercourse of vessels in a state of quarantine with the shore or with other
vessels, or for regulating the intercourse between places where an infectious disease
prevails and other places, shall be punished with imprisonment of either description
COMMENT.—
The motive for disobeying any rule is quite immaterial. The disobedience is punishable
whether any injurious consequence ﬂows from it or not.

13.  Subs. by the A.O. 1937, for by the Government of India or by any Government.
14.  The words Central or any Provincial omitted by the A.O. 1950.
15.  The words or the Crown Representative omitted by the A.O. 1948.

[s 272] Adulteration of food or drink intended for sale.
Whoever adulterates any article of food or drink, so as to make such article noxious
as food or drink, intending to sell such article as food or drink, or knowing it to be
likely that the same will be sold as food or drink, shall be punished with imprisonment
of either description for a term which may extend to six months, or with ﬁne which
may extend to one thousand rupees, or with both.
Orissa.—1. The following amendments were made by Orissa Act No. 3 of 1999, s. 2.
In its application to the State of Orissa, in sections 272, 273, 274, 275 and 276, for the
words "shall be punished with imprisonment of either description for a term which may
both", substitute the following, namely:—

"shall be punished with imprisonment for life and shall also be liable to ﬁne:
Provided that the Court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment which is less than imprisonment for
life."—Orissa Act 3 of 1999, section 2.

2. The offence is cognizable, non-bailable and triable by Court of Session vide Orissa
Act No. 3 of 1999, s. 2.
Uttar Pradesh.—1. The following amendments were made by U.P. Act No. 47 of 1975, s.
3(1) (w.e.f. 15-9-1975).
In its application to the State of Uttar Pradesh, in s. 272, for the words "shall be
punished with imprisonment of either description, for a term which may extend to six
months or with ﬁne which may extend to one thousand rupees, or with both"
substitute the following words.—
life".
2. The offence is cognizable, non-bailable and triable by Court of Session, vide U.P. Act
No. 47 of 1975.
West Bengal.—1. The following amendments were made by W.B. Act No. 42 of 1973, s.
3(i), (w.e.f. 29-4-1973).

In its application to the State of West Bengal in s. 272, for the words "of either
description for a term which may extend to six months, or with ﬁne which may extend
to one thousand rupees, or with both", substitute the following words—
"for life with or without ﬁne:
life".
2. The offence is cognizable, non-bailable and triable by Court of Session, vide W.B. Act
No. 34 of 1974.
COMMENT.—
The mixing of noxious ingredients in food or drink or otherwise rendering it
unwholesome by adulteration is punishable under this section. Mere adulteration with
harmless ingredients for the purpose of getting more proﬁt is not punishable under it,
e.g., mixing water with milk16. or ghee (clariﬁed butter) with vegetable oil.17.

'Adulteration' means mixing with any other substance whether wholly different or of the
same kind but of inferior quality.
The expression 'noxious as food' means unwholesome as food or injurious to health
and not repugnant to one's feelings.18. It is essential to show that an article of food or
drink has been adulterated and that it was intended to sell such article or that it was
known that it would be likely to be sold as food or drink.19.
[s 272.1] Adulteration of liquor.—
In order to establish that the offence under section 272, IPC, 1860 has been committed,
the prosecution has to prove that the article involved was food or drink meant to be

16.  Chinniah, (1897) 1 Weir 228.
17.  Chokraj Marwari, (1908) 12 Cal WN 608.
18.  Ram Dayal v State, (1923) 46 All 94 .
19.  Suleman Shamji, (1943) 45 Bom LR 895 . Joseph Kurian v State of Kerala, (1995) 1 Cr LJ 502
: AIR 1995 SC 4 [LNIND 1994 SC 927] : (1994) 6 SCC 535 [LNIND 1994 SC 927] , conviction for
sale of adulterated arrack, sentence of six months' RI converted to simple imprisonment.
20.  Joseph Kurian v State of Kerala, AIR 1995 SC 4 [LNIND 1994 SC 927] : (1994) 6 SCC 535
[LNIND 1994 SC 927] Also see EK Chandrasenan v State of Kerala, AIR 1995 SC 1066 [LNIND
1995 SC 88] : (1995) 2 SCC 99 [LNIND 1995 SC 88] .
21.  Rajiv Kumar Gupta v The State of Maharashtra, 2005 Cr LJ 581 (Bom).
22.  Ganesh Pandurang Jadhao v The State of Maharashtra, 2016 Cr LJ 2401 : 2016 (2) Bom CR
(Cr) 4 .
consumed by live persons, that the accused adulterated it, that such adulteration
rendered it noxious as food or drink and that the accused at the time of such

(Cr) 4 .
adulteration intended to sell such article as food or drink or knew it to be likely that
such article would be sold as food or drink. Now noxious rendering is making it
poisonous or harmful or both. As is plain the offence is complete on introduction of the
adulterant in the food or drink, provided it is meant for the purposes of sale, actual or
likely.20.
[s 272.2] Local Amendments.—
In West Bengal, sections 272, 273, 274, 275 and 276 of the Penal Code have been
amended by section 3 of West Bengal Act XLII of 1973 so as to provide life
imprisonment with or without ﬁne for the aforesaid offences. By section 5 of West
Bengal Act XXXIV of 1974, all these offences have been made cognizable, non-bailable
and triable by Court of Sessions. The State of Uttar Pradesh too has similarly made all

these offences punishable with life imprisonment and ﬁne with similar discretion of
Court to award lesser imprisonment by virtue of Uttar Pradesh Act 47 of 1975.
There is no bar under the Prevention of Food Adulteration Act, 1954 and the said Rules
made thereunder that the concerned authorities under Prevention of Food Adulteration
Act have no jurisdiction and/or authority to prosecute the guilty person for the offences
under the IPC based on the same averments along with the provisions of the special
statutes. All such authorities have jurisdiction to launch a prosecution by invoking
various provisions of the IPC, along with the special statutes.21.
[s 272.3] Gutka and Pan Masala.—
In order to ﬁnd out whether the food is unsafe, due to an adulterant, the sample is to be

sent to an analyst. Violation of the order of the Food Safety Commissioner is not an
offence, under section 272 IPC, 1860.22.

[s 273] Sale of noxious food or drink.
Whoever sells, or offers or exposes for sale, as food or drink, any article which has
been rendered or has become noxious, or is in a state unﬁt for food or drink, knowing
or having reason to believe that the same is noxious as food or drink, shall be
punished with imprisonment of either description for a term which may extend to six
Orissa.—1. Same as in section 272, the amendments were made by Orissa Act No. 3 of
1999, s. 2.
3(ii), (w.e.f. 15-9- 1975).
In its application to the State of Uttar Pradesh in S. 273, for the words, "shall be

months, or with a ﬁne which may extend to one thousand rupees or with both,

life."
3(ii) (w.e.f. 29-4-1973).
In its application to the State of West Bengal in s. 273, for the words "of either
to one thousand rupees, or with both", substitute the following,—
life."
COMMENT.—
It is not an offence to sell inferior food cheap if it is not noxious.

life."
COMMENT.—
[s 273.1] Ingredients.—
(1) Selling or offering for sale as food or drink some article.
(2) Such article must have become noxious or must be in a state unﬁt for food or drink.
(3) The sale or exposure must have been made with a knowledge or reasonable belief
that the article is noxious as food or drink. The word "noxious" as stated in Advanced
Law Lexicon by P Ramanatha Aiyar (3rd Edition Reprint 2009), when used in relation to
article of food is to mean that the article is poisonous, harmful to health or repugnant
to human use. Having regard to language used in section 273, noxious food or drink,
literally would mean article of food or drink which earlier was not noxious, but should
have become noxious or had been rendered noxious by lapse of time or by not taking

proper precaution or for not adding preservatives or the like.23.
What is punishable under this section is the sale of noxious articles as food or drink
and not the mere sale of noxious article. Where the owner of a grain pit sold the
contents of it before it was opened at a certain sum per maund whether the grain was
good or bad, and on the pit being opened it was found that a large proportion of the
grain was unﬁt for human consumption, it was held that the vendor could not be
convicted under this section.24. Similarly, the selling of wheat containing a large
admixture of extraneous matter, such as dirt, wood, matches, charcoal, was held to
constitute no offence.25.
For local amendments see comment under section 272 ante.

23.  Dilipsinh Ramsinh Bhatia v State of Maharashtra, 2010 Cr LJ 2014 (Bom).
24.  Salig Ram v State, (1906) 28 All 312 .
25.  Narumal, (1904) 6 Bom LR 520 ; Gunesha v State, (1873) PR No. 15 of 1873.

[s 274] Adulteration of drugs.
Whoever adulterates any drug or medical preparation in such a manner as to lessen
the eﬃcacy or change the operation of such drug or medical preparation, or to make it
noxious, intending that it shall be sold or used for, or knowing it to be likely that it will
be sold or used for, any medicinal purpose, as if it had not undergone such
adulteration, shall be punished with imprisonment of either description for a term
1999, s. 2.
3(ii), (w.e.f. 15-9-1975).

1999, s. 2.
In its application to the State of Uttar Pradesh in S. 274, for the words, "shall be

life."
3(iii) (w.e.f. 29-4-1973).
In its application to the State of West Bengal, in s. 274, for the words "of either
to one thousand rupees, or with both", substitute the following.—
life."
COMMENT.—

life."
COMMENT.—
To preserve the purity of drugs for medicinal purposes this section is enacted. It is
suﬃcient if the eﬃcacy of a drug is lessened, it need not necessarily become noxious
to life.
For local amendment see comment under section 272 ante.

[s 275] Sale of adulterated drugs.
Whoever, knowing any drug or medical preparation to have been adulterated in such a
manner as to lessen its eﬃcacy, to change its operation, or to render it noxious, sells
the same, or offers or exposes it for sale, or issues it from any dispensary for
medicinal purposes as unadulterated, or causes it to be used for medicinal purposes
by any person not knowing of the adulteration, shall be punished with imprisonment
1999, s. 2.
2(iv), (w.e.f. 15-9-1975).

1999, s. 2.
In its application to the State of Uttar Pradesh in S. 275, for the words, "shall be
months, or with ﬁne which may extend to one thousand rupees or with both, substitute
the following words.—

life."
3(iv) (w.e.f. 29-4-1973).
In its application to the State of West Bengal in s. 275, for the words "of either
description for a term which may extend to one thousand rupees or with both",
substitute the words "for life with or without ﬁne:
life."
COMMENT.—

life."
COMMENT.—
The offence under this section consists in selling, or offering, or exposing for sale, or
issuing from any dispensary, an adulterated drug as unadulterated. This section not
only prohibits the sale of an adulterated drug but also its issue from any dispensary.
For local amendment, see comment under section 272 ante.

[s 276] Sale of drug as a different drug or preparation.
Whoever knowingly sells, or offers or exposes for sale, or issues from a dispensary
for medicinal purposes, any drug or medical preparation, as a different drug or
medical preparation, shall be punished with imprisonment of either description for a
term which may extend to six months, or with ﬁne which may extend to one thousand
1999, s. 2.
3(v), (w.e.f. 15-9-1975).
In its application to the State of Uttar Pradesh in S. 276, for the words, "shall be

thousand rupees, or with both, substitute the following:—

life."
3(v) (w.e.f. 29-4-1973).
In its application to the State of West Bengal in s. 276, for the words "of either
description for a term which may extend to, "six months, or with ﬁne which may extend
to one thousand rupees, or with both", substitute the following:
life."
26.  Knight v Bowers, (1885) 14 QBD 845 .

life."
27.  Sabapathee v State (Mauritius), (1999) 1 WLR 1836 (PC).
COMMENT.—
The offence constituted by this section does not involve the idea of any adulteration or
inferiority in the substituted medicine. It is suﬃcient that it is not in fact what it
purports to be; for e.g., supplying savin instead of saffron.26.
This section is connected with section 275 in the same way as section 274 is
connected with section 273.
[s 276.1] Possession as evidence of intention.—
Dealing with an Act for prevention of drug traﬃcking, the Privy Council observed in a
case in which the accused was found in possession of the banned drug and there was
nothing in the Act to exclude the common law rule that facts could be established by
inference from proven facts; therefore, the judge had applied the appropriate standard

of proof. The accused had given no evidence to explain his possession.27.
For local amendment, see Comment under section 272 ante.

[s 277] Fouling water of public spring or reservoir.
Whoever voluntarily corrupts or fouls the water of any public spring or reservoir, so as
to render it less ﬁt for the purpose for which it is ordinarily used, shall be punished
with imprisonment of either description for a term which may extend to three months,
or with ﬁne which may extend to ﬁve hundred rupees, or with both.
COMMENT.—
The water of a public spring or reservoir belongs to every member of the public in
common, and if a person voluntarily fouls it he commits a public nuisance.
[s 277.1] Ingredients.—
The section requires—
(1) voluntary corruption or fouling of water;
(2) the water must be of a public spring or reservoir; and

28.  Prasad v State, 2012 (1) Ker LT 861 .
(3) the water must be rendered less ﬁt for the purpose for which it is ordinarily
used.
As a general rule, a place is a public place if people are allowed access to it, though
they may have no legal right to it.
[s 277.2] Section 277 and Water (Prevention and Control of Pollution) Act,
1974.—
The contention that the provisions contained in the Water Act take away the effect of
section 277 cannot readily be assumed especially when there is nothing in the Water
Act to hold that the provisions therein are intended to nullify section 277 from the Penal
Code. The argument that the non-obstante clause in section 60 has the effect of
repealing section 277 of IPC, 1860, also is unsustainable. The non-obstante clause in
section 60 cannot be assumed to supersede or extinguish such provisions in the
General Law. If the non-obstante clause in section 60 was intended to exclude or nullify
section 277 of IPC, 1860, then there would have been strong indication available in the

speciﬁc provision itself.28.

[s 278] Making atmosphere noxious to health.
Whoever voluntarily vitiates the atmosphere in any place so as to make it noxious to
the health of persons in general dwelling or carrying on business in the
neighbourhood or passing along a public way, shall be punished with ﬁne which may
extend to ﬁve hundred rupees.
COMMENT.—
Though concepts of air and ecological pollution are rather new, it must be said to the
credit of the ﬁrst Law Commission that they too, drafting the code as they did in the
ﬁrst half of the nineteenth century, were not oblivious of these social needs.
[s 278.1] Smoking in public places.—
There can be no doubt that smoking in a public place will vitiate the atmosphere to
make it noxious to the health of persons who happened to be there. Therefore, smoking

in a public place is an offence punishable under section 278 IPC, 1860.29.

29.  Ramakrishnan v State, AIR 1999 Ker 385 [LNIND 1999 KER 234] .

[s 279] Rash driving or riding on a public way.
Whoever drives any vehicle, or rides, on any public way in a manner so rash or
negligent 1 as to endanger human life, 2 or to be likely to cause hurt or injury to any
other person, shall be punished with imprisonment of either description for a term
COMMENT.—
Under this section the effect of driving or riding must be either that human life was in
fact endangered or that hurt or injury was likely to be caused.
[s 279.1] Ingredients.—
1. Driving of a vehicle or riding on a public way.

2. Such driving or riding must be so rash or negligent as to endanger human life or to
be likely to cause hurt or injury to any other person.
1. 'Rash or negligent'.—Rash and negligent driving has to be examined in light of the
facts and circumstances of a given case. It is a fact incapable of being construed or
seen in isolation. The preliminary conditions, thus, are that
(a) it is the manner in which the vehicle is driven;
(b) it be driven either rashly or negligently; and
(c) such rash or negligent driving should be such as to endanger human life.30. The
criminality lies in running the risk of doing such an act with recklessness and
indifference to the consequences. The words "rashly and negligently" are
distinguishable and one is exclusive of the other. The same act cannot be "rash" as well
as "negligent".31. Where negligence is an essential ingredient of the offence, the
negligence to be established by the prosecution must be culpable or gross and not the

negligence merely based upon an error of judgment. Simple lack of care such as will
constitute civil liability, is not enough; for liability under the criminal law, a very high
degree of negligence is required to be proved.32.
There is a distinction between a rash act and a negligent act. A reckless act has to be
understood in two different senses—subjective and objective. In the subjective sense, it
means deliberate or conscious taking of an unjustiﬁed risk, which could be easily
foreseen and in the circumstances of the case was unreasonable to take. In the
objective sense, the accused is not conscious of the result though he ought to be
aware that it might follow and in this sense, it is almost equivalent to negligence. In
other words, negligence involves blameworthy heedlessness on the part of the

accused which a normal prudent man exercising reasonable care and caution ought to
avoid. Negligence is an omission to do something, which a reasonable man, guided
upon those considerations which ordinarily regulate the conduct of human affairs,
would do, or doing something which a prudent and reasonable man would not do. A
culpable rashness is acting with the consciousness that the mischievous and illegal
consequences may follow, but with the hope that they will not, and often with the belief
that the actor has taken suﬃcient precaution to prevent their happening. Culpable
negligence is acting without the consciousness, that the illegal and mischievous effect
will follow, but in circumstances which show that the actor has not exercised the
caution incumbent upon him and if he had he would have had the consciousness. As

between rashness and negligence, rashness is a graver offence.33. Negligence is not
an absolute term but is a relative one; it is rather a comparative term. It is diﬃcult to
state with precision any mathematically exact formula by which negligence, or lack of
it, can be infallibly measured in a given case. Whether there exists negligence per se or
the course of conduct amounts to negligence will normally depend upon the attending
and surrounding facts and circumstances which have to be taken into consideration by
the Court. In a given case, even not doing what one was ought to do can constitute
negligence.34. Absence of high speed itself cannot absolve the petitioner from the
culpability.35.
There are several offences in the Code in which the element of criminal rashness or
negligence occurs, viz.,—sections 279, 280, 283–289, 304A, 336, 337, 338.

2. 'Endanger human life'.—It must be proved that the accused was driving the vehicle
on a public way in a manner which endangered human life or was likely to cause hurt or
injury to any other person.36. It is not necessary that the rash or negligent act should
result in injury to life or property.37.

[s 279.2] Reasonable care.—
The Court has to adopt another parameter, i.e., 'reasonable care' in determining the
question of negligence or contributory negligence. The doctrine of reasonable care
imposes an obligation or a duty upon a person (for e.g., a driver) to care for the
pedestrian on the road and this duty attains a higher degree when the pedestrian
happen to be children of tender years. It is axiomatic to say that while driving a vehicle
on a public way, there is an implicit duty cast on the drivers to see that their driving
does not endanger the life of the right users of the road, may be either vehicular users
or pedestrians. They are expected to take suﬃcient care to avoid danger to others.38.
[s 279.3] Mens rea.—
The essential ingredient of mens rea cannot be excluded from consideration when the
charge in a criminal Court consists of criminal negligence.39.
[s 279.4] Res ipsa Loquitur.—
This doctrine serves two purposes–one that an accident may by its nature be more

consistent with its being caused by negligence for which the opposite party is
responsible than by any other causes and that in such a case, the mere fact of the
accident is prima facie evidence of such negligence. Second, to avoid hardship in
cases where the claimant is able to prove the accident but cannot prove how the
accident occurred. The Courts have also applied the principle of res ipsa loquitur in
cases where no direct evidence was brought on record. Elements of this doctrine may
be stated as:
(a) The event would not have occurred but for someone's negligence.
(b) The evidence on record rules out the possibility that actions of the victim or some
third party could be the reason behind the event.
(c) Accused was negligent and owed a duty of care towards the victim.40. The principle

of res ipsa loquitur is only a rule of evidence to determine the onus of proof in actions
relating to negligence.41. This doctrine operates in the domain of civil law especially in
the cases of torts and helps in determining the onus of proof in actions relating to
negligence. It cannot be pressed 'in service for determining per se the liability for
negligence within the domain of criminal law. Res ipsa loquitur has, if at all, a limited
application in trial on a charge of criminal negligence.42. Where a vehicle was being
driven on a wrong side, accident resulting in the death of two persons, the principle of
res ipsa loquitur should have been applied.43. In the case of Thakur Singh v State of
Punjab,44. the accused drove a bus rashly and negligently with 41 passengers and while
crossing a bridge, the bus fell into the nearby canal resulting in death of all the

passengers. The Court applied the doctrine of res ipsa loquitur since admittedly the
petitioner was driving the bus at the relevant time and it was going over the bridge
when it fell down.
[s 279.5] Abetment.—
The mere fact that petitioner was the owner of the offending vehicle at the relevant
time, ipso facto is not a cogent ground to array him as an accused under section 109

IPC, 1860. In this manner, no offence of abetment is made out against the petitioner.45.
[s 279.6] Difference between civil and criminal liability.—
There can be no civil action for negligence if the negligent act or omission has not been
attended by an injury to any person; but bare negligence involving the risk of injury is
punishable criminally, though nobody is actually hurt by it.
If actual hurt is caused the case would come under sections 337 or 338, and if death is
caused, under section 304A.46.
In a case of collision or injury arising out of rash driving, the actual driver and not the
owner of the carriage is liable under this section;47. whereas, in a civil suit, the injured
party has an option to sue either or both of them. In a criminal case, every man is
responsible for his own act; there must be some personal act.48.
[s 279.7] Mechanical failure.—
Poor maintenance of vehicle is itself a negligent act.49. In cases where the prosecution

alleges that the brakes were defective, it must establish by evidence that the brakes
were so defective that the driving of the vehicle endangered human life or was likely to
cause hurt or injury to any other person. Merely because the vehicle swerved to the
right when its brakes were pulled up, it could not be said that there was danger to
human life or it was likely to cause hurt or injury to others.50. Failure to apply brakes at
relevant time does not by itself constitute rash and negligent act for it may as well be
due to error of judgment.51. A vehicle of which handbrake and speedometer were not in
working order is a very serious hazard to the public as the driver would never know his
speed. It is a danger to the traﬃc in general.52.
[s 279.8] Contributory negligence.—

The doctrine of contributory negligence does not apply to criminal actions.53. The
deceased stood protruding his body out of the vehicle that too having his back towards
the driver, which fact suggests that he himself was quite negligent and responsible for
the accident.54.
[s 279.9] CASES.—
In a case the allegation was that the accused, car driver, drove car in a rash and
negligent manner and caused injury to a child who was playing on side of road. But the
evidence showed that vehicle was going in middle of road and child was also playing
on road. Brake skid marks on road were duly depicted in site plan, acquittal was held
proper by the High Court.55. Where a tractor driver was driving the tractor at a speed of
six miles per hour at night and a man who was sitting on it in a careless fashion

unmindful of bumps and jolts fell down and died, it was held that the driver was not
guilty of any rash or negligent act within the meaning of sections 279 and 304A, IPC,
1860.56. Where a truck dashed against a cyclist and a cart resulting in injuries to both
the cyclist and the cartman but there was no evidence to the actual dashing of the

truck against the cyclist and the cart and no evidence was either available about the
mechanical ﬁtness or otherwise of the truck as the same had been set on ﬁre by an
angry mob, it could not be presumed that the truck must have been driven rashly and
negligently merely because two persons were injured. In the circumstances, the
conviction of the accused under sections 279 and 304A, IPC, 1860 was set aside.57.
Merely because the driver ran away from the spot immediately after the incident, it
could not be said that he must have been driving rashly and negligently.58. Driving at a
high speed or non-sounding of horn by itself does not mean that the driver is rash or
negligent. Place, time, traﬃc and crowd are important factors to determine rashness or
negligence.59. High speed at a crowded road and pressing a person against a wall in
order to save accident was held to be negligence within the meaning of this section.60.
To drive at a high speed on an empty road or at a lonely place is not the same thing as

driving in a crowded city street.61. Crushing a school child while driving past a school
was held to be ipso facto rashness. Everybody is expected to slow down and take extra
precautions near the vicinity of an educational institution.62. The mere fact that there
are more than two persons in a two-wheeled vehicle will not make out an offence under
section 279, IPC, 1860 as it by itself does not amount to so rash and negligent an act
as to endanger human life, section 279, IPC, 1860 is not attracted where the driving is
ordinarily rash or negligent. Moreover, if an offence is really made out, then driver alone
is responsible and not the pillion rider or riders. Therefore, the police practice of
apprehending all occupants of the vehicle is deprecated.63.
[s 279.10] Site plan.—

Where in a case of rash and negligent driving, the site plan, recovery memo, inspection
report of the offending vehicle were not proved by the prosecution and the investigating
oﬃcer was also not examined, conviction of the accused was set aside.64. However,
Supreme Court in a case held that the site plan only indicates the place where the
accident happened and nothing more can be read into it.65.
[s 279.11] Hitting from behind.—
Where the truck of the accused, driven rashly and negligently, hit a bullock-cart from
behind killing the buffalo and the cartman, the accused could not be convicted under
section 429 as the mens rea of causing loss was absent. However, his conviction under
sections 279 and 304-A was upheld.66. Where the accused, bus driver when attempted

to overtake a lorry, on seeing one other bus coming in opposite direction swerved the
bus towards the left and came in a violent contact with the victim, a cyclist, the Madras
High Court held that the very act of the accused in driving the bus and dashing from
behind the cyclist clearly constitutes the rashness and negligence on his part.67.
[s 279.12] Section 279 is not a petty offence.—
'Petty offence' within the meaning of section 206 Cr PC, 1973 is an offence which is
punishable only with ﬁne not exceeding Rs1,000 but does not include any offence so
punishable under the Motor Vehicles Act. If so, section 279 IPC, 1860 which is a
cognizable offence and which is not an offence punishable only with ﬁne is not a 'petty
offences'.68.

30.  Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC 284
[LNIND 2012 SC 474] : 2012 Cr LJ 4403 .
31.  State of HP v Manohar Singh, 2011 Cr LJ 3402 (HP).
32.  Kuldeep Singh v State, AIR 2008 SC 3062 [LNIND 2008 SC 1436] : (2008) 14 SCC 795 [LNIND
2008 SC 1436] relied on Syed Akbar v State of Kamataka, 1980 (1) SCC 30 [LNIND 1979 SC 297]
[s 279.13] Compounding.—
Though the Supreme Court held in Manish Jalan v State of Karnataka,69. that offences
punishable under section 279 and section 304A, IPC, 1860 are not compoundable, in
Puttuswamy v State of Karnataka,70. the Supreme Court while maintaining the
conviction under section 304A IPC, 1860 notwithstanding the agreement arrived at
between the parties, increased the amount of ﬁne from Rs 2,000 to Rs 20,000 to be
paid to the parents of the deceased and reduced the sentence to the period already
undergone, subject to payment of the ﬁne.
[s 279.14] Sentence.—

One of the most effective ways of keeping drivers under mental vigil is to maintain a
deterrent element in the sentencing sphere. Any latitude shown to them in that sphere
would tempt them to make driving frivolous and a frolic.71. For lessening the high rate
of motor accidents due to careless and callous driving of vehicles, the Courts are
expected to consider all the relevant facts and circumstances bearing on the question
of sentence and proceed to impose a sentence commensurate with the gravity of the
offence if the prosecution is able to establish the guilt beyond reasonable doubt.72.
Where the accused dashed the jeep against a tree, as a result of which one person, who
was travelling in the jeep got injured and died, and another person, who was also in the
same vehicle received injuries, the Supreme Court held that the High Court, without

proper appreciation of the evidence and consideration of the gravity of the offence,
showed undue sympathy by reducing the sentence.73.
[s 279.15] Whether a Court can convict a person under sections 279 and 337,
IPC for commission of the same act of offence and accordingly pass sentence
under both the Sections.—
In this case, as the offence having been outcome of the same act, the Court should
punish the accused for one offence and at the same time, while passing the order of
sentence, the Court should also consider that when the sentence prescribed under
section 279, IPC, 1860 is a more severe offence than the offence prescribed under
section 337, IPC, 1860 the accused could be punished under section 279, IPC, 1860
only.74. However, in another case, Madras High Court held that simply because

accused are found guilty under section 304-A IPC, 1860 and sentence is imposed, there
is no embargo for Court to impose separate sentence under section 279 IPC, 1860.75.

.
33.  Bhalchandra, (1967) 71 Bom LR 634 , SC approving Idu Beg v State, (1881) ILR 3 All 766 and
Nidamarti Nagabhushanam, (1872) 7 Mad HCR 119 .
34.  Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC 284
35.  Mehnga Singh v State, 2012 Cr LJ 4930 (Del).
36.  Braham Das v State of HP, (2009) 7 SCC 353 [LNIND 2009 SC 1130] : (2009) 3 SCC (Cr) 406 :
(2009) 81 AIC 265 .
37.  (1871) 6 Mad HCR (Appx) xxxii. State of Karnataka v Sadanand Parshuram, 2000 Cr LJ 2426
(Kant).
38.  Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC 284
39.  Dr. PB Desai v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] ; In Saroja
Dharmapal Patil v State of Maharashtra, 2011 Cr LJ 1060 (Bom), Bombay High Court held that
section 304-A or section 279 of the IPC do not require any mens rea. But in view of the Supreme
Court Judgment, in Desai's case, it is not relevant.

40.  Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC 284
[LNIND 2012 SC 474] : 2012 Cr LJ 4403 ; Syad Akbar v State of Kamataka, 1980 SCC (Cr) 59 : (
AIR 1979 SC 1848 [LNIND 1979 SC 297] ).
41.  Mohd. Aynuddin alias Miyam v State of AP, 2000 (7) SCC 72 [LNIND 2000 SC 1014] : AIR
2000 SC 2511 [LNIND 2000 SC 1014] : 2000 SCC (Cr) 1281 : 2000 Cr LJ 3508 .
42.  Jacob Mathew v State of Punjab, AIR 2005 SCW 3685 : AIR 2005 SC 3180 [LNIND 2005 SC
587] .
43.  Francis Xavier Rodriguez v State of Maharashtra, 1997 Cr LJ 1374 (Bom); Dwarka Das v State
of Rajasthan, 1997 Cr LJ 4601 (Raj).
44.  Thakur Singh v State of Punjab, 2003 (9) SCC 208 .
45.  Ranjit Singh v State of Punjab, 2012 (4) Crimes 315 .
46.  No separate sentence would be necessary under this section if the act is punished under

section 304A. Nanne Khan v State of MP, 1987 Cr LJ 1403 (MP).
47.  AW Larrymore v Pernendoo Deo Rai, (1870) 14 WR (Cr) 32.
48.  Allen, (1835) 7 C & p 153.
49.  Binoda Bihari Sharma v State of Orissa, 2011 Cr LJ 1989 (Ori).
50.  Ajit Singh v State, 1975 Cr LJ 77 (HP).
51.  Padmacharan Naik, 1982 Cr LJ NOC 192 (Ori).
52.  Amar Lal v State of Rajasthan, 1988 Cr LJ 1 (Raj).
53.  Kew, (1872) 12 Cox 355; Blenkinsop v Ogden, (1898) 1 QB 783 ; Fagu Moharana, AIR 1961 Ori
71 [LNIND 1959 ORI 42] .
54.  Bhupinder Sharma v State of HP, 2016 Cr LJ 3832 : IV (2016) ACC 461 (HP).
55.  State of HP v Jawahar Lal Jindal, 2011 Cr LJ 3827 (HP). See also Aleem Pasha v State of
Karnataka, 2013 Cr LJ 174 (Kant); Ponnusamy v State, 2010 Cr LJ 2656 (Mad); State of HP v
Baljit Singh, 2012 Cr LJ 237 (HP).
56.  Penu, 1980 Cr LJ NOC 132 (Ori).
57.  Bijuli Swain, 1981 Cr LJ 583 (Ori).

58.  Padmacharan Naik, supra.
59.  P Rajappan, 1986 Cr LJ 511 (Ker).
60.  State of HP v Man Singh, (1995) 1 Cr LJ 299 (HP). The court also found that the brakes of
the vehicle were in poor state of maintenance and, therefore, the principle of res ipsa loquitur

applied. The court followed Thomas v State of Kerala, ILR (1971) 1 Ker 318 ; Duli Chand v Delhi
Admn, 1975 Cr LJ 1732 : AIR 1975 SC 1960 [LNIND 1975 SC 258] and Usman Gani Mohd. v State
of Maharashtra, (1979) 3 SCC 362 : 1979 SCC Cr 675, which was a case where a girl was
knocked down and the version of the driver was that he did not notice how the impact took
place and how the girl came under his lorry, it was, therefore, held that he was inattentive and
this would establish negligence on his part.
61.  Padmacharan, supra; Mahommed Saﬃque, 1983 Cr LJ 535 (Ori).
62.  Praffulla Kumar Rout v State of Orissa, (1995) 2 Cr LJ 1277 (Ori).
63.  Prabhudas, 1986 Cr LJ 390 (Guj). In State of Karnataka v Krishna, (1987) 1 SCC 538 [LNIND
1987 SC 701] : 1987 Cr LJ 776 : AIR 1987 SC 861 [LNIND 1987 SC 701] the Supreme Court
enhanced the punishment from two months' simple imprisonment being unconscionably low to
six months' R. I. for causing death by rash and negligent driving. NP Ganesan Re, 1989 Cr LJ

1160 (Mad). Bus hitting a pedestrian and dragging him for about 76 feet before stopping, the
sentence of imprisonment was converted into ﬁne in view of his 55 years of age having sole
child (daughter) suffering from paralysis but no order about his disability for re-employment.
State of Karnataka v SB Marigowda, 1999 Cr LJ 2171 (Kant), the accused, driving a matador
suddenly turning to right in order to overtake a vehicle and hitting a person to death who was
standing at that side, held guilty under the section Malleshi v State of Karnataka, 1999 Cr LJ
2617 (Kant), the accused car driver hit bullocks and two persons on road and then dashed
against a house 40 feet away from the road. Conviction proper. Ram Singh v State of Rajasthan,
1999 Cr LJ 2622 (Raj) death of a lady caused by rash and negligent driving, no leniency was

shown to the accused because the whole family of the victim was upset. Bhagirath Singh v State
of Rajasthan, 1999 Cr LJ 4237 (Raj), a pedestrian suddenly attempted to cross the road and was
hit by a vehicle. It could not be known whether the driver was able to spot him. Negligence on
the part of the driver not proved. State v Santanam, 1998 Cr LJ 3045 (Kant), accused, a military
personnel, under inﬂuence of alcohol, drove his military truck in a zig zag manner, made three
accidents in one sequence. A moped driver, who was hit, died but it was not known whether
death was due to fatal injury. Others were only injured. Held, liable under section 279, but not
under section 337 or section 304A, IPC, 1860 nor under section 117 of MV Act. Bharat Amratlal

Kothari v Dosukhan Samadkhan Sindhi, (2010) 1 SCC 234 [LNIND 2009 SC 1949] : 2010 Cr LJ
379 , FIR under section 279 for an order to prevent ﬁlling of animals in trucks in a cruel manner
and carrying them for slaughter contrary to statutory requirements.
64.  Thana Ram v State of Haryana, 1996 Cr LJ 2020 (P&H), relying on Nageshwar Sh Krishna
Ghobe v State of Maharashtra, AIR 1973 SC 165 [LNIND 1972 SC 450] : 1973 Cr LJ 235 .
65.  Shivanna v State, (2010) 15 SCC 9 : 2010 (9) Scale 87 [LNIND 2010 SC 775] .
66.  Pawan Kumar Sharma v State of UP, 1996 Cr LJ 369 (All).
67.  K K Mani v State, 2010 Cr LJ 4595 (Mad).
68.  Ramesan v State, 2010 Cr LJ 4423 .
69.  Manish Jalan v State of Karnataka, AIR 2008 SC 3074 [LNIND 2008 SC 1396] : (2008) 8 SCC
225 [LNIND 2008 SC 1396] .

70.  Puttuswamy v State of Karnataka, (2009) 1 SCC 711 [LNIND 2008 SC 2398] : 2008 (15) Scale
483 [LNIND 2008 SC 2398] .
71.  Dalbir Singh v State of Harayana, 2000 (5) SCC 82 [LNIND 2000 SC 810] : AIR 2000 SC 1677
[LNIND 2000 SC 810] : 2000 Cr LJ 2283 ; B Nagabhushanam v State of Karnataka, 2008 (5) SCC
730 [LNIND 2008 SC 1172] : 2008 (7) Scale 716 [LNIND 2008 SC 1172] : AIR 2008 SC 2557
[LNIND 2008 SC 1172] .
72.  State of Punjab v Balwinder Singh, 2012 (2) SCC 182 [LNIND 2012 SC 8] : 2012 (1) Scale 62
[LNIND 2012 SC 8] : AIR 2012 SC 861 [LNIND 2012 SC 8] .

73.  State of MP v Surendra Singh, 2015 Cr LJ 600 : AIR 2015 SC 398 [LNIND 2014 SC 933] .
74.  Hiran Mia v State of Tripura, 2010 Cr LJ 189 (Gau) section 279 is punishable with
imprisonment of either description of a term which may extend to six months, or with ﬁne which
may extend to Rs 1,000, or with both, while section 337 is punishable with imprisonment of
either description for a term which may extend to six months, or with ﬁne which may extend to
Rs 500, or with both.
75.  Rajaram v State, 2010 Cr LJ 1644 (Mad).

[s 280] Rash navigation of vessel.
Whoever navigates any vessel in a manner so rash or negligent as to endanger human
life, or to be likely to cause hurt or injury to any other person, shall be punished with
COMMENT.—
The last section deals with public ways on land: this section deals with waterways. It
deals with the case of inland navigation. Rash or negligent navigation on the high seas
is not punished under the Code but under certain special statutes.
[s 280.1] CASES.—
Petitioners, 33 in number were the distressed and marooned seamen belonging to
different nationalities who were the crew of "ISABELL-III", wrecked at the reefs of the

sea near the Islet of Suheli Par, part of the Lakshadweep group of Islands. The accident
happened when the vessel was passing through the Indian territorial waters by way of

76.  Hisa A Sheng v Administrator, Union Territory of Lakshadweep, 2007 Cr LJ 821 .
innocent passage; and immediately the matter was informed to the Indian Coast
Guard. The Merchant Shipping (Distressed Seamen) Rules, 1960 prescribes that the
derelict seamen should be saved at any cost and repatriated to their return port at the
cost of the owner of the vessel. The petitioners were forced to enter the Lakshadweep
Island and hence they were held protected under the Merchant Shipping Act, 1958 the
Merchant Shipping (Distressed Seamen) Rules, 1960 and the U.N. Conventions On the
Law Of the Sea (UNCLOS). It was held that at best the offence under section 280 IPC,
1860, i.e., rash navigation of the vessel, would lie only against the ﬁrst accused, who
was the Master of the vessel. Proceedings against the crew was quashed.76.

[s 281] Exhibition of false light, mark or buoy.
Whoever exhibits any false light, mark or buoy, intending or knowing it to be likely that
such exhibition will mislead any navigator, shall be punished with imprisonment of
both.
COMMENT.—
Intentional exhibition of a false light, mark or buoy, with a view to mislead any navigator
is punishable under this section.

[s 282] Conveying person by water for hire in unsafe or overloaded vessel.
Whoever knowingly or negligently conveys, or causes to be conveyed for hire, any
person by water in any vessel, when that vessel is in such a state or so loaded as to
endanger the life of that person, shall be punished with imprisonment of either
to one thousand rupees, or with both.
COMMENT.—
This section provides against the negligence of common carriers by water. Where a
person, with the assistance of two others, plied a ferryboat, which was out of order and
had a crack, and he took in one hundred passengers, and consequently the boat was
upset, and seven persons were drowned, it was held that the accused had committed

an offence under this section.77. Where the lessee of a public ferry knew that boats
were usually overloaded but took no steps against it and allowed his boatmen to
overload them as they liked and in consequence, a boat sank with some passengers, it
was held that the lessee was guilty of criminal negligence and liable under this

77.  Khoda Jagta, (1864) 1 BHC (Cr C) 137.
78.  Tofel Ahmad Miya, (1933) 61 Cal 253 .
79.  VR Bhate, AIR 1970 SC 1362 : 1970 Cr LJ 1261 .
80.  Re K S M Mohammad Abdul Kadar Marakayar, 1950 Cr LJ 729 (Mad).
section.78. Where a launch, which was overloaded with passengers, capsized at the
jetty owing to the onrush of persons waiting at the jetty to get on deck and the
passengers on the launch wanting to get down at the jetty, resulting in displacement of
balance of the launch, it was held that the capsizing of the launch was not because of
any negligence of the owners or the master and, therefore, their conviction under this
section could not be sustained.79. The owner who knowingly or negligently allows
overloading of his boat so as to endanger the life of the persons therein will be liable
under section 282, Penal Code.80.
There is no provision in the Code for the negligence of a common carrier by land.

[s 283] Danger or obstruction in public way or line of navigation.
Whoever, by doing any act, or by omitting to take order with any property in his
possession or under his charge, causes danger, obstruction or injury to any person in
any public way 1 or public line of navigation, shall be punished with ﬁne which may
extend to two hundred rupees.
COMMENT.—
The offence punishable under this section is the nuisance of causing obstruction, in a
public way or navigable river or canal:
[s 283.1] Ingredients.—
1. A person must do an act or omit to take order with any property in his possession or
under his charge.

81.  Venkappa v State, (1913) 38 Mad 305.
82.  Prannath Kundu, (1929) 57 Cal 526 .
83.  Nand Ram v State, (1969) Cr LJ 77 .
84.  Jai Ram v State of Rajasthan, 2001 Cr LJ 3915 (Raj).
2. Such act or omission must cause danger, obstruction or injury to any person in any
public way or line of navigation.
It is not necessary to prove that any speciﬁc individual was actually obstructed.81.
1. 'Public way'.—Where the privilege of a right of way is enjoyed only by a particular
section of the community or by the inhabitants of two or three villages and not by
others, the way is not a public way within the meaning of this section.82. The section
cannot be extended to a case where a party prohibits strangers from passing through
its ﬁelds, even though they may have been allowed access on earlier occasion.83.
[s 283.2] CASES.—
A tractor trolley duly loaded with fertilizers was negligently parked in the middle of the
road by its driver without there being any signal of its being stationary and as such

three persons who were proceeding on a motor-cycle collided with the stationary trolley
and sustained severe injuries. The Rajasthan High Court declined to quash the
proceedings.84.

[s 284] Negligent conduct with respect to poisonous substance.
Whoever does, with any poisonous substance, any act in a manner so rash or
negligent as to endanger human life, or to be likely to cause hurt or injury to any
person,
or knowingly or negligently omits to take such order with any poisonous substance in
his possession as is suﬃcient to guard against any probable danger to human life
from such poisonous substance,
both.
COMMENT.—
Under the second part of this section, a person in possession of a poisonous
substance should have negligently omitted to take such order with it as is suﬃcient to
guard against any probable danger to human life from such substance. It is not

85.  Hosein Beg, (1882) PR No. 16 of 1882.
necessary that the negligent omission should be followed by any disastrous
consequences.85.

[s 285] Negligent conduct with respect to ﬁre or combustible matter.
Whoever does, with ﬁre or any combustible matter, any act so rashly or negligently as
to endanger human life, or to be likely to cause hurt or injury to any other person,
or knowingly or negligently omits to take such order with any ﬁre or any combustible
matter in his possession as is suﬃcient to guard against any probable danger to
human life from such ﬁre or combustible matter,
both.
COMMENT.—
This section extends the provisions of the preceding section to ﬁre or any other
combustible matter.
[s 285.1] Cases.—

86.  Ejaj Ahmad v State of Jharkhand, 2010 Cr LJ 1953 (Jha).
87.  Kurban Hussein Mohamedalli Bangawalla v State of Maharashtra, AIR 1965 SC 1616 [LNIND
1964 SC 355] : 1965 (2) SCR 622 [LNIND 1964 SC 355] .
88.  Madhusudan v State of Karnataka, 2011 Cr LJ 215 (Kant).
A factory worker allegedly died due to rash and negligent act of occupier or manager. It
was argued that section 92 of Factories Act, 1948 prescribes punishment to occupier
or manager of factory for contravention of any of the provisions of Factories Act or any
rules made thereunder. It was held that there is nothing in Factories Act (Special Law)
which prescribes punishment for rash and negligent act of occupier or manager of
factory which resulted into the death of any worker or any other person. Hence,
offences under IPC, 1860 including section 285 will apply.86. Where a factory manager,
in breach of conditions in the licence kept naked ﬁre in proximity of stores of turpentine

and vanish and the ﬁre caused death of seven workers, the court found that he is guilty
under sections 285 and 304A IPC, 1860.87. The acts of accused in setting ﬁre to the
Tobacco Stock inside the house after pouring petrol and further act of throwing petrol
on the deceased when he tried to pacify, cannot be held as either rash or negligent act
so as to attract the offence under section 285 of IPC, 1860.88.

[s 286] Negligent conduct with respect to explosive substance.
Whoever does, with any explosive substance, any act so rashly or negligently as to
endanger human life, or to be likely to cause hurt or injury to any other person,
or knowingly or negligently omits to take such order with any explosive substance in
from that substance,
both.
COMMENT.—
The foregoing section deals with 'ﬁre or combustible matter', this with 'explosive
substance'; otherwise, the provisions of both the sections are alike.
The word 'knowingly' is evidently used in this section advisedly.

89.  T Amudha Sidhanathan v Union Territory, Chandigarh, 2008 Cr LJ 937 (P&H).
[s 286.1] Limitation.—
In a case, the occurrence took place as far back as in the year 1995 and the challan
was presented in the year 2006. The prosecution was launched against the petitioners
beyond the period of limitation as prescribed under the statute. Proceedings under
sections 286 and 9-B and 9-C of the Explosive Substances Act, 1908, were quashed.89.

[s 287] Negligent conduct with respect to machinery.
Whoever does, with any machinery, any act so rashly or negligently as to endanger
human life or to be likely to cause hurt or injury to any other person,
or knowingly or negligently omits to take such order with any machinery in his
possession or under his care as is suﬃcient to guard against any probable danger to
human life from such machinery,
both.
COMMENT.—
Machinery is dangerous to human life if proper precaution is not taken in its working.
This section renders any rash or negligent conduct in respect of machinery punishable.
Section 284 deals with poison; section 285, with ﬁre or combustible matter, section

286, with explosive substance; and this section, with machinery.

90.  Raj Kumar Bansal v State of Jharkhand, 2012 Cr LJ (NOC) 554 (Jha).
Death of the victim occurred when his hand got crushed in conveyor belt while
repairing it. There is no evidence to prove that the accused knowingly or negligently
failed to take precautions against probable danger. It is held that no offence under
section 287 or section 304A is made out.90.

[s 288] Negligent conduct with respect to pulling down or repairing buildings.
Whoever, in pulling down or repairing any building, knowingly or negligently omits to
take such order with that building as is suﬃcient to guard against any probable
danger to human life from the fall of that building, or of any part thereof, shall be
COMMENT.—
This section deals with negligent conduct with respect to pulling down or repairing
buildings. The injury complained of must be the direct consequence of such negligent
conduct.91. section 288, IPC, 1860, concerns itself with a situation where a person, in
pulling down or repairing and building, knowingly or negligently omits to take such

order with that building as is suﬃcient to guard against any probable danger to human
life from the fall of that building, or any part thereof.92.

91.  Manohar Shriniwas v Avtarsingh, (1969) 72 Bom LR 629 .
92.  Abdul Kalam v State, 2006 Cr LJ 3071 (Del).

[s 289] Negligent conduct with respect to animal.
Whoever knowingly or negligently omits to take such order with any animal in his
possession 1 as is suﬃcient to guard against any probable danger to human life, or
any probable danger of grievous hurt from such animal, 2 shall be punished with
COMMENT.—
This section deals with improper or careless management of animals. It does not refer
to savage animals alone, but to any 'animal', wild or domestic, e.g., a pony.93.
In the case of wild and savage animals, a savage or mischievous temper is presumed
to be known to their owner and to all men as a usual accompaniment of such animals;

and hence a positive duty is cast on the owner to protect the public against the
mischief resulting from such animals being at large. Anyone who keeps such a wild

93.  Chand Manal, (1872) 19 WR (Cr) 1.
94.  See the authors' LAW OF TORTS, 19th Edn, chapter XX.
95.  Moti, (1954) Nag 585.
96.  Chand Manal, (1872) 19 WR (Cr) 1.
97.  Natha Reva, (1881) Unrep Cr C 163.
animal as a tiger or bear, which escapes and does damage, is liable without any proof
of notice of the animal's ferocity; in such a case it may be said 'res ipsa loquitur'.
In the case of animals, which are tame and mild in their general temper, no mischievous
disposition is presumed. It must be shown that the defendant knew that the animal
was accustomed to do mischief. Some evidence must be given of the existence of an
abnormally vicious disposition. A single instance of ferocity, even a knowledge that it
has evinced a savage disposition, is held to be suﬃcient notice.94.
1. 'Animal in his possession'. Where the owner knowing that his buffalo was of a
savage and vicious disposition vis-a-vis human beings, negligently omitted to take such

order with the animal as was suﬃcient to guard against probable danger to human life
or any probable danger of grievous hurt, and the animal attacked the complainant in a
jungle and wounded him with her horn, it was held that he was guilty of an offence
under this section.95.
2. 'As is suﬃcient to guard against any probable danger to human life, or any probable
danger of grievous hurt from such animal'.—Where a pony, which was tied negligently,
got loose and ran through a crowded bazar, it was held that the conviction under this
section was good, because the pony on such an occasion might create danger to the
lives or limbs of men, women and children walking in the bazar.96. The accused, a
horse-keeper, harnessed his master's horse, put him into his carriage, and then went

away, leaving the horse and carriage standing in the road of the compound of his
master's house without any justiﬁcation; it was held that the accused had committed
an offence under this section, since the horse was not the less in the actual possession
of the servant, because it was for some purpose in the constructive possession of his
master.97.

[s 290] Punishment for public nuisance in cases not otherwise provided for.
Whoever commits a public nuisance in any case not otherwise punishable by this
Code, shall be punished with ﬁne which may extend to two hundred rupees.
COMMENT.—
This section provides for the punishment of a nuisance falling within the four corners
of the deﬁnition given in section 268 but not punishable under any other section.
[s 290.1] CASES.—
The display of unauthorized hoardings / banners / posters not only result in
defacement of public property and any place open to public view, but is an eyesore to
the viewers thereby causing public nuisance. In a given case, it may also result in
obstructing the free ﬂow of traﬃc on the public roads. The same would not only be
unlawful but unjust and unreasonable, irrespective of whether it has the effect of

advertisement or otherwise. Suﬃce it to observe that the Authorities have a bounden
duty to prevent and regulate display of illegal hoardings / banners / posters in the

98.  SP Jadhav v State of Maharashtra, AIR 2010 (4) Bom section 548.
99.  Kurnool Municipality, 1973 Cr LJ 1227 (AP).
100.  Chakra Behera, 1974 Cr LJ 423 (Ori).
101.  Berhampore Municipality v Oruganti Kondaya, 1977 Cr LJ NOC 279 (Ori).
102.  Ivor Heyden v State, 1984 Cr LJ NOC 16 (AP).
interests of amity and public safety.98. Though corporate bodies act through their
agents, there is no reason to exempt such bodies when their agents or servants, while
purporting to act on their behalf commit an offence like public nuisance, which is
punishable with ﬁne only. So a Municipality could be convicted for not maintaining the
cleanliness of the town under section 290, IPC, 1860.99. But in deciding cases of
nuisance the rigid standards of urban society cannot be applied to Indian villages.100.
Where a Coal Depot had been in existence for seven or eight years and only two
neighbours complained against its continuance at that site, it could not be said that it

constituted a public nuisance. At best, it was a private nuisance.101. Playing the radio
loud at a particular time did not constitute public nuisance and it was too trivial a
matter for the Court to take notice of it.102.

[s 291] Continuance of nuisance after injunction to discontinue.
Whoever repeats or continues a public nuisance, having been enjoined by any public
servant who has lawful authority to issue such injunction not to repeat or continue
such nuisance, shall be punished with simple imprisonment for a term which may
COMMENT.—
This section punishes a person repeating or continuing a nuisance after he is enjoined
by a public servant not to repeat or continue it. Sections 142 and 143 of the Cr PC,
1973 empower a Magistrate to forbid an act causing public nuisance.

103.[s 292] Sale, of obscene book,
104.[(1) For the purposes of sub-section (2), a book, pamphlet, paper, writing,
drawing, painting, representation, ﬁgure or any other object, shall be
deemed to be obscene if it is lascivious or appeals to the prurient interest
or if its effect, or (where it comprises two or more distinct items) the effect
of any one of its items, is if taken as a whole, such as to tend to deprave
and corrupt persons who are likely, having regard to all relevant
circumstances, to read, see or hear the matter contained or embodied in it.]
105.[(2)] Whoever—
(a) sells, lets to hire, distributes, publicly exhibits or in any manner puts
into circulation, or for purposes of sale, hire, distribution, public
exhibition or circulation, makes, produces or has in his possession
any obscene book, pamphlet, paper, drawing, painting,

representation or ﬁgure or any other obscene object whatsoever, or
(b) imports, exports or conveys any obscene object for any of the
purposes aforesaid, or knowing or having reason to believe that

such object will be sold, let to hire, distributed or publicly exhibited
or in any manner put into circulation, or
(c) takes part in or receives proﬁts from any business in the course of
which he knows or has reason to believe that any such obscene
objects are, for any of the purposes aforesaid, made, produced,
purchased, kept, imported, exported, conveyed, publicly exhibited or
in any manner put into circulation, or
(d) advertises or makes known by any means whatsoever that any
person is engaged or is ready to engage in any act which is an
offence under this section, or that any such obscene object can be
procured from or through any person, or
(e) offers or attempts to do any act which is an offence under this
section,
shall be punished 106.[on ﬁrst conviction with imprisonment of either
description for a term which may extend to two years, and with ﬁne which
may extend to two thousand rupees, and, in the event of a second or
subsequent conviction, with imprisonment of either description for a term

which may extend to ﬁve years, and also with ﬁne which may extend to ﬁve
thousand rupees].
107.[Exception.—This section does not extend to—
(a) any book, pamphlet, paper, writing, drawing, painting,
representation or ﬁgure—
(i) the publication of which is proved to be justiﬁed as being for the
public good on the ground that such book, pamphlet, paper, writing,
drawing, painting, representation or ﬁgure is in the interest of
science, literature, art or learning or other objects of general
concern, or
(ii) which is kept or used bona ﬁde for religious purposes;
(a) any representation sculptured, engraved, painted or otherwise
represented on or in—
(i) any ancient monument within the meaning of the Ancient
Monuments and Archaeological Sites and Remains Act, 1958 (24 of
1958), or
(ii) any temple, or on any car used for the conveyance of idols, or kept

1958), or
or used for any religious purpose.]]
Orissa.— The following amendments were made by Orissa Act No. 13 of 1962, s. 2 (w.e.f.
16-5-1962).
In its application to the whole State of Orissa, in Section 292, for the words, "which may
extend to three months", substitute the words "which may extend to two years" and
insert the following proviso before the Exception, namely:—
"Provided that for a second or any subsequent offence under this section, he shall be
punished with imprisonment of either description for a term which shall not be less
than six months and not more than two years and with ﬁne".

Tamil Nadu.— The following amendments were made by Tamil Nadu Act No. 25 of 1960,
s. 2 (w.e.f. 9-11-1960).
In its application to the whole of the State of Tamil Nadu, in Section 292, for the words
"shall be punished with imprisonment of either description for a term which may extend
to three months or with ﬁne or with both", substitute the following, namely:—
to two years or with ﬁne or with both:
Provided that for a second or any subsequent offence under this section, he shall be
COMMENT.—
section 292 IPC, 1860, was enacted by the Obscene Publications Act to give effect to
Article I of the International Convention for the Suppression of the Circulation of and
Traﬃc in Obscene Publications to which India is a signatory. By Act 36 of 1969, section

292 was amended to give more precise meaning to the word 'obscene' as used in the
section in addition to creating an exception for publication of matter which is proved to
be justiﬁed as being for the public good, being in the interest of science, literature, art
or learning or other objects of general concern. Prior to its amendment, section 292
contained no deﬁnition of obscenity. The amendment also literally does not provide for
a deﬁnition of 'obscenity' in as much as it introduces a deeming provision.108. In order
to make the law relating to the publication of obscene matters or objects deterrent, the
section provides for enhanced punishment. The Exception to the original section, which
is now redrafted, exempts from the provisions of the section any representation,

sculptured, engraved or painted on or in any ancient monument. The possession
referred to in this section connotes conscious possession.109. By Act 25 of 1960, the
State of Tamil Nadu has added a new section as section 292A for dealing with printing,
of grossly indecent or scurrilous matter or matter intended for blackmail. The State of
Orissa has followed suit by Act 13 of 1962. The intention of the Legislature while
amending the provision is to deal with this type of offences which corrupt the mind of
the people to whom objectionable things can easily reach and need not be emphasized
that corrupting inﬂuence is more likely to be upon the younger generation who has got
to be protected from being easy prey.110. This section was amended by Act XXXVI
when apart from enlarging the scope of the exceptions, the penalty was enhanced

which was earlier up to three months or with ﬁne or with both. By the amendment a
dichotomy of penal treatment was introduced for dealing with the ﬁrst offenders and
the subsequent offenders. In the case of even a ﬁrst conviction, the accused shall be
years and with ﬁne which may extend to Rs 2,000.111.
1. 'Obscene'.—The word obscenity is not deﬁned in the IPC, 1860. The word 'obscene'
was originally used to describe anything disgusting, repulsive, ﬁlthy or foul. The use of
the word is now said to be somewhat archaic or poetic; and it is ordinarily restricted to
something offensive to modesty or decency, or expressing or suggesting unchaste or
lustful ideas, or being impure, indecent, or lewd.112. The obscene matter in a book must

be considered by itself and separately to ﬁnd out whether it is so gross and its
obscenity, so decided, that it is likely to deprave and corrupt those whose minds are
open to inﬂuences of this sort and into whose hands the book is likely to fall. In this
connection, the interests of our contemporary society and particularly the inﬂuence of
the book on it must not be overlooked.113. It was further observed in this case that

merely treating with sex and nudity in art and literature cannot be regarded as evidence
of obscenity without something more. It was held that where obscenity and art are
mixed, art must be so preponderating as to throw the obscenity into the shadow or the
obscenity so trivial and insigniﬁcant that it can have no effect and may be overlooked.
When treatment of sex becomes offensive to public decency and morality as judged by
the prevailing standards of morality in the society, then only the work may be regarded
as an obscene production.114. In considering the question of obscenity of a publication
what the Court has to see is that whether a class, not an isolated case, into whose
hands the book, article or story falls suffer in their moral outlook or become depraved
by reading it or might have impure and lecherous thoughts aroused in their minds.115. It
was also observed in this case that the question of obscenity may have to be judged in

the light of the claim that the work has a predominant literary merit. Referring to the
impact on the mind of the youth, the Court said:116.
We do not think that it can be said with any assurance that merely because the adolescent
youth read situations of the type presented in the book, they would become deprived,
debased and encouraged to lasciviousness. It is possible that they may come across such
situations in life and may have to face them. But if a narration or description of a similar
situation is given in a setting emphasising a strong moral to be drawn from it and condemns
the conduct of the erring party as wrong and loathsome, it cannot be said that they have a
likelihood of corrupting the morals of, those in whose hands it is likely to fall—particularly
the adolescent.

In KA Abbas v UOI,117. the Supreme Court has called the test laid down in Mishkin's
case118. as 'selective audience obscenity test' and observed as:
our standards must be so framed that we are not reduced to a level where the protection of
the least capable and the most depraved amongst us determines what the morally healthy
cannot view or read ….
The requirements of art and literature include within themselves a comprehensive view of
social life and not only in its ideal form and the line is to be drawn where the average moral
man begins to feel embarrassed or disgusted at a naked portrayal of life without the
redeeming touch of art or genius or social value. If the depraved begins to see in these
things more than what an average person would, in much the same way, as it is wrongly
said, a Frenchman sees a woman's legs in everything, it cannot be helped. In our scheme of

things ideas having redeeming social or artistic value must also have importance and
protection for their growth.
In the case of Samaresh Bose v Amal Mitra119. wherein the Supreme Court provided the
following guidance:120.
In our opinion, in judging the question of obscenity, the judge in the ﬁrst place should try to
place himself in the position of the author and from the view point of the author the judge
should try to understand what is it that the author seeks to convey and what the author
conveys has any literary and artistic value. The judge should thereafter place himself in the
position of a reader of every age group in whose hands the book is likely to fall and should
try to appreciate what kind of possible inﬂuence the book is likely to have in the minds of

the readers. The judge should thereafter apply his judicial mind dispassionately to decide
whether the book in question can be said to be obscene within the meaning of the section
by an objective assessment of the book as a whole and also of the passages complained of
as obscene separately.
It is no defence to a charge of obscenity merely to urge that the information has been
copied from similar works.121.
In Promilla Kapur (Dr) v Yash Pal Bhasin, Promilla Kapur (Dr) v Yash Pal Bhasin,122. the
Delhi High Court felt123. that there was nothing wrong if a sociologist made a research
on the subject of call-girls in order to know the reasons as to why and how the young
girls fall in this profession and what society could do in order to eradicate or at least

minimise the possibility of young budding girls joining the ﬂesh trade. The book was in
the form of interviews with the girls in the profession. The portion marked by the
Magistrate as obscene was a description of their encounters with unscrupulous males

including a description by some girls of their ﬁrst experience with sex. But by far the
bulk of the book dealt with the ways and means of running the profession and the
methods of encountering them. Thus, the book was within the scope of clause (a) of
the ﬁrst exception. In Bobby Art International v Om Pal Singh Hoon,124. while examining
the validity of certiﬁcate of exhibition awarded to the ﬁlm "Bandit Queen" it was held
that nakedness does not always arouse the baser instinct. In Director General,
Directorate General of Doordarshan v Anand Patwardhan,125. the Supreme Court again
referred to the Hicklin test and observed that the relevant questions are:
(a) whether the average person applying contemporary community standards would
ﬁnd that the work, taken as a whole appeal to the prurient interest.
(b) whether the work depicts or describes, in a patently offensive way, sexual
conduct speciﬁcally, deﬁned by the applicable state law,

(c) whether the work taken as a whole, lacks serious literary, artistic, political or
scientiﬁc value.
In the case of Ajay Goswami v UOI,126. the Supreme Court, while recognizing the right of
adult entertainment, reviewed the position of law on obscenity and summarized the
various tests laid down regarding obscenity.
[s 292.1] A picture of a woman in the nude is not per se obscene.—
Unless the picture of a nude/semi-nude female is an incentive to sensuality or impure
or excite the thoughts in the mind of an ordinary person of normal temperament, the
pictures cannot be regarded as obscene within the meaning of section 292 IPC, 1860.
But where repetitive photographs without any backdrop content are published in a
magazine and nearly l/4th of the magazine consists of nothing but repetitive
photographs of semi-nude women, prominence being to display their breast, there

being hardly any literary contents in the magazine, the matter loses any literary content
and therefore the broad social outlook penned in Ranjit Udeshi's case127. may not be
available as a defence.128. To fall within the scope of 'obscene' under sections 292 and
294 IPC, the ingredients of the impugned matter/art must lie at the extreme end of the
spectrum of the offensive matter. The legal test of obscenity is satisﬁed only when the
impugned art/matter can be said to appeal to an unhealthy, inordinate person having
perverted interest in sexual matters or having a tendency to morally corrupt and debase
persons likely to come in contact with the impugned art.129.
[s 292.2] Hicklin Test and Community Standard Test.—
One of the tests to be applied to ﬁnd whether an article possesses the standard of

obscenity is the Hicklin Test.130. As per this, the test of obscenity is whether the
tendency of the matter charged as obscenity is to deprave and corrupt those whose
minds are open to such immoral inﬂuences and into whose hands a publication of this
sort may fall. The other test is Community Standard Test, whereby the obscenity has to
be judged from the point of view of an average person, by applying contemporary
community standards. In Aveek Sarkar v State of WB,131. the Supreme Court was of the
view that Hicklin test is not the correct test to be applied to determine "what is
obscenity".
When the name of Mahatma Gandhi is alluded or used as a symbol, speaking or using
obscene words, the concept of "degree" comes in. To elaborate, the "contemporary

community standards test" becomes applicable with more vigour, in a greater degree
and in an accentuated manner.132.
[s 292.3] Khushboo Case.—
In Khushboo v Kanniammal,133. the appellant, a popular actress expressed her personal
opinion wherein she had noted the increasing incidence of pre-marital sex, especially in
the context of live-in relationships and called for the societal acceptance of the same.
However, appellant had also qualiﬁed her remarks by observing that girls should take
adequate precautions to prevent unwanted pregnancies and the transmission of
venereal diseases. The Supreme Court said it failed to see how the appellant's remarks
amount to 'obscenity' in the context of section 292 IPC, 1860. It was diﬃcult to
appreciate the claim that the statements published as part of the survey were in the
nature of obscene communications.
[s 292.4] Meaning of the word obscene in sections 292, 293 and section
294(b).—
The word 'obscene' is not deﬁned differently in these sections but the punishments

294(b).—
were prescribed differently in other sections depending upon the effect of 'obscenity'
that causes on the viewer or hearer as the case may be. That also would suﬃciently
indicate that the said word is to be understood as understood for the purpose of
section 292.134.
[s 292.5] Certiﬁcate of Censor Board.—
Once the ﬁlm is given a particular certiﬁcation, no doubt the case of obscenity under
section 292 of the IPC, 1860, cannot be made out when the said ﬁlm is shown to the
particular category for which the certiﬁcate is granted. Again, the pre-condition is that
there has to be a certiﬁcation by the Board of Film Censors. In the absence of any such
certiﬁcate, the petitioners cannot claim immunity from prosecution under section 292
of the IPC.135. In GP Lamba v Tarun Mehta,136. explaining the role of the Censor Board

certiﬁcate,137. the Court said:
The law presumes the regular performance of oﬃcial acts. This is not to suggest that the
grant of a certiﬁcate debars the court from judging the obscenity of a ﬁlm..... or that the
certiﬁcate is conclusive.... such a certiﬁcate is the opinion of a high powered Board
especially entrusted with power to screen off the silver screen pictures which offensively
invade or deprave public morale through over-sex... The rebuttable presumption, which
arises in favour of the statutory certiﬁcate, can be negatived by positive evidence. No such
evidence was before the court.138.
In the matter of sex knowledge, the Court said:
In the present day society in India, a book, picture or a publication which deals with such
matter cannot per se be said to be obscene.139.

The Court further added that in order to satisfy the requirement of mens rea there must
be a distinct ﬁnding that the matter complained of was inserted by the order or owing
to the negligence of the proprietor.140.

[s 292.6] Public interest.—
An obscene advertisement was published in a daily. The advertiser said that the
publication was intended in good faith to promote sale of condoms. The advertisement
was withdrawn because of social objections. The advertiser also apologised. The
complaint ﬁled by a social worker was no doubt maintainable but it was quashed
because the complainant's interest should give way to the larger public interest as to
whether prosecution would be proper in the circumstances of the case.141.
[s 292.7] For sale.—
Possession of obscene objects is punishable if the possession is for the purpose of
sale, hire, distribution, public exhibition or circulation. Persons who were found viewing
obscene ﬁlms on television with the help of VCR could not be charged for the offence
punishable under section 292.142.
[s 292.8] Effect upon children.—
The accused could not be convicted of possessing an indecent photograph unless he
knew that he had the photograph in his possession. The "making" of an indecent

photograph included copying, downloading or storing it on a computer, provided that it
was done knowingly.143.
[s 292.9] Pornography, incitement for supply of material.—
Act of accused, privately viewing obscene ﬁlm does not constitute on offence under
section 292 of IPC, 1860.144. Mere possession of an obscene cassette by itself does
not amount to an offence punishable under section 292(2) IPC. In the case on hand, the
accused was found managing a video shop wherein obscene cassette containing a
blue-ﬁlm evidently kept for hire to the potential customers, was found. In such
circumstances, it cannot be said that the possession of the cassette was without the
requisite mens rea or that it and does not attract the ingredients of the offence

punishable under section 292 IPC.145. In another case, it was proved that the accused
showed pornographic ﬁlm on the handicam to the prosecutrix. Though the charge of
rape failed, conviction under sections 292 and 506 was upheld.146.
Generally, evidence of expert is inadmissible whether an article or book has a tendency
to deprave and corrupt persons who are likely to read, hear or see the matter in
question.147. The only exception is where the likely readers belong to a special class
such as young children,148. In Samaresh Base's case149. the Supreme Court of India
considered the evidence of two eminent Bengali novelists to determine whether the
book 'Prajapati', a Bengali novel, has a tendency to deprave and corrupt youth, who are
likely to read it and having regard to their evidence decided the case in favour of the

accused. It was however held that, though a Court of law may consider the views of
reputed authors or leading literatures, the ultimate duty to make a proper assessment
regarding obscenity or otherwise of a book rests only with the Court.150. The
prosecution need not prove something which the law does not burden it with. As
regards the second part of the guilty act (actus reus), i.e. the selling or keeping for sale
an object which is found to be obscene, here of course the ordinary mens rea is
required to be shown before the offence can be said to be complete. Even so, it was

held in this case that in criminal prosecution mens rea must necessarily be proved by
circumstantial evidence alone unless the accused confesses. Thus, it is not required
that prosecution must prove guilty intention to possess or possess for sale, by positive
evidence. The Court will presume that the owner of the shop is guilty if the book is sold
on his behalf and later found to be obscene unless he can establish that the sale was
without his knowledge or consent. Thus to escape liability he has to prove his lack of
knowledge.151. In India, it is also a defence to plead a certiﬁcate given by the Board of
Censors. Thus, a certiﬁcate granted by the Board of Censors under section 5A of the
Cinematograph Act 1952, certifying a ﬁlm to be ﬁt for public exhibition, circulation or
distribution would by virtue of section 79, IPC, 1860, make prosecution under section
292, IPC, unsustainable even if the ﬁlm be obscene, lascivious or tending to deprave or

corrupt public morale. This is so as section 79, IPC, (justiﬁcation on ground of bona ﬁde
mistake of fact) is exculpatory when read with section 5A of the Cinematograph Act
and the certiﬁcate issued thereunder.152.
[s 292.10] Obscenity in the internet and other electronic mediums.—
section 67 of the Information Technology Act 2000 is the ﬁrst statutory provisions
dealing with obscenity on the Internet in India. Sections 67, 67A and 67B of the
Information Technology Act 2000 deal with obscenity in electronic sphere.
It must be noted that the both under IPC, 1860, and the Information Technology Act,
2000, the test to determine obscenity is similar.153.
A special law shall prevail over the general and prior laws. Electronic forms of
transmission is covered by the IT Act, which is a special law. When the Act in various

provisions deals with obscenity in electronic form, it covers the offence under section
292 IPC, 1860. Once the special provisions having the overriding effect do cover a
criminal act and the offender, he gets out of the net of the IPC and in this case, section
292 IPC, 1860. Though charge has not been made out under section 67 of the IT Act,
yet the accused-appellant could not be proceeded under section 292 IPC.154.
(Section 292-A insertion)
Orissa.— The following amendments were made by Orissa Act No. 13 of 1962, s. 3 (w.e.f.
In its application to the whole State of Orissa, after Section 292, insert the following
new section, namely:—
292-A. Printing, etc. of grossly indecent or scurrilous matter or matter intended for
blackmail.— Whoever—

(a) prints or causes to be printed in any newspaper, periodical or circular, or exhibits or
causes to be exhibited, to public view or distributes or causes to be distributed or in
any manner puts into circulation any picture or any printed or written document which
is grossly indecent, or is scurrilous or intended for blackmail; or
(b) sells or lets for hire, or for purposes of sale or hire makes, produces or has in
possession, any picture or any printed or written document which is grossly indecent or
is scurrilous or intended for blackmail; or
(c) conveys any picture or any printed or written document which is grossly indecent or
is scurrilous or intended for blackmail knowing or having reason to believe that such

picture or document will be printed, sold, let for hire, distributed or publicly exhibited or
in any manner put into circulation; or
(d) takes part in, or receives proﬁts from any business in the course of which he knows,
or has reason to believe that any such newspaper, periodical, circular, picture, or other
printed or written document is printed, exhibited, distributed, circulated, sold, let for
hire, made, produced, kept, conveyed or purchased; or
(e) advertises or makes known by any means whatsoever that any person is engaged
or is ready to engage in any act which is an offence under this section, or that any such
newspaper, periodical, circular, picture or other printed or written document which is
grossly indecent or is scurrilous or intended for blackmail can be procured from or
through any person; or
(f) offers or attempts to do any act which is an offence under this section, shall be
years, or with ﬁne, or with both:

than six months and not more than two years and with ﬁne.
Explanation I.—For the purposes of this section, the word "scurrilous" shall be deemed
to include any matter which is likely to be injurious to morality or is calculated to injure
any person:
Provided that it is not scurrilous to express in good faith anything whatever respecting
the conduct of—
(i) a public servant in the discharge of his public functions or respecting his character
so far as his character appears in that conduct and no further; or
(ii) any person touching any public question, and respecting his character, so far as his
character appears in that conduct and no further.
Explanation II.—In deciding whether any person has committed an offence under this

section, the Court shall have regard, inter alia, to the following considerations:—
(a) the general character of the person charged, and where relevant, the nature of his
business;
(b) the general character and dominant effect of the matter alleged to be grossly
indecent or scurrilous or intended for blackmail;
(c) any evidence offered or called by or on behalf of the accused person as to his
intention in committing any of the acts speciﬁed in this section".
Tamil Nadu.— The following amendments were made by T.N. Act No. 25 of 1960, s. 2
(w.e.f. 9-11-1960).
In its application to the whole of the State of Tamil Nadu, after Section 292, insert the
following new section, namely:—
"292-A.Printing, etc., of grossly indecent or scurrilous matter or matter intended for

(b) sells or lets for hire, or for purposes of sale or hire makes, produces or has in his
(d) takes part in, or receives proﬁts from, any business in the course of which he knows
or has reason to believe that any such newspaper, periodical, circular, picture or other

(f) offers or attempts to do any act which is an offence under this section, 155.[shall be
years, or with ﬁne, or with both].
than six months 156.[and not more than two years] and with ﬁne.

Explanation I.—For the purposes of this section, the word 'scurrilous' shall be deemed to
include any matter which is likely to be injurious to morality or is calculated to injure
business;

business;

103.  Subs. by Act 8 of 1925, section 2, for section 292.
104.  Ins. by Act 36 of 1969, section 2 (w.e.f. 7-9-1969).
105.  Section 292 renumbered as sub-section (2) thereof by Act 36 of 1969, section 2 (w.e.f. 7-9-
1969).
106.  Subs. by Act 36 of 1969, section 2, for certain words (w.e.f. 7-9-1969).
107.  Subs. by Act 36 of 1969, section 2, for Exception (w.e.f. 7-9-1969).
108.  MF Husain v Raj Kumar Pandey, 2008 Cr LJ 4107 (Del).
109.  CT Prim, AIR 1961 Cal 177 [LNIND 1959 CAL 81] .
110.  Gita Ram v State of HP, AIR 2013 SC 641 [LNINDORD 2013 SC 18666] : (2013) 2 SCC 694
[LNIND 2013 SC 82] .
111.  Uttam Singh v The State (Delhi Administration), (1974) 4 SCC 590 [LNIND 1974 SC 113] :
1974 SCC (Cr) 626 : AIR 1974 SC 1230 [LNIND 1974 SC 113] : 1974 (3) SCR 722 [LNIND 1974 SC
113] : 1974 Cr LJ 423 .
112.  Devidas Ramachandra Tuljapurkar v State of Maharashtra, AIR 2015 SC 2612 [LNIND 2015
SC 338] : 2015 (6) Scale 356 [LNIND 2015 SC 338] .

113.  Ranjit D Udeshi, (1965) 1 SCR 65 [LNIND 1964 SC 205] SC : (1964) 67 Bom LR 506 : AIR
1965 SC 881 [LNIND 1964 SC 205] : 1965 (2) Cr LJ 8 .
114.  Ibid.
115.  Chandrakant Kalyandas Kakodkar, (1969) 72 Bom LR 917 SC : AIR 1970 SC 1390 [LNIND
1969 SC 293] : 1970 Cr LJ 1273 .
116.  AIR 1970 SC 1390 [LNIND 1969 SC 293] at p 1394 : 1970 Cr LJ 1273 .
117.  KA Abbas v UOI, 1970 (2) SCC 780 [LNIND 1970 SC 388] : AIR 1971 SC 481 [LNIND 1970
SC 388] : 1971 (2) SCR 446 [LNIND 1970 SC 388] .
118.  Mishkin v New York, 383 US 502.
119.  Samaresh Bose v Amal Mitra, AIR 1986 SC 967 [LNIND 1985 SC 296] : 1986 Cr LJ 24 :
(1985) 4 SCC 289 [LNIND 1985 SC 296] .
120.  1986 Cr LJ 24 , at p 38.
121.  Thakur Prasad, AIR 1959 All 49 [LNIND 1958 ALL 94] .
122.  Promilla Kapur (Dr) v Yash Pal Bhasin, Promilla Kapur (Dr) v Yash Pal Bhasin, 1989 Cr LJ
1241 (Del).

123.  At p 1245 per PK Bahri J.
124.  Bobby Art International v Om Pal Singh Hoon, 1996 (4) SCC 1 [LNIND 1996 SC 2602] : AIR
1996 SC 1846 [LNIND 1996 SC 2602] .
125.  Director General, Directorate General of Doordarshan v Anand Patwardhan, 2006 (8) SC 255 .
126.  Ajay Goswami v UOI, 2007 (1) SCC 143 [LNIND 2006 SC 1133] : AIR 2007 SC 493 [LNIND
2006 SC 1133] .
127.  Supra.
128.  Vinay Mohan Sharma v Administration, 2008 Cr LJ 1672 (Del); Sree Ram Saksena, (1940) 1
Cal 581 .
129.  MF Husain v Raj Kumar Pandey, 2008 Cr LJ 4107 (Del).
130.  R v Hicklin, 1868 L.R. 2 Q.B. 360.
131.  Aveek Sarkar v State of WB, 2014 Cr LJ 1560 : (2014) 4 SCC 257 [LNIND 2014 SC 84] .
132.  Devidas Ramachandra Tuljapurkar v State of Maharashtra, 2015 Cr LJ 3492 .

133.  Khushboo v Kanniammal, 2010 (5) SCC 600 [LNIND 2010 SC 411] : 2010 (4) Scale 462
[LNIND 2010 SC 411] : AIR 2010 SC 3196 [LNIND 2010 SC 411] : 2010 Cr LJ 2828 .
134.  Dhanisha v Rakhi N Raj, 2012 Cr LJ 3225 .
135.  R Basu and Etc v National Capital Territory of Delhi, 2007 Cr LJ 4254 (Del). See other SC
cases relating to censorship KA Abbas, AIR 1971 SC 481 [LNIND 1970 SC 388] ; Raj Kapoor,
1980 Cr LJ 436 ; Bobby Art International v Om Pal Singh, AIR 1996 SC 1846 [LNIND 1996 SC
2602] ; S Rangarajan's case, (1989) 2 SCC 574 [LNIND 1986 SC 198] : 1989 (2) JT (SC) 170;
Ramesh v UOI, (1988) 1 SCC 668 [LNIND 1988 SC 74] : 1988 SCC (Cr) 266; Director General,
Directorate General of Doordarshan v Anand Patwardhan, AIR 2006 SC 3346 [LNIND 2006 SC 661]
.
136.  GP Lamba v Tarun Mehta, 1988 Cr LJ 610 (P&H).
137.  Issued under the Cinematographic Act, 1952. See also PK Somnath v State of Kerala, 1990
Cr LJ 542 (Ker), Violation of Indecent Representation of Woman (Prohibition) Act, 1986

proceedings not quashed and points of difference between obscenity and pornography
explained.
138.  GP Lamba v Tarun Mehta, 1988 Cr LJ 610 (P&H).
139.  Issued under the Cinematographic Act, 1952. See also PK Somnath v State of Kerala, 1990
140.  Ibid, see at p 613.
141.  Chairman & MD, Hindustan Latex Ltd v State of Kerala, 1999 Cr LJ 808 (Ker).
142.  Jagdish Chawla v State of Rajasthan, 1999 Cr LJ 2562 (Raj). Damodar Sarma v State of
Assam 2007 Cr LJ 1526 (Gau) - Obscene books.
143.  Atkins v DPP; Goodland v DPP, (2000) 1 WLR 1427 (QBD).
144.  Deepankar Chowdari v State of Karnataka, 2008 Cr LJ 3408 (Kar); Jagdish Chawla v State of

Rajasthan, 1999 Cr LJ 2562 (Raj).
145.  Abdul Rasheed v State of Kerala, 2008 Cr LJ 3480 (Ker).
146.  Vijay Sood v State of HP, 2009 Cr LJ 4530 (HP).
147.  Ibid.
148.  Ibid; Director of Public Prosecutions v A & BC Chewing, (1967) 2 All ER 504 .
149.  Samaresh Bose v Amal Mitra, 1986 Cr LJ 24 : AIR 1986 SC 967 [LNIND 1985 SC 296] :
150.  Ibid.
151.  Ibid; See also State of Karnataka v Basheer, 1979 Cr LJ 1183 (Kar).
152.  Raj kapoor v Laxman, 1980 Cr LJ 436 : AIR 1980 SC 605 [LNIND 1979 SC 492] .
153.  MF Husain v Raj Kumar Pandey, 2008 Cr LJ 4107 (Del).
154.  Sharat Babu Digumarti v Govt of NCT of Delhi, AIR 2017 SC 150 [LNIND 2016 SC 616] .
155.  Subs. for the words "shall be punished on ﬁrst conviction with imprisonment of either

description for a term which may extend to two years or with ﬁne or with both, and, in the event
of a second or subsequent conviction with imprisonment of either description for a term which
may extend to ﬁve years and with ﬁne" by the T.N. Act 30 of 1984, section 2 (w.e.f. 28-6-1984).
156.  Ins. by T.N. Act 30 of 1984, section 2 (w.e.f. 28-6-1984).

157.[s 293] Sale, of obscene objects to young person.
Whoever sells, lets to hire, distributes, exhibits or circulates to any person under the
age of twenty years any such obscene object as is referred to in the last preceding
section, or offers or attempts so to do, shall be punished 2 [on ﬁrst conviction with
with ﬁne which may extend to two thousand rupees, and, in the event of a second or
subsequent conviction, with imprisonment of either description for a term which may
extend to seven years, and also with ﬁne which may extend to ﬁve thousand rupees].]
Orissa.—The following amendments were made by Orissa Act No. 13 of 1962, s. 4 (w.e.f.
In its application to the whole State of Orissa, in Section 293:—

In section 293 of the said Code—
(i) for the words "any such obscene object as is referred to in the last preceding
section", the words, ﬁgures and letter "any such obscene object as is referred to in

section 292 or any such newspaper, periodical, circular, picture or other printed or
written document as is referred to in section 292-A" shall be substituted;
(ii) for the words "which may extend to six months", the words "which may extend to
three years" shall be substituted;
(iii) in the marginal note, after the words "obscene objects" the words "and grossly
indecent or scurrilous matter or matter intended for blackmail", shall be inserted.
Tamil Nadu.— The following amendments were made by T.N. Act No. 25 of 1960, s. 4
In its application to the whole of the State of Tamil Nadu, in Section 293,—
Amendment of section 293, Central Act XLV of 1860.—In section 293 of the said Code—
(i) for the words 'any such obscene object as is referred to in the last preceding
section', the words, ﬁgures and letter "any such obscene object as is referred to in
Section 292 or any such newspaper, periodical, circular, picture or other printed or

written document as is referred to in Section 292A", shall be substituted;
(ii) for the words 'which may extend to six months', the words 'which may extend to
three years" shall be substituted; and
COMMENT.—
This section provides for enhanced sentence where the obscene objects are sold, to
persons under the age of 20 years. By Act 36 of 1969 the punishment for the offence is
further enhanced. On going through section 293, it is clear that a separate penal
provision was made with regard to the sale, exhibition, of such obscene object to any
person under the age of 20 years where as section 292 (1) deals with sale, exhibition,

of such obscene object to any person. Therefore, in order to make the provision more
stringent and grave insofar as it relates to the sale, of obscene objects to younger
persons–aged less than 20 years, a separate penal provision, made applicable in
section 293, was introduced. It is in that context, the word 'obscene' occurring in
section 292(1) is made applicable to section 293 also.158. In a trial for the offences
under sections 292 and 293 of the IPC, 1860, a certiﬁcate granted under section 6 of
the Cinematograph Act by the Board of Censors does not provide an irrebuttable
defence to accused who have been granted such a certiﬁcate, but it is certainly a
relevant fact of some weight to be taken into consideration by the criminal Court in
deciding whether the offence charged is established. The Court must have regard to

the fact that the certiﬁcate represents the judgment of a body of persons particularly
selected under the statute for the speciﬁc purpose of adjudging the suitability of ﬁlms
for public exhibition, and that judgment extends to a consideration of the principal
ingredients which go to constitute the offences under sections 292 and 293 of the IPC,
1860. At the same time, the Court must remind itself that the function of deciding
whether the ingredients are established is primarily and essentially its own function,
and it cannot abdicate that function in favour of another, no matter how august and
qualiﬁed be the statutory authority.159.
[s 293.1] CASE.—

157.  Subs. by Act 8 of 1925, section 2, for section 293.
158.  Dhanisha v Rakhi N Raj, 2012 Cr LJ 3225 .
159.  Raj Kapoor v State (Delhi Administration), AIR 1980 SC 258 [LNIND 1979 SC 428] : (1980) 1
SCC 43 [LNIND 1979 SC 428] .
160.  Dr B Rosaiah v State of AP, 1990 Cr LJ 189 (AP).
161.  Gita Ram v State of HP, AIR 2013 SC 641 [LNINDORD 2013 SC 18666] : (2013) 2 SCC 694
[LNIND 2013 SC 82] ; Uttam Singh v The State (Delhi Administration, (1974) 4 SCC 590 [LNIND
1974 SC 113] : 1974 SCC (Cr) 626 : AIR 1974 SC 1230 [LNIND 1974 SC 113] : 1974 (3) SCR 722
[LNIND 1974 SC 113] : 1974 Cr LJ 423 ; Bharat Bhushan v State of Punjab, reported in 1999 (2)
RCR (Cr) 148.
The allegation is that the petitioner was a spectator of the blue-ﬁlm and therefore an
abettor of the offences under sections 292, 293 and 294 IPC, 1860. This interposition
as a mere spectator to the exhibition of a blue-ﬁlm without any further complicity, in
view of the above Supreme Court decision, cannot be taken to be amounting to

abetment of the main offence.160.
[s 293.2] Beneﬁt of Probation.—
Exhibiting a blue-ﬁlm in which man and woman were shown in the act of sexual
intercourse to young boys would deﬁnitely deprave and corrupt their morals. Their
minds are impressionable. On their impressionable minds, anything can be imprinted.
Things would have been different if that blue-ﬁlm had been exhibited to mature minds.
Showing a man and a woman in the act of sexual intercourse tends to appeal to the
carnal side of the human nature. Even if he is the ﬁrst offender, he cannot be given the
beneﬁt of Probation of Offenders Act, 1958.161.

162.[s 294] Obscene acts and songs.
[Whoever, to the annoyance of others—
(a) does any obscene act in any public place, or
(b) sings, recites or utters any obscene songs, ballad or words, in or near any
public place,
extend to three months, or with ﬁne, or with both.]
COMMENT.—
Ingredients.—(i) the offender has done any obscene act in any public place or has sung,
recited or uttered any obscene songs or words in or near any public place; and (ii) has
so caused annoyance to others. If the act complained of is not obscene, or is not done
in any public place, or the song recited or uttered is not obscene, or is not sung, recited

or uttered in or near any public place, or that it causes no annoyance to others, the
offence is not committed.163. To fall within the scope of 'obscene' under sections 292
and 294 IPC, 1860, the ingredients of the impugned matter/art must lie at the extreme
end of the spectrum of the offensive matter. The legal test of obscenity is satisﬁed only
when the impugned art/matter can be said to appeal to an unhealthy, inordinate person
having perverted interest in sexual matters or having a tendency to morally corrupt and
debase persons likely to come in contact with the impugned art. It must also be
remembered that a piece of art may be vulgar but not obscene. In order to arrive at a
dispassionate conclusion where it is crucial to understand that art from the perspective
of the painter, it is also important to picture the same from a spectator's point of view
who is likely to see it.164. The obscene act or song must cause annoyance. Though

annoyance is an important ingredient of this offence, it being associated with mental
condition, has often to be inferred from proved facts. Thus, where a Doctor was ﬁlthily
abused in a public place by dragging the name of his wife and he and some members
of the public were impelled to complain to the police, it was held that there was
suﬃcient indication of the fact that they were all annoyed even though it was not stated
or spoken to by them in their evidence.165.
[s 294.1] Public Place.—
Hotels like the one where cabaret dances are performed and entry is restricted by
purchase of the tickets, would still be the public places within the meaning of section
294 of the IPC, 1860.166. An offence under the section could not be made out by
uttering words in a private garden which was not a public place.167.
[s 294.2] CASES.—

Where the accused addressed openly two respectable girls who were strangers to him,
in amorous words suggestive of illicit sex relations with them and asked them to go
along with him on his rickshaw, he was held to have committed an obscene act.168.
Performance of cabaret dance devoid of nudity and obscenity according to Indian
social standards in hotels and restaurants is not liable to be banned or prevented.169.
[s 294.3] MF Husain's case.—
The renowned artist MF Husain challenged the summoning orders against him which
arose from a contemporary painting celebrating nudity made by petitioner.
Subsequently in the year 2006, the said painting entitled 'Bharat Mata' was advertised
as part of an online auction for charity for Kashmir earthquake victims organised by a
non-governmental organisation with which the petitioner claimed to have no

involvement. It was stated that the petitioner at no point in time had given a title to the
said painting. There can be no exasperation caused by viewing such painting on the
website for the reason that a person would ﬁrst access such a website only if he has
some interest in art and that too contemporary art, and in case he does view such a
website, he always would have the option to not to view or close the said web page. It
appeared that the complainants are not the types who would go to art galleries or have
an interest in contemporary art, because if they did, they would know that there are
many other artists who embrace nudity as part of their contemporary art. Hence, the
offence alleged under section 294 IPC, 1860, could not be made out.170.

162.  Subs. by Act 3 of 1895, section 3, for section 294.
163.  Pawan Kumar v State of Haryana, AIR 1996 SC 3300 [LNIND 1996 SC 2868] : (1996) 4 SCC
17 [LNIND 1996 SC 2868] .
164.  MF Husain v Raj Kumar Pandey, 2008 Cr LJ 4107 (Del).
165.  Patel HM v Malle Gowda, 1973 Cr LJ 1047 (Mys).
166.  Narendra H Khurana v Commissioner, 2004 Cr LJ 3393 (Bom).
167.  Saraswathi v State of TN, 2002 Cr LJ 1420 (Mad); K Jayaramanuja v Kanakraj, 1997 Cr LJ
1623 (Mad), words complained of did not show annoyance to others. Acquittal, no interference
in revision.
168.  Zafar Ahmad, AIR 1963 All 105 [LNIND 1962 ALL 125] ; Sadar Prasad, 1970 Cr LJ 1323
(Pat).
[s 294.4] Cabaret dance.—
In Narendra H Khurana v Commissioner,171. a division bench of Bombay High Court
examined the question whether the nude cabaret dances which are per se indecent and
obscene, held in a restaurant on purchase of tickets would warrant prosecution under
section 294 of the IPC, 1860, in the absence of express evidence of annoyance by any

of the persons who attend such shows. It was held that cabaret dances where indecent
and obscene act per se is involved would not attract the provision of section 294 of the
IPC without fulﬁlment of its essential ingredients, i.e. Evidence pertaining to
"annoyance to others". In State of Maharashtra v Indian Hotel & Restaurants
Association,172. the Supreme Court lifted the ban on dance bars holding that "we fail to
see how exactly the same dances can be said to be morally acceptable in the
exempted establishments and lead to depravity if performed in the prohibited
establishments. Rather it is evident that the same dancer can perform the same dance
in the high-class hotels, clubs, and gymkhanas but is prohibited of doing so in the
establishments covered under section 33A of Bombay Police Act, 1951. We see no

rationale which would justify the conclusion that a dance that leads to depravity in one
place would get converted to an acceptable performance by a mere change of venue".
[s 294.5] Moral turpitude.—
Offence under section 294 does not involve moral turpitude.173.
[s 294.6] Section 294(b).—
To make out an offence under section 294(b) of IPC, 1860, the alleged obscene act
must have been committed by the accused in or near a public place. Writing obscene
letters and sending them to the victim on her personal address and which were
expected to be read by her privately does not constitute the offence.174.

169.  KP Mohammad, 1984 Cr LJ 745 (Ker). See also Chander Kala v Ram Kishan, AIR 1985 SC
1268 [LNIND 1985 SC 166] : 1985 Cr LJ 1490 : (1985) 4 SCC 212 [LNIND 1985 SC 166] : 1985
SCC (Cr) 491, where the offence was proved with cogent evidence.
170.  MF Husain v Raj Kumar Pandey, 2008 Cal LJ 4107 (Del).
171.  Narendra H Khurana v Commissioner, 2004 Cr LJ 3393 (Bom),
172.  State of Maharashtra v Indian Hotel & Restaurants Association, AIR 2013 SC 2582 [LNIND
2013 SC 665] : (2013) 8 SCC 519 [LNIND 2013 SC 665] .
173.  Pawan Kumar v State of Haryana, AIR 1996 SC 3300 [LNIND 1996 SC 2868] : (1996) 4 SCC
174.  MM Haris v State, 2005 Cr LJ 3314 .

175.[s 294A] Keeping lottery oﬃce.
[Whoever keeps any oﬃce or place for the purpose of drawing any lottery 1 176. [not
being 177. [a State lottery] or a lottery authorised by the 178. [State] Government], shall
And whoever publishes 2 any proposal to pay any sum, or to deliver any goods, 3 or to
do or forbear from doing anything for the beneﬁt of any person, on any event or
contingency relative or applicable to the drawing of any ticket, lot, number or ﬁgure in
any such lottery, shall be punished with ﬁne which may extend to one thousand
rupees.]
Andhra Pradesh.—This amendment was made by A.P. Act No. 16 of 1968, s. 27, (w.e.f. 1-
2-1969).

rupees.]
2-1969).
In its application to the State of Andhra Pradesh, the provisions of section 294-A are
repealed.

Gujarat.— The following amendments were made by Bombay Act No. 82 of 1958, s. 33
read with Bom.
Act No. 11 of 1960, s. 87.
In its application to the State of Gujarat, the provisions of section 294A are repealed.
Karnataka (Mysore).— The following amendments were made by Mys. Act 27 of 1951, s.
33.
In its application to the whole of the Mysore area except Bellary district, the provisions
of section 294A are repealed.
Maharashtra.— The following amendments were made by Bom. Act No. 82 of 1958, s. 33
(w.e.f.1-5-1959).
In its application to the State of Maharashtra, the provisions of section 294A are
repealed.
Uttar Pradesh.— Section 294A of Indian Penal Code shall be omitted, vide U.P. Act No. 24
of 1995.
COMMENT.—
Lottery stands on the same footing as gambling because both of them are games of
chance. The section does not touch authorized lotteries, but intends to save people
from the effects of those not authorised by prohibiting (1) the keeping of oﬃces or

places for drawing them, and (2) the publication of any advertisement relating to them.
Bombay Lotteries (Control and Tax) and Prize Competitions (Tax) Act 1958, Bombay
Act No. LXXXII of 1958, by section 33 repeals the operation of this section in the State
of Maharashtra.
State Governments can authorise lotteries in any way. No procedure is prescribed.179.
[s 294A.1] Ingredients.—
This section requires two things—
1. Keeping of any oﬃce or place for the purpose of drawing any lottery.
2. Such lottery must not be authorized by Government.
1. 'Drawing any lottery'.—A lottery is a distribution of prizes by lot or chance without the
use of any skill.180. It makes no difference that the distribution is part of a genuine
mercantile transaction.181.
2. 'Publishers'.—This word includes both the persons who sends a proposal as well as

proprietor of a newspaper who prints the proposal as an advertisement.182. The
proprietor of a Bombay newspaper who published an advertisement in his paper
relating to a Melbourne lottery was held to be guilty under this section.183.
3. 'Goods'.—The term 'goods' includes both movable and immovable property. The
publication of an advertisement of a lottery by which the lucky winner would get a
factory for less than its real value is an offence under this section.184.

175.  Ins. by Act 27 of 1870, section 10.
176.  Ins. by Act 27 of 1870, section 10.
177.  Subs. by Act 3 of 1951, section 3 and Sch., for "a lottery organised by the Central
Government or the Government of a Part A State or a Part B State" (w.e.f. 1-4-1951).
178.  Subs. by the A.O. 1950, for "Provincial".
179.  Rama Nava Nirman Samithi v State of TN, 1990 Cr LJ 2620 (TN).
180.  Sesha Ayyar v Krishna Ayyar, (1935) 59 Mad 562 : 566 (FB); Taylor v Smetten, (1883) 11
QBD 207 ; Mukandi Lal, (1917) PR No. 35 of 1917.
181.  GC Chakrabatty, (1915) 9 BLT 124 , 17 Cr LJ 143.
182.  Mancherji Kavasji, (1885) 10 Bom 97.
183.  Ibid.
184.  Malla Reddi v State, (1926) 50 Mad 479.
185.  Vasudevan Namburi v Mammod, (1898) 22 Mad 212.
186.  Sesha Ayyar v Krishna Ayyar, (1935) 59 Mad 562 (FB).
[s 294A.2] CASES.—
Agreement for contributions to be paid by lot is not lottery.— An agreement whereby a
number of persons subscribe, each a certain sum, by a periodical instalment, with the

object that each in his turn, (to be decided by lot), shall take the whole subscription for
each instalment, all such persons being returned the amount of their contributions, the
common fund being lent to each subscriber in turn, was held to be not illegal.185.
[s 294A.3] Prize chit.—
A prize chit was started with the object of creating a fund for a temple. It consisted of
625 subscribers, the monthly subscription being Rs 3. The subscription was to be paid
for 50 months. A drawing was to take place every month, one ticket was to be drawn
out of 625 tickets and the subscriber who drew the ticket was to be paid Rs 150
without any liability to pay future instalments. That process was to be repeated every
month till the 50th month. After the 50th month the remaining 575 subscribers were to

be each paid in a particular order Rs 150, and the chit fund was to be closed. It was
held that the chit fund was a lottery.186.
[s 294A.4] Transaction in which prizes are decided by chance amounts to
lottery.—
It has, been held by the High Court of Kerala that lucky draw prize schemes organised
by manufacturers as part of promotion of sale of manufactured goods come within the
ambit of this section. Government, however, has a discretion to select ﬁrms by rotation
and such a bona ﬁde selection cannot be attacked as discriminatory under Article 14 of
the Constitution.187.

CHAPTER XV OF OFFENCES RELATING TO RELIGION
The principle on which this chapter has been framed is a principle on which it would be
desirable that all governments should act, but from which the Government of India
cannot depart without risking the dissolution of society; it is this, that every man should
be suffered to profess his own religion and that no man should be suffered to insult the
religion of another.1.
[s 295] Injuring or deﬁling place of worship with intent to insult the religion of
any class.
Whoever destroys, damages or deﬁles 1 any place of worship, or any object2. held
sacred by any class of persons3. with the intention of thereby insulting the religion of
any class of persons or with the knowledge that any class of persons is likely to
consider such destruction, damage or deﬁlement as an insult to their religion, shall be
punishble with imprisonment of either description for a term which may extend to two
COMMENT.—

COMMENT.—
The object of this section is to punish those persons who intentionally wound the
religious feelings of others by injuring or deﬁling a place of worship. This section is
intended to prevent wanton insult to the religious notions of a class of persons.2
[s 295.1] Ingredients.—
1. Destruction, damage or deﬁlement of (a) any place of worship or (b) any object
held sacred by a class of persons.
2. Such destruction, etc., must have been done (i) with the intention of insulting the
religion of a class of persons, or (ii) with the knowledge that a class of persons is
likely to consider such destruction, etc., as an insult to their religion.
1. 'Deﬁles'.—This word is not to be restricted in meaning to acts that would make an
object of worship unclean as a material object, but extends to acts done in relation to

the object of worship which would render such object ritually impure.3
2. 'Object'.—The word 'object' does not include animate objects. It refers only to
inanimate objects such as churches, mosques, temples, and marble or stone ﬁgures
representing gods.4. Killing of a cow by a Mohammedan, within the sight of a public
road frequented by Hindus, is not punishable under this section.5. Similarly, where a bull
dedicated and set at large on a ceremonial occasion of Hindus in accordance with a
religious usage was killed by certain Mohammedans secretly and at night in the
presence of none but Mohammedans; it was held that no offence was committed.6.
Any object, however trivial or destitute of real value in itself, if regarded as sacred by
any class of persons would come within the meaning of this section nor is it absolutely

1.  The Works of Lord Macaulay, Notes on the chapter of offences relating to religion and caste.
Note j.
2.  Gopinath v Ramchandra, (1958) Cut 485.
3.  Sivakoti Swami, (1885) 1 Weir 253.
4.  Imam Ali v State, (1887) 10 All 150 (FB); Romesh Chunder Sannyal v Hiru Mondal, (1890) 17
Cal 852 .
5.  Imam Ali, sup; Ali Muhammad, (1917) PR No. 10 of 1918 (FB).
6.  Romesh Chunder Sannyal v Hiru Mondal, supra.
7.  Veerabadran v Ramaswami, AIR 1958 SC 1032 [LNIND 1958 SC 95] : 1958 Cr LJ 1565 . See
also Zac Poonen v Hidden Treasure Literature Incorporated In Canada, 2002 Cr LJ 481 (Kant).
8.  Benarashi Lal, (1956) 98 CLJ 139.
9.  Sheo Shankar, (1940) 15 Luck 696 .
10.  DP Titus v LW Lyall, 1981 Cr LJ 68 (All).
necessary that the object, in order to be held sacred, should have been actually
worshipped.7.
3. 'Class of persons'.—In order that a body of persons may form a class there must be
a principle of classiﬁcation.8.
[s 295.2] CASES.—
The damaging or destroying of a sacred thread worn by a person, who is not entitled

under the Hindu custom to wear it or for whom the wearing of the sacred thread was
not part of his ceremonial observance under the Hindu religion, in assertion of a mere
claim to higher rank, was held to be not an insult to his religion.9. Where a pastor of the
church who himself was a Christian was running a nursery school and a charitable
dispensary in a portion of the Church, it could not be said that by using a portion of the
Church property for such secular and non-religious purposes he was insulting the
religion of a class of persons within the meaning of section 295, Indian Penal Code,
1860 (IPC, 1860).10.

11.[s 295A] Deliberate and malicious acts intended to outrage religious
feelings of any class, by insulting its religion or religious beliefs.
[Whoever, with deliberate and malicious intention of outraging the religious feelings of
any class of 12.[citizens of India], 13.[by words, either spoken or written, or by signs or
by visible representations or otherwise], insults or attempts to insult the religion or
the religious beliefs of that class, shall be punished with imprisonment of either
description for a term which may extend to 14.[three years], or with ﬁne, or with both.]

Andhra Pradesh.—In Andhra Pradesh the offence is cognizable vide A.P. G.O. Ms. No. 732,
dated 5 December 1991.
COMMENT.—
This section was brought into IPC, 1860 by the Criminal Law Amendment Act, 1927 (25
of 1927) following the wide spread agitations erupting from the decision in Rajpaul v
Emperor,15. commonly called as "Rangila Rasul's case", rendered by the Lahore High
Court. Interpreting section 153A of IPC, 1860, which alone was there in the Statute
then, it was held that no offence would lie thereunder however indecent be the
comments made against a deceased religious leader. In fact a few months before
Rangila Rasul's case was decided by the Lahore High Court, a totally dissenting view
over the application of section 153A of IPC, 1860 had been rendered by the Allahabad

High Court in Kali Charan Sharma v Emperor,16. holding that scurrilous and bad taste
remarks against a religion or its founder promoting ill feelings between sects of
different faith could be proceeded under section 153A of IPC, 1860. It was at that
stage; the Legislature stepped in and brought in a new penal provision under section
295A in IPC, 1860. Section 295A of IPC, 1860 does not penalise every act of insult but
penalises only deliberate acts of insult, so that even if by any expression insult is in fact
caused, that expression is not an offence if the insult offered is unwilling or
unintended.17. In order to attract the mischief of the provision of section 295A, the
following ingredients are to be satisﬁed, viz., a person (1) by written words (2) with

deliberate and malicious intention (3) of outraging the religious feelings (4) of any
class of citizens of India, (5) insults or attempts to insult the religion or the religious
beliefs of that class. In other words, (1) the intention has to be deliberate and malicious
both and (2) for outraging the religious feelings (3) of a class of citizens of India (4) in
order to insult or attempt to insult the religious or religious belief of that class, i.e., in
India (5) by written words.18. Insults to religion offered unwittingly or carelessly or
without any deliberate or malicious intention to outrage the religious feelings of that

class do not come within the section. It only punishes the aggravated form of insult to
religion when it is perpetrated with the deliberate and malicious intention of outraging
the religious feelings of that class.19.
The essence of the offence under this section is that the insult to religion or the
outrage to religious feelings must be the sole, or primary, or at least the deliberate and
conscious intention. In order to bring the case within this section it is not so much the
matter of discourse as the manner of it. The words used should be such as are bound
to be regarded by any reasonable man as grossly offensive and provocative and
maliciously and deliberately intended to outrage the feeling of any class of citizens of
India. It is no defence to a charge under this section for anyone to plead that he was
writing a book in reply to the one written by one professing another religion who has
attacked his own religion.20. In order to establish malice as contemplated by this

section, it is not necessary for the prosecution to prove that, the applicant bore ill will or
enmity against speciﬁc persons. If the injurious act was done voluntarily without a
lawful excuse, malice may be presumed.21. Malice is often not capable of direct and
tangible proof and in almost all cases has to be inferred from the surrounding
circumstances having regard to the setting, background and connected facts in relation
to the offending article.22. The truth of the allegation is not a good defence to a charge
under this section.23.
The Supreme Court, while quashing a complaint observed that section 295A does not
stipulate everything to be penalised and any and every act would tantamount to insult
or attempt to insult the religion or the religious beliefs of class of citizens. It penalises

only those acts of insults to or those varieties of attempts to insult the religion or
religious belief of a class of citizens which are perpetrated with the deliberate and
malicious intention of outraging the religious feelings of that class of citizens. Insults
to religion offered unwittingly or carelessly or without any deliberate or malicious
intention to outrage the religious feelings of that class do not come within the section.
Further the said provision only punishes the aggravated form of insult to religion when
it is perpetrated with the deliberate and malicious intention of outraging the religious
feelings of that class.24.
[s 295A.1] Constitutional validity.—
This section is well within the protection of clause (2) of Article 19 of the Constitution

and its validity neither is beyond question,25. nor is it inconsistent with the right
guaranteed by Article 25(1) of the Constitution.26.
Where the arrangement of the scenes and the script of the drama outraged the
religious feelings of the Christian community, an offence under this section was held to
have been committed irrespective of the fact whether the beliefs which were made the
subject-matter of the attack were rational or irrational. An attack on even an incredible
belief may be capable of causing hurt to feelings.27. Where the articles published by
the accused highlighted the ideological differences that existed between the members
of a Christian group and the members of the Christian fellowship centre, it was held
that an expression of opinion by a person who is having a different religious belief did

not amount to defamation.28. An offence under this section has been made a
cognizable and non-bailable one under new Code of Criminal Procedure, 1973 (Cr PC,
1973).
[s 295A.2] Sanction.—

Note j.
11.  Ins. by Act 25 of 1927, section 2.
12.  Subs. by the A.O. 1950, for "His Majesty's subjects".
13.  Subs. by Act 41 of 1961, section 3, for "by words, either written or spoken, or by
visiblerepresentations" (w.e.f. 12-9-1961).
14.  Subs. by Act 41 of 1961, section 3, for "two years" (w.e.f. 12-9-1961)
15.  Rajpaul v Emperor, AIR 1927 Lahore 590 .
16.  Kali Charan Sharma v Emperor, AIR 1927 Allahabad 649 .
17.  Jayamala v State, 2013 Cr LJ 622 .
18.  Sujato Bhadra v State of WB, 2006 Cr LJ 368 (Cal).
19.  R V Bhasin v State of Maharashtra, 2012 Cr LJ 1375 (Bom) (FB); Ramji Lal Modi, AIR 1957 SC
620 [LNIND 1957 SC 36] : (1957) SCR 860 [LNIND 1957 SC 36] .
20.  Shiv Ram Dass v Udasi Chakarvarti, (1954) Pun 1020 (FB).
21.  Khalil Ahamad, AIR 1960 All 715 [LNIND 1960 ALL 96] (SB). Trustees of Safdar Hashmi
Memorial Trust v Govt. of NCT of Delhi, 2001 Cr LJ 3689 (Del), the basic requirement of the

No Court can take cognizance of an offence under this section except with the
previous sanction of the concerned Government under section 196(1), Cr PC, 1973.29.
In the matter of the publication of a book outraging the religious feelings of a section of
the society, a Notiﬁcation was issued directing forfeiture of the book under section 95,
Cr PC, 1973. It was held that the order contained in the Notiﬁcation was not violative of
Article 19(1)(a) or 19(1)(g) of the Constitution.30.
[s 295A.3] CASES.—
It is well settled that the offending publication has to be viewed as a whole and the
malicious intent of the author has to be gathered from a broader perspective and not
merely from a few solitary lines or quotations.31. The same view of the law was taken

in Chandanmal's case by the High Court of Calcutta to say that section 295A, IPC, 1860,
does not punish every act of insult to religion. It punishes only aggravated acts of
insult, etc., which are deliberate and malicious. And in judging if a publication falls
within the mischief of this section the publication has to be judged as a whole.
"Isolated passages picked out from here and there and read out of context cannot
change the position".32.
A petition was ﬁled to protest against the practice of printing and pasting photographs
of Gods and Goddesses of Hindu religion on ﬁre crackers. The practice in question had
been going on since long without any objections. The Court viewed it as a whimsical
petition and dismissed it.33.
In this connection see also sub-para entitled "Cases" under section 153A ante.

section is that of deliberate and malicious act. Malice is a negation of bona ﬁdes and one who
alleges it has to prove it.
22.  Sujato Bhadra v State of WB, 2005 Cr LJ 368 (Cal): 2005 (4) CHN 601 [LNIND 2005 CAL 620]
The Trustees of Safdar Hashmi Memorial Trust v Govt. of NCT of Delhi, 2001 Cr LJ 3869 (Del)
(FB).
23.  Henry Rodrigues, (1962) 2 Cr LJ 564 .
24.  Mahendra Singh Dhoni v Yerraguntla Shyamsundar, AIR 2017 SC 2392 [LNIND 2017 SC 217] :
2017 (2) RCR (Criminal) 746 : 2017 (5) Scale 83 .
25.  Ramji Lal Modi, (1957) SCR 860 [LNIND 1957 SC 36] .
26.  Henry Rodrigues, supra.
27.  T Parameswaran v Distt. Collector, AIR 1988 Ker 175 [LNIND 1987 KER 607] .
28.  Zac Poonen v Hidden Treasure Literature Incorporated in Canada, 2002 Cr LJ 481 (Kant).
29.  Shalibhadra Shah, 1981 Cr LJ 113 (Guj). Acharya Rajneesh v Naval Thakur, 1990 Cr LJ 2511
(HP). Manoj Rai v State of MP, AIR 1999 SC 300 : 1999 Cr LJ 470 , proceedings quashed
because of no sanction.

30.  Baragur Ramchandrappa v State of Karnataka, 1998 Cr LJ 3639 (Kant—FB).
31.  Nand Kishore Singh, 1985 Cr LJ 797 (Pat—SB).
32.  Chandanmal Chopra, 1986 Cr LJ 182 (Cal).
33.  Bhau v State of Maharashtra, 1999 Cr LJ 1230 (Bom).

[s 296] Disturbing religious assembly.
Whoever voluntarily causes disturbance to any assembly lawfully engaged in the
performance of religious worship, or religious ceremonies, shall be punished with
imprisonment of either description for a term which may extend to one year, or with
COMMENT.—
Assemblies held for religious worship, or for the performance of religious ceremonies,
are hereby protected from intentional disturbance.
The object of this section is to secure freedom from molestation when people meet for

the performance of acts in a quiet spot vested for the time in the assembly exclusively,
and not when they engage in worship in an unquiet place, open to all the public as a
thoroughfare.34.
[s 296.1] Ingredients.—
To constitute an offence under this section—
(1) There must be a voluntary disturbance caused.
(2) The disturbance must be caused to an assembly engaged in religious worship
or religious ceremonies.
(3) The assembly must be lawfully engaged in such worship or ceremonies, i.e., it
must be doing what it has a right to do.
[s 296.2] CASES.—Disturbance caused by saying 'amin'.—
A mosque is a place where all sects of Mohammedans are entitled to go and perform
their devotion as of right, according to their conscience; and a Mohammedan of one
sect pronouncing the word "amin" loudly, in the honest exercise of conscience,

commits no offence or civil wrong,35. though he may by such conduct cause
annoyance in the mosque to other worshippers of another sect who do not pronounce
that word loudly.36. But any person, Mohammedan or not, who goes into a mosque not
bona ﬁde for a religious purpose, but mala ﬁde, for the purpose of disturbing others
engaged in their devotions, will render himself criminally liable.37.

Note j.
34.  Vijiaraghava Chariar, (1903) 26 Mad 554, 574 (FB).
35.  Ata-Ullah v Azim-Ullah, (1889) 12 All 494 (FB).
36.  Jangu v Ahmadullah, (1889) 13 All 419 (FB).
37.  Ibid.
38.  Mohamud khan, (1948) Nag 657.
[s 296.3] Religious procession.—
Persons of every sect are entitled to take out religious processions with music through
public streets provided that they do not interfere with the ordinary use of the streets by
the public or contravene any traﬃc regulation or lawful directions issued by the
Magistrate. A religious procession does not change its character merely because the
music is temporarily stopped in front of a mosque.38.

[s 297] Trespassing on burial places, etc.
Whoever, with the intention of wounding the feelings of any person, or of insulting the
religion of any person, or with the knowledge that the feelings of any person are likely
to be wounded, or that the religion of any person is likely to be insulted thereby,
commits any trespass in any place of worship 1 or on any place of sepulchre, or any
place set apart from the performance of funeral rites 2 or as a depository for the
remains of the dead, or offers any indignity to any human corpse, 3 or causes

disturbance to any persons assembled for the performance of funeral ceremonies,
COMMENT.—
This section deals more especially with trespasses on places of sepulchre and places
set apart for the performance of funeral rites and as depositories for the remains of the
dead. It extends the principle laid down in section 295 to places which are treated as
sacred. The essence of the section is an intention, or knowledge of likelihood, to wound
feelings or insult religion and when with that intention or knowledge trespass on a
place of sepulchre, indignity to a corpse, or disturbance to persons assembled for
funeral ceremonies is committed, the offence is complete.39.

1. 'Trespass in any place of worship'.—'Trespass' here implies not only criminal
trespass but also an ordinary act of trespass, i.e., an entry on another's land without
lawful authority with the intention speciﬁed in section 441.40. The term 'trespass'
means any violent or injurious act, committed in such place and with such knowledge
or intention as is deﬁned in this section.41.
The trespass must be in a place of worship with the knowledge that the religious
feelings of persons would be wounded thereby. Where some persons had sexual
connection inside a mosque, it was held that they were guilty of an offence under this
section.42.
2. 'Funeral rites'.—The section contemplates disturbance of persons engaged in
performing funeral ceremonies. But a moharram procession is not a funeral ceremony

within the meaning of this section.43. Obstruction to the performance of obsequies
comes under this section.44.
3. Indignity to corpse.—What is indignity to corpse is not deﬁned anywhere. Indignity is
generally synonymous to humiliation or disgrace. A conduct to be criminal in the sense

Note j.
39.  Burhan Shah, (1887) PR No. 26 of 1887.
40.  Subhan, (1896) 18 All 395 ; Jhulan Saib, (1913) 40 Cal 548 ; Ratna Mudali, (1886) 10 Mad
126; Umar Din, (1915) PR No. 23 of 1915.
41.  Mustan, (1923) 1 Ran 690; Sanoo v State, (1941) Kant 316.
42.  Maqsud Husain, (1923) 45 All 529 .
43.  Ghosita v Kalka, (1885) 5 AWN 49.
44.  Subramania v Venkata, (1883) 6 Mad 254 : 257. Sudarshan Kumar v Gangacharan Dubey,
2000 Cr LJ 1618 (MP), killing of a criminal in police encounter. His body was roped to a tower
for a few minutes in order to show to the public the results of a life in crime. This being not an
indignity to the body, no offence under the section was made out.
45.  Surdarshan Kumar v Gangacharan Dubey, 1999 Cr LJ 1618 (MP).
of section 297, IPC, 1860 should be spiteful to become humiliating or disgraceful. In a
particular situation, an act may not cause disgrace or may not humiliate, but, in other

situations that very act may cause disgrace or humiliation. So the intentions of the
person concerned as well as surrounding circumstances are important factors.45.

[s 298] Uttering words, etc., with deliberate intent to wound religious feelings.
Whoever, with the deliberate intention of wounding the religious feelings of any
person, utters any word or makes any sound in the hearing of that person or makes
any gesture in the sight of that person or places any object in the sight of that person,
Andhra Pradesh.— In Andhra Pradesh the offence is cognizable vide A.P. G.O. Ms. No.
732, dated 5-12-1991.

COMMENT.—
The authors of the Code observe: "In framing this clause we had two objects in view:
we wish to allow all fair latitude to religious discussion, and at the same time to prevent
the professors of any religion from offering, under the pretext of such discussion,
intentional insults to what is held sacred by others. We do not conceive that any person
can be justiﬁed in wounding with deliberate intention the religious feelings of his
neighbours by words, gestures or exhibitions. A warm expression dropped in the heat
of controversy, or an argument urged by a person, not for the purpose of insulting and
annoying the professors of a different creed, but in good faith for the purpose of
vindicating his own will not fall under the deﬁnition contained in this clause."46. This
section does not apply to a written article.47.

This section can be made cognizable by the State Government by a notiﬁcation in the
oﬃcial Gazette under section 10 of the Criminal Law Amendment Act, 1932.
The malicious intention should either be shown to exist or should be apparent from the
nature of the act alleged to constitute an offense.48.
[s 298.1] CASES.—
Interpolation of forbidden chant.— Interpolation of a forbidden chant in an authorised
ritual is an offence under this section.49.
[s 298.2] Exhibiting cow's ﬂesh.—

Note j.
46.  The Works of Lord Macaulay, Notes on the chapter of offences relating to religion and
caste. Note j.
47.  Shalibhadra Shah, 1981 Cr LJ 113 (Guj).
48.  Mudassir Ullah Khan v State of UP, 2013 (81) ALLCC 152 : 2013 Cr LJ 3741.
49.  Narasimha v Shree Krishna, (1892) 2 Mad Jur 236.
50.  Rahman v State, (1893) 13 AWN 144.
51.  Sheikh Amjad v State, (1942) 21 Pat 315.
52.  Kitab Ali v Santi Ranjan, AIR 1965 Tripura 22 .
Exhibiting cow's ﬂesh by carrying it in an uncovered state round a village with the
deliberate intention of wounding the religious feelings of Hindus was held to be an
offence under this section.50.
[s 298.3] Killing of cow.—
Where on the occasion of Bakr-i-Id, the accused killed a cow at dawn in a semi-private
place and the killing was seen by some Hindus walking along the village pathway 50
feet away, it was held that no offence under this section was committed.51. The

sacriﬁce of a cow on the Bakr-i-Id day is not an obligatory religious act for a Muslim
and the protection of Article 25 of the Constitution cannot be claimed for such an
act.52.

CHAPTER XVI OF OFFENCES AFFECTING THE HUMAN BODY OF
OFFENCES AFFECTING LIFE
[s 299] Culpable homicide.
Whoever causes death by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with the
knowledge that he is likely by such act to cause death, commits the offence of
culpable homicide.
(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or
with the knowledge that death is likely to be thereby caused. Z believing the
ground to be ﬁrm, treads on it, falls in and is killed. A has committed the offence
of culpable homicide.
(b) A knows Z to be behind a bush. B does not know it. A, intending to cause, or
knowing it to be likely to cause Z's death, induces B to ﬁre at the bush. B ﬁres
and kills Z. Here B may be guilty of no offence; but A has committed the offence

(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a
bush; A not knowing that he was there. Here, although A was doing an unlawful
act, he was not guilty of culpable homicide, as he did not intend to kill B, or to
cause death by doing an act that he knew was likely to cause death.
Explanation 1.—A person who causes bodily injury to another who is labouring
under a disorder, disease or bodily inﬁrmity, and thereby accelerates the death
of that other, shall be deemed to have caused his death.
Explanation 2.—Where death is caused by bodily injury, the person who causes
such bodily injury shall be deemed to have caused the death, although by
resorting to proper remedies and skilful treatment the death might have been
prevented.

Explanation 3.—The causing of the death of child in the mother's womb is not
homicide. But it may amount to culpable homicide to cause the death of a
living child, if any part of that child has been brought forth, though the child
may not have breathed or been completely born.
COMMENT.—
Homicide is the killing of a human being by a human being. It is either (A) lawful, or (B)
unlawful.
(A) Lawful homicide, or simple homicide, includes several cases falling under the
General Exceptions (Chapter IV).

(B) Unlawful homicide includes—
(1) Culpable homicide not amounting to murder (section 299).
(2) Murder (section 300).
(3) Rash or negligent homicide (section 304A).
(4) Suicide (sections 305, 306).
(A) Lawful or simple homicide.—This is committed where death is caused in one of the
following ways:—
1. Where death is caused 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 (section 80).
2. Where death is caused justiﬁably, that is to say,
(i) By a person, who is bound, or by mistake of fact in good faith believes
himself bound, by law (section 76).
(ii) By a Judge when acting judicially in the exercise of any power which is, or
which in good faith he believes to be, given to him by law (section 77).
(iii) By a person acting in pursuance of the judgment or order of a Court of
Justice (section 78).
(iv) By a person who is justiﬁed or who by reason of a mistake of fact, in good

faith, believes himself to be justiﬁed by law (section 79).
(v) By a person acting without any criminal intention to cause harm and in
good faith, for the purpose of preventing or avoiding other harm to person
or property (section 81).
(vi) Where death is caused in the exercise of the right of private defence of
person or property (sections 100, 103).
3. Where death is caused by a child, or a person of unsound mind, or an intoxicated
person as will come under sections 82, 83, 84 and 85.
4. Where death is caused unintentionally by an act done in good faith for the beneﬁt
of the person killed, when—
(i) he or, if a minor or lunatic, his guardian, has expressly or impliedly
consented to such an act (sections 87, 88); or
(ii) where it is impossible for the person killed to signify his consent or where

he is incapable of giving consent, and has no guardian from whom it is
possible to obtain consent, in time for the thing to be done with beneﬁt
(section 92).
(B) Unlawful homicide.—Culpable homicide is the ﬁrst kind of unlawful homicide. It is
the causing of death by doing:
(i) an act with the intention of causing death;
(ii) an act with the intention of causing such bodily injury as is likely to cause death;
or
(iii) an act with the knowledge that it was likely to cause death.

Without one or other of those elements, an act, though it may be in its nature criminal
and may occasion death, will not amount to the offence of culpable homicide.1.
Culpable homicide may be classiﬁed in three categories—(1) in which death is caused
by the doing of an act with the intention of causing death; (2) when it is committed by
causing death with the intention of causing such bodily injury as is likely to cause
death; and (3) where the death is caused by an act done with the knowledge that such
act is likely to cause death. Knowledge and intention should not be confused. Section
299 in deﬁning ﬁrst two categories does not deal with the knowledge whereas it does
in relation to the third category. It would also be relevant to bear in mind the import of
the terms "likely by such act to cause death". Herein again lies a distinction as "likely"
would mean probably and not possibly. When an intended injury is likely to cause death,

the same would mean an injury which is suﬃcient in the ordinary course of nature to
cause death which in turn would mean that death will be the most probable result.2.
[s 299.1] Ingredients.—
The section has the following essentials:
1. Causing of death of a human being.
2. Such death must have been caused by doing an act
(i) with the intention of causing death; or
(ii) with the intention of causing such bodily injury as is likely to cause death;
or
(iii) with the knowledge that the doer is likely by such act to cause death.
The fact that the death of a human being is caused is not enough. Unless one of the
mental states mentioned in ingredient3. is present, an act causing death cannot
amount to culpable homicide.
[s 299.2] 'Causes death'.—
Death means the death of a human being (section 46). But this word does not include

the death of an unborn child (vide Explanation 3). It is immaterial if the person whose
death has been caused is not the very person whom the accused intended to kill: see
Illustration (a) and section 301.4. The offence is complete as soon as any person is
killed. Death occurs when brain dies completely. A person cannot be said dead if some
brain activity is present.5.
[s 299.3] Five-step enquiry.—
According to the Supreme Court, in case where death is alleged to have been caused
by a person, there shall be a ﬁve-step inquiry:
(i) Is there a homicide? (ii) If yes, is it a culpable homicide or a 'not culpable homicide'? (iii) If
it is a culpable homicide, is the offence one of culpable homicide amounting to murder (s.
300 of the Indian Penal Code) or is it a culpable homicide not amounting to murder (s. 304

of the Indian Penal Code)? (iv) If it is a 'not culpable homicide' then a case u/s. 304-A of the
Indian Penal Code is made out. (v) If it is not possible to identify the person who has
committed the homicide, the provisions of s. 72 of the Indian Penal Code may be invoked.6.

[s 299.4] 'By doing an act with the intention of causing death'.—
None of the endless variety of modes by which human life may be cut short before it
becomes in the course of nature extinct, is excluded. Death may be caused by
poisoning, starving, striking, drowning, and by a hundred different ways.
Under section 32, words which refer to acts done extend also to illegal omissions, and
the word "illegal" is applicable to everything which is an offence or which is prohibited
by law, or which furnishes ground for a civil action (section 43). Therefore, death
caused by illegal omission will amount to culpable homicide.7.
[s 299.5] Need for viscera report.—
Having noticed that, in several cases, where poisoning is suspected, the prosecuting
agencies are not taking steps to obtain viscera report, the Supreme Court, in Joshinder
Yadav v State of Bihar8. issued certain directions in this behalf. It was held:
We direct that in cases where poisoning is suspected, immediately after the post-

mortem, the viscera should be sent to the FSL. The prosecuting agencies should ensure
that the viscera is, in fact, sent to the FSL for examination and the FSL should ensure
that the viscera is examined immediately and report is sent to the investigating
agencies/Courts post-haste. If the viscera report is not received, the concerned Court
must ask for explanation and must summon the concerned oﬃcer of the FSL to give an
explanation as to why the viscera report is not forwarded to the investigating
agency/Court. The criminal Court must ensure that it is brought on record.
[s 299.6] Death caused by effect of words on imagination or passions.
This may sometimes require a complete study of the person of the deceased, her
psychology, nature and disposition. Going by these considerations in a case before it,

the Supreme Court came to the conclusion that the death of the young married woman
in her matrimonial home was a case of suicide and not that of murder. A letter of hers
sensing some foul play against her was neither suﬃcient for conviction for murder nor
to dispel the presumption of suicide generated by the type of person she was and her
mental make-up.9.
[s 299.7] 'With the intention of causing such bodily injury as is likely to cause
death'.—
The connection between the 'act' and the death caused thereby must be direct and
distinct; and though not immediate, it must not be too remote.10. Where bodily injury
suﬃcient to cause death is actually caused, it is immaterial to go into the question as
to whether the accused had intention to cause death or knowledge that the act will

cause death.11. In ﬁnding out whether there was the requisite intention or not, the Court
has not to go merely by the part of the body where the blow fell, but also the
circumstances and the background of the offence and also the ferocity of the attack.
[s 299.8] 'With the knowledge that he is likely by such act to cause death'.—

'Knowledge' is a strong word and imports a certainty and not merely a probability.12.
[s 299.9] Beating for exorcising evil spirit.—
Where the accused, in exorcising the spirit of a girl whom they believed to be
possessed, subjected her to a beating which resulted in her death, it was held that they
were guilty of culpable homicide.13.
[s 299.10] Clauses 1 and 2.—'Intention of causing such bodily injury as is likely
to cause death'.—'Knowledge that he is likely by such act to cause death'.—
The practical difference between these two phrases is expressed in the punishment
provided in section 304. But the phrase 'with the knowledge that he is likely by such act
to cause death' includes all cases of rash acts by which death is caused, for rashness
imports a knowledge of the likely result of an act which the actor does in spite of the
risk.
Both the expressions "intent" and "knowledge" occurring in section 299 postulate
existence of a positive mental attitude which is of different degrees. Further, such

risk.
mental attitude towards consequences of conduct is one of intention and knowledge. If
death is caused in any of the circumstances envisaged in section 299, offence of
culpable homicide is said to have been committed.14.
[s 299.11] Distinction between knowledge and intention.—
Knowledge denotes a bare state of conscious awareness of certain facts in which the
human mind might itself remain supine or inactive whereas intention connotes a
conscious state in which mental faculties are roused into activity and summed up into
action for the deliberate purpose of being directed towards a particular and speciﬁc
end which the human mind conceives and perceives before itself. Intention need not
necessarily involve premeditation. Whether there is such an intention or not is a
question of fact.15.

[s 299.12] Death caused without 'requisite intention' or 'knowledge' not
culpable homicide.—
If the death is caused under circumstances speciﬁed in section 80, the person causing
the death will be exonerated under that section. But, if it is caused in doing an unlawful
act, the question arises whether he should be punished for causing it. The Code says
that when a person engaged in the commission of an offence causes death by pure
accident, he shall suffer only the punishment of his offence, without any addition on
account of such accidental death. See Illustration (c) to this section. The offence of
culpable homicide supposes an intention, or knowledge of likelihood of causing death.
In the absence of such intention or knowledge, the offence committed may be grievous

hurt,16. or simple hurt.17. It is only where death is attributed to an injury which the
offender did not know would endanger life or would be likely to cause death and which
in normal conditions would not do so notwithstanding death being caused, that the
offence will not be culpable homicide but grievous or simple hurt. Every such case
depends upon the existence of abnormal conditions unknown to the person who

inﬂicts the injury.18. A person who voluntarily inﬂicts injury such as to endanger life
must always, except in the most extraordinary and exceptional circumstances, be taken
to know that he is likely to cause death. If the victim is actually killed, the conviction in
such cases ought ordinarily to be of the offence of culpable homicide.19. Once it is
established that an act was a deliberate act and was not the result of accident or
rashness or negligence, it is obvious that the offence would be culpable homicide.20.
[s 299.13] Death due to diseased spleen.—
Where the accused gave a blow with a light bamboo stick, not more than an inch in
diameter, to the deceased who was suffering from diseased spleen on the region of
that organ, it was held that he was guilty of causing grievous hurt.21.
[s 299.14] CASES.—Knowledge of probable consequence of act.—Beating.—
Where a person struck with a heavy stick and killed a man, being at the time under the

bona ﬁde belief that the object at which he struck was not a human being but
something supernatural, but through terror, having taken no steps to satisfy himself
that it was not a human being, he was held to have committed culpable homicide.22.
[s 299.15] Explanation 1.—
A person causing bodily injury to another who is labouring under a disorder, disease, or
bodily inﬁrmity, and thereby accelerating the death of that other, is deemed to have
'caused his death'. But one of the elements of the offence of culpable homicide must
be present.23.
[s 299.16] Explanation 2.—'By resorting to proper remedies death might have
been prevented'.—
This Explanation is explicit and gives no room for discussion. The reason for this
provision is obvious that it is not always that proper remedies and skilful treatment are
within the reach of a wounded man.24.

Although proof be given that the wound or other bodily injury if skilfully treated might not
have resulted in death, yet, if in fact death is the result, the wound 'causes' death. And it
does not avail the offender to prove that the ﬁrst cause might have been removed or
rendered inoperative by the application of proper remedies and that death might have been
prevented. 'Proper remedies and skilful treatment' may not be within the reach of the
wounded man; or if they are at hand, he may be unable or unwilling to resort to them. But
this is immaterial so far as it relates to the due interpretation of the words 'cause of death'.
The primary cause which sets in motion some other cause,—as the severe wound which
induces gangrene or fever, and the ultimate effect, death, are suﬃciently connected as
cause and effect, notwithstanding that the supervening sickness or disease might have

been cured by medical skill. All that it is essential to establish is that the death has been
caused by the bodily injury and, if there be any intervening cause, that it is connected with a
suﬃcient degree of probability with the primary one.25.
If death results from an injury voluntarily caused, the person who causes that injury is
deemed to have caused death although the life of the victim might have been saved if
proper medical attention had been given, and even if medical treatment was given but

was not the proper treatment, provided that it was administered in good faith by a
competent physician or surgeon.26.
[s 299.17] CASES.—
Where the deceased did not actually die from the injuries but died from the gangrene
which set in inconsequence of some dirty substance, such as a bandage or the da with
which the injuries were caused, coming into contact with one injury, although the
injuries were not the direct cause of death, the person causing the injuries was held to
have caused death.27. Where the facts were that the acts of the accused were in the
category of a rash act which brought about dashing against the victim leading to his
death. There appeared to be no intention or knowledge of bringing about a fatal
consequence. The liability was under section 304A.28.
[s 299.18] Explanation 3.—
The causing of death of a child in the mother's womb is not homicide; such an offence
is punishable under section 315. But it is homicide to cause the death of a living child,

if any part of that child has been brought forth, though the child may not have breathed
or been completely born. The former Chief Court of Punjab has observed that "if it is
not homicide to kill a child in its mother's womb, it can hardly be urged that it is
homicide to kill a child that has breathed in the womb and died while yet in the womb
and has been brought forth still-born".29.
[s 299.19] Applicability of section 299 whether conviction under section 304
Part I or Part II.—
A plain reading of section 299 will show that it contains three clauses, in two clauses it
is the intention of the offender which is relevant and is the dominant factor and in the
third clause it is the knowledge of the offender which is relevant and is the dominant
factor. Analysing section 299 as aforesaid, it becomes clear that a person commits

culpable homicide if the act by which the death is caused is done.
"(i) with the intention of causing death; or
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that the act is likely to cause death."
If the offence is such which is covered by any one of the clauses, but does not fall
within the ambit of clauses, Firstly–Fourthly of section 300 IPC, 1860, it will not be
murder and the offender would not be liable to be convicted under section 302. In such
a case, if the offence is such which is covered by clause (i) or (ii), the offender would be
liable to be convicted under section 304 Part I IPC, 1860 as it uses the expression "if
the act by which the death is caused is done with the intention of causing death, or of

causing such bodily injury as is likely to cause death" where intention is the dominant
factor. However, if the offence is such which is covered by clause (iii), the offender
would be liable to be convicted under section 304, Part II, IPC, 1860 because of the use
of the expression "if the act is done with the knowledge that it is likely to cause death,
but without any intention to cause death, or to cause such bodily injury as is likely to
cause death" where knowledge is the dominant factor.30.

1.  Rahee, (1866) Unrep Cr C 6. State v Ram Swarup, 1998 Cr LJ 1067 (All).
2.  Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] .
3.  Nirbhai Singh, 1972 Cr LJ 1474 (MP).
4.  Ballan, 1955 Cr LJ 1448 .
5.  Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC
6.  Richhpal Singh Meena v Ghasi, 2014 Cr LJ 4339 : AIR 2014 SC 3595 [LNIND 2014 SC 691] .
7.  Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] , the enquiry is
broad-based without going into every detail, whether there was the intention to strike at a vital
part of the body with suﬃcient force to cause the kind of injury found on the body. Mohd Asif v
State of Uttaranchal, (2009) 11 SCC 497 [LNIND 2009 SC 558] : 2009 Cr LJ 2789 , no hard and
fast rule can be laid down for determining the existence of intention. Sellappan v State of TN,
(2007) 15 SCC 327 [LNIND 2007 SC 91] , death caused by head injury, despite hospitalisation,

plea that proper treatment could have saved, not tenable in view of Explanation 2, section 299.
8.  Joshinder Yadav v State of Bihar, 2014 Cr LJ 1175 : (2014) 4 SCC 42 [LNIND 2014 SC 34] .
9.  Sharad Birdichand Sarda v State of Maharashtra, AIR 1984 SC 1622 [LNIND 1984 SC 359] :
1984 Cr LJ 1738 : (1984) 4 SCC 116 [LNIND 1984 SC 359] : 1984 SCC (Cr) 487. See also Bijoy
Kumar Sen v State, 1988 Cr LJ 1818 (Cal); Prabhu v State of MP, 1991 Cr LJ 1373 : AIR 1991 SC
1069 .
10.  Laxman, 1974 Cr LJ 1271 : AIR 1974 SC 1803 .
11.  Re Thangavelu, 1972 Cr LJ 390 (Mad); State of Bihar v Pasupati Singh, 1973 Cr LJ 1832 : AIR
1973 SC 2699 [LNIND 1973 SC 284] ; Nishan Singh v State of Punjab, (2008) 17 SCC 505 [LNIND
2008 SC 2718] : AIR 2008 SC 1661 [LNIND 2008 SC 2718] : (2008) 65 AIC 172 .

12.  Shankar Kondiba Gore v State of Maharashtra, 1995 Cr LJ 93 (Bom), where a stab injury was
inﬂicted on abdomen but death was caused because the right artery was punctured at ilium, it
was held that the accused could only be saddled with knowledge of causing death and could be
convicted under section 304, Part II and not under section 302. See also Dharamvir v State of
Haryana, (1994) 2 Cr LJ 1281 (P&H), sudden and unpremeditated ﬁght, there being no previous
enmity, single blow death of one, culpable homicide, not murder. Muniappan v State of TN, 1994
Cr LJ 1309 (Mad), in a ﬁght between brother and sister, the brother hit her and her son with a
crow-bar, the sister died and the son was injured who in anger attacked the accused in reply, the
accused was held to be guilty of culpable homicide and not entitled to the plea of private

defence. Nizamuddin v State of MP, AIR 1994 SC 1041 : 1994 Cr LJ 1386 : 1995 SCC (Cr) 699,
fatal injury caused in exceeding the right of private defence.
13.  Jamaludin, (1892) Unrep Cr C 603; Haku, (1928) 10 Lah 555; State of MP v Godhe Faguwa,
1974 Jab LJ 302 : 1974 MPLJ 203 [LNIND 1973 MP 3] : ILR [1976] MP 361 [LNIND 1973 MP 3] .
14.  Jagriti Devi v State of HP, (2009) 14 SCC 771 [LNIND 2009 SC 1376] : AIR 2009 SC 2869
[LNIND 2009 SC 1376] : (2009) 80 AIC 225 (SC) : (2009) 3 AP LJ 52 (SC).
15.  Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] ; Daya Nand v
State of Haryana, (2008) 15 SCC 717 [LNIND 2008 SC 827] : AIR 2008 SC 1823 [LNIND 2008 SC
827] : 2008 Cr LJ 2975 , murder and culpable homicide not amounting to murder, distinction

explained and restatement of interpretation of sections 299 and 300. A similar explanation is to
be seen in Ghelabhai Jagmalbhai Bhawad v State of Gujarat, (2008) 17 SCC 651 ; Harendra Nath
Borah v State of Assam, (2007) 15 SCC 249 [LNIND 2007 SC 84] and Raj Kumar v State of
Maharashtra, (2009) 15 SCC 292 [LNIND 2009 SC 1504] , ingredients and distinction restated.
16.  O'Brien, (1880) 2 All 766 ; Idu Beg, (1881) 3 All 776 .
17.  Safatulla, (1879) 4 Cal 815 ; Fox, (1879) 2 All 522 ; Randhir Singh, (1881) 3 All 597 .
18.  Bai Jiba, (1967) 19 Bom LR 823 .
19.  Mana, (1930) 32 Bom LR 1143 , 1144.
20.  Afrahim Sheikh, AIR 1964 SC 1263 [LNIND 1964 SC 1] : (1964) 2 Cr LJ 350 .
21.  Megha Meeah, (1865) 2 WR (Cr) 39; O'Brien, (1880) 2 All 766 .
22.  Kangla v State, (1898) 18 AWN 163.
23.  Fox, (1879) 2 All 522 .
24.  Krishnaswami, AIR 1965 Mad 261 .
25.  M&M 228. [This is Morgan & Macpherson's Indian Penal Code. Please see 'Explanation of
Abbreviations' in the Prelim pages]

26.  Sah Pai, (1936) 14 Ran 643, as explained in Abor Ahmed v State, (1937) Ran 384 (FB).
Pappachan v State of Kerala, 1994 Cr LJ 1765 (Ker), defence that proper medical attendance
was not there was not allowed to be raised.
27.  Nga Paw v State, AIR 1936 Ran 526
28.  Satpal v State of Haryana, (2004) 10 SCC 794 .
29.  Mussammat Budho, AIR 1916 Lah 184 .
30.  Arun Nivalaji More v State of Maharashtra, (2006) 12 SCC 613 [LNIND 2006 SC 591] : (2007)
2 SCC (Cr) 221 : AIR 2006 SC 2886 [LNIND 2006 SC 591] : 2006 Cr LJ 4057 .

[s 300] Murder.
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by
which the death is caused is done with the intention of causing death, or—
Secondly.—If it is done with the intention of causing such bodily injury as the offender
knows to be likely to cause the death of the person to whom the harm is caused, or—
Thirdly.—If it is done with the intention of causing bodily injury to any person and the
bodily injury intended to be inﬂicted is suﬃcient in the ordinary course of nature to
cause death, or—
Fourthly.—If the person committing the act knows that it is so imminently dangerous
that it must, in all probability, cause death or such bodily injury as is likely to cause
death, and commits such act without any excuse for incurring the risk of causing
death or such injury as aforesaid.

(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits
murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause
his death, strikes him with the intention of causing bodily injury. Z dies in
consequence of the blow. A is guilty of murder, although the blow might not
have been suﬃcient in the ordinary course of nature to cause the death of a
person in a sound state of health. But if A, not knowing that Z is labouring under
any disease, gives him such a blow as would not in the ordinary course of nature
kill a person in a sound state of health, here A, although he may intend to cause
bodily injury, is not guilty of murder, if he did not intend to cause death, or such
bodily injury as in the ordinary course of nature would cause death.
(c) A intentionally gives Z a sword-cut or club-wound suﬃcient to cause the death

of a man in the ordinary course of nature. Z dies in consequence. Here, A is
guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuse ﬁres a loaded cannon into a crowd of persons and kills
one of them. A is guilty of murder, although he may not have had a premeditated
design to kill any particular individual.
When culpable homicide is not murder.
Exception 1.—Culpable homicide is not murder if the offender, whilst deprived of
the power of self-control by grave and sudden provocation, causes the death of
the person who gave the provocation or causes the death of any other person by
mistake or accident. The above exception is subject to the following provisos:—

First.—That the provocation is not sought or voluntarily provoked by the offender
as an excuse for killing or doing harm to any person.
Secondly.—That the provocation is not given by anything done in obedience to the
law, or by a public servant in the lawful exercise of the powers of such public
servant.
Thirdly.—That the provocation is not given by anything done in the lawful exercise
of the right of private defence.
Explanation.—Whether the provocation was grave and sudden enough to prevent
the offence from amounting to murder is a question of fact.
(a) A, under the inﬂuence of passion excited by a provocation given by Z,
intentionally kills Y, Z's child. This is murder, in as much as the provocation was
not given by the child, and the death of the child was not caused by accident or
misfortune in doing an act caused by the provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, ﬁres a pistol

at Y, neither intending nor knowing himself to be likely to kill Z, who is near him,
but out of sight. A kills Z. Here A has not committed murder, but merely culpable
homicide.
(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by
the arrest, and kills Z. This is murder, in as much as the provocation was given
by a thing done by a public servant in the exercise of his powers.
(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a
word of A's deposition, and that A has perjured himself. A is moved to sudden
passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose, Z, in the exercise of the right of private defence, lays
hold of A to prevent him from doing so. A is moved to sudden and violent
passion in consequence, and kills Z. This is murder, in as much as the

provocation was given by a thing done in the exercise of the right of private
defence.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander,
intending to take advantage of B's rage, and to cause him to kill Z, puts a knife
into B's hand for that purpose. B kills Z with the knife. Here B may have
committed only culpable homicide, but A is guilty of murder.
Exception 2.—Culpable homicide is not murder if the offender, in the exercise in
good faith of the right of private defence of person or property, exceeds the
power given to him by law and causes the death of the person against whom he
is exercising such right of defence without premeditation, and without any
intention of doing more harm than is necessary for the purpose of such
defence.
Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A.

defence.
A draws out a pistol. Z persists in the assault. A believing in good faith that he

can by no other means prevent himself from being horsewhipped, shoots Z
dead. A has not committed murder, but only culpable homicide.
Exception 3.—Culpable homicide is not murder if the offender, being a public
servant or aiding a public servant acting for the advancement of public justice,
exceeds the powers given to him by law, and causes death by doing an act
which he, in good faith, believes to be lawful and necessary for the due
discharge of his duty as such public servant and without ill-will towards the
person whose death is caused.
Exception 4.—Culpable homicide is not murder if it is committed without
premeditation in a sudden ﬁght in the heat of passion upon a sudden quarrel
and without the offender having taken undue advantage or acted in a cruel or
unusual manner.
Explanation.—It is immaterial in such cases which party offers the provocation
or commits the ﬁrst assault.
Exception 5.—Culpable homicide is not murder when the person whose death is

caused, being above the age of eighteen years, suffers death or takes the risk
of death with his own consent.
A, by instigation, voluntarily causes, Z, a person under eighteen years of age, to
commit suicide. Here, on account of Z's youth, he was incapable of giving
consent to his own death; A has therefore abetted murder.
COMMENT.—
In this section, the deﬁnition of culpable homicide appears in an expanded form. Each
of the four clauses requires that the act which causes death should be done
intentionally, or with the knowledge or means of knowing that death is a natural
consequence of the act. An intention to kill is not always necessary to make out a case
of murder. A knowledge that the natural and probable consequence of an act would be

death will suﬃce for a conviction under section 302, IPC, 1860.31.
[s 300.1] Scope.—
An offence cannot amount to murder unless it falls within the deﬁnition of culpable
homicide; for this section merely points out the cases in which culpable homicide is
murder. But an offence may amount to culpable homicide without amounting to
murder.
It does not follow that a case of culpable homicide is murder, because it does not fall
within any of the Exceptions to section 300. To render culpable homicide murder, the
case must come within the provisions of clauses 1, 2, 3, or 4 of section 300 and must
not fall within any one of the ﬁve Exceptions attached thereto.
[s 300.2] Culpable homicide and murder distinguished.—
The distinction between these two offences is very ably set forth by Melvill, J, in

Govinda's case32. and by Sarkaria, J, in Punnayya's case.33. Since the decision of the

Supreme Court is the law of the land by virtue of Article 141 of the Constitution,
relevant passages from Punnayya's case are reproduced below for the guidance of all
concerned.
In the scheme of the Penal Code, 'culpable homicide' is genus and 'murder' its specie. All
'murder' is 'culpable homicide' but not vice versa. Speaking generally 'culpable homicide
sans 'special characteristics of murder' is culpable homicide not amounting to murder'. For
the purpose of ﬁxing punishment, proportionate to the gravity of this generic offence, the
Code practically recognises three degrees of culpable homicide. The ﬁrst is, what may be
called, culpable homicide of the ﬁrst degree. This is the gravest form of culpable homicide
which is deﬁned in s. 300 as 'murder'. The second may be termed as 'culpable homicide of
the second degree'. This is punishable under the 1st part ofs. 304. Then, there is 'culpable
homicide of the third degree'. This is the lowest type of culpable homicide and the

punishment provided for it is also the lowest among the punishments provided for the three
grades. Culpable homicide of this degree is punishable under the Second Part of s. 304.
The academic distinction between 'murder' and 'culpable homicide not amounting to
murder' has vexed the Courts for more than a century. The confusion is caused, if
Courts losing sight of the true scope and meaning of the terms used by the legislature
in these sections allow themselves to be drawn into minute abstractions. The safest
way of approach to the interpretation and application of these provisions seems to be
keeping in focus the key words used in the various clauses of sections 299 and 300.
The following comparative table will be helpful in appreciating the points of distinction
between the two offences.
Section 299 Section 300

A person commits culpable homicide if the act
by which the death is caused is done -
Subject to certain exceptions, culpable
homicide is murder if the act by which the
death is caused is done -
INTENTION
(a) with the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily
injury as is likely to cause death; or
(2) with the intention of causing such bodily
injury as the offender knows to be likely to
cause the death of the person to whom the
harm is caused; or
(3) with the intention of causing bodily injury to
any person and the bodily injury intended to be
inﬂicted is suﬃcient in the ordinary course of
nature to cause death; or
KNOWLEDGE
(c) with the knowledge that the act is likely to
cause death.
(4) with the knowledge that the act is so
imminently dangerous that it must in all

KNOWLEDGE
probability cause death or such bodily injury as
is likely to cause death, and without any excuse
or incurring the risk of causing death or such
injury as is mentioned above.
Clause (b) of section 299 corresponds with clauses (2) and (3) of section 300. The
distinguishing feature of the mens rea requisite under clause (2) is the knowledge
possessed by the offender regarding the particular victim being in such a peculiar
condition or state of health that the intentional harm caused to him is likely to be fatal,
notwithstanding the fact that such harm would not in the ordinary way of nature be
suﬃcient to cause death of a person in normal health or condition. It is noteworthy that
the 'intention to cause death' is not an essential requirement of clause (2). Only the

intention of causing the bodily injury coupled with the offender's knowledge of the
likelihood of such injury causing the death of the particular victim is suﬃcient to bring

the killing within the ambit of this clause. This aspect of clause (2) is borne out by
Illustration (b) appended to section 300.
Clause (b) of section 299 does not postulate any such knowledge on the part of the
offender. Instances of cases falling under clause (2) of section 300 can be where the
assailant causes death by a ﬁst blow intentionally given knowing that the victim is
suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is
likely to cause death of that particular person as a result of the rupture of the liver, or
spleen or the failure of the heart, as the case may be. If the assailant had no such
knowledge about the disease or special frailty of the victim, nor an intention to cause
death or bodily injury suﬃcient in the ordinary course of nature to cause death, the
offence will not be murder, even if the injury which caused the death, was intentionally
given.
In clause (3) of section 300, instead of the words, 'likely to cause death' occurring in the

given.
corresponding clause (b) of section 299, the words "suﬃcient in the ordinary course of
nature" have been used. Obviously, the distinction lies between a bodily injury likely to
cause death and a bodily injury suﬃcient in the ordinary course of nature to cause
death. The distinction is ﬁne but real, and, if overlooked, may result in miscarriage of
justice. The difference between clause (b) of section 299 and clause (3) of section 300
is one of the degree of probability of death resulting from the intended bodily injury. To
put it more broadly, it is the degree of probability of death which determines whether a
culpable homicide is of the gravest, medium or the lowest degree. The word "likely" in
clause (b) of section 299 conveys the sense of 'probable' as distinguished from a mere

possibility. The words 'bodily injury... suﬃcient in the ordinary course of nature to cause
'death' mean that death will be the most probable result of the injury, having regard to
the ordinary course of nature.
For cases to fall within clause (3), it is not necessary that the offender intended to
cause death, so long as the death ensues from the intentional bodily injury or injuries
suﬃcient to cause death in the ordinary course of nature.
Clause (c) of section 299 and clause (4) of section 300 both require knowledge of the
probability of the act causing death. It is not necessary for the purpose of this case to
dilate much on the distinction between these corresponding clauses. It will be
suﬃcient to say that clause (4) of section 300 would be applicable where the

knowledge of the offender as to the probability of death of a person in general as
distinguished from a particular person or persons being caused from his imminently
dangerous act, approximates to a practical certainty. Such knowledge on the part of the
offender must be of the highest degree of probability, the act having been committed
by the offender without any excuse for incurring the risk of causing death or such injury
as aforesaid.34.
In Ajit Singh v State of Punjab,35. the Supreme Court observed that:
In order to hold whether an offence would fall u/s. 302 or s. 304 Part I of the Code, the
Courts have to be extremely cautious in examining whether the same falls u/s. 300 of the
Code which states whether a culpable homicide is murder, or would it fall under its ﬁve
exceptions which lay down when culpable homicide is not murder.

In other words, section 300 states both, what is murder and what is not. First ﬁnds
place in section 300 in its four stated categories, while the second ﬁnds detailed
mention in the stated ﬁve Exceptions to section 300. The legislature in its wisdom,
thus, covered the entire gamut of culpable homicide 'amounting to murder' as well as
that 'not amounting to murder' in a composite manner in section 300 of the Code.36.
From the above conspectus, it emerges that whenever a Court is confronted with the
question of whether the offence is 'murder' or 'culpable homicide not amounting to
murder' on the facts of a case, it will be convenient for it to approach the problem in

three stages. The question to be considered at the ﬁrst stage would be, whether the
accused has done an act by doing which he has caused the death of another. Proof of
such causal connection between the act of the accused and the death leads to the
second stage for considering whether that act of the accused amounts to "culpable
homicide" as deﬁned in section 299. If the answer to this question is prima facie found
in the aﬃrmative, the stage for considering the operation of section 300, IPC, 1860, is
reached. This is the stage at which the Court should determine whether the facts
proved by the prosecution bring the case within the ambit of any of the four clauses of
the deﬁnition of 'murder' contained in section 300. If the answer to this question is in
the negative, the offence would be 'culpable homicide not amounting to murder',
punishable under the ﬁrst or the second part of section 304, depending, respectively, on
whether the second or the third clause of section 299 is applicable. If this question is

found in the positive, but the case comes within any of the Exceptions enumerated in
section 300, the offence would still be 'culpable homicide not amounting to murder',
punishable under the ﬁrst part of section 304, IPC, 1860.
The above are only broad guidelines and not cast-iron imperatives. In most cases, their
observance will facilitate the task of the Court. But sometimes the facts are so
intertwined and the second and the third stages so telescoped into each other, that it
may not be convenient to give a separate treatment to the matters involved in the
second and third stages.
To sum up:
Section 299 is divided into three parts. The ﬁrst part refers to the act by which the death is
caused by being done with the intention of causing death. That part corresponds to the ﬁrst

To sum up:
part of the section 300, IPC. The second part of section 299, IPC speaks of the intention to
cause such bodily injury as is likely to cause death. This has corresponding provisions in
clauses "Secondly" and "Thirdly" of section 300, IPC, section 304, Part I, IPC, covers cases
which by reason of the Exceptions under section 300, IPC, are taken out of the purview of
cls. (1), (2) and (3) of section 300, IPC, but otherwise would fall within it and also cases
which fall within the second part of section 299 but not within section 300 clauses (2) and
(3). The third part of section 299 corresponds to "fourthly" of section s. 300. Section 304,
Part-II, IPC, covers those cases which fall within the third part of section 299 but do not fall
within the fourth clause of section 300.37.

Section 300 states both, what is murder and what is not. First ﬁnds place in section
300 in its four stated categories, while the second ﬁnds detailed mention in the stated
ﬁve Exceptions to section 300. The legislature in its wisdom, thus, covered the entire
gamut of culpable homicide 'amounting to murder' as well as that 'not amounting to
murder' in a composite manner in section 300 of the Code.38.
[s 300.3] Clause 1.— 'Act by which the death is caused is done with the
intention of causing death'.—
The word 'act' includes omission as well (section 33). Any omission by which death is
caused will be punishable as if the death is caused directly by an act.39. Thus, where a
person neglected to provide his child with proper sustenance although repeatedly
warned of the consequences and the child died, it was held to be murder.40. Intention

to cause death may be revealed by the whole circumstances of the story.
[s 300.4] Honour Killing.—
In Shakti Vahini v UOI,41. the Supreme Court observed that honour killing is not the
singular type of offence. It is a grave one but not the lone one. It is a part of honour
crime. Honour crime is the genus and honour killing is the species, although a

dangerous facet of it. In Arumugam Servai v State of TN,42. the Supreme Court strongly
deprecated the practice of khap/katta panchayats taking law into their own hands and
indulging in offensive activities which endanger the personal lives of the persons
marrying according to their choice.43. Law Commission of India studied the matter and
submitted the 242nd report to the Government. Some proposals are being mooted
proposing amendments to section 300, IPC, 1860 by way of including what is called
'Honour Killing' as murder and shifting the burden of proof to the accused. But the
Commission expressed the view that there is no need for introducing a provision in
section 300, IPC, 1860 in order to bring the so called 'honour killings' within the ambit of
this provision. According to the report, the existing provisions in IPC, 1860 are
adequate enough to take care of the situations leading to overt acts of killing or
causing bodily harm to the targeted person who allegedly undermined the honour of

the caste or community. The commission suggested a new law (instead of amending
IPC, 1860) to tackle the problem namely "Prohibition of Interference with the Freedom
of Matrimonial Alliances Bill 2011".44.
In Shakti Vahini v UOI,45. the Supreme Court observed that torture or torment or ill-
treatment in the name of honour that tantamounts to atrophy of choice of an individual
relating to love and marriage by any assembly is illegal and cannot be allowed a
moment of existence. In this case, the Supreme Court issued detailed preventive,
remedial and punitive directives to prevent honour killings in the country.
[s 300.5] Clause 2.—'With the intention of causing such bodily injury as the
offender knows to be likely to cause the death'.—
This clause applies where the act by which death is caused is done with the intention

of causing such bodily injury as the offender knows to be likely to cause the death of the
person to whom the harm is caused. It applies in special cases where the person
injured is in such a condition or state of health that his or her death would be likely to
be caused by an injury which would not ordinarily cause the death of a person in sound
health and where the person inﬂicting the injury knows that owing to such condition or
state of health it is likely to cause the death of the person injured. In a case involving
attack with sulphuric acid causing "grievous injury" where the doctor testiﬁed that such
an attack may also cause death, the Court said that "the word likely means 'probably'
and can easily be distinguished from 'possibly'. When the chances of a thing happening
are very high, we say that it will most probably happen".46.
[s 300.6] Poisoning.—

In a case of murder by poisoning, the prosecution must establish (1) that death took
place by poisoning, (2) that the accused had the poison in his possession, and (3) that
the accused had an opportunity to administer poison to the deceased.47. These
propositions were laid down by the Supreme Court in Dharambir Singh v State of Punjab,
Criminal Appeal No. 98 of 1958, decided, Nov. 4, 1958 SC48. and were given anxious
consideration by Hidayatullah, J, in Anant Chintaman Lagu v State of Bombay.49. The
learned judge (afterwards CJ) did not consider them as invariable criteria of proof to be
established by the prosecution in every case of murder by poisoning. This is so
"because", as the learned judge said:
evidently if after poisoning the victim, the accused destroyed all traces of the body, the ﬁrst

proposition would be incapable of being proved except by circumstantial evidence. Similarly,
if the accused gave a victim something to eat and the victim died immediately on the
ingestion of that food with symptoms of poisoning and poison, found in the viscera, the

requirement of proving that the accused was possessed of the poison would follow the
circumstance that the accused gave the victim something to eat and need not be separately
proved.
Following this opinion in the case of Bhupinder Singh v State of Punjab50. and
dispensing with the need for proof of possession of poison, the Supreme Court said
that:
we do not consider it necessary that there should be acquittal on the failure of the
prosecution to prove possession of poison with the accused. Murder by poison is invariably
committed under the cover and cloak of secrecy. Nobody will administer poison to another
in the presence of others. The person who administers poison..... will not keep a portion of it
for the investigating oﬃcer to come and collect it.... [He] would naturally take care to
eliminate and destroy the evidence against him.... It would be impossible for the
prosecution to prove possession of poison with the accused. The prosecution may,

however, establish other circumstances consistent only with the hypothesis of the guilt of
the accused. The Court then would not be justiﬁed in acquitting the accused on the ground
that the prosecution has failed to prove possession of poison with the accused.
Continuing further, Shetty, J said:
The poison murder cases are not to be put outside the rule of circumstantial evidence.
There may be very many obvious facts and circumstances in which the Court may be
justiﬁed in drawing permissible inference that the accused was in possession of the poison
in question.... The insistence on proof of possession of poison... invariably in every case is
neither desirable nor practicable. It would mean to introduce an extraneous ingredient to the
offence of murder by poisoning.

Where, therefore, neither motive nor administration of poison nor its possession by the
accused could be proved, the accused had to be acquitted.51. Where it is proved that
the accused administered poison, the accused must be presumed to have knowledge
that his act was likely to cause death.52. If the prosecution failed to prove the cause of
death, the fact that the accused failed to explain the cause of death cannot be the
basis of conviction. Accused was acquitted where neither post-mortem report nor FSL
report showed the administration of poison.53. Where the allegation was that the death
was caused by poison mixed with alcohol, but no remnants of poisonous substance
were found either in the two bottles or in the steel glass but were found only in the
earth so collected from the place of occurrence, accused acquitted.54.
[s 300.7] Possibility of survival of deceased.—

The Supreme Court has observed that a chance of miraculous survival is not
contemplated by section 300. The attacker becomes liable if he knew that his victim
would die as a result of the injuries caused by him. The doctor's opinion that the victim
could have survived if timely and proper medical aid was provided is a hypothetical
proposition.55.
[s 300.8] Clause 3.—'With the intention of causing bodily injury to any person ...
suﬃcient in the ordinary course of nature to cause death'.—
The distinction between this clause and clause 2 of section 299 depends upon the
degree of probability of death from the act committed. If from the intentional act of
injury committed the probability of death resulting is high, the ﬁnding will be that the
accused intended to cause death, or injury suﬃcient in the ordinary course of nature to

cause death; if there was probability in a less degree of death ensuing from the act
committed, the ﬁnding will be that the accused intended to cause injury likely to cause
death.56. In the case of Mangesh v State of Maharashtra,57. the Supreme Court stated

the circumstances from which it may be gathered as to whether there was intention to
cause death. It included circumstances like nature of the weapon; on what part of the
body the blow was given; the amount of force; was it a result of a sudden ﬁght or
quarrel; whether the incident occurred by chance or was pre-meditated; prior animosity;
grave and sudden provocation; heat of passion; did the accused take any undue
advantage; did he act cruelly; number of blows given, etc. Even if none of the injuries by
itself was suﬃcient in the ordinary course of nature to cause death, cumulatively such
injuries may be suﬃcient in the ordinary course of nature to cause death.58.
[s 300.9] "Bodily injury".—
The expression "bodily injury" in clause thirdly includes also its plural, so that the clause
would cover a case where all the injuries intentionally caused by the accused are
cumulatively suﬃcient to cause the death in the ordinary course of nature, even if none

of those injuries individually measures up to such suﬃciency. The suﬃciency spoken of
in this clause, as already noticed, is the high probability of death in the ordinary course
of nature, and if such suﬃciency exists and death is caused and the injury causing it is
intentional, the case would fall under clause thirdly of section 300. All the conditions
which are a prerequisite for the applicability of this clause have been established and
the offence committed by the accused, in the instant case was "murder".59.
What is required for the prosecution to prove to bring the case under clause thirdly to
section 300? First, it must be established, quite objectively, that a bodily injury is
present; Second, the nature of the injury must be proved and these are purely objective

investigations; third, it must be proved that there was an intention to inﬂict that
particular bodily injury, that is to say, that it was not accidental or unintentional, or that
some other kind of injury was intended; and once these three elements are proved to
be present, the enquiry proceeds further; and fourth, it must be proved that the injury of
the type just described made up of the three elements set out above is suﬃcient to
cause death in the ordinary course of nature. This part of the enquiry is purely objective
and inferential and has nothing to do with the intention of the offender. Once these four
elements are established by the prosecution (and, of course, the burden is on the
prosecution throughout) the offence is murder under section 300 "thirdly". Once the

intention to cause the bodily injury actually found to be present is proved, the rest of the
enquiry is purely objective and the only question is whether, as a matter of purely
objective inference, the injury is suﬃcient in the ordinary course of nature to cause
death.60. On this particular point, there is the following pertinent observation of the
Supreme Court:61.
The nature of the offence does not depend merely on the location of the injury caused by
the accused. The intention of the person causing the injury has to be gathered from a
careful examination of the facts and circumstances of each given case….
The Supreme Court also observed that the intention to cause the requisite type of injury
is a subjective inquiry, but that once that type of intention is found in the assailant, the

further inquiry whether the injury was suﬃcient in the ordinary course of nature to
cause death is of objective nature.62.
[s 300.10] Principle of exclusion.—
In Rampal Singh v State of UP,63. after referring to the pronouncements in Rayavarapu
Punnayya (supra), Vineet Kumar Chauhan v State of UP,64. Ajit Singh v State of Punjab,65.
and Mohinder Pal Jolly v State of Punjab,66. the Supreme Court opined thus:

The evidence led by the parties with reference to all these circumstances greatly helps the
Court in coming to a ﬁnal conclusion as to under which penal provision of the Code the
accused is liable to be punished. This can also be decided from another point of view i.e. by
applying the "principle of exclusion". This principle could be applied while taking recourse to
a two- stage process of determination. First, the Court may record a preliminary ﬁnding if
the accused had committed an offence punishable under the substantive provisions of s.
302 of the Code, that is, "culpable homicide amounting to murder". Then second, it may
proceed to examine if the case fell in any of the Exceptions detailed in s. 300 of the Code.
This would doubly ensure that the conclusion arrived at by the Court is correct on facts and
sustainable in law. We are stating such a proposition to indicate that such a determination
would better serve the ends of criminal justice delivery.67.

The third clause of section 300 views the matter from a general standpoint. Here, the
emphasis is on the suﬃciency of the injury in the ordinary course of nature to cause
death. The suﬃciency is the high probability of death in the ordinary way of nature.
When this suﬃciency exists and death follows and the causing of such injury is
intended, the offence is murder. Sometimes the nature of the weapon used, sometimes
the part of the body on which the injury is caused and sometimes both are relevant.68.
In some cases, the suﬃciency of injury to cause death in the ordinary course of nature
must be proved and cannot be inferred from the fact that death has in fact taken place.
In such a case, it may not be open to argue backwards from the death to the blow, to
hold that the suﬃciency is established because death did result. As death can take

place from other causes, the suﬃciency is required to be proved by other and separate
evidence.69.
[s 300.11] Contradiction between ocular and medical evidence.—
Where there is a contradiction between medical evidence and ocular evidence, the
position of law can be crystallised to the effect that though the ocular testimony of a
witness has greater evidentiary value vis-à-vis medical evidence, when medical
evidence makes the ocular testimony improbable, that becomes a relevant factor in the
process of the evaluation of evidence. However, where the medical evidence goes so
far that it completely rules out all possibility of the ocular evidence being true, the
ocular evidence may be disbelieved.70. The opinion given by a medical witness need
not be the last word on the subject. Such opinion shall be tested by the Court. If the

opinion is bereft of logic or objectivity, Court is not obliged to go by that opinion. After
all, opinion is what is formed in the mind of a person regarding a fact situation. If one
doctor forms one opinion and another doctor forms a different opinion on the same
facts, it is open to the judge to adopt the view which is more objective or probable.
Similarly, if the opinion given by one doctor is not consistent with probability, the Court
has no liability to go by that opinion merely because it is said by the doctor. Of course,
due weight must be given to opinions given by persons who are experts in the
particular subject.71. Where the testimony of eye-witnesses is totally inconsistent with
medical evidence, and suffering from improvements, the rule that ocular evidence has
precedence over medical evidence cannot be applied.72.

[s 300.12] Discrepancy between the reports of doctor who examined the
deceased and the doctor who conducted autopsy.—
Where the medical certiﬁcate showed the age of injuries as 24 hours but in post-
mortem report it was mentioned as six hours, it was held that in post-mortem report,
the determination of precise duration of the injuries can be possible due to the internal
examination of the injuries whereas no such advantage is available to the doctor when
he examines the injuries in the nature of contusions.73.

[s 300.13] Medical Evidence.—
Medical evidence that the death was homicidal, cannot alone be made the basis to
connect the accused person with crime. The accused persons are entitled to the
beneﬁt of doubt.74.
[s 300.14] "Secondly" and "Thirdly" distinguished.—
The two clauses are disjunctive and separate. Clause "Secondly" is subjective to the
offender. It must, of course, ﬁrst be found that bodily injury was caused and the nature
of the injury must be established, that is to say, whether the injury is on the leg or the
arm or the stomach, how deep it penetrated, whether any vital organs were cut and so
forth. These are purely objective facts and leave no room for inference or deduction: to
that extent the enquiry is objective; but when it comes to the question of intention, that
is subjective to the offender and it must be proved that he had an intention to cause the
bodily injury that is found to be present. First part of clause "Thirdly" envisages

inﬂiction of bodily injury with the intention to inﬂict it, i.e., it must be proved that the
injury found to be present was the injury that was intended to be inﬂicted. Whether it
was suﬃcient to cause death in the ordinary course of nature is a matter of inference
or deduction from the proven facts about the nature of the injury and has nothing to do
with the question of intention.75.
[s 300.15] Clause 4.—'Person committing the act knows that it is so imminently
dangerous that it must, in all probability, cause death, or such bodily injury as
is likely to cause death'.—
Where it is clear that the act by which the death is caused is so imminently dangerous
that the accused must be presumed to have known that it would, in all probability,
cause death or such bodily injury as is likely to cause death, then unless he can meet

this presumption his offence will be culpable homicide, and it would be murder unless
he can bring it under one of the Exceptions.76. Thus, a man who strikes at the back of
another a violent blow with a formidable weapon77. or who strikes another in the throat
with a knife78. must be taken to know that he is doing an act imminently dangerous to
the life of the person at whom he strikes and that a probable result of his act will be to
cause that person's death.79.
This clause also provides for that class of cases where the acts resulting in death are
calculated to put the lives of many persons in jeopardy without being aimed at any one
in particular, and are perpetrated with a full consciousness of the probable
consequences, e.g., where death is caused by ﬁring a loaded gun into a crowd [vide

Illustration (d)], or by poisoning a well from which people are accustomed to draw
water.
The Supreme Court has held that although this clause is usually invoked in those cases
where there is no intention to cause the death of any particular person, the clause may
on its terms be used in those cases where there is such callousness towards the result
and the risk taken is such that it may be stated that the person knows that the act is
likely to cause death or such bodily injury as is likely to cause death.80.
Where it was shown that the spurious liquor was sold from the local vends belonging to
the accused persons coupled with the fact that after the tragedy struck, the accused
persons even tried to destroy remaining bottles, it was held that the accused had full

knowledge of the fact that the bottles contained substance methyl and also about the
disastrous consequences thereof, thus bringing their case within the four corners of
section 300 fourthly.81.
[s 300.16] As to dying declarations.—
In spite of all the importance attached and the sanctity given to the piece of dying
declaration, Courts have to be very careful while analysing the truthfulness and,
genuineness of the dying declaration and should come to a proper conclusion that the
dying declaration is not a product of prompting or tutoring.82.
[s 300.16.1] Beneﬁt of doubt.—
An accused person cannot be given the beneﬁt of doubt only on the ground that
injuries on his person were not explained particularly when the injuries are of simple
and superﬁcial nature.83.
[s 300.16.2] Death in custody.—
In State of TN v Balkrishna,84. it was held that merely because the death of the person
occurred in police custody, an immediate inference of murder could not be drawn
against the police.

[s 300.17] Non-explanation of injuries.—
The omission on the part of the prosecution to explain the injuries on the person of the
accused assumes much greater importance where the evidence consists of interested
or inimical witnesses or where the defence gives a version which competes in
probability with that of the prosecution one. However, there may be cases where the
non-explanatiosn of the injuries by the prosecution may not affect the prosecution
case. This principle would apply to cases where the injuries sustained by the accused
are minor and superﬁcial or where the evidence is so clear and cogent, that it
outweighs the effect of the omission on the part of the prosecution to explain the
injuries.85.
[s 300.18] Exception 1.—Provocation.—
Anger is a passion to which good and bad men are both subject, and mere human

frailty and inﬁrmity ought not to be punished equally with ferocity or other evil feelings.
The act must be done whilst the person doing it is deprived of self-control by grave and
sudden provocation. That is, it must be done under the immediate impulse of
provocation.86.
[s 300.19] Meaning of the words "grave" and "sudden".—

The expression 'grave' indicates that provocation be of such a nature so as to give
cause for alarm to the accused. 'Sudden' means an action which must be quick and
unexpected so far as to provoke the accused. The question of whether provocation
was grave and sudden is a question of fact and not one of law. Each case is to be
considered according to its own facts.87.
The mode of resentment should bear some proper and reasonable relationship to the
sort of provocation that has been given. The test to be applied is that of the effect of
the provocation on a reasonable man, so that an unusually excitable or pugnacious
individual is not entitled to rely on provocation which would not have led an ordinary
person to act as he did. It is important to consider whether a suﬃcient interval has
elapsed since the provocation to allow a reasonable person time to cool, and account
must be taken of the instrument with which the homicide had been effected.88. The

mode of resentment must bear a reasonable relationship to the provocation.89.
Principles relating to "grave and sudden provocation" summarised by the Supreme Court
(1) The test of "grave and sudden" provocation is whether a reasonable man, belonging
to the same class of society as the accused, placed in the situation in which the
accused was placed would be so provoked as to lose his self-control. (2) In India,
words and gestures may also, under certain circumstances, cause grave and sudden
provocation to an accused so as to bring his act within the First Exception to section
300 of the Indian Penal Code.
(3) The mental background created by the previous act of the victim may be taken into
consideration in ascertaining whether the subsequent act caused grave and sudden
provocation for committing the offence.

(4) The fatal blow should be clearly traced to the inﬂuence of passion arising from that
provocation and not after the passion had cooled down by lapse of time, or otherwise
giving room and scope for premeditation and calculation.
KM Nanavati v State of Maharashtra.90.
An offence resulting from grave and sudden provocation would normally mean that a
person placed in such circumstances could lose self-control but only temporarily and
that too, in proximity to the time of provocation. The provocation could be an act or
series of acts done by the deceased to the accused resulting in inﬂicting of injury.91.
The test of "grave and sudden" provocation is whether a reasonable man, belonging to
the same class of society as the accused, placed in the situation in which the accused
was placed would be so provoked as to lose his self-control. Words and gestures may

also, under certain circumstances, cause grave and sudden provocation to an accused
so as to bring his act within the Exception. The mental background created by the
previous act of the victim may be taken into consideration in ascertaining whether the
subsequent act caused grave and sudden provocation for committing the offence. The
fatal blow should be clearly traced to the inﬂuence of passion arising from that
giving room and scope for premeditation and calculation.92.
[s 300.20] Self-control.—
This term as it appears in section 300, Exception 1 is a subjective phenomenon and
can be inferred from the surrounding circumstances in a given case. In order to ﬁnd out
whether the last act of provocation on which the offender caused the death was

suﬃciently grave to deprive the accused of the power of self-control, the previous acts
of provocation caused by the person can always be taken into consideration.93.
[s 300.21] Grave and Sudden: Cases.—
Where there is suﬃcient time for cooling down, there would be no sudden provocation
and the act of the accused would be a deliberate one. Thus, where the accused after
receiving the provocation in a school committee meeting went to his house, brought a
gun and thereafter shot chasing ﬂeeing men, his action did not fall within this exception
but was an act of murder.94.
What is critical for a case to fall under Exception 1 to section 300, IPC, 1860 is that the
provocation must not only be grave but sudden as well. It is only where the following
ingredients of Exception 1 are satisﬁed that an accused can claim mitigation of the
offence committed by him from murder to culpable homicide not amounting to murder:
(1) The deceased must have given provocation to the accused.

(2) The provocation so given must have been grave.
(3) The provocation given by the deceased must have been sudden.
(4) The offender by reason of such grave and sudden provocation must have been
deprived of his power of self-control; and
(5) The offender must have killed the deceased or any other person by mistake or
accident during the continuance of the deprivation of the power of self-control.95.
[s 300.22] Doctrine of, and acts amounting to, sustained provocation.—
What Exception 1 of section 300 contemplates is a grave and sudden provocation
whereas the ingredient of sustained provocation is a series of acts more or less grave
spread over a certain period of time, the last of which acting as the last straw breaking
a camel's back may even be a very triﬂing one. Where the accused had killed an

innocent woman and an infant of a family merely on the suspicion of illicit intimacy
between his wife and the father of the deceased infant and his suspicion appeared to
be more imaginary than real, it was held that there was practically no ground to invoke
this doctrine. Besides, as there was nothing to support his suspicion and there was no
enmity between the accused and the deceased either, the plea of sustained
provocation was not tenable under section 300, Exception 1.96.
[s 300.23] Adulterous intercourse.—
A man in love with a woman who had repulsed his suit might be so angry as to lose
control of himself at the sight of her engaged in sexual intercourse with another, but if
he kills one or both of them, he cannot plead grave provocation in mitigation of his

offence. The law that, when a husband discovers his wife in the act of adultery and
thereupon kills her, he is guilty of manslaughter and not murder, has no application
where the woman concerned is not the wife of the accused.97.

[s 300.24] CASES.—
Adulterous intercourse has been held, in several cases, to give grave and sudden
provocation.98. It is not necessary for the husband to plead seeing of actual
intercourse between his wife and the paramour.99. Where the accused killed the
deceased as he saw the deceased committing sodomy on his son, the case
undoubtedly fell within this Exception and he was liable to be convicted only under
section 304, Part II and not under section 302, IPC, 1860.100.
However, if the death of the adulterer is caused not in a ﬁt of passion but with
subsequent deliberation, this Exception does not apply.
[s 300.25] Quarrel.—
Where two friends happened to quarrel suddenly and one inﬂicted a single knife injury
to the other which was not aimed at any vital part and the doctor veriﬁed that the injury
should not have ordinarily caused death, he was punished under section 304, Part
II.101.
[s 300.26] Exception 2.—Exceeding right of private defence.—

II.101.
This Exception provides for the case of a person who exceeds the right of private
defence. The authors of the Code observed:
Wherever the limits of the right of private defence may be placed, and with whatever degree
of accuracy they may be marked, we are inclined to think that it will always be expedient to
make a separation between murder and... voluntary culpable homicide in defence.
The chief reason for making this separation is that the law itself invites men to the very
verge of the crime which we have designated as voluntary culpable homicide in defence. It
prohibits such homicide indeed; but it authorizes acts which lie very near to such homicide;
and this circumstance, we think, greatly mitigates the guilt of such homicide.
That a man who deliberately kills another in order to prevent that other from pulling his nose

should be allowed to go absolutely unpunished would be most dangerous. The law
punishes and ought to punish such killing; but we cannot think that the law ought to punish
such killing as murder; for the law itself has encouraged the slayer to inﬂict on the assailant
any harm short of death which may be necessary for the purpose of repelling the outrage; to
give the assailant a cut with a knife across the ﬁngers which may render his right hand
useless to him for life, or to hurl him downstairs with such force as to break his leg; and it
seems diﬃcult to conceive that circumstances which would be a full justiﬁcation of any
violence short of homicide should not be a mitigation of the guilt of homicide. That a man
should be merely exercising a right by fracturing the skull and knocking out the eye of an

assailant, and should be guilty of the highest crime in the Code if he kills the same assailant;
that there should be only a single step between perfect innocence and murder, between
perfect impunity and liability to capital punishment, seems unreasonable. In a case in which
the law itself empowers an individual to inﬂict any harm short of death, it ought hardly, we
think, to visit him with the highest punishment if he inﬂicts death.102.
[s 300.27] When the offender is not entitled to get the beneﬁt of this exception.
—
A fortiori in cases where an accused sets up right of private defence, the ﬁrst and the
foremost question that would fall for determination by the Court would be whether the
accused had the right of private defence in the situation in which death or other harm

was caused by him. If the answer to that question is in the negative, Exception 2 to
section 300 of the Code would be of no assistance. Exception 2 presupposes that the

offender had the right of private defence of person or property but he had exceeded
such right by causing death. It is only in case answer to the ﬁrst question is in the
aﬃrmative, viz., that the offender had the right of defence of person or property, that
the next question, viz., whether he had exercised that right in good faith and without
premeditation and without any intention of doing more harm that was necessary for the
purpose of such defence would arise. Should answer to any one of these questions be
in the negative, the offender will not be entitled to the beneﬁt of Exception 2 to section
300 of the Code. 103.
[s 300.28] CASES.—No right of private defence.—
Where both sides can be convicted for their individual acts and normally no right of
private defence is available to either party and they will be guilty of their respective
acts.104. There was no premeditation and the act was committed in a heat of passion
and the appellant had not taken any undue advantage or acted in a cruel manner. There

was a ﬁght between the parties. The case falls under the fourth exception to section
300, IPC, 1860.105. The accused were, in fact, aggressors and being members of the
aggressors' party none of the accused can claim right of self-defence.106. Merely
because there was a quarrel and some of the accused persons sustained injuries, that
does not confer a right of private defence extending to the extent of causing death. It
has to be established that the accused persons were under such grave apprehension
about the safety of their life and property that retaliation to the extent done was
absolutely necessary. Right of private defence has been rightly discarded.107. After an
altercation and exchange of abuses, two persons aimed riﬂes at each other. After one
of them had lowered his riﬂe, the other ﬁred at him killing him. It was held that the

accused was not entitled to the right of private defence and was convicted under
section 300.108.
[s 300.29] Exceeding Right of Private Defence.—
While exercising his right of private defence of property, the accused exceeded his right
of private defence and killed a man. It was held that the case fell within Exception 2 of
section 300 and as such he was liable to be punished under section 304, Part I and not
under section 302, IPC, 1860.109. To ward off an attack with a stick, a stab wound
puncturing the heart is not justiﬁed. It is a clear case of offence under section 304, Part
I, IPC, 1860.110. So also is the case of killing an unarmed trespasser with chhura blows
which punctured both the heart and the lung.111.
A dispute over lease of agricultural land led to murder. The accused appeared armed

with deadly weapons. Two persons were killed in separate incidents. The Court said
that this indicated that there was pre-meditation. The acts done showed that there was
intention to do more harm than was necessary for the purposes of self-defence. Hence,
the offences were not in the category of culpable homicide not amounting to
murder.112.
The Court found that at some point of time, the accused (appellant) was exercising his
right of private defence, but that had ceased to exist long before the time when the
deadly blow was administered. His conviction was altered to section 304, Part I.113.
[s 300.30] Causing injury after private defence ceased to be available.—

There was a scuﬄe between the accused persons and the complainant party. One of
the accused persons ﬁred a gunshot of which one member of the complainant party
died. The injury was caused when members of the complainant party were ﬂeeing
away. There was the right of private defence before the retreat. Thus, he exceeded the
right of private defence. The Court said that his act was covered by Exception 2 to
section 300. He was liable to be punished under section 304, Part II.114.
[s 300.31] Exception 3.—Public servant exceeding his power.—
This Exception protects a public servant, or a person aiding a public servant acting for
the advancement of public justice, if either of them exceeds the powers given to them
by law and causes death. It gives protection so long as the public servant acts in good
faith, but if his act is illegal and unauthorised by law, or if he glaringly exceeds the
powers entrusted to him by law, the Exception will not protect him. Where death was

caused by a constable under orders of a superior, it being found that neither he nor his
superior believed that it was necessary for public security to disperse certain reapers
by ﬁring on them, it was held that he was guilty of murder since he was "not protected
in that he obeyed the orders of his superior oﬃcer."115. Exception 3 to section 300, IPC,
1860 pre-supposes that a public servant who causes death must do so in good faith
and in due discharge of his duty as a public servant and without ill-will towards the
person whose death is caused. The positive case set up by the defence that ﬁring was
in self-defence has been rejected by the trial court, High Court as well by the Supreme
Court, the question of any good faith does not arise. The appellants had ﬁred without

provocation at the car killing two innocent persons and injuring one. The obligation to
prove an exception is on the preponderance of probabilities but it nevertheless lies on
the defence.116.
[s 300.32] Exception 4.—Death caused in sudden ﬁght.—
A perusal of the provision would reveal that four conditions must be satisﬁed to bring
the matter within Exception 4:
(i) it was a sudden ﬁght;
(ii) there was no premeditation;
(iii) the act was done in the heat of passion; and that
(iv) the assailant had not taken any undue advantage or acted in a cruel manner.117.
[s 300.33] "Fight": meaning of.—
The 'ﬁght' occurring in Exception 4 to section 300, IPC, 1860 is not deﬁned in IPC, 1860.
It takes two to make a ﬁght. Heat of passion requires that there must be no time for the

passions to cool down and in this case, the parties have worked themselves into a fury
on account of the verbal altercation in the beginning. A ﬁght is a combat between two
and more persons whether with or without weapons. It is not possible to enunciate any
general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact
and whether a quarrel is sudden or not must necessarily depend upon the proved facts
of each case.118.

The language of Exception 4 to section 300 is, thus, clear that culpable homicide is not
murder if it is committed without premeditation in a sudden ﬁght in the heat of passion
upon a sudden quarrel provided the offender has not taken undue advantage or acted
in a cruel or unusual manner. In order to bring a case under Exception (4) to section
300, IPC, 1860, the evidence must show that the accused without any premeditation
and in a heat of passion and without having undue advantage had not acted in cruel
manner. Every one of these circumstances is required to be proved to attract Exception
(4) to section 300, IPC, 1860 and it is not suﬃcient to prove only some of them. None
of the ingredients have been proved in evidence to bring the case under Exception (4)
to section 300, IPC, 1860.119. Case comes under Exception 4 where the prosecution
evidence suﬃciently suggested that a scuﬄe had taken place on the dingy where the
appellant and his companions were trying to recover the dingy while the deceased was

preventing them from doing so, and in the course of this sudden ﬁght and in the heat of
passion, the appellant assaulted the deceased and pushed him in the sea eventually
resulting in his death.120. Where there was no pre-meditation and the act was
committed in a heat of passion and the appellant had not taken any undue advantage
or acted in a cruel manner and there was a ﬁght between the parties, the Supreme
Court found that the case falls under the fourth exception to section 300, IPC, 1860 and
the conviction altered from section 302, IPC, 1860 to section 304, Part I, IPC, 1860.121.
Heat of passion requires that there must be no time for the passions to cool down and
in this case the parties have worked themselves into a fury on account of the verbal
altercation in the beginning.122.

This Exception was held not to apply to a case where two bodies of men, for the most
part armed with deadly weapons, deliberately entered into an unlawful ﬁght, each being
prepared to cause the death of the other, and aware that his own might follow, but
determined to do his best in self-defence, and in the course of the struggle death
ensued.123. An unpremeditated assault (in which death is caused) committed in the
heat of passion upon a sudden quarrel comes within the Exception.124.
Exception 4 is attracted only when there is a ﬁght or quarrel which requires mutual
provocation and blows by both sides in which the offender does not take undue
advantage.125.
A "sudden ﬁght" implies mutual provocation and blows on each side. The homicide
committed is then clearly not traceable to unilateral provocation, nor could in such

cases the whole blame be placed on one side. For if it were so, the Exception more
appropriately applicable would be Exception 1.126.
The word 'ﬁght' conveys something more than a verbal quarrel.127. It takes two to make
a ﬁght. It is not necessary that weapons should be used in a ﬁght. In order to constitute
ﬁght, it is necessary that blows should be exchanged even if they do not all ﬁnd their
target.128. The ﬁght must be with the person who is killed and not with another
person.129. The words "undue advantage" in this Exception means "unfair
advantage".130. Where a wordy quarrel had taken place and the quarrel had led to the
use of weapons by both the parties against each other, the Supreme Court said that it
could not be held to be a kind of case in which the accused had deliberately attacked

the deceased with an intention to kill them. It is a case which would fall under the
Exception 4 to section 300, IPC, 1860.131. Where on account of a sudden impulse and
without any intention or knowledge of the impending consequences, the accused
squeezed the testicles of the other causing shock, cardiac arrest and instant death, the
Supreme Court held that the offence in question amounted to grievous hurt punishable
under section 325 and not under this section.132. Where two cultivating parties working
in their respective ﬁelds picked up a sudden quarrel over the dividing line and death
ensued, there was no previous ill-will between them and, therefore, no pre-meditation,

conviction was altered from under section 302 to one under section 304, Part I read
with section 34.133. Where, on the other hand, the incident did take place at the spur of
the moment and evidence showed that the accused persons intentionally assaulted the
deceased and his family in a brutal manner, their conviction under section 300 was held
to be proper.134. The accused persons cannot argue successfully that the incident
occurred at the spur of the moment where they came to the place of occurrence armed
with deadly weapons. In this case, the evidence established that it was a pre-meditated
act, thus their conviction for the offence punishable under section 302, IPC, 1860 was
held proper.135. In a sudden ﬁght in heat of passion and without pre-meditation the
accused armed with deadly weapon inﬂicted fatal blows on the unarmed deceased
even when he fell on the ground. It was held that Exception 4 of section 300 was not
attracted and the conviction of the accused for murder was proper.136.

Where the offender took an undue advantage or acted in a cruel and unusual manner, it
was held that the beneﬁt of Exception 4 could not be given to him. The Supreme Court
observed that the weapon used or the manner of attack is out of all proportion, that
fact must be taken into consideration for deciding whether undue advantage was
taken.137.
A person opened the door on the call of his uncle who was under assault. He was
unarmed and came out to see what was happening. He received a gunshot at his chest
causing death. The Court said that the appellant had taken undue advantage of his
position at the time. He could not claim the beneﬁt of Exception 4.138.
Where though there was a sudden quarrel between the accused and the deceased,
there was absolutely no ﬁght between the two as there was no exchange of blows, nor

any attack from the side of the deceased who was totally unarmed but nevertheless
the accused attacked the deceased with an axe causing his death, it was held that his
case did not fall either within Exception 4 or Exception 2 and he was squarely liable
under section 302, IPC, 1860.139. A sudden ﬁght developed between the accused and
the deceased while the former was telling the latter that he should not carry his cattle
by the side of the ﬁeld of the accused. Three brothers of the accused rushed to his
rescue and belaboured the deceased with whatever weapons they had in their hands.
The deceased died of multiple injuries and broken bones. The ferocious cruelty
established intention to cause death and took the case out of the exception.140.
The accused abused a road sweeper who happened to throw mud on him. The father

of the sweeper slapped the accused. The infuriated accused went away and came back
with others. He alone, however, inﬂicted the fatal blow. The occurrence was of sudden
origin because the gap between the injury and quarrel was that of only a few minutes.
There was no previous enmity and blows were not repeated as the deceased fell down
helpless. There was no unusual cruelty. The beneﬁt of Exception 4 was allowed.141. In
a quarrel between the accused and his father, the accused attacked his father with a
dagger causing death and also attacked the intervener who were his stepmother and
sisters. No injury was caused to the accused because all others were unarmed. The
accused took undue advantage of that fact. He acted in a cruel manner. The exception
was not attracted. He was guilty of murder.142. It cannot be said in all cases of a single

blow that section 302 would not be attracted. A single blow in some cases may entail
conviction under section 302 in some cases or under section 304 and in some cases
under section 326. Acting on this principle in a case where the victim was invited to a
particular place and there three associates of the accused caught hold of him and the
accused delivered a single knife blow on the chest, about which it could not be said
that it was not inﬂicted without premeditation, the Court said that it could not be said
that the accused had not taken undue advantage. Exception 4 was not attracted.143.

Where the accused, who had gone along with the deceased and others, picked up a
quarrel with the deceased, entered his house, and came back with a knife and gave
blows to the deceased and others who tried to stop them and then ran away, it was
held that Exception 4 to section 300 was not applicable. Conviction under section 302
was proper.144. A quarrel took place between a son and his father just outside the son's
house. The son dragged the father into the Courtyard. His other sons came out to his
rescue. The son retreated into the room, bolted it from inside and shot at them from the
window. One of his brothers received a bullet at his chest and died. The plea of self-
defence was not accepted. His father and brothers were the eye-witnesses who were
naturally there for saving the skin of their father. The accused shot at them from the
bolted security of his room.145.
A previous quarrel triggered off because of sarcastic remarks made during the

occasion of a marriage. Three accused started shooting with their respective guns at
unarmed victims from close range on vital parts of their bodies. The victims had merely
indulged in verbal duel with them. The accused acted in cruel and unusual manner.
Conviction for the offence of murder was held to be proper, Exception 4 being not
applicable.146.
[s 300.34] Comparison of Exception 1 (provocation) with Exception 4 (sudden
ﬁght).—
Exception 4 of section 300, IPC, 1860 covers acts done in a sudden ﬁght. The said
exception deals with a case of prosecution not covered by the ﬁrst exception, after
which its place would have been more appropriate. The exception is founded upon the
same principle, for in both there is absence of premeditation. But, while in the case of

Exception 1, there is total deprivation of self-control, in the case of Exception 4, there is
only that heat of passion which clouds men's sober reason and urges them to deeds
which they would not otherwise do. There is provocation in Exception 4 as in Exception
1; but the injury done is not the direct consequence of that provocation. In fact,
Exception 4 deals with cases in which notwithstanding that a blow may have been
struck, or some provocation given in the origin of the dispute or in whatever way the
quarrel may have originated, yet the subsequent conduct of both parties puts them in
respect of guilt upon equal footing. A 'sudden ﬁght' implies mutual provocation and
blows on each side. The homicide committed is then clearly not traceable to unilateral

provocation, nor in such cases could the whole blame be placed on one side. For if it
were so, the Exception more appropriately applicable would be Exception 1. There is no
previous deliberation or determination to ﬁght. A ﬁght suddenly takes place, for which
both parties are more or less to be blamed. It may be that one of them starts it, but if
the other had not aggravated it by his own conduct, it would not have taken the serious
turn it did. There is then mutual provocation and aggravation, and it is diﬃcult to
apportion the share of blame which attaches to each ﬁghter. The help of Exception 4
can be invoked if death is caused (a) without premeditation; (b) in a sudden ﬁght; (c)
without the offender's having taken undue advantage or acted in a cruel or unusual

manner; and (d) the ﬁght must have been with the person killed. To bring a case within
Exception 4, all the ingredients mentioned in it must be found. It is to be noted that the
'ﬁght' occurring in Exception 4 to section 300, IPC, 1860 is not deﬁned in the IPC, 1860.

of each case. For the application of Exception 4, it is not suﬃcient to show that there
was a sudden quarrel and there was no premeditation. It must further be shown that

the offender has not taken undue advantage or acted in cruel or unusual manner. The
expression 'undue advantage' as used in the provision means 'unfair advantage'.147. In
both cases, there is absence of premeditation. But in Exception 1 there is total
deprivation of self-control, in case of Exception there is such heat of passion as clouds
sober reason and urges the man to do something which he would not otherwise do. A
sudden ﬁght implies mutual provocation and blows on each side. The homicide in such
a case is not traceable to unilateral provocation. In such cases, the whole blame cannot
be attributed to one side. It may be that a ﬁght was initiated by one side but without
aggravating provocation from the other side it might not have taken the serious turn. A
situation of mutual provocation and aggravation develops making it diﬃcult to
apportion the blame between the two sides.148.
[s 300.35] Exception 5.—Death caused of the person consenting to it.—

The following reasons are given for not punishing homicide by consent so severely as
murder:
In the ﬁrst place, the motives which prompt men to the commission of this offence are
generally far more respectable than those which prompt men to the commission of murder.
Sometimes it is the effect of a strong sense of religious duty, sometimes of a strong sense
of honour, not unfrequently of humanity. The soldier who, at the entreaty of a wounded
comrade, puts that comrade out of pain, the friend who supplies laudanum to a person
suffering the torment of a lingering disease, the freed man who in ancient times held out the
sword that his master might fall on it, the highborn native of India who stabs the females of
his family at their own entreaty in order to save them from the licentiousness of a band of

marauders, would, except in Christian societies, scarcely be thought culpable, and even in
Christian societies would not be regarded by the public, and ought not to be treated by the
law, as assassins.149.
This exception abrogates the rule of English law that a combatant in a fair duel who
kills his opponent is guilty of murder. Under this Exception, the person who is killed in a
duel "suffers or takes the risk of death by his own choice." In applying the Exception, it
should ﬁrst be considered with reference to the act consented to or authorised, and
next with reference to the person or persons authorised, and as to each of those some
degree of particularity at least should appear upon the facts proved before the
Exception can be said to apply. It must be found that the person killed with a full

knowledge of the facts, determined to suffer death, or take the risk of death; and that
this determination continued up to and existed at the moment of his death.150. The
consent must have been given unconditionally and without any pre-reservation.151.
The case supposed in the illustration to Exception 5 is one of the offences expressly
made punishable by section 305.
[s 300.36] Death caused by voluntary act of deceased resulting from fear of
violence.—
If a man creates in another man's mind an immediate sense of danger which causes
such person to try to escape, and in so doing he injures himself, the person who
creates such a state of mind is responsible for the injuries which result.152. If, for
instance, four or ﬁve persons were to stand round a man, and so threaten him and

frighten him as to make him believe that his life was in danger, and he were to back
away from them and tumble over a precipice to avoid them, their act would amount to
murder.153.

[s 300.37] Discovery of body of murdered person not necessary/Absence of
corpus delicti.—
It is well-settled law that in a murder case, to substantiate the case of the prosecution,
it is not required that dead bodies must have been made available for the identiﬁcation
and discovery of dead body is not sine qua non for applicability of section 299 of IPC,
1860.154. The mere fact that the body of a murdered person has not been found is not
a ground for refusing to convict the accused of murder. But when the body is not
forthcoming, the strongest possible evidence as to the fact of the murder should be
insisted on before conviction.155. Such evidence could come from the testimony of
eye-witnesses or from circumstantial evidence or from both.156. If the prosecution is
successful in providing cogent and satisfactory proof of the victim having met a
homicidal death, absence of corpus delicti will not by itself be fatal to a charge of
murder.157.
[s 300.38] Ascertainment of time of death.—

Judging the time of death from the contents of the stomach may not always be the
determinative test. It will require due corroboration from other evidence.158.
[s 300.39] Single eye-witness, corroboration needed.—
A child witness (aged 13 years at the time of incident) deposed categorically about the
gruesome incident he had witnessed. The Supreme Court held that in such situation, it
is considered a safe rule of prudence to generally geneally look for corroboration of the
sworn testimony of the witness in Court, as to the identity of the accused, who are
strangers to them, in the form of earlier identiﬁcation proceeding.159.
[s 300.40] Acquittal of co-accused, effect.—
Allegation was that the accused along with the juvenile attacked the deceased. Eye
witness deposed that the juvenile was not involved. Acquittal of the juvenile has no

effect on the case of others.160. Beneﬁt of acquittal of co-accused cannot be given to
the main accused.161.
[s 300.41] Non-production of FIR book.—
The incident involved assault on villagers and causing of multiple deaths. The injured
witness gave written complaint in the hospital duly signed by him. The complaint was
immediately sent to the police station. On its basis, a printed FIR was registered and a
copy sent to the magistrate. These circumstances completely ruled out the suggestion
that the FIR was bogus or doctored. Non-production of the book was due to non-
availability. This cannot by itself, invite suspicious glance from the Court or be a ground
for throwing out the prosecution case.162.
[s 300.41.1] Ante timed.—

The lodging of a First Information Report within 20 minutes of the incident, on the oral
dictation at the police station which was four furlongs from the place of incident
creates some doubt about the actual time of lodging of the FIR.163.
[s 300.42] Delay in FIR.—
Whether the delay is so long as to draw a cloud of suspicion on the prosecution case
will depend upon a variety of factors, which will vary from case to case.164. Where the
occurrence took place in the late night in a remote village and the sufferers of the
incident were the widow and her two minor children, apart from the fact that the police
station was one and a half kilometres away, the delay in registering FIR on the next day
is proper.165.
[s 300.43] Strange behaviour of the complainant.—
Where the incident of murder occurred inside the forest, while some friends of the
complainant were participating in a party and the informant/eye-witness instead of
going to the police station went to the house of an Advocate. The Supreme Court found

that it appeared to be a very strange behaviour on the part of the complainant and so
many of his friends who were with him to go to an Advocate, that too 15 kms away,
rather than approaching the Police Station to report the matter.166.
[s 300.44] Motive.—
It is fairly well settled that while motive does not have a major role to play in cases
based on eye-witness account of the incident, it assumes importance in cases that rest
entirely on circumstantial evidence.167. Where other circumstances lead to the only
hypothesis that the accused has committed the offence, the Court cannot acquit the
accused of the offence merely because the motive for committing the offence has not
been established in the case.168. If depositions giving the eye-witness account of
incident that led to death of deceased are reliable, absence of a motive would make

little difference.169. When there is an eye-witness account on record, the absence of
motive pales into insigniﬁcance.170.
[s 300.45] Last seen together.—
It is trite law that a conviction cannot be recorded against the accused merely on the
ground that the accused was last seen with the deceased.171. There may however be
cases where, on account of close proximity of place and time between the event of the
accused having been last seen with the deceased and the factum of death, a rational
mind may be persuaded to reach an irresistible conclusion that either the accused
should explain how and in what circumstances the victim suffered the death or should
own the liability for the homicide.172. But in Arabindra Mukherjee v State of WB,173.,174.
it was held that once the accused was last seen with the deceased, the onus is upon

him to show that either he was not involved in the occurrence at all or that he had left
the deceased at her home or at any other reasonable place. To rebut the evidence of
last seen and its consequences in law, the onus was upon the accused to lead

31.  Santosh v State, 1975 Cr LJ 602 : AIR 1975 SC 654 [LNIND 1975 SC 50] ; See also Sehaj
Ram, 1983 Cr LJ 993 (SC) : AIR 1983 SC 614 [LNIND 1983 SC 90] : (1983) 3 SCC 280 [LNIND
1983 SC 90] . There should be causal connection between death and injury, not proved where
death ensued 13 days after the alleged injury by the deceased woman's husband, Imran Khan v
State of MP, (1995) 1 Cr LJ 17 (MP).
32.  Govinda, (1876) 1 Bom 342; Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC
1966 [LNIND 2004 SC 1370] : 2004 Cr LJ 1778 , distinguish between culpable homicide and
murder restated, nature of mens rea required in two provisions also explained.
33.  State of AP v R Punnayya, 1977 Cr LJ 1 : AIR 1977 SC 45 [LNIND 1976 SC 331] ; Kalaguru
Padma Rao v State of AP, (2007) 12 SCC 48 [LNIND 2007 SC 179] : AIR 2007 SC 1299 [LNIND
2007 SC 179] , distinction between sections 299 and 300 restated. Sunder Lal v State of
Rajasthan, (2007) 10 SCC 371 [LNIND 2007 SC 599] ; Abbas Ali v State of Rajasthan, (2007) 2

SCC 129 : AIR 2007 SC 1239 [LNIND 2007 SC 165] : 2007 Cr LJ 1667 , distinction restated.
evidence in order to prove his innocence. In C Perumal v Rajasekaran,175.,176. there was
a time lag of two days in last seen together of A2– A5 with the deceased and Court
found it diﬃcult to connect them with the incident. Where the accused was last seen
together with the deceased by his wife, but the prosecution could not establish the
cause of death, the accused was not convicted based on the last seen theory.177.
The circumstance of last seen together does not by itself and necessarily lead to the
inference that it was the accused who committed the crime. There must be something
more establishing the connectivity between the accused and the crime. Mere non-

explanation on the part of the accused by itself, cannot lead to proof of guilt against
the appellant.178. Where it was found that the deceased was in the company of the
accused prior to one week of the post-mortem of the deceased and it was also found
through the post-mortem that the murder was about one week ago, the Court held that
the last seen theory applies.179.
Where there was a clear gap of 51 hours and 45 minutes between the time when the
victim was last seen in the company of the accused and the time of his death, it was
held that this time gap was too wide to act upon the last seen theory.180.
[s 300.45.1] Co-accused.—
Merely because two persons have been acquitted that beneﬁt cannot be extended to
others in view of the direct evidence establishing their presence and participation in the
crime.181.
[s 300.46] Plea of alibi.—

While weighing the plea of 'alibi', the same has to be weighed against the positive
evidence led by the prosecution.182.

34.  Laxminath v State of Chhattisgarh, AIR 2009 SC 1383 [LNIND 2009 SC 58] : (2009) 3 SCC
519 [LNIND 2009 SC 58] ; Budhi Lal v State of Uttarakhand, AIR 2009 SC 87 [LNIND 2008 SC
1928] : (2008) 14 SCC 647 [LNIND 2008 SC 1928] ; Abdul Waheed Khan Waheed v State of
Andhra Pradesh, JT 2002 (6) SC 274 [LNIND 2002 SC 530] ; Augustine Saldanha v State of
Karnataka, 2003 (10) SCC 472 [LNIND 2003 SC 709] ; Thangaiya v State of TN, 2005 (9) SCC 650
[LNIND 2004 SC 1221] and Sunder Lal v State of Rajasthan, 2007 (10) SCC 371 [LNIND 2007 SC
599] .
35.  Ajit Singh v State of Punjab, (2011) 9 SCC 462 [LNIND 2011 SC 844] .
36.  Rampal Singh v State of UP, 2012 Cr LJ 3765 : (2012) 8 SCC 289 [LNIND 2012 SC 425] .
37.  State of Orissa v Raja Parida, 1972 Cr LJ 193 199 (Ori). Gurmej Singh v State of Punjab, AIR
1992 SC 214 [LNIND 1991 SC 301] : 1992 Cr LJ 293 : 1991 Supp (2) SCC 75 , discussing how
evidence in criminal cases is to be appreciated. Other cases giving guidelines for appreciation

of evidence for purposes of section 300 are State of UP v Ram Chandra, 1992 Cr LJ 418 All
(doubtful evidence); Anokh Singh v State of Punjab, AIR 1992 SC 598 : 1992 Cr LJ 525 : 1992
Supp (1) SCC 426 (improbable evidence, delay in lodging FIR); State of Karnataka v Venkatesh,
AIR 1992 SC 674 : 1992 Cr LJ 707 (prosecution witness not inspiring conﬁdence). See also
Sakharam v State of MP, AIR 1992 SC 758 [LNIND 1992 SC 157] : 1992 Cr LJ 861 , a boy of 16–
17 years of age lived alone with the deceased woman in a single-room house some eight days
before the incident, woman killed by gun-shot injuries, the boy acquitted because there was no
other evidence than that of living together; Peddireddy Subbareddi v State of AP, 1991 Cr LJ 1391
: AIR 1991 SC 1356 , gap of 15 hours in lodging FIR, the sole eye-witness not telling the fact to

any of the villagers. Acquittal on beneﬁt of doubt. Gangotri Singh v State of UP, AIR 1992 SC 948
: 1992 Cr LJ 1290 , where the dying declaration was clear in reference, but did not even mention
the names of the other accused with whom the deceased was on enmity, conviction of the
named accused alone was held to be proper.
Acquittals.—Varun Chaudhary v State of Rajasthan, 2011 Cr LJ 675 : AIR 2011 SC 72 [LNIND
2010 SC 1067] : (2011) 12 SCC 545 [LNIND 2010 SC 1067] ; the recovered knife was never
produced before the court and was never shown to the accused; scanty evidence; conviction set
aside; State Through CBI v Mahender Singh Dahiya, (2011) 3 SCC 109 [LNIND 2011 SC 114] : AIR
2011 SC 1017 [LNIND 2011 SC 114] : 2011 Cr LJ 2177 , circumstances relied on do not connect

the accused, accused acquitted. Allarakha K Mansuri v State of Gujarat, AIR 2002 SC 1051
[LNIND 2002 SC 119] , defective investigation should not be made a ground of acquittal by itself.
The setting aside of acquittal by the High Court was held to be proper. Chander Pal v State of
Haryana, AIR 2002 SC 989 [LNIND 2002 SC 105] , acquittal because of unsatisfactory evidence,
State of Haryana v Ram Singh, AIR 2002 SC 620 [LNIND 2002 SC 32] , largely on matters of
evidence, such as gap between medical and eye-witness account, relative witness not to be
rejected for that reason alone, defence witnesses are entitled to equal treatment with those of
the prosecution. Panchdeo Singh v State of Bihar, AIR 2002 SC 526 [LNIND 2001 SC 3070] ,
acquittal because of unreliable dying declaration. Surendra Singh v State of Bihar, AIR 2002 SC

260 [LNIND 2001 SC 2701] , ﬁring at the inmates of a car, one killed, one injured. The injured eye-
witness identiﬁed the assailant at the test identiﬁcation parade but had stated at the stage of
the FIR that could not recognise him. Conviction of the accused was set aside. Thanedar Singh v
State of MP, AIR 2002 SC 175 [LNIND 2001 SC 2451] , killing at night, no moonlight, no
identiﬁcation of killers, High Court not justiﬁed in reversing acquittal. RV Chacko v State of
Kerala, AIR 2001 SC 537 [LNIND 2000 SC 1797] , acquittal because no proper proof. Durbal v
State of UP, (2011) 2 SCC 676 [LNIND 2011 SC 100] : AIR 2011 SC 795 [LNIND 2011 SC 100] :
2011 Cr LJ 1106 ; presence of eyewitness doubtful, acquitted; Prahlad Singh v State of MP, 2011

(8) Scale 105 [LNIND 2011 SC 1086] : 2011 Cr LJ 4366 , possibility that these three accused

roped in on account of animosity cannot be ruled out and given them the beneﬁt of doubt on
that score. Surendra Pratap Chauhan v Ram Naik, AIR 2001 SC 164 [LNIND 2000 SC 1521] : 2001
Cr LJ 98 , murder in village groupism real killers could not be identiﬁed and other failures of
proof, acquittal, Jagdish v State of MP, AIR 2000 SC 2059 [LNIND 2000 SC 842] : 2000 Cr LJ
2955 , acquittal of one accused because of uncertainty in technical as well as general evidence,
conviction of the other because of the case proved against him.
Shaikh Umar Ahmed Shaikh v State of Maharashtra, AIR 1998 SC 1922 [LNIND 1998 SC 498] :
1998 Cr LJ 2534 , strong possibility of the accused being shown to the witnesses before
identiﬁcation in court, conviction set aside because the identiﬁcation was the basis of the
conviction. Bhola Singh v State of Punjab, AIR 1999 SC 767 [LNIND 1998 SC 1050] : 1999 Cr LJ
1132 , acquittal because the presence of the witnesses on the spot became doubtful, their

testimony seemed to have been tailored in accordance with the post-mortem report. Delayed
test identiﬁcation parade. Accused acquitted: State of Maharashtra v Syed Umar Sayed Abbas,
2016 Cr LJ 1445 : 2016 (3) SCJ 77 . Vijayan v State of Kerala, AIR 1999 SC 1086 [LNIND 1999 SC
159] : 1999 Cr LJ 1638 , acquittal, because photographs were published and, therefore,
identiﬁcation evidence became useless and dying declaration was also unreliable. Mohd. Zahid
v State of TN, AIR 1999 SC 2416 [LNIND 1999 SC 593] : 1999 Cr LJ 2699 , acquittal because eye-
witnesses and the doctor both found to be not reliable. Hargovandas Devrajbhai Patel v State of
Gujarat, AIR 1998 SC 370 [LNIND 1997 SC 1443] : 1998 Cr LJ 662 (SC), no proof that the police
oﬃcer caused death of the deceased in police custody. Acquittal Omwati v Mahendra Singh, AIR

1998 SC 249 [LNIND 1997 SC 91] , 250 : 1998 Cr LJ 401 , acquittal because no proper
investigation and evidence. Daljit Singh v State of Punjab, AIR 1999 SC 324 : 1999 Cr LJ 454 ,
acquittal because of false witnesses. Din Dayal v Raj Kumar, AIR 1999 SC 537 : 1999 Cr LJ 487 ,
accused acquitted because witnesses not truthful. Tanviben Pankaj Kumar Divetia v State of
Gujarat, AIR 1997 SC 2193 [LNIND 1997 SC 803] : 1997 Cr LJ 2535 , no evidence to lead to
irresistible conclusion about complicity of the accused in causing murder, conviction on
surmises and conjectures set aside. Mohd Aman v State of Rajasthan, AIR 1997 SC 2960 : 1997
Cr LJ 3567 , not proper handling of ﬁnger-print evidence, conviction not proper. Shahbad Pall
Reddy v State of AP, AIR 1997 SC 3087 [LNIND 1997 SC 1096] : 1997 Cr LJ 3753 , murder alleged

to be by 26 persons, no proper investigation, acquittal. Harkirat Singh v State of Punjab, AIR 1997
SC 3231 [LNIND 1997 SC 988] : 1997 Cr LJ 3954 , material contradictions in statements of
witnesses, other irregularities, acquittal. Sahib Singh v State of Haryana, AIR 1997 SC 3247
[LNIND 1997 SC 1005] : 1997 Cr LJ 3956 , delayed FIR, highly interested witnesses, confession
not truthful, conviction liable to be set aside. State of UP v Bhagwan, AIR 1997 SC 3292 : (1997)
11 SCC 19 , acquittal because of unreliable eye-witnesses. B Subba Rao v Public Prosecutor, AIR
1997 SC 3427 [LNIND 1997 SC 1065] : 1997 Cr LJ 4072 , because the source of light through
which identiﬁcation was possible not proved Rambilas v State of MP, AIR 1997 SC 3954 [LNIND

1997 SC 1302] : 1997 Cr LJ 4649 , a notorious person murdered on the day of a festival and
body thrown into a tank, eye-witnesses not likely because of the festival, that is why were not
real there could be other possible killers, acquittal. Paramjit Singh v State of Punjab, AIR 1997 SC
1614 [LNIND 1996 SC 2101] : (1997) 4 SCC 156 [LNIND 1996 SC 2101] , two types of evidence,
last seen together and dying declaration, both found not reliable. Acquittal, Jaspal Singh v State
of Punjab, AIR 1997 SC 332 [LNIND 1996 SC 1648] : 1997 Cr LJ 370 , confession and
identiﬁcation evidence week, acquittal. Devinder v State of Haryana, AIR 1997 Sc 454 [LNIND
1996 SC 1460] : 1996 Cr LJ 4461 , acquittal because of beneﬁt of doubt. Chander Pal v State of

Haryana, 2002 Cr LJ 1481 (SC), quarrel in the course of playing game of ludo, murder, no proper
evidence, acquittal. Bijoy Singh v State of Bihar, 2002 Cr LJ 2623 : AIR 2002 SC 1949 [LNIND
2002 SC 300] , prosecution for murder and attempt to murder, 12 persons were convicted, but

there was no proper investigation, acquittal. State of AP v Kowthalam Chinna Narasimhulu, 2001
Cr LJ 722 (SC), political rivalry, murder, unreliable witnesses, acquittal. State of MP v Surpa, 2001
Cr LJ 3290 (SC), contradictions in evidence, wife of the victim not disclosing the incident to any
one till the next day, acquittal.
Kanhai Mishra v State of Bihar, 2001 Cr LJ 1258 (SC), rape and murder, acquittal, Dhanjibhai v
State of Gujarat, 2001 Cr LJ 1587 (Guj), another case of being killed by burns, but no proof of
involvement of the accused husband. Sohan v State of Haryana, 2001 Cr LJ 1707 (SC), only
interested witness examined, no independent witness examined though available, conviction set
aside. State of Rajasthan v Teja Singh, 2001 Cr LJ 1176 (SC), no corroboration of evidence of
interested eye-witness, acquittal proper. Kalyan v State of UP, 2001 Cr LJ 4677 (SC), acquittal
because of poor state of evidence. State of Delhi, 2001 Cr LJ 61 (Del) acquittal from the charge

of raping and killing one's daughter poor evidence. Sudama Pandey v State of Bihar, 2002 Cr LJ
582 (SC), acquittal because of no proper evidence. Gurucharan v State of UP, 2000 Cr LJ 4560
(All), accused persons alleged to have entered a bus, ﬁred at passengers and used knives, death
of two caused, acquitted under beneﬁt of doubt. Ajab Singh v State of UP, 2000 Cr LJ 1809 :
(2000) 3 SCC 521 [LNIND 2000 SC 2011] , order by Supreme Court of investigation by CBI.
Chhannoo Lal v State of UP, 2000 Cr LJ 2787 (All), killing of wife and children, but prosecution
could prove nothing, husband acquitted. Referring Oﬃcer v Tiringhly, 2000 Cr LJ 2569 (AP),
murder of a priest of a temple, and throwing away the body into a pond. The court found it to be

a case of no evidence. Conviction of the accused and sentence of death set aside. State of
Punjab v Kulwant Singh, 2000 Cr LJ 2692 (P&H), triple murder, accused acquitted because of
prosecution failures. Dinesh v State of Haryana, AIR 2002 SC 3474 : 2002 Cr LJ 2970 (SC),
acquittal because of inconsistent evidence and weapons not produced. Mahabir Singh v State of
Haryana, 2001 Cr LJ 3945 (SC), sole eye-witness contradicting himself acquittal. State of
Rajasthan v Chhote Lal, 2012 AIR (SCW) 1159 : 2012 Cr LJ 1214 , sole eye witness turned hostile,
acquittal conﬁrmed; Javed Masood v State of Rajasthan, AIR 2010 SC 979 [LNIND 2010 SC 214] :
(2010) 3 SCC 538 [LNIND 2010 SC 214] : (2010) 3 SCR 236 [LNIND 2010 SC 214] : 2010 Cr LJ
2020 , presence of eye witness doubtful, conviction set aside. Jiten Besra v State of WB, AIR

2010 SC 1294 [LNIND 2010 SC 224] : (2010) 3 SCC 675 [LNIND 2010 SC 224] : 2010 Cr LJ 2032 ,
all the alleged incriminating circumstances could not be said to have been established; accused
is entitled to beneﬁt of doubt. Gajula Surya Prakasarao v State of AP, (2010) 1 SCC 88 [LNIND
2009 SC 1973] : 2010 Cr LJ 2102 : AIR 2010 SC (Supp) 181, eye witness did not name the
accused in the statement, accused acquitted; Jaipal v State, 1998 Cr LJ 4085 : AIR 1998 SC
2787 [LNIND 1999 PNH 698] , murder, persons accused not shown to be guilty, acquittal. State
of HP v Dhani Ram, 1997 Cr LJ 214 : 1997 SCC (Cr) 244 (SC), the only proof was that of motive,
but there was no other evidence, acquittal. Gurprit Singh v State of Punjab, AIR 2002 SC 2390 ,
TADA offender, murder, charged, not proved, acquittal. Nasim v State of UP, 2000 Cr LJ 3329

(All), arsenic poison mixed in pulse drink, six persons lost life, but who mixed not clear, act of
persons other than cook not ruled out, acquittal. Deva v State of Rajasthan, 1999 Cr LJ 265 : AIR
1999 SC 214 [LNIND 1998 SC 1402] , murder by accused not proved, acquittal. Surinder Kumar v
State of Punjab, 1999 Cr LJ 267 : AIR 1999 SC 215 [LNIND 2012 SC 879] , veterinary surgeon
killed, accused acquitted because his guilt could not be proved. Bhupinder Singh v State of
Punjab, 1999 Cr LJ 396 (SC), death probably in encounter ﬁring, constable acquitted. State of HP
v Rakesh Kumar, 1999 Cr LJ 564 (HP), acquittal. Ashok Kumar v State of Bihar, 1999 Cr LJ 599
(SC), murder of morning walker, dying declaration, not reliable, no other evidence, acquittal.

Paras Yadav v State of Bihar, 1999 Cr LJ 1122 : AIR 1999 SC 644 [LNIND 1999 SC 17] ,
participation of accused in murder not proved, acquittal. Chandregowda v State of Karnataka,
1999 Cr LJ 1719 (Kant), child sacriﬁced to death by throttling for the purpose of learning black

magic, doctor's certiﬁcate of schizophrenia, only evidence was admission of guilt under section
313, Cr PC, 1973. Held, conviction not possible on that basis alone. Ahmed Bin Salam v State of
AP, 1999 Cr LJ 2281 : AIR 1999 SC 1617 , conviction set aside because of failure of evidence;
State of UP v Kapildeo Singh, 1999 Cr LJ 2594 : AIR 1999 SC 1783 [LNIND 1999 SC 140] ,
accused, alleged to have entered Kutia of their victim at mid night to settle land dispute and
assaulted him with sharp instruments to death, but no proof, acquittal. Balbir Singh v State of
Punjab, 1999 Cr LJ 4076 : AIR 1999 SC 3227 [LNIND 1999 SC 718] , acquittal because of no
proof. Vithal Tukaram More v State of Maharashtra, AIR 2002 SC 2715 [LNIND 2002 SC 449] :
2002 Cr LJ 3546 , acquittal because of unreliable evidence. Mathura Yadav v State of Bihar, AIR
2002 SC 2707 [LNIND 2002 SC 447] : 2002 Cr LJ 3538 , glaring discrepancies in evidence of eye-
witnesses, acquittal; BL Satish v State of Karnataka, 2002 Cr LJ 3508 (SC), grandson was

charged of strangulating his grandmother to death. The only circumstance against him was his
statement that ornaments were kept in his maternal grand father's house, acquittal; Thangavelu
v State of TN, 2002 Cr LJ 3558 (SC), false evidence case demolished by medical report as to
time of death.
Pandit Ram Prakash Sharma v Khairati Lal, 1998 Cr LJ 1410 : AIR 1998 SC 2820 , unreliable
witnesses, acquittal. Prem Prakash Mundra v State of Rajasthan, 1998 Cr LJ 1620 : AIR 1998 SC
1189 [LNIND 1998 SC 133] , murder of child, accused could not be connected with it. State of
Rajasthan v Mahaveer, 1998 Cr LJ 2275 (SC), enmity between parties, but nothing could be
proved. Kochu Maitheen Kannu Salim v State of Kerala, 1998 Cr LJ 2277 (SC), conduct of eye-

witnesses did not inspire conﬁdence, acquittal. State of Punjab v Karnail Singh, 1998 Cr LJ 2556 :
AIR 1998 SC 1936 [LNIND 1998 SC 307] , death of ﬁve persons by gun shots, no evidence as to
who caused whose death, defence version that the accused acted in self-defence was
supported by evidence, acquittal. Jaipal v State (UT of Chandigarh), 1998 Cr LJ 4085 : AIR 1998
SC 2787 [LNIND 1999 PNH 698] , considered acquittal by the trial judge, setting aside by the
High Court merely because a different view of the evidence was also possible was not proper;
Kaptan Singh v State of MP, acquittal solely on the basis of investigation, held patently wrong;
State of HP v Dhani Ram, 1997 Cr LJ 214 : AIR 1996 SCW 4055 , acquittal upheld; Roshan Singh v

State of UP, 1997 Cr LJ 256 (All), acquittal because of beneﬁt of doubt; Darshan Singh v State of
Punjab, 1997 Cr LJ 370 : AIR 1970 SC 332 , accused not properly identiﬁed, confession of guilt
not found reliable, acquittal.
Kuldip Singh v State of Punjab, 2002 Cr LJ 3944 : AIR 2002 SC 3023 [LNIND 2002 SC 498] ,
murder of the wife and daughter of informant, but the accused could not be connected with it,
acquittal; Dhananjay Shanker Shetty v State of Maharashtra, 2002 Cr LJ 3729 (SC), circumstantial
evidence of murder by history sheeter. But no proof. The accused was arrested in injured
condition. No explanation, acquittal. Toran Singh v State of MP, 2002 Cr LJ 3732 (SC), material
contradictions and omissions in statements of witness. Muthu v State of Karnataka, 2002 Cr LJ

3782 (SC), no evidence to connect the accused with the murder, close scrutiny of evidence
disclosed hollowness of prosecution case. Accused entitled to beneﬁt of doubt. Balu Sonba
Shinde v State of Maharashtra, AIR 2002 SC 3137 [LNIND 2002 SC 552] , deposition of a witness
on whom the prosecution story hinged was found partly improbable, the evidence of hostile
witness was rather found more normal and natural. Accused entitled to beneﬁt of doubt.
Ashish Batham v State of MP, AIR 2002 SC 3206 [LNIND 2002 SC 556] , failure in love affair
alleged to be motive for murder, acquitted because of lack of credibility in evidence. Raghunath v
State of Haryana, AIR 2003 SC 165 [LNIND 2002 SC 703] : 2003 Cr LJ 401 , group rivalry,
accused persons entered the house of their victim and caused death, but evidence doubtful, the

witnesses, while taking the injured to hospital, did not ﬁle report even when they crossed two

police stations, acquittal. Jasbir v State of Haryana, AIR 2003 SC 554 [LNIND 2002 SC 805] :
2003 Cr LJ 826 , there were lathi injuries on the person of the deceased, lathi wielding accused
were acquitted. State of Karnataka v AB Nagaraj, AIR 2003 SC 666 [LNIND 2002 SC 783] : 2003
Cr LJ 848 , allegation that the daughter was killed by her father and step-mother. Witnesses who
saw them in the national park could not be believed because they were working behind bushes.
The theory of the accused parents that they were looking for their daughter seemed to be
probable. There was no history of bad treatment, acquittal; Kantilal v State of Gujarat, AIR 2003
SC 684 [LNIND 2002 SC 789] : 2003 Cr LJ 850 , prosecution case was that the accused stole
gold ornaments of the victim woman and murdered her. The facts that he had given the
ornaments and ingot to a jeweller for melting were not established. Link in the chain of
circumstances missing, acquittal. Bhim Singh v State of Haryana, AIR 2003 SC 693 [LNIND 2002

SC 793] : 2003 Cr LJ 857 , acquittal because of uncorroborated and controverted evidence. State
of UP v Arun Kumar Gupta, AIR 2003 SC 801 [LNIND 2003 SC 9] : 2003 Cr LJ 894 , except for
being indebted to the deceased, other evidence to connect the accused with the murder was
nullity, acquittal. Lallu Manjhi v State of Jharkhand, AIR 2003 SC 854 [LNIND 2003 SC 3] : 2003 Cr
LJ 914 , land dispute, but who was in possession not properly proved, interested eye-witness not
corroborated. No conviction on sole testimony. Zafar v State of UP, AIR 2003 SC 931 [LNIND
2003 SC 41] : 2003 Cr LJ 1218 , sole child witness, examined after four to ﬁve days probably
because another eye-witness had backed out. Not reliable. No conviction. Jai Pal v State of UP,

AIR 2003 SC 1012 [LNIND 2003 SC 134] : 2003 Cr LJ 1243 eye-witness in examination-in-chief
did not name the accused, in cross-examination he named him among so many others, but no
overt act attributed, delay in examining witnesses not explained, identiﬁcation of dead body
doubtful, acquittal. Bhagwan Singh v State of MP, AIR 2003 SC 1088 [LNIND 2003 SC 82] : 2003
Cr LJ 1262 , mother killed by assailants, six-year-old child sleeping with her, testiﬁed that after
seeing his mother being assaulted, he went to sleep again, no TI parade held, the conduct of the
father was also unnatural, he did not enquire anything from the child before lodging the FIR,
sending civil disputes between the accused and the deceased was found to be weak cause,

acquittal. Shailendra Pratap v State of UP, AIR 2003 SC 1104 [LNIND 2003 SC 6] : 2003 Cr LJ
1270 , another case of acquittal because of weak links in evidence. Kanwarlal v State of MP,
2003 Cr LJ 82 (SC), the allegation that the victim was assaulted by several accused persons in
free ﬁght with axes and spears. But no cut injuries except one on head, conviction of one
accused for murder not sustainable. Mohan Singh v Prem Singh, 2003 Cr LJ 11 : AIR 2003 SC
3582 , failure of evidence on all points in the trial for murder, defence version more probable,
acquittal. Nabab Khan v State of MP, 2003 Cr LJ 94 (MP), sole eye-witness, other factors of
evidence not reliable, casting doubt upon sole-witness account, acquittal. This was an attack on
the whole family. Four members were killed. The sole eye-witness who survived with injuries

was not medically examined and false explanations were submitted for the same. Jai Narain v
State of UP, 2000 Cr LJ 168 (All), evidence of homemates of the deceased contradictory, no
independent witness, motive that they were working as police informers not proved, unexplained
delay in medical examination of deceased, defence version more probable, acquittal. Narendra
Singh v State of UP, 2003 Cr LJ 205 (All), killing of man's wife, his son and nephew, proof against
the alleged killers not substantiated, acquittal. Moti v State of UP, 2003 Cr LJ 1694 : AIR 2003 SC
1897 [LNIND 2003 SC 302] , serious difference in family evidence and medical evidence,
uncertainty beneﬁt of doubt. Suresh Chaudhary v State of Bihar, 2003 Cr LJ 1717 : AIR 2003 SC

1981 [LNIND 2003 SC 289] , presence of eye-witness at the site of three murders, time of death,
time of lodging FIR doubtful, medical evidence showing use of explosive bomb, eye-witness did
not mention it, acquittal. State of Punjab v Sucha Singh, 2003 Cr LJ 1210 : AIR 2003 SC 1471
[LNIND 2003 SC 177] , murder in revenge, eye-witness father of the deceased, but rendered no
help at rescue, his presence at the spot became doubtful, other witnesses also not reliable,

conviction set aside. Bharat v State of MP, 2003 Cr LJ 1297 (SC), circumstantial evidence, chain
not complete, murder for robbery, recovery of doubtful value, extra-judicial confession, not
reliable, acquittal. State of UP v Dharamraj, 2003 Cr LJ 1522 : AIR 2003 SC 1589 [LNIND 2003 SC
206] , eye-witnesses gave different version of the weapons used, acquittal. Rajeevan v State of
Kerala, 2003 Cr LJ 1572 : AIR 2003 SC 1813 , accusation due to political bitterness, acquittal.
Baldev Singh v State of MP, 2003 Cr LJ 880 : AIR 2003 SC 2098 [LNIND 2003 SC 2] , improbability
of murder by accused, acquittal. Sambhunath v State of WB, 2003 Cr LJ 975 (Cal), conviction set
aside because the chain of circumstances was not complete. Shankar Singh v State of UP, 2003
Cr LJ 1095 (All), killed with gunshot injury, delay in lodging FIR, conduct of eye-witnesses
unnatural, acquittal. State of UP v Krishna Pal, 2003 Cr LJ 1115 (All), a man and his son killed,

evidence of his wife and daughter found to be self-contradictory, acquittal. Suresh B Nair v State
of Kerala, 2003 Cr LJ 1152 (Ker), the accused killed his victim with a piece of stone, the eye-
witness did not know him before, identiﬁcation parade not held, the identiﬁcation by the
witnesses was not corroborated, acquittal. Raghunath v State of Haryana, 2003 Cr LJ 401 (SC),
failure of the prosecution case. Ganga Singh v State of UP, 2003 Cr LJ 653 (All), failure of
prosecution to connect points. Brijpal Singh v State of MP, AIR 2003 SC 2460 [LNIND 2003 SC
485] , confusion caused by witnesses as to killing by gunshots, ballistic opinion contradicted
eye-witnesses, beneﬁt of doubt. State of UP v Dharamraj, AIR 2003 SC 1589 [LNIND 2003 SC

206] , witnesses spoke of different instruments of murder, FIR ante-timed, acquittal. Moti v State
of UP, AIR 2003 SC 1897 [LNIND 2003 SC 302] , time of occurrence of murder, post-mortem
report as to state of food in the stomach contradicted by the statements of family members as
to time of food intake, time of killing became uncertain and resulted in acquittal. State of MP v
Mishrilal, 2003 Cr LJ 2312 (SC), the prosecution suppressed the true genesis of the incident, in
fact the prosecution party were the aggressors, they did not explain anything about injuries
received by three accused persons, one of whom was seriously injured, every detail of the
prosecution case was found to be doubtful. Acquittal of accused persons. Khima Vikamshi v

State of Gujarat, 2003 Cr LJ 2025 (SC), allegation that the accused killed the deceased in the
presence of his pardanashin daughter in law, which was itself a doubtful fact and her
statements were also not reliable, there were no blood stains on her clothes, acquittal. Sadhu
Ram v State of Rajasthan, 2003 Cr LJ 2331 (SC), death of woman alongwith her eight-month-old
daughter, two versions possible, accidental burning or intentionally set on ﬁre, witness not clear,
no reliance on such witness, acquittal. State of UP v Bhagwani, 2003 Cr LJ 2337 (SC), blood-
stained earth not collected, independent witnesses not called, doubt about place of happening,
acquittal.
Appeal against acquittal.—Acquittal on the charge of murder of child because of denial of

inheritance, conviction by High Court, upheld by Supreme Court; Swami Prasad v State of MP,
(2007) 13 SCC 25 [LNIND 2007 SC 293] ; Shaik China Brahmam v State of AP, (2007) 14 SCC 457
[LNIND 2007 SC 1388] : AIR 2008 SC 610 [LNIND 2007 SC 1388] , acquittal by the trial court
reversed by the High Court, conviction by High Court upheld by Supreme Court; Malleshappa v
State of Karnataka, (2007) 13 SCC 399 [LNIND 2007 SC 1112] : AIR 2008 SC 69 [LNIND 2007 SC
1112] , conviction found to be unsustainable in the circumstances of the case; Sunny Kapoor v
State (UT of Chandigarh), 2006 Cr LJ 2920 (SC), circumstantial evidence with glaring
discrepancies, conviction not upheld.
Convictions.—State of Punjab v Jugraj Singh, AIR 2002 SC 1083 [LNIND 2002 SC 118] , acquittal

set aside, minor irregularities in evidence not to be over weighed. Prakash Dhawal Khairnar v
State of Maharashtra, AIR 2002 SC 340 [LNIND 2001 SC 2841] , the accused wiped out his
brother with family in order to prevent partition, the confessional statement of his son who had

seen multiple murders, alongwith other circumstances, established guilt, conviction. Rama
Mangaruji Chacherkar v State of Maharashtra, AIR 2002 SC 283 [LNIND 2001 SC 2771] , dispute
between brothers over distribution of agricultural produce, death of the brother caused by
hurling a hand grenade at him. The wife of the deceased testiﬁed that she did not see throwing
of bomb but her evidence showed that she had seen the whole incident. Conviction not
interfered with. Brij Lal v State of Haryana, (2002) SC 291 : 2002 Cr LJ 581 , minor difference in
the eye-witness version and medical evidence as to in which part of the head the bullet struck,
conviction maintained. Meharban Singh v State of MP, AIR 2002 MP 299 : 2002 Cr LJ 586 (SC)
villagers taking injured in bullock cart to hospital, death on the way, the injured person before his
death told them about his assailant, reliable, conviction, no interference. Majid v State of
Haryana, AIR 2002 SC 382 [LNIND 2001 SC 2827] , minor son of the deceased found to be

natural and reliable witness, conviction upheld. Sewaka v State of MP, AIR 2002 MP 50 : 2002 Cr
LJ 205 , murder of husband, wife grappled with killers but they escaped, moonlight
identiﬁcation, conviction maintained. Majju v State of MP, AIR 2001 SC 2930 [LNIND 2001 SC
2409] : 2001 Cr LJ 4762 , eye-witness account of the way in which the accused gave farsa (axe)
blows to the deceased found to be wholly trustworthy, post-mortem report that there were no
incised wounds was not allowed to overthrow the genuine eye-witness account. Conviction
maintained. Harisingh M Vasava v State of Gujarat, 2002 Cr LJ 1771 (SC), another case of
conviction because of good evidence. Rajesh v State of Gujarat, 2002 Cr LJ 1821 (SC),
conviction on the strength of technical evidence ﬁnger prints expert. Ram Kumar Laharia v State

of MP, AIR 2001 SC 556 [LNIND 2001 SC 76] : 2001 Cr LJ 712 , 11-year-old boy put into touch
with live electric wire and then threw into water alongwith the wire, conviction for murder.
Sambasivan v State of Kerala, AIR 1998 SC 2107 [LNIND 1998 SC 556] : 1998 Cr LJ 2924 , rival
trade unionists, one of them threw bombs on the members of the other, evidence of the
members of the victim union acceptable, conviction. Umesh Singh v State of Bihar, AIR 2000 SC
2111 [LNIND 2000 SC 871] : 2000 Cr LJ 6167 , the accused tried to take away paddy from the
thrashing ﬂoor. On resistance, came out with lathi blows and gun shots, killing one person,
convicted for murder. Swaran Singh v State of Punjab, AIR 2000 SC 2017 [LNIND 2000 SC 734] :
2000 Cr LJ 2780 , enmity between the accused and deceased, eye-witnesses, conviction.

Paramjit v State of Haryana, AIR 2000 SC 2038 [LNIND 2000 SC 878] : 2000 Cr LJ 2966 , both the
accused and deceased were armed with double barrel guns, yet it could not be said that the
accused was acting in self-defence, conviction. Manjeet Singh v State (NCT) of Delhi, AIR 2000
SC 1062 [LNIND 2000 SC 305] : 2000 Cr LJ 1439 , murder, natural family witnesses, conviction.
SN Dube v NB Bhoir, AIR 2000 SC 776 [LNIND 2000 SC 73] : 2000 Cr LJ 830 , conviction under
section 300 read with sections 120 and 149, eye-witnesses reliable. State of Karnataka v R
Yarappa Reddy, AIR 2000 SC 185 [LNIND 1999 SC 894] : 2000 Cr LJ 400 , conviction because of
clear evidence. In reference to the evidence of eye-witnesses, the court said that criminal courts
should not expect set reaction from eye-witnesses who see an incident like murder. State of

Maharashtra v Manohar, AIR 1998 SC 166 : 1998 Cr LJ 335 , re-appreciation of evidence,
acquittal of the accused by the High Court set-aside. Surendra Narain v State of UP, AIR 1998 SC
192 [LNIND 1997 SC 1689] : 1998 Cr LJ 359 (SC), a person shot to death while on rickshaw, co-
sitter on the rickshaw, witness, reliable, conviction, rickshaw puller not examined, not material,
evidence has to be weighed, not counted. Proof of motive is not necessary when the accused
being guilty is amply proved by evidence. Another ruling to the same effect, State of UP v Nahar
Singh, AIR 1998 SC 1328 [LNIND 1998 SC 215] : 1998 Cr LJ 2006 , motive proved in reference to
the main accused, also identiﬁcation evidence and dying declaration, convicted, others

acquitted. Jinnat Mia v State of Assam, AIR 1998 SC 533 [LNIND 1997 SC 1618] : 1998 Cr LJ 851
, killing a man while in bed, his wife being also injured. Her testimony led to conviction. Jagdish v
State of Haryana, AIR 1998 Sc 732 : 1998 Cr LJ 1099 , shooting down with gun, conviction, no

interference called for. Atmendra v State of Karnataka, AIR 1998 SC 1985 [LNIND 1998 SC 386] :
1998 Cr LJ 2838 , killing by intentional shooting not accidental. Ram Gopal v State of Rajasthan,
AIR 1998 SC 2598 : 1998 Cr LJ 4066 , death by gunshot injury before home inmates, who being
natural witnesses, conviction.
Ram Khilari v State of Rajasthan, AIR 1999 SC 1002 [LNIND 1999 SC 1347] : 1999 Cr LJ 1450 ,
conviction possible on the basis of a confession. Bhaskaran v State of Kerala, AIR 1998 Sc 476
[LNIND 1997 SC 1562] : 1998 Cr LJ 684 , death caused by stabbing, conviction because of
reliable witnesses. Bharat Singh v State of UP, AIR 1999 SC 717 [LNIND 1998 SC 1112] : 1999 Cr
LJ 829 , accused convicted on the evidence of eye-witnesses, it was immaterial that the
personal body guards of the deceased were not examined. Daleep Singh v State of UP, AIR 1997
SC 2245 : 1997 Cr LJ 2760 , evidence of eye-witnesses supported by FIR and also by medical

evidence, conviction proper, Baitullah v State of UP, AIR 1997 SC 3946 [LNIND 1997 SC 1322] :
1997 Cr LJ 4644 , outspoken murder, proof of motive not necessary. State of Gujarat v
Anirudhsingh, AIR 1997 SC 2780 [LNIND 1997 SCDRCHYD 22] : 1997 Cr LJ 3397 , ﬂag-hoisting
ceremony, hitting the deceased from behind with unlicenced ﬁrearm, conviction for murder,
Kailash v State of UP, AIR 1997 SC 2835 [LNIND 1997 SC 1686] : 1997 Cr LJ 3511 , conviction for
murder of three members of family, reliable witnesses. Dalip Singh v State of Punjab, AIR 1997
SC 2985 [LNIND 1997 SC 882] : 1997 Cr LJ 3647 , presence of eye-witnesses, not doubtful,
supported by medical evidence, defence version found false, conviction. Baleshwar Mandal v
State of Bihar, AIR 1997 SC 3471 [LNIND 1997 SC 1067] : 1997 Cr LJ 4084 , conviction because

of reliable eye-witnesses, inspite of irregularities by investigating oﬃcer. Nikka Singh v State of
Punjab, AIR 1997 SC 3676 [LNIND 1996 SC 1644] : 1977 Cr LJ 4651 , conviction conﬁrmed,
reliable child eye-witness. Sanjeev Kumar v State of Punjab, AIR 1997 SC 3717 [LNIND 1997 SC
811] : 1997 Cr LJ 3178 , reliable prosecution witnesses, conviction. Shabir Mohmad Syed v State
of Maharashtra, AIR 1997 SC 3808 [LNIND 1997 SC 820] : 1997 Cr LJ 4416 , one of the accused
persons could not be identiﬁed and, therefore, acquitted, others convicted.
Murarilal Jivram Sharma v State of Maharashtra, AIR 1997 SC 1593 : 1997 Cr LJ 782 , death
caused with country made pistol, proved by medical, technical and eye-witness account,
conviction. Balbir Singh v State of Rajasthan, AIR 1997 SC 1704 [LNIND 1997 SC 51] : 1997 Cr LJ

1179 , death caused by inﬂicting injuries, evidence of approver corroborated by prosecution
witnesses, conviction. Nathuni Yadav v State of Bihar, AIR 1997 SC 1808 : (1998) 9 SCC 238 ,
though moonless night, but witnesses identiﬁed the assailants because they were known
persons, conviction.
Kanta Ramudu v State of AP, AIR 1997 SC 2428 [LNINDORD 1997 SC 122] : 1997 SCC (Cr) 573,
causing death by piercing sharp-edged weapon into the heart of the deceased, the accused
declaring his intention to do away with him. Rohtas v State of UP, AIR 1997 SC 2444 [LNIND
1997 SC 772] : 1997 Cr LJ 2981 , accused persons came with a determination to kill their
victims and they did kill them with spears, convicted. Mithilesh Upadhyay v State of Bihar, AIR
1997 SC 2457 [LNIND 1997 SC 714] : 1997 SCC (Cr) 716, eye-witness account that each of the

three accused ﬁred at their victim and each shot hit him, not to be disregarded for the fact that
only bullet wounds were found, one shot could have missed the target, conviction. Manmohan
Singh v State of Punjab, AIR 1997 Sc 1773 : 1997 Cr LJ 1632 , concurrent ﬁnding of guilt by the
trial court and High Court. No interference by the Supreme Court. Bhartu v State of Haryana, AIR
1997 SC 281 [LNIND 1996 SC 1727] : 1997 Cr LJ 242 , conviction for murder. Navakoti Veera
Raghavalu v State of AP, AIR 1997 SC 727 [LNIND 1997 SC 61] : 1997 Cr LJ 841 , disabled son
killed by father by setting him on ﬁre, clear dying declaration, motive to grab property gifted to
him by grandfather.

Raghbir Singh v State of Haryana, AIR 2000 SC 3395 [LNIND 2000 SC 678] : 2000 Cr LJ 2463 ,
gunshot injury gave risk to complications of intervening discussion, conviction for murder,
enhancement of ﬁne from Rs. 2,000 to Rs. 10,000 was set aside because there was no apparent
justiﬁcation for the enhancement. Geeta v State of Karnataka, AIR 2000 SC 3475 [LNIND 1999
SC 1091] : 2000 Cr LJ 3187 , killer of a lady guest found guilty of murder and theft of ornaments.
Kothakulava Naga Subba Reddy v Public Prosecutor, AP High Court, AIR 2000 SC 3480 [LNIND
2000 SC 523] : 2000 Cr LJ 3452 , a relative who had come from another village, testiﬁed to the
assault on the deceased. His testimony became the basis of conviction. Lal Ji Singh v State of
UP, AIR 2000 SC 3594 , the accused party indiscriminately ﬁred and assaulted the prosecutor,
killing four, dying declaration of woman deceased, relied upon to convict. Ajay Singh v State of
Bihar, AIR 2000 SC 3538 [LNIND 2000 SC 757] , two motor cycle borne persons shot at the

deceased with their respective weapons, testimony of two eye-witnesses which was
unimpeachable was relied upon for conviction, irrespective of the fact that one pistol was
examined by ballistic expert or that medical evidence was different from the eye-witness
account. Dharmendra Singh v State of Gujarat, AIR 2002 SC 1937 [LNIND 2002 SC 302] (Supp) :
2002 Cr LJ 2631 (SC), the accused fatally assaulted his two sons after sending his wife away
but she returned home and witnessed the incident. Conviction for murder conﬁrmed. Sukhdev
Yadav v State of Bihar, 2002 Cr LJ 80 (SC), no interference in conviction. Munna v State of
Rajasthan, 2001 Cr LJ 4127 (Raj), murder by hitting and running over by station wagon. State of
TN v Kutty, 2001 Cr LJ 4169 (SC), killer of two women for whom he worked, all the details of the

incident captured, conviction. Firozuddin Basheeruddin v State of Kerala, 2001 Cr LJ 4215 (SC),
conspiracy and murder, conviction. Nelabothu v State of AP, 2001 Cr LJ 509 , murder by accused
proved no interference in conviction. Gura Singh v State of Rajasthan, 2001 Cr LJ 487 (SC), the
killer of his father, suﬃciently connected by evidence, conviction. State (NCT) of Delhi v Sunil,
2001 Cr LJ 604 (SC), medical report of death by bruises all over the body, murder, conviction.
Suryanarayana v State of Karnataka, 2001 Cr LJ 705 (SC), murder witnessed by child, trustworthy,
conviction sustained. Vijay Pal Singh v State (NCT) of Delhi, 2001 Cr LJ 3294 (SC) murder, eye-
witnesses, acquittal not to be set aside. Gade Lakshmi Mangraju v State of AP, 2001 Cr LJ 3317

(SC), complete chain of events formed by circumstances, conviction. Bibhachha v State of
Orissa, 2001 Cr LJ 2895 (SC) : 1998 Cr LJ 1553 (Ori), connection of the accused with murder
proved. Sandeep v State of Haryana, 2001 Cr LJ 1456 : AIR 2001 SC 1103 [LNIND 2001 SC 552] ,
recoveries, reports and witnesses showed the accused to be the culprit, conviction.
Pradeep Kumar v State of HP, 2001 Cr LJ 1517 (HP), causing death of the victim woman by
throwing kerosene and setting her on ﬁre. Dhananjaya Reddy v State of Karnataka, 2001 Cr LJ
1712 (SC), killing husband with the help of paramour, wife given beneﬁt of doubt, paramour
convicted. Munshi Prasad v State of Bihar, 2001 Cr LJ 4708 (SC), the fact of 400 to 500 yards
away from the place of occurrence, not a good alibi. One could come back after causing death.

Manish Dixit v State of Rajasthan, 2001 Cr LJ 133 (SC), conviction for abduction and murder of a
jeweler. Surendra Singh Rautela v State of Bihar, 2002 Cr LJ 555 (SC), ﬁring at inmates of a car,
one killed, another injured, identiﬁcation of the assailants by the injured person could not be
discussed only because still another inmate in the car did not support the prosecution case.
Rama Mangaruji v State of Maharashtra, 2002 Cr LJ 573 (SC), accused threw crude bomb on his
brother, murder, and not coming under section 304.
State of UP v Babu Ram, 2000 Cr LJ 2457 : AIR 2000 SC 1735 [LNIND 2000 SC 647] , the accused
caused death of his father, mother and brother, bodies etc. recovered at his instance, not
entitled to acquittal. Bahadur Naik v State of Bihar, 2000 Cr LJ 2466 : AIR 2000 SC 1582 [LNIND

2000 SC 884] , meditation can develop on the spot. Two accused caught hold of their victim,

another accused inﬂicted ﬁve to six dagger blows, conviction was not converted from murder to
Ammini v State of Kerala, 1998 Cr LJ 481 (SC), killing a woman and her two children by
administering potassium cyanide, conviction. Darshan v State of Haryana, AIR 2002 SC 2344 ,
murderous assault, plea of self-defence found to be false, conviction. Koli Lakhmanbhai
Chanabhai v State of Gujarat, 2000 Cr LJ 408 : AIR 2000 SC 210 [LNIND 1999 SC 1023] , injuries
caused to death, conviction. Jagdish v State of MP, 2000 Cr LJ 2955 : AIR 2000 SC 2059 [LNIND
2000 SC 842] , injuries inﬂicted with intention to cause death, conviction. Paramjit Singh v State
of Haryana, 2000 Cr LJ 2966 : AIR 2000 Sc 2038 [LNIND 2000 SC 878] , murder with gun shots
proved, conviction. State of WB v Mir Mohd Omar, 2000 Cr LJ 4047 : AIR 2000 SC 2988 [LNIND
2000 SC 1163] , the victim abducted and killed, conviction for murder. The court said that when

abductors are not able to explain anything about the victim, the court could presume that he
must have been killed. Md Mohiruddin v State of Punjab, 1999 Cr LJ 461 : AIR 1999 Sc 307
[LNIND 1998 SC 645] , incriminatory circumstances proved guilt of accused, rightly convicted.
Amrik Singh v State of Punjab, 1999 Cr LJ 463 : 1998 SCC (Cr) 944, conviction for murder. State
of Rajasthan v Major Singh, 1999 Cr LJ 1631 : AIR 1999 SC 1073 [LNIND 1999 SC 168] ,
conviction for deliberate murder by several persons. Nirmal Singh v State of Haryana, 1999 Cr LJ
1836 : AIR 1999 SC 1221 [LNIND 1999 SC 1228] , earlier rape convict, killed ﬁve members of the
family of victim, conviction for murder, proper. Siddique v State of UP, 1999 Cr LJ 2521 : AIR
1999 SC 1690 [LNIND 1999 SC 416] , no interference in conviction of accused because of

proper evidence. Ram Singh v State of UP, 1999 Cr LJ 2581 : AIR 1999 Sc 1754 [LNIND 1999 SC
1260] , shooting down the victim, conviction despite conﬂict between ocular and medical
evidence. State of Rajasthan v Teja Ram, 1999 Cr LJ 2588 : AIR 1999 SC 1776 [LNIND 1999 SC
279] , blows to death caused with axes, which were recovered at the instance of the accused,
other evidence, conviction. Surjit Singh v State of Punjab, 1999 Cr LJ 3485 : AIR 1999 SC 2855
[LNIND 1999 SC 499] , murder by accused proved, conviction. State of UP v Hem Raj, 1999 Cr LJ
3489 : AIR 1999 Sc 2147 [LNIND 1999 SC 1254] , assault by three, eye-witnesses deposed fatal
blow only by accused, convicted, rest acquitted. State of TN v Rajendran, 1999 Cr LJ 4552 : AIR
1999 SC 3535 [LNIND 1999 SC 857] , burnt two children and their mother alive by putting their

hut on ﬁre, conviction. Ramesh Laxman Gavli v State of MP, 1999 Cr LJ 4603 : AIR 1999 Sc 3759
[LNIND 1999 SC 825] , conviction not interfered with as the incident was witnessed by reliable
persons. Ramanbhai Naranbhai v State of Gujarat, 1999 Cr LJ 5013 : (2000) 1 SCC 358 [LNIND
1999 SC 1067] , killing by unlawful assembly, conviction. Rachpal Singh v State of Punjab, AIR
2002 Sc 2710 [LNIND 2002 SC 451] : 2000 Cr LJ 2710 , conviction, medical as well as ocular
evidence. Rakesh v State of UP, AIR 2002 Sc 2721 [LNIND 2002 SC 442] : 2002 Cr LJ 3551 ,
conviction, ﬁndings of Sessions Judge were described as clearly perverse and unreasonable.
Podapati v State of AP, AIR 2002 SC 2724 [LNIND 2002 SC 869] : 2002 Cr LJ 3555 , killed one's

uncle, witnessed by four persons, conviction. Gajula v State of AP, 2002 Cr LJ 3565 (SC), faction
ﬁghts among villagers, murders, conviction.
Bhupendra Singh v State of Gujarat, 1998 Cr LJ 57 : AIR 1997 SC 3790 [LNIND 1997 SC 1378] ,
police constable shooting down head constable, defence of accident not allowed, conviction.
For details, see discussion under section 80. Harcharan Singh v State of Rajasthan, 1998 Cr LJ
398 : AIR 1998 SC 244 [LNIND 1997 SC 1350] , murder of bus-conductor, witness a bus
passenger, his testimony not distrusted for the fact that he named a wrong commodity than that
which he had gone to buy. Saudagar Singh v State of Haryana, 1998 Cr LJ 62 : AIR 1998 SC 28
[LNIND 1997 SC 890] , a witness about it was proved that he was won over by the accused, no

adverse presumption was drawn against the prosecution. Conviction of the accused who ﬁred

the shot, others acquitted. Pakkirisamy v State of TN, 1998 Cr LJ 89 : AIR 1998 SC 107 [LNIND
1997 SC 1291] , said person caused death and took away jewellery and other items,
confessions, conviction. Malkhan v State of UP, 1998 Cr LJ 96 (All), gun-shot injury leading to
peritonitis, which became cause of death, the liability of the accused not lessened by reason of
intervention of deceased. Ratnakar Dandasena v State of Orissa, 1998 Cr LJ 295 (Ori),
misunderstanding over partition of land, hitting with axe causing death of victim, conviction.
Charan Singh v State of Punjab, 1998 Cr LJ 657 (SC); Lakha Singh v State of Punjab, 1998 Cr LJ
657 (SC), death caused by gandasa blows, both accused rightly convicted. Bhaskaran v State of
Kerala, 1998 Cr LJ 684 : AIR 1998 SC 476 [LNIND 1997 SC 1562] , death by stabbing, reliable
eye-witnesses, conviction. Subhash Bassi v State, 1998 Cr LJ 719 (Del), single witness reliable,
conviction. Vasant v State of Maharashtra, 1998 Cr LJ 844 : AIR 1998 SC 699 [LNIND 1997 SC

1599] , running over by jeep, conviction for murder. Elkur Jameesu v State of AP, 1998 Cr LJ 846 :
AIR 1998 SC 1492 [LNIND 1997 SC 1513] , entry into house and stabbing a person there who
died. His son and wife saw the intruder running away, being told by the injured that the person
seen running away injured him. Conviction. Jagdish v State of Haryana, 1998 Cr LJ 1099 : AIR
1998 SC 732 , murder, accused connected with it by eye-witnesses and medical evidence,
conviction not interfered with. Bhola Turha v State of Bihar, 1998 Cr LJ 1102 : AIR 1998 SC 1515
[LNIND 1997 SC 1500] , conviction only on the basis of dying declaration, held proper. Kamlesh
Rani v State of Haryana, 1998 Cr LJ 1251 : AIR 1998 SC 1534 [LNIND 1997 SC 1645] , conviction

on the basis of dying declaration of deceased wife. Rajendra Mahton v State of Bihar, 1998 Cr LJ
1254 : AIR 1998 SC 1546 [LNIND 1997 SC 1589] , shopkeeper killed at his shop, killers identiﬁed
by home people, conviction. Mahipal v State of Rajasthan, 1998 Cr LJ 1257 : AIR 1998 SC 864
[LNIND 1998 SC 25] , recovery of instrument of murder at the instance of the accused,
conviction. Vinayak Shivajirao Pol v State of Maharashtra, 1998 Cr LJ 1558 : AIR 1998 SC 1096
[LNIND 1998 SC 96] , extra-judicial confession, recoveries also at the instance of the accused,
conviction. George v State of Kerala, 1998 Cr LJ 2034 : AIR 1988 1376, main accused convicted,
others not identiﬁed acquitted. Dharmendra Singh v State of UP, 1998 Cr LJ 2064 (SC),

conviction for multiple murders. Mukut Singh v State, 1998 Cr LJ 2084 (All), murder, two eye-
witnesses naturally at the spot, conviction. Sankara Nagarmalleswara v State of AP, 1998 Cr LJ
2270 (SC), dying declaration, eye-witnesses to murder reliable, conviction; GS Walia v State of
Punjab, 1998 Cr LJ 2524 (SC), murder with axes and lathi blows, conviction. Rewa Ram v Teja,
1998 Cr LJ 2558 : AIR 1998 SC 2883 [LNIND 1998 SC 283] , accused persons assaulted
deceased with a variety of weapons. Accused suffered about 8-10 injuries, whereas the
deceased suffered 51 injuries. No evidence to show who caused ﬁnal fatal injury. Conviction
under section 326. Nachhattar Singh v State of Punjab, 1998 Cr LJ 2560 : AIR 1998 SC 2884
[LNIND 1998 SC 282] , intentional killing of a woman in her house, conviction. Velan Kutty v State

of Kerala, 1998 Cr LJ : AIR 1998 SC 2888 [LNIND 1998 SC 250] , assault on victim with chopper,
conviction. State of Rajasthan v Satyanaranyan, 1998 Cr LJ 2911 : AIR 1998 SC 2060 [LNIND
1998 SC 88] , murderous attack, brother of the victim intervened, attack fell on him, death,
conviction under section 304, Part I. Govindsami v State of TN, 1998 Cr LJ 2913 : AIR 1998 SC
2889 [LNIND 1998 SC 471] , boundary dispute, ﬁve murders, recoveries, conviction. Sambasivan
v State of Kerala, 1998 Cr LJ 2924 : AIR 1998 SC 2017 , trade union rivalry, bombs thrown on rival
union members while they were relaxing, conviction. Rajendra Kumar v State of UP, 1998 Cr LJ
1293 (SC), no adverse inference against prosecution for failure to examine another witness.

Gajjan Singh v State of Punjab, 1998 Cr LJ 3609 : AIR 1998 SC 2417 [LNIND 1998 SC 508] , two
accused, both ﬁred, one ﬁre hitting head, the other chest, conviction of both for murder. Brijlala
Pd Sinha v State of Bihar, 1998 Cr LJ 3611 : AIR 1998 SC 2443 [LNIND 1998 SC 598] , police

party ﬁring at a running car, killing inmates, their defence of counter-ﬁre failed because there
were no marks on their vehicle, conviction. Death sentence reduced to life imprisonment
because no aggravating circumstances were shown than the mere fact that they were police
people. State of HP v Manohar Singh Thakur, 1998 Cr LJ 3630 : AIR 1998 SC 2941 [LNIND 1998
SC 660] , killing for greed, wife witness, conviction. National Commission for Women v State of
UP, 1998 Cr LJ 4044 : AIR 1998 SC 2726 [LNIND 1998 SC 776] , deaths in a hostility between
two neighbouring families, conviction. Adya Singh v State of Bihar, 1998 Cr LJ 4052 : AIR 1998
SC 3011 [LNIND 1998 SC 667] , evidence of eye-witnesses accepted, it seemed that the doctor
was trying to help the accused-compounder. Dule v State of MP, 1998 Cr LJ 4073 : AIR 1998 SC
2756 [LNIND 1998 SC 839] , assault on head with sword, conviction for murder. Jangeer Singh v
State of Rajasthan, 1998 Cr LJ 4087 : AIR 1998 SC 2787 [LNIND 1999 PNH 698] , intentional

murder, conviction. Uday Kumar v State of Karnataka, 1998 Cr LJ 4622 : AIR 1998 SC 3317
[LNIND 1998 SC 908] , murder of child of four years, complete chain of circumstances,
conviction. Kommu Vinja Rao v State of AP, 1998 Cr LJ 2523 : AIR 1998 SC 2856 [LNIND 1998
SC 385] , conviction for murder. Bhagirath v State of Haryana, AIR 1997 SC 234 [LNIND 1996 SC
1769] : 1997 Cr LJ 81 , statement taken by head constable for ﬁling report, the woman died, the
statement regarded as a dying declaration. Meharban Singh v State of MP, AIR 1997 SC 1538 :
1997 Cr LJ 766 , dying declaration, recoveries, conviction. Krishan v State of Haryana, AIR 1997
SC 2598 [LNIND 1997 SC 770] : 1997 Cr LJ 3180 , killing jail inmate, conviction. Asha v State of
Rajasthan, AIR 1997 SC 2828 [LNIND 1997 SC 844] : 1997 Cr LJ 3508 , eye-witnesses friends of

the victim, could not be discredited for that reason alone. They gave details of the assault and
the part played by each of the assailants. Shyam v State, 1997 Cr LJ 35 (Del), murder by
poisoning, possession of poison need not be proved in all cases. The accused was seen by
witnesses administering poison, inference could be drawn that he was in possession of poison.
Ramkishore Patel v State of MP, 1997 Cr LJ 207 (SC) : 1996 AIR SCW 3939, conviction upheld.
Godaharish Mishra v Kuntalal Mishra, AIR 1997 SC 286 [LNIND 1996 SC 1719] : 1997 Cr LJ 246 ,
circumstantial evidence was absolutely clinching in establishing complicity of the accused in
murder. Acquittal set aside. Suba Singh v Harbhej Singh, 1997 Cr LJ 727 : AIR 1997 SC 1487
[LNIND 1996 SC 1929] , accused formed unlawful assembly and assaulted the victim, the latter's

relatives and other eye-witnesses did not intervene to protect him. It could not be a ground for
acquittal. Finding of the High Court that because of the dark the accused could not have been
identiﬁed was held to be totally imaginary. Naresh Mohanlal Jaiswal v State of Maharashtra, 1997
Cr LJ 761 : AIR 1997 SC 1523 [LNIND 1996 SC 1658] , witnesses did not disclose for fear, the
courts below found that there was suﬃcient light from the lamp post. State of AP v Gangula
Satya Murthy, AIR 1997 SC 1588 [LNIND 1996 SC 2665] : 1997 Cr LJ 774 , ﬁnding of dead body,
showing homicidal death, on a cot in the accused's house. In the absence of any explanation by
the accused, an adverse presumption was drawn against him.
Mavila Thamban Nambiar v State of Kerala, AIR 1997 SC 687 [LNIND 1997 SC 24] : 1997 Cr LJ

831 , conviction. Prem v Daula, AIR 1997 SC 715 [LNIND 1997 SC 64] : 1997 Cr LJ 838 ,
conviction for murder, two accused held the victim, the third struck him dead. Lalit Kumar v
State, 1997 Cr LJ 848 (Del), prosecution evidence consistently and conclusively established guilt
of the accused. Nagoor Naifa v State of TN, 1997 Cr LJ 880 (Mad), sub-tenant set the landlord
family on ﬁre in their room, because they had locked his room, conviction. Rataniya Bhima Bhil v
State of Gujarat, 1997 Cr LJ 891 (Guj), murder, conviction. Rabloo Das v State of WB, 1997 Cr LJ
1025 (Cal), conviction for intentional murder. Sukhadeo v State of Maharashtra, 1997 Cr LJ 1059
(Bom), prosecution not bound to explain injuries of minor nature on the person of the accused.
Conviction proper. Pyara v State of Rajasthan, 1997 Cr LJ 1065 (Raj), intentional murder,

conviction sustained though recoveries of incriminating articles not proved. Sunil Kumar v State

of Rajasthan, 1997 Cr LJ 1081 (Raj), conviction for intentional murder properly proved. State of
UP v Dan Singh, 1997 Cr LJ 1150 : AIR 1997 SC 1654 [LNIND 1997 SC 162] , murder of marriage
party of Scheduled Caste, for details see discussion under section 149. Teja Singh v State
Punjab, AIR 1997 SC 921 : 1997 Cr LJ 1175 , conviction, multiple injuries, theory of accident
ruled out. Yashin v State of Rajasthan, AIR 1997 SC 869 [LNIND 1997 SC 68] : 1997 Cr LJ 1179 ,
intentional murder, properly proved. D Venkatasan v State of TN, 1997 Cr LJ 1287 (Mad),
conviction for murder. Subramaniam v State of TN, 1997 Cr LJ 1359 (Mad), conviction for murder
of wife. Shanker v State of Rajasthan, 1997 Cr LJ 1388 (Raj), murder with gunshot, conviction,
non-recovery of empty cartridge not material. Jiya Ram v State of Rajasthan, 1997 Cr LJ 1423
(Raj), connection of accused with murder established. State of Rajasthan v Ali (Hanif), 1997 Cr

LJ 1529 : AIR 1997 SC 1023 [LNIND 1997 SC 35] , accused persons, variously armed, killed two
and attempted to kill another, conviction proper, two acquitted because eye-witnesses did not
say anything against them. Narain Singh v State of Rajasthan, 1997 Cr LJ 1562 (Raj), main
accused persons convicted, others acquitted. Baijnath v State of UP, 1997 Cr LJ 1691 (All),
conviction on the basis of dying declaration. Baijnath v State of UP, 1997 Cr LJ 1691 (All), non-
explanation of injury on deceased, not fatal. Satnamsingh v State of Rajasthan, 1997 Cr LJ 1778
(Raj), killing by crushing under wheels of truck, conviction. Mouruddin Choudhury v State of
Assam, 1997 Cr LJ 1801 (Gau), conviction for intentional murder, Laxman v State of Karnataka,

1997 Cr LJ 1806 (Kant), conviction, not mentioning to accused the statement under section 313,
Cr PC, 1973 while recording his statement, not material because no prejudice caused. Gobind
Singh v State of Rajasthan, 1997 Cr LJ 1825 (Raj), main accused convicted, co-accused
acquitted. Balachandra v State of Karnataka, 1997 Cr LJ 1883 (Kant), murder of husband
witnessed by wife, sole witness, conviction. Som Nath v State, 1997 Cr LJ 1897 (P&H), murder by
accused proved beyond doubt, in view of clear evidence of time of incident, medical evidence of
rigor mortis, not considered for determining time. State of Haryana v Mewa Singh, 1997 Cr LJ
1906 : AIR 1997 SC 1407 , murder in protest against love affair, injuries on persons of accused

could be self-inﬂicted, no right of private defence. Gayadhar Naik v State of Orissa, 1997 Cr LJ
(Ori) two-three blows on head, both were in a drunken state, no undue advantage, no cruel
manner, conviction altered to section 304. Pandappa Hanumappa Hanamar v State of Karnataka,
AIR 1997 SC 3663 [LNIND 1997 SC 363] : 1997 Cr LJ 2493 , ghastly murder, order of acquittal
set aside, eye-witnesses, minor discrepancies not damaging their testimony, injuries on person
of accused, superﬁcial. Jit Singh v State of Punjab, AIR 1997 SC 3676 [LNIND 1996 SC 1644] :
1997 Cr LJ 2500 , evidence of child witness, conviction.
Amit v State of UP, (2012) 4 SCC 107 [LNIND 2012 SC 138] : AIR 2012 SC 1433 [LNIND 2012 SC
138] and State of UP v Iqram, AIR 2011 SC 2296 [LNIND 2011 SC 556] : 2011 8 SCC 80 [LNIND

2011 SC 556] : 2011 Cr LJ 3931 , Non-recovery of weapon insigniﬁcant. Katta Kumudu v State of
AP, AIR 1997 SC 2428 [LNINDORD 1997 SC 122] : 1997 Cr LJ 2979 , soon before the incident,
the accused uttered words saying what he would do with him (the deceased). The court said
that intention to kill him could be inferred from these words. Dwarkanath Tiwary v State of Bihar,
AIR 1997 SC 2457 [LNIND 1997 SC 714] : 1997 Cr LJ 2983 , each of the accused persons ﬁred at
deceased in quick succession and hit, conviction of all though medical evidence was of only
two bullet injuries. State of UP v Abdul, AIR 1997 SC 2512 [LNIND 1997 SC 790] : 1997 Cr LJ
2997 (SC), High Court erred in ordering acquittal, set aside. Razakali Khureshi v State of Gujarat,

AIR 1999 SC 2538 : 1997 Cr LJ 3119 , conviction did not suffer from any inﬁrmity. Pratapaneni
Ravi Kumar v State of AP, AIR 1997 SC 2810 [LNIND 1997 SC 892] : 1997 Cr LJ 3505 , murder
caused in furtherance of common object, all members guilty, it being immaterial whether all of
them had beaten the deceased. Asha v State of Rajasthan, AIR 1997 SC 2828 [LNIND 1997 SC
844] : 1997 Cr LJ 3508 , three motor-cycle borne accused persons, two of them threw acid on

victim, and caused injuries, their conviction proper. Mangat Rai v State of Punjab, AIR 1997 SC
2838 : 1997 Cr LJ 3514 , murder of wife, conviction. Madru Singh v State of MP, 1997 Cr LJ 4398
: AIR 1997 SC 3527 [LNIND 1997 SC 1182] , presence and evidence of eye-witnesses could not
be doubted on the basis of some trivial contradictions. State of Punjab v Jaswant Singh, 1997 Cr
LJ 4428 : AIR 1997 SC 3821 [LNIND 1997 SC 1200] , private defence not available because
simple injuries on the person of the accused found to be self-inﬂicted, conviction under section
302. Rukma v Jala, AIR 1997 SC 3907 [LNIND 1997 SC 1069] : 1997 Cr LJ 4651 , complaint
about investigation not sustained, the complainant party suffering greater number of injuries
than the accused could not be entitled to private defence. Baimullah v State of UP, 1997 Cr LJ
4644 : AIR 1997 SC 3946 [LNIND 1997 SC 1322] , injury caused on vital part of body of an
unarmed person, plea of private defence negatived. Gopal Madadeo v State of Maharashtra, 1997

Cr LJ 2425 (Bom), the fact that the accused was of 76 years of age was no reason for his not
serving his term of life imprisonment when he was squarely guilty of the offence. Amar Malla v
State of Tripura, AIR 2002 SC 3052 [LNIND 2002 SC 517] , armed attack at a meeting by accused
persons who were also invited to attend, killings, conviction, non-explanation of injuries on
accused persons cannot by itself be a ground for throwing out the prosecution case. Mohibur
Rahman v State of Assam, AIR 2002 SC 3064 , accused last seen in the company of deceased,
he gave false explanations about the whereabouts of the deceased, dead body cut into pieces
recovered from different places pointed out by the accused. Conviction of the accused was not
interfered with. Mahadeo Sahni v State of Bihar, AIR 2002 SC 3032 [LNIND 2002 SC 492] , injuries

caused to deceased by sharp-edged and blunt weapons, concurrent ﬁnding that the accused
persons inﬂicted injuries in prosecution of their common object of doing away with the lives of
the deceased persons. Conviction under section 302 not interfered with.
Lakshmi v State of UP, AIR 2002 SC 3119 [LNIND 2002 SC 534] , a charge of murder can be
substantiated even in the absence of identiﬁcation and cause of death. Bodh Raj v State of J&K,
AIR 2002 SC 3164 [LNIND 2002 SC 539] , conviction for murder, elimination of creditor by
person indebted. Sahadevan v State, AIR 2003 SC 215 [LNIND 2002 SC 688] : 2003 Cr LJ 424 ,
conviction for murder under sections 300, 346, 302 read with section 34. Alamgir v State (NCT,
Delhi), AIR 2003 SC 282 [LNIND 2002 SC 693] : 2003 Cr LJ 456 , staying with wife in guest house

and causing her death, circumstantial evidence been proved the case, conviction. P
Venkateswarlu v State of AP, 2003 Cr LJ 837 : AIR 2003 SC 574 [LNIND 2002 SC 782] , whole
village divided on political lines. Death caused by one faction of a person belonging to the other,
conviction because of good evidence. State of UP v Jagdeo, AIR 2003 SC 660 [LNIND 2002 SC
781] : 2003 Cr LJ 844 , ghastly crime, all the eight accused persons, armed with deadly
weapons, attacked unarmed members of the victim's family sleeping in the open at night. The
accused could not be acquitted only because the investigation was faulty. Suraj Bhan v State of
Haryana, AIR 2003 SC 785 [LNIND 2002 SC 826] , the evidence of the injured eye-witness that
the accused administered total blow on head of his victim, it was corroborated by medical

evidence, the ﬁnding of the High Court that the accused was responsible for the death was held
to be proper. State of Karnataka v Panchakshari Gurupadayya Hiranath, AIR 2003 SC 825 [LNIND
2002 SC 856] , land dispute leading to attack on deceased with a murderous weapon
established by evidence. Conviction. State of UP v Man Singh, 2003 Cr LJ 82 , reversal of
conviction held improper, good evidence was there. Amarsingh v Balwinder Singh, 2003 Cr LJ
1282 (SC), conviction for murder was based upon direct testimony of eye-witnesses under the
ﬁnding of the trial court that the prosecution case was fully established, the Supreme Court held
that acquittal by the High Court by reversing conviction was not proper. State of UP v Premi,
2003 Cr LJ 1554 : AIR 2003 SC 1750 [LNIND 2003 SC 232] , the accused persons entered the

house of the deceased at midnight armed with country made pistol, inﬂicted injury on the head

with great force and caused death. The court said that the mere fact that only one injury was
caused was not enough to alter the conviction from section 302 to section 304. Gaya Yadav v
State of Bihar, 2003 Cr LJ 1564 : AIR 2003 SC 1759 [LNIND 2003 SC 215] , proper evidence for
conviction. Kanaksingh v State of Gujarat, 2003 Cr LJ 855 (SC), killing of wife, conviction.
Ajitsingh Andubha Parmal v State of Gujarat, AIR 2002 SC 3469 [LNIND 2002 SC 609] , there was
speciﬁc and clear evidence that the accused gave the ﬁrst two knife blows and further serious
injuries by chasing him. Concurrent ﬁnding of fact as to guilt, no interference. Mohar v State of
UP, AIR 2003 SC 3279 , conviction because of eye-witnesses. State of Karnataka v David Razario,
AIR 2002 SC 3272 [LNIND 2002 SC 583] , conviction for robbery and murder. Shyam Sunder v
State of Chhatisgarh, AIR 2002 SC 3292 [LNIND 2002 SC 1866] , conviction for murder, eye-

witnesses. Dana Yadav v State of Bihar, AIR 2002 SC 3325 [LNIND 2002 SC 574] , conviction on
the basis of eye-witnesses. Gyasiram v State of MP, AIR 2003 SC 2097 [LNIND 2003 SC 1] , the
accused party waited for their victim, ﬁred at him, killing witnessed, eye-witnesses reliable,
conviction. State of UP v Ram Sewak, AIR 2003 SC 2141 [LNIND 2002 SC 828] , properly
witnessed case, acquittal was held to be not proper. Rambai v State of Chhatisgarh, AIR 2002 SC
3492 [LNIND 2002 SC 635] , conviction on the basis of dying declaration. Shamsher Singh v
State of Haryana, AIR 2002 SC 3480 [LNIND 2002 SC 605] , eye-witnesses, recoveries of
weapons, etc, conviction. Swaran Singh v State of Punjab, AIR 2002 SC 3652 [LNIND 2002 SC
639] , credit of eye-witnesses could not be shaken, conviction. G Laxmanna v State of AP, AIR

2002 SC 3685 , relative witnesses, outstanding enmity, conviction. Thaman Kumar v State, UT of
Chandigarh, 2003 Cr LJ 3070 (SC), murder charge proved by direct evidence, not allowed to be
shaken by hypothetical medical evidence. State of UP v Rasid, 2003 Cr LJ 2011 (SC), time of
killing, if it were after day-break, identiﬁcation of the assailants was possible, this was the stand
of the eye-witnesses, but the High Court went by the medical evidence of presence of semi-
digested food in the stomach of the deceased which showed that the occurrence must belong
to the night. The Supreme Court said that medical evidence was not clear and, therefore, the
eye-witness account had to be preferred. Rajendra Prabhu Chikane v State of Maharashtra, (2007)
13 SCC 511 [LNIND 2007 SC 515] : 2007 Cr LJ 3410 , murder by accused proved beyond

reasonable doubt, conviction upheld. MA Sattar v State of AP, (2008) 11 SCC 201 [LNIND 2008
SC 754] , clear proof of murder by accused. Umar Md v State of Rajasthan, (2007) 14 SCC 711
[LNIND 2007 SC 1459] : 2008 Cr LJ 816 .
38.  Rampal Singh v State of UP, 2012 Cr LJ 3765 : (2012) 8 SCC 289 [LNIND 2012 SC 425] .
39.  Arjun v State of Rajasthan, (1995) 1 Cr LJ 410 : AIR 1994 SC 2507 [LNIND 1994 SC 604] ,
concurrent ﬁnding of courts below as to intentional murder, not interfered with in appeal. Ram
Kumar v State of Haryana, 1995 Supp (1) SCC 248 : 1994 Cr LJ 3836 (SC), conviction on the
evidence of injured eye-witness. Sarbir Singh v State of Punjab, 1993 AIR SCW 807 : 1993 Cr LJ
1395 (SC), circumstantial evidence, conviction; Surjit Singh v State of Punjab, AIR 1992 SC 1389

[LNIND 1992 SC 361] : 1992 Cr LJ 1952 ; Lakhwinder Singh v State of Punjab, AIR 1993 SC 87 :
1992 Cr LJ 3958 , testimony of eye-witnesses convincing, conviction upheld. Other such cases
are: Prakash v State of MP, AIR 1993 SC 70 : 1992 Cr LJ 3703 (SC); Mafabhai N Raval v State of
Gujarat, AIR 1992 SC 2186 [LNIND 1992 SC 509] : 1992 Cr LJ 3710 and Bir Singh v State of
Haryana, AIR 1992 SC 2211 : 1992 Cr LJ 3845 : 1993 Supp (1) SCC 334 ; Ram Kumar v State of
UP, AIR 1992 SC 1602 : 1992 Cr LJ 2421 , acquittal set aside because circumstantial evidence
reliable. Baboo v State of MP, AIR 1994 SC 1712 : 1994 Cr LJ 2249 , several persons attacked
and killed a man in the presence of his wife, whose evidence found support in the testimony of

other witnesses, conviction upheld though no FIR lodged. Ch Madhusudana Reddy v State of AP,
1994 Cr LJ 2203 : AIR 1994 SCW 1453 , only those convicted who actually participated, others

acquitted. PP Karpe v State of Maharashtra, 1993 Cr LJ 2302 (Bom), revengeful killing, conviction
for murder. Balak Ram v State of Rajasthan, 1994 Cr LJ 2451 (Raj), killer of his two daughters,
eye-witnesses, medical evidence, conviction under section 300. Prem Raj v State of Maharashtra,
1996 Cr LJ 2876 : AIR 1996 SC 3294 [LNIND 1996 SC 940] , all the accused constituting an
unlawful assembly came to the shop of the deceased, assaulted him and continued to do so
after dragging him out, conviction under sections 300/149 held proper. Bhagubhai v State of
Gujarat, AIR 1996 SC 2555 [LNIND 1996 SC 1143] : 1996 Cr LJ 3581 , the deceased forcibly
taken from ﬁeld to Panchayat oﬃce and set on ﬁre after pouring kerosene, 75% burns and other
injuries suﬃcient to cause death, conviction for intention to murder proper.
40.  Gunga Singh, (1873) 5 NWP 44. Raju Das v State of Rajasthan, 1995 Cr LJ 25 (Raj), a case of
proved intentional murder.

41.  Shakti Vahini v UOI, AIR 2018 SC 1601 [LNIND 2018 SC 136] : 2018 (7) SCC 192 [LNIND
2018 SC 136] .
42.  Arumugam Servai v State of TN, (2011) 6 SCC 405 [LNIND 2011 SC 435] . See Dandu
Jaggaraju v State of AP, AIR 2011 SC 3387 [LNINDORD 2011 SC 217] : 2011 Cr LJ 4956 , honour
killing, not proved, acquitted the accused.
43.  Bhagwan Dass v State (NCT) of Delhi, AIR 2011 SC 1863 [LNIND 2011 SC 502] : 2011 Cr LJ
2903 : (2011) 6 SCC 396 [LNIND 2011 SC 502] . In the 242nd report, the Law Commission of
India opined that "we are constrained to say that such a blanket direction given by the Supreme
Court making death sentence a rule in 'honour killings' cases, makes a departure from the
principles ﬁrmly entrenched in our criminal jurisprudence by virtue of a series of Supreme Court
Judgments."; In State of UP v Krishna Master, AIR 2010 SC 3071 [LNIND 2010 SC 699] : 2010 Cr

LJ 3889 : (2010) 12 SCC 324 [LNIND 2010 SC 699] , though the killing of six persons and wiping
out almost the whole family on ﬂimsy ground of honour saving of the family would fall within
the rarest of rare case, keeping in view that the incident took place 20 years ago and High Court
acquitted them in the year 2002 accused sentenced to RI for life.
44.  Law of Commission of India, 242nd Report, Prevention of Interference with the Freedom of
Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework,
available at : http://lawcommissionoﬁndia.nic.in/reports/report242.pdf (last accessed in July
2019).
45.  Shakti Vahini v UOI, AIR 2018 SC 1601 [LNIND 2018 SC 136] : 2018 (7) SCC 192 [LNIND

2019).
46.  AG Bhagwat (Dr) v UT Chandigarh, 1989 Cr LJ 214 (P&H), convicted for grievous hurt. Jabbar
Suleman v State of Gujarat, 1988 Cr LJ 515 (Guj), knife injury on thigh of deceased, knowledge
but not intention to cause death attributed, punishable under section 304 Part II not I. Sudam
Kisan Dhurjad v State of Maharashtra, 1995 Cr LJ 4029 (Bom), the accused assaulted a bed-
ridden aged lady of 65 years with an axe on her forehead causing three injuries resulting in
fracture of the frontal bone and she died within a couple of hours, his act was held to fall under
section 300, clauses 2, 3 and 4 and not under section 304, Part II. Patel Hiralal Tottaram v State
of Gujarat, (2002) 1 SCC 22 [LNIND 2001 SC 2382] , the woman was set ablaze after soaking her
clothes with an inﬂammable substance. She died 14 days after the incident. The accused was

not heard to say that the death might have been due to some intervening causes. The act of the
accused showed his intention to cause death or to cause such bodily injury as was likely to
cause death. Sajjan Singh v State of MP, 1998 Cr LJ 4073 : AIR 1998 SC 2756 [LNIND 1998 SC
839] , head injury caused, suﬃcient in the ordinary course of nature. Ram Bihari Yadav v State of
Bihar, 1998 Cr LJ 2515 : AIR 1999 SC 1850 , the husband set his wife ablaze, conduct showed
guilt, no sign of accident, conviction. Arun Nivalaji More v State of Maharashtra, (2006) 12 SCC
613 [LNIND 2006 SC 591] : AIR 2006 SC 2886 [LNIND 2006 SC 591] : 2006 Cr LJ 4057 , the

clause imports some kind of certainty and not mere probability, there was no such certain
knowledge on the facts of this case.
47.  Anant Chintaman Lagu, (1959) 62 Bom LR 371 (SC); Mohan v State, AIR 1960 SC 659 ;
Kaushalya Devi, AIR 1965 Ori 38 [LNIND 1964 ORI 72] . Swinder Singh v State of Punjab, AIR 1952
SC 669 : 1960 Cr LJ 1011 , proof on these points being not available, acquittal.
48.  Also Chandra Kant Nyalchand v State of Bombay, Criminal Appeal No 120 of 1957, decided,
Feb 19, 1958.
49.  Anant Chintaman Lagu v State of Bombay, AIR 1960 SC 500 [LNIND 1959 SC 223] : 1960 Cr
LJ 682 .
50.  Bhupinder Singh v State of Punjab, 1988 Cr LJ 1097 : AIR 1988 SC 1011 [LNIND 1988 SC
211] : (1988) 3 SCC 513 [LNIND 1988 SC 211] : 1988 SCC (Cr) 694.
51.  Ramgopal, 1972 Cr LJ 473 (SC) : AIR 1972 SC 656 . Followed in Sher Singh v State, (1995) 2
Cr LJ 2187 (Del), alleged poisoning by mixing in liquor not proved. Abdul Gani v State of

Karnataka, (1995) 2 Cr LJ 2248 (Kant), presence of the husband in the room where his wife was
strangulated not proved, conviction on the basis of suspicion was held to be not proper. Mal
Singh v State of Rajasthan, (1995) 2 Cr LJ 2279 , acquitted because of no evidence.
52.  Arundhati, 1968 Cr LJ 848 . Murder by poisoning, the victim found vomitting even two days
before the date of purchase of poison and other evidence did not inspire conﬁdence. The
accused were given beneﬁt of doubt, acquitted of the charge of murder, Rattni v State of HP,
1993 Cr LJ 1811 (SC). Sanjiv Kumar v State of HP, AIR 1999 SC 782 [LNIND 1999 SC 55] : 1999
Cr LJ 1138 , intentional killing by poisoning proved by circumstantial evidence. State of Bihar v
Ramnath Prasad, AIR 1998 SC 466 [LNIND 1997 SC 1581] : 1998 Cr LJ 679 , poison served as

prasad, the accused had only knowledge that he was administering a poisonous substance
which was likely to cause grievous hurt or even death. Liable to be convicted under section 304,
Part II and section 326.
53.  Joydeb Patra v State of WB, 2013 Cr LJ 2729 (SC) : AIR 2013 SCW 2744 .
54.  Nanhar v State of Haryana, 2010 Cr LJ 3450 : (2010) 11 SCC 423 [LNINDORD 2010 SC 229] .
55.  State of Rajasthan v Dhool Singh, (2004) 12 SCC 546 [LNIND 2003 SC 1120] : AIR 2004 SC
1264 [LNIND 2003 SC 1120] : 2004 Cr LJ 931 .
56.  Abbas Ali v State of Rajasthan, (2007) 9 SCC 129 [LNIND 2007 SC 165] : AIR 2007 SC 1239
[LNIND 2007 SC 165] : 2007 Cr LJ 1667 , the ingredients of clause thirdly restated.
57.  Mangesh v State of Maharashtra, (2011) 2 SCC 123 [LNIND 2011 SC 20] .
58.  Brij Bhukhan, AIR 1957 SC 474 : 1957 Cr LJ 591 .

59.  Atmaram v State of MP, (2012) 5 SCC 738 [LNINDORD 2012 SC 403] : 2012 Cr LJ 2882 :
2012 (5) Scale 300 [LNIND 2012 SC 309] relied on Anda v State of Rajasthan, AIR 1996 SC 148
[LNIND 1965 SC 75] ; State of Andhra Pradesh v Rayavarapu Punnayya, (1976) 4 SCC 382 [LNIND
1976 SC 331] .
60.  Virsa Singh v State, AIR 1958 SC 465 [LNIND 1958 SC 19] , (1958) SCR 1495 [LNIND 1958
SC 19] ; Rajwant Singh, AIR 1966 SC 1874 [LNIND 1966 SC 125] : 1966 Cr LJ 1509 . Khachar Dipu
v State of Gujarat, 2013 (4) SCC 322 [LNIND 2013 SC 278] .
61.  Jaspal Singh v State of Punjab, (1986) 2 SCC 100 at p 103 : AIR 1986 SC 683 : 1986 Cr LJ
488 , per Balakrishna Eradi, J. For an example of circumstantial evidence alone failing to prove
an intention, see Padala Veera Reddy v State of AP, 1990 Cr LJ 605 : AIR 1990 SC 79 : 1989 Supp

(2) SCC 706 . In Jagtar Singh v State of Punjab, (1988) 1 SCC 712 [LNIND 1988 SC 65] : AIR 1988
SC 628 [LNIND 1988 SC 65] : 1988 Cr LJ 866 , which was a case of intentional murder, the
Supreme Court ignored the fact that FIR did not mention the crucial fact of the accused running
away leaving behind his vehicle. In Narendra Singh v State of UP, AIR 1987 SC 1268 : 1987 Cr LJ
1070 : (1987) 2 SCC 236 , repeated blows were inﬂicted on vital parts of the body. This was held

to be intentional murder. Vinod Kumar v State of UP, AIR 1991 SC 300 : 1991 Cr LJ 360 , defence
of accidental shooting ruled out.
62.  Jai Prakash v State (Delhi Admn), (1991) 2 SCC 32 : (1991) 1 Crimes 474 : 1991 SCC (Cri)
299 . Reiterated in Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] , it
does not matter that there was no intention to cause death, or even to cause an injury of a kind
that is suﬃcient to cause death in the ordinary course of nature (not that there is any real
distinction between the two), or that there is no knowledge that an act of that kind will be likely
to cause death. Once the intention to cause the bodily injury is actually found to be proved, the
rest of the enquiry is purely objective and the only question is whether, as a matter of purely
objective inference, the injury is suﬃcient in the ordinary course of nature to cause death.
Namdeo v State of Maharashtra, (2007) 14 SCC 150 [LNIND 2007 SC 316] : 2007 Cr LJ 1819 ,

head injury caused with axe suﬃcient in the ordinary course of nature to cause death, hence
intention was to cause death. Sheikh Raﬁ v State of AP, (2007) 13 SCC 76 [LNIND 2007 SC 522] :
2007 Cr LJ 2746 , 19 injuries caused in a quick succession and also in a cruel manner, deceased
being unarmed and helpless. Clause (3) applied, punishable under section 302. Settu v State of
TN, 2006 Cr LJ 3889 , no intention to cause death, but injury caused with a knife on a vital part
and which was suﬃcient to cause death, amounted to murder. One companion was convicted
under section 304, Part I and the other under section 326, because minor injuries on non-vital
parts.
63.  Rampal Singh v State of UP, 2012 (8) SCC 289 [LNIND 2012 SC 425] .
64.  Vineet Kumar Chauhan v State of UP, 2007 (14) SCC 660 [LNIND 2007 SC 1509] .

parts.
65.  Ajit Singh v State of Punjab, 2011 (9) SCC 462 [LNIND 2011 SC 844] .
66.  Mohinder Pal Jolly v State of Punjab, 1979 (3) SCC 30 [LNIND 1978 SC 389] .
67.  Khachar Dipu v State of Gujarat, 2013 (4) SCC 322 [LNIND 2013 SC 278] .
68.  Anda, AIR 1966 SC 148 [LNIND 1965 SC 75] : 1966 Cr LJ 171 .
69.  Rajwant Singh, supra. Seven-year-old child held by the legs and dashed against the ground
three times in quick succession, held covered by this clause. Shankar Narayan Bhadolkar v State
of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] : 2004 Cr LJ 1778 : (2005) 9 SCC 71
[LNIND 2004 SC 1370] , a restatement of the basic approach of the clause. The court also made
a comparison between the statement in clause 2 of section 299 "bodily injury likely to cause

death" with "bodily injury suﬃcient in the ordinary course of nature to cause death" in clause 3 in
section 300.
70.  Umesh Singh v State of Bihar, 2013 (4) SCC 360 [LNIND 2013 SC 227] : 2013 Cr LJ 2116 ;
AIR 2013 SC 1743 [LNIND 2013 SC 227] ; Gajoo v State of Uttarakhand, 2013 Cr LJ 88 ; 2012 (9)
SCC; Kuria v State of Rajasthan, 2012 Cr LJ 4707 : (2012) 10 SCC 433 [LNIND 2012 SC 678] ;
Darbara Singh v State of Punjab, 2012 Cr LJ 4757 ; 2012 (8) Scale 649 [LNIND 2012 SC 545] ;
(2012) 10 SCC 476 [LNIND 2012 SC 545] .
71.  Abdul Sayeed v State of MP, (2010) 10 SCC 259 [LNIND 2010 SC 872] : (2010) 3 SCC (Cri)
1262 [LNIND 2010 SC 872] , Ram Narain Singh v State of Punjab, AIR 1975 SC 1727 [LNIND 1975
SC 210] ; State of Haryana v Bhagirath, (1999) 5 SCC 96 [LNIND 1999 SC 541] ; Thaman Kumar v

State of Union Territory of Chandigarh, (2003) 6 SCC 380 [LNIND 2003 SC 507] ; and Krishnan v
State, (2003) 7 SCC 56 [LNIND 2003 SC 587] ; Solanki Chimanbhai Ukabhai v State of Gujarat, AIR
1983 SC 484 [LNIND 1983 SC 69] ; Mani Ram v State of UP, 1994 Supp (2) SCC 289 ; Khambam
Raja Reddy v Public Prosecutor, High Court of AP, (2006) 11 SCC 239 [LNIND 2006 SC 753] ; and
State of UP v Dinesh, (2009) 11 SCC 566 [LNIND 2009 SC 454] . State of UP v Hari Chand, (2009)
13 SCC 542 [LNIND 2009 SC 1039] ; In Sayed Darain Ahsan v State of WB, (2012) 4 SCC 352
[LNIND 2012 SC 197] : AIR 2012 SC 1286 [LNIND 2012 SC 197] : 2012 Cr LJ 1980 , it is found

that the medical evidence does not go so far as to rule out all possibility of the ocular evidence
being true and hence the ocular evidence cannot be disbelieved.
72.  Sunil Kundu v State of Jharkhand, (2013) 4 SCC 422 [LNIND 2013 SC 1135] : 2013 Cr LJ
2339 (SC) In Anjani Chaudhary, (2011) 2 SCC 747 [LNIND 2010 SC 1048] , where the medical
evidence did not support the appellant's presence as there was no injury on the deceased which
could be caused by a lathi and the appellant was stated to be carrying a lathi. Since the eye-
witnesses therein were not found to be reliable, Supreme Court acquitted the appellant therein.
In Kapildeo Mandal, (2008) 16 SCC 99 [LNIND 2007 SC 1390] , all the eye-witnesses had
categorically stated that the deceased was injured by the use of ﬁrearm, whereas the medical
evidence speciﬁcally indicated that no ﬁrearm injury was found on the deceased. Court held
that, when the evidence of the eye-witnesses is totally inconsistent with the evidence given by

the medical experts, then evidence is appreciated in a different perspective by the courts. It was
observed that when medical evidence speciﬁcally rules out the injury claimed to have been
inﬂicted as per the eye-witnesses' version, then the court can draw adverse inference that the
prosecution version is not trustworthy.
73.  Bhagwati Prasad v State of MP, (2010) 1 SCC 697 [LNIND 2009 SC 2058] : 2009 (14) Scale
314 [LNIND 2009 SC 2058] : AIR 2010 SC 349 [LNIND 2009 SC 2058] : 2010 Cr LJ 528 .
74.  Kuna v State of Odisha, AIR 2017 SC 5364 [LNIND 2017 SC 2864] .
75.  Kesar Singh v State of Haryana, (2008) 15 SCC 753 [LNIND 2008 SC 1001] .
76.  Lakshman, (1888) Unrep Cr C 411.
77.  Nga Maung, (1907) 13 Burma LR 330.
78.  Judagi Mallah, (1929) 8 Pat 911.

79.  Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370]
: 2004 Cr LJ 1778 , explanation of importance of knowledge in the context of the clause.
80.  Ram Prasad, AIR 1968 SC 881 [LNIND 1967 SC 358] : 1968 Cr LJ 1025 . See Dev Raj v State
of Punjab, AIR 1992 SC 950 : 1992 Cr LJ 1292 : 1992 Supp (2) SCC 81 , gun-shot injuries, death
occurring one and a half months later, in between surgery and amputation, held accused guilty
of grievous hurt. State of Karnataka v Venkatesh, AIR 1992 SC 674 : 1992 Cr LJ 707 : 1992 (1)
Crimes 625 SC : JT 1992 (1) SC 99 : 1992 (1) Scale 31 : 1992 Supp (1) SCC 539 .
81.  State of Haryana v Krishan, AIR 2017 SC 3125 [LNIND 2017 SC 294] .
82.  Umakant v State of Chhatisgarh, 2014 Cr LJ 4078 : 2014 (8) Scale 141 [LNIND 2014 SC 374]
.

.
83.  DV Shanmugham v State of AP, AIR 1997 SC 2583 [LNIND 1997 SC 720] : 1997 Cr LJ 3129 ,
some of the accused persons were, however, given the beneﬁt of doubt because there was no
clear evidence against them. State of UP v Shri Krishan, 2005 Cr LJ 892 : AIR 2005 SC 762
[LNIND 2004 SC 1252] : (2005) 10 SCC 399 [LNIND 2004 SC 1252] , the wife was with the man
at the time when the husband alone was killed by the assailants. Her FIR was recorded after 13
days, this fact alongwith some other details created a doubt about the prosecution case of
which the beneﬁt went to the assailants. State of AP v Patnam Anandam, 2005 Cr LJ 894 : AIR
2005 SC 764 [LNIND 2004 SC 1241] : (2005) 9 SCC 237 [LNIND 2004 SC 1241] , another similar
case of beneﬁt of doubt. Jagjit Singh v State of Punjab, 2005 Cr LJ 955 : AIR 2005 SC 913 :

(2005) 3 SCC 689 , accused alleged to have killed three persons at the tubewell sight coming
there by motor cycle. A girl child of seven years was supposed to be the eye-witness. She had
never seen the accused before, her statement was recorded after three days, not reliable,
acquittal on beneﬁt of doubt. Puran Singh v State of Uttaranchal, (2008) 3 SCC 725 : 2008 Cr LJ
1058 : (2008) 1 Ker LJ 875 , beneﬁt of doubt allowed on the basis of technical evidence.
84.  State of TN v Balkrishna, 1992 Cr LJ 1872 (Mad).

85.  Mohammad Khalil Chisti (Dr) v State of Rajasthan, 2013 Cr LJ 637 (SC), 2013 (1) Mad LJ (Cr)
198, (2013) 2 SCC 541 [LNIND 2012 SC 801] ; Waman v State of Maharashtra, 2011 (7) SCC 295
[LNIND 2011 SC 564] : AIR 2011 SC 3327 [LNIND 2011 SC 564] : 2011 Cr LJ 4827 ; Lakshmi
Singh v State of Bihar, 1976 SCC (Cr) 671 : AIR 1976 SC 2263 : 1976 Cr LJ 1736 , non-
explanation of simple injuries of the nature suffered by the accused would not be fatal; Ram
Vishambhar v State of UP, 2013 Cr LJ 1131 : (2013) 2 SCC 71 [LNINDU 2013 SC 5] ; Hari v State
of Maharashtra, (2009) 11 SCC 96 [LNIND 2009 SC 642] : (2009) 3 SCC (Cr) 1254.
86.  Nokul Nushyo, (1867) 7 WR (Cr) 27; Akhila Parida v State of Orissa, 1987 Cr LJ 609 (Ori),
provocation by cutting the crop of accused. See also Nagar Prasad v State of UP, 1998 Cr LJ
1580 (All).
87.  Sukhlal Sarkar v UOI, (2012) 5 SCC 703 [LNIND 2012 SC 364] : 2012 Cr LJ 3032 .
88.  Laikhan, (1955) Cut 625.

89.  Kundarapu, (1962) 1 Cr LJ 261 . Jagjit Singh v State of HP, 1994 Cr LJ 233 : 1994 SCC (Cr)
176, the accused inﬂicted a number of serious injuries on the vital parts of the body of his victim
causing his death on the spot, held Exception 1 of section 300 not attracted. Pappachan v State
of Kerala, 1994 Cr LJ 1765 (Ker), the accused delivered a fatal stab wound to the person who
tried to pacify him, no evidence of any sudden and grave provocation or a sudden ﬁght. The
offence did not fall under Exception 1 or 2 of section 300.
90.  KM Nanavati v State of Maharashtra, AIR 1962 SC 605 [LNIND 1961 SC 362] : 1962 Cr LJ 521
(SC).
91.  Budhi Singh v State of HP, 2013 Cr LJ 962 (SC) : AIR 2013 (SCW) 547 .
92.  KM Nanavati, (1962) Bom LR 488 : AIR 1962 SC 605 [LNIND 1961 SC 362] : 1962 Cr LJ 521

(SC).
(SC); Akhtar v State, AIR 1964 All 262 [LNIND 1963 ALL 180] . Girja Devi v State of HP, 2000 Cr LJ
1528 (HP), the accused wife killed her husband being provoked by his perverse sexual habits,
punished under section 304, Part I.
93.  Dhandayuthan v State of TN, 1994 Cr LJ 1587 (Mad).
94.  Gyanendra Kumar v State, 1972 Cr LJ 308 : AIR 1972 SC 502 [LNIND 1971 SC 601] ; see also
Panchu Kumar Sardar, 1984 Cr LJ (NOC) 142 (Cal); Balerian Minji, 1985 Cr LJ 1394 (MP). Where
the accused on being slapped by the deceased ran to his house which was at considerable
distance and brought several deadly weapons and inﬂicted various injuries on the deceased two
of which proved fatal, his action was indicative of his intention to kill the victim, he was held to
be rightly punished for murder
95.  BD Khunte v UOI, 2015 Cr LJ 243 .

96.  Dhandayuthan v State, 1994 Cr LJ 1587 .
97.  Murgi Munda, (1938) 18 Pat 101.
98.  Balku, (1938) All 789 ; Hussain, (1938) 20 Lah 278.
99.  Re V Padayachi, 1972 Cr LJ 1641 (Mad).
100.  Hansa Singh, 1977 Cr LJ 1448 (SC).
101.  Ram Prakash Singh v State of Bihar, AIR 1998 SC 1190 [LNIND 1998 SC 137] : 1998 Cr LJ
1622 , conduct of accused in the jail being good, his sentence was reduced to the period already
undergone during trial plus jail term. Bishek Mohandas v State of Orissa, 1998 Cr LJ 1489 (Ori),
quarrel, one picked up an instrument and struck the other, himself also injured, for the ensuing
death, conviction under section 304, Part II.
102.  Note M p 147. Kehar Singh v State, 1997 Cr LJ 1753 (Raj), water diverted from the accused
person's ﬁeld by the victim to his ﬁeld without justiﬁcation, the accused had the right to resort to

self-defence of property, but the number of injuries caused was so great as to be sure to cause
death, right exceeded, conviction under section 304, Part I.
103.  Raj Singh v State of Haryana, 2015 Cr LJ 2803 .

104.  Mohammad Khalil Chisti (Dr) v State of Rajasthan, 2013 Cr LJ637 (SC) : 2013 (1) Mad LJ
(Cr) 198, (2013) 2 SCC 541 [LNIND 2012 SC 801] ; Gopal v State of Rajasthan, (2013) 2 SCC 188
[LNIND 2013 SC 37] : 2013 Cr LJ 1297 .
105.  Arjun v State of Maharashtra, JT 2012 (4) SC 447 : 2012 (5) Scale 52 [LNIND 2012 SC 283] :
AIR 2012 SC 2181 [LNIND 2012 SC 283] : (2012) 5 SCC 530 [LNIND 2012 SC 283] : 2012 Cr LJ
2641 . See also Mohammad Iqbal v State of MP, 2012 Cr LJ 337 (Chh).
106.  Sikandar Singh v State of Bihar, (2010) 7 SCC 477 [LNIND 2010 SC 603] : (2010) 8 SCR 373
107.  Raj Pal v State of Haryana, (2006) 9 SCC 678 [LNIND 2006 SC 282] : JT 2006 (11) SC 124
[LNIND 2006 SC 282] : (2006) 4 Scale 456 [LNIND 2006 SC 282] : (2006) 3 SCC (Cri) 361 [LNIND
2006 SC 282] .
108.  Mohd Yusuf v State of UP, 1994 Cr LJ 1631 , 2181.
109.  PP Sah, 1977 Cr LJ 346 : AIR 1977 SC 704 .
110.  Raﬁq, 1979 Cr LJ 706 : AIR 1979 SC 1179 .

111.  Ghansham Dass, 1979 Cr LJ 28 : AIR 1979 SC 44 .
112.  Jassa Singh v State of Haryana, AIR 2002 SC 520 [LNIND 2002 SC 13] . Latel v State of
Chhatisgarh, AIR 2001 SC 3474 , possession of the disputed land was with the accused, but the
deceased was ploughing it at the relevant time, the accused and his son attacked him and
continued to do so even after he had fallen down, held, right of private defence exceeded,
punishment under section 304, Part I. State of Karnataka v Shivappa, (1993) Cr LJ 1253 : AIR
1998 SC 1536 [LNIND 1997 SC 1597] , the right of private defence exceeded, conviction.
113.  Katta Surendra v State of AP, (2008) 11 SCC 360 [LNIND 2008 SC 1294] : 2008 Cr LJ 3196 .
114.  See also Thomas George v State of Kerala, 2000 Cr LJ 3475 : 1999 SCC (Cr) 1308,

exceeding the right of private defence, conviction under section 304, Part II.
115.  Subba Naik, (1898) 21 Mad 249.
116.  Satyavir Singh Rathi v State Thr CBI, AIR 2011 SC 1748 [LNIND 2011 SC 475] : (2011) 6 SCC
117.  Vijender Kumar v State of Delhi, 2010 Cr LJ 3851 : (2010) 12 SCC 381 [LNIND 2010 SC 413]
: (2011) 1 SCC (Cr) 29.
118.  Santokh Singh v State of Punjab, AIR 2009 SC 1923 [LNIND 2009 SC 328] : (2009) 11 SCC
197 [LNIND 2009 SC 328] ; Arumugam v State Rep by Inspector of Police TN, AIR 2009 SC 331
[LNIND 2008 SC 1994] : (2008) 15 SCC 590 [LNIND 2008 SC 1994] .
119.  State of Rajasthan v Islam, (2011) 6 SCC 343 [LNINDORD 2011 SC 309] : AIR 2011 SC 2317
[LNINDORD 2011 SC 309] : 2011 Cr LJ 3110 , plea that only one injury of small dimension had

been caused by appellant to the deceased in the abdomen and he had himself taken the
deceased to hospital, an inference be drawn that there was no intention to kill the deceased
repelled. The case of the appellant cannot fall within Exception 4 of section 300, IPC, 1860.
Vijender Kumar v State of Delhi, 2010 Cr LJ 3851 : (2010) 12 SCC 381 [LNIND 2010 SC 413] :
(2011) 1 SCC (Cr) 291.
120.  Abdul Nawaz v State of WB, 2012 Cr LJ 2901 : (2012) 6 SCC 581 [LNIND 2012 SC 307] :
2012 (5) Scale 357 [LNIND 2012 SC 307] ; Chinnathaman v State, 2007 (14) SCC 690 [LNIND
2007 SC 1485] , Muthu v State, 2009 (17) SCC 433 [LNIND 2007 SC 1303] ; Arumugam v State,
2008 (15) SCC 590 [LNIND 2008 SC 1994] ; Ajit Singh v State of Punjab, 2011 (9) SCC 462
[LNIND 2011 SC 844] , Vijay Ramkrishan Gaikwad v State of Maharashtra, 2012 (2) Scale 631 ;

Sayaji Hanmat Bankar v State of Maharashtra, 2011 AIR (SCW) 4502 : 2011 (7) Scale 710 [LNIND
2011 SC 653] : 2011 Cr LJ 4338 : (2011) 8 SCR 234 [LNIND 2011 SC 653] ; State of HP v Ram Pal,
AIR 2005 SC 4058 .

121.  Arjun v State of Maharashtra, (2012) 5 SCC 530 [LNIND 2012 SC 283] : 2012 Cr LJ 2641 ,
where the accused appeared and entered the house and had some quarrel with his deceased
wife. He threw water pot and thereafter a kerosene lamp. Burning seems to be more because
lady was wearing nylon sari. She got burnt to the extent of 70%. The Supreme Court held that it
was a case clearly falling under Exception 4 of section 300 of IPC, 1860. Sayaji Hanmat Bankar v
State of Maharashtra, 2011 (7) Scale 710 [LNIND 2011 SC 653] : 2011 Cr LJ 4338 .
122.  Nanak Ram v State of Rajasthan, 2014 Cr LJ 1843 : 2014 (I) Supreme 705 .
123.  Nayamuddin, (1891) 18 Cal 484 (FB). Where there was no evidence of sudden ﬁght or heat
of passion and the nature, number and situs of injuries showed that there was cruel manner,
conviction for murder, the exception was not attracted, Malkiat Singh v Punjab, AIR 1996 SC
2590 [LNIND 1996 SC 1198] : 1996 Cr LJ 3583 .

124.  Zalim Rai, (1864) 1 WR (Cr) 33; Ameera v State, (1866) PR No 12 of 1866. D Sailu v State of
AP, (2007) 14 SCC 397 [LNIND 2007 SC 1347] : AIR 2008 SC 505 [LNIND 2007 SC 1347] : 2008
Cr LJ 686 , injury to a vital organ in a sudden ﬁght, causing death due to shock and
haemorrhage, punishment under section 304, Part I. Byvarapu Raju v State of AP, (2007) 11 SCC
218 [LNIND 2007 SC 761] : AIR 2007 SC 1904 [LNIND 2007 SC 761] : 2007 Cr LJ 3204 , the
father of the accused came in intoxicated state at night and assaulted the son's wife, a resulting
quarrel between father and son in which the son injured his father to death because of the injury
to a vital organ, case covered by Exception 4.
125.  State of MP v Shivshankar, 2015 Cr LJ 155 .
126.  Surain Singh v State of Punjab, AIR 2017 SC 1904 [LNIND 2017 SC 171] .

127.  Sunnumuduli, (1946) 25 Pat 335. Kesar Singh v State of Haryana, (2008) 15 SCC 753
[LNIND 2008 SC 1001] , it postulates a bilateral transaction in which blows are exchanged even
if they all do not ﬁnd their target. Provocation per se is not ﬁght. Asking somebody to do
something again may not be a provocation. Expressing a desire to one's neighbour digging
foundation that some passage may be left may not be considered to be a demand. In instant
case, held, there was no ﬁght, far less sudden ﬁght.
128.  Atma Singh, AIR 1955 Punj 191 .
129.  Narayanan, AIR 1956 SC 99 [LNIND 1955 KER 138] : 1956 Cr LJ 278 . Golla Yelugu Govindu
v State of AP, (2008) 16 SCC 769 [LNIND 2008 SC 751] : AIR 2008 SC 1842 [LNIND 2008 SC 751]
: 2008 Cr LJ 2607 : (2008) 2 APLJ 28 , ingredients of the exception restated. Trimbak v State of

Maharashtra, (2008) 17 SCC 213 [LNIND 2008 SC 571] , ingredients for bringing the exception
into operation restated. Similar restatement in Hawa Singh v State of Haryana, (2009) 3 SCC 411
[LNIND 2009 SC 77] : (2009) 2 SCC Cri 132 [LNIND 2009 SC 764] : 2009 Cr LJ 1146 . Imtiaz v
State of UP, (2007) 15 SCC 299 [LNIND 2007 SC 172] , dispute about drainage of latrine,
neighbour objected but to no effect, the attackers came fully armed, the court found
premeditation, not suddenness. Iqbal Singh v State of Punjab, (2008) 11 SCC 698 [LNIND 2008
SC 1671] , sudden ﬁght over access to agricultural land, death caused, 10 years under this
exception. SK Azim v State of Maharashtra, (2008) 11 SCC 695 [LNIND 2008 SC 1408] , death
caused in a sudden ﬁght by a single lathi blow on head, 10 years, section 304, Part I. Suresh

Kumar v State of HP, (2008) 13 SCC 459 [LNIND 2008 SC 766] : AIR 2008 SC 1973 [LNIND 2008
SC 766] : 2008 Cr LJ 2247 , single knife blow in sudden ﬁght, death, 10 years, section 304, Part I.
Shankar Diwal Wadu v State of Maharashtra, (2007) 12 SCC 518 [LNIND 2007 SC 363] : AIR 2007
SC 1410 [LNIND 2007 SC 363] : 2007 Cr LJ 1802 , attempt to take away brother's wife by the
brother accused to keep her as a mistress, this resulted in killing of the brother in a sudden ﬁt of
anger, held appropriate conviction under section 304, Part II and not section 302, the accused
was already undergoing imprisonment under sentence for 10 years, sentence reduced to the
period already undergone. Chinnathaman v State, (2007) 14 SCC 690 [LNIND 2007 SC 1485] :

AIR 2008 SC 784 [LNIND 2007 SC 1485] : 2008 Cr LJ 1372 , no premeditation or preplan to
cause death, altercation because of entry into the ﬁeld, injury caused with sickle lying there,
punishment under section 304, Part II. Phulia Tadu v State of Bihar, (2007) 14 SCC 588 [LNIND
2007 SC 1071] : AIR 2007 SC 3215 [LNIND 2007 SC 1071] : 2007 Cr LJ 4690 , one blow with a
small stick, section 304, Part II attracted.
130.  Sarjug Prasad, AIR 1959 Pat 66 .
131.  State of UP v Jodha Singh, AIR 1989 SC 1822 : (1989) 3 SCC 465 : 1989 Cr LJ 2113 . See
also Surender Kumar v Union Territory, Chandigarh, AIR 1989 SC 1094 [LNIND 1989 SC 140] :
1989 Cr LJ 883 , where there was no evidence of acting with cruelty following a quarrel,
sentence under section 304, Part I was considered appropriate; V Sreedharan v State of Kerala,
AIR 1992 SC 754 : 1992 Cr LJ 1701 , where the sudden impulse was held not to have ended
simply because the accused chased the deceased for some distance before giving fatal blow.

132.  State of Karnataka v Shivalingaiah, AIR 1988 SC 115 [LNIND 2012 DEL 2078] : 1988 Cr LJ
394 : 1988 SCC (Cr) 881. State of Maharashtra v Suresh, 1989 Cr LJ 1709 (Bom), heat and
passion on cattle grazing leading to one blow on the head with a light stick, the deceased fell
down, blow not repeated, death, punished under section 325 with RI for one year and ﬁne of Rs.
2000. Vadivelu, 1989 Cr LJ 2248 (Mad), causing injury with wooden frame endangering life and
resulting in death, guilty under section 326, not section 302. Karan Singh v State, 1988 Cr LJ 315
(Del), death caused in sudden quarrel, conviction under section 304, Part II. Ramanbhai v State
of Gujarat, 1988 Cr LJ 982 (Guj), quarrel at a bus-stop for Rs. 5/-, moved towards a bridge where
as a result of pushing one fell and died, conviction under section 304, Part II.

133.  Pawan Singh v State of Punjab, (1995) 1 Cr LJ 609 (P&H). Thankachan v State of Kerala,
(2007) 14 SCC 501 [LNIND 2007 SC 1325] : AIR 2008 SC 406 [LNIND 2007 SC 1325] , one of the
accused dragged the victim out of his home, the latter picked up a soda bottle, the accused also
lifted a bottle from a shop and struck him on the head, the victim also hit back with the bottle in
his hand, on this the accused exhorted his companions to carry further the attack with the result
the victim died with multiple injuries. Ten years' imprisonment awarded under section 304, Part
I. Rakesh v State of MP, (2007) 14 SCC 504 [LNIND 2008 SC 298] : AIR 2008 SC 1229 [LNIND
2008 SC 298] : 2008 Cr LJ 1646 , comparison of requirements of sections 1 and 4.
134.  Balwant Ram v State of Rajasthan, 1995 Cr LJ 3856 (Raj).

135.  Baleshwar Mahto v State of Bihar, AIR 2017 SC 873 [LNINDU 2017 SC 8] .
136.  Kikar Singh v State of Rajasthan, 1993 Cr LJ 3255 : AIR 1993 SC 2426 [LNIND 1993 SC 456]
: (1993) 4 SCC 238 [LNIND 1993 SC 456] . Kudesh Mondal v State of WB, (2007) 8 SCC 578
[LNIND 2007 SC 1043] : AIR 2007 SC 3228 [LNIND 2007 SC 1043] , a passerby started inquiring
into a killing incident originating over a trivial matter. He was dragged by one and struck a fatal
blow by the other. The court applied this exception. Conviction under section 304, Part I. Salim
Sahab v State of MP, (2007) 1 SCC 699 [LNIND 2006 SC 1089] : (2007) 103 Cut LT 531, another
similar death caused in a quarrel, conviction under section 304, Part II, seven years RI. Vadla
Chandraiah v State of AP, (2006) 13 SCC 587 [LNIND 2006 SC 1103] : 2007 Cr LJ 770 , quarrel

between fruit vendor and a police constable for not paying for fruits consumed. Constable
attacked him with his service weapon to death. Punishment under section 304, Part II. Pappu v
State of MP, 2006 Cr LJ 3640 , murder as a result of a single lathi blow in a sudden quarrel, the
accused was not armed with any weapon. Conviction under section 304, Part II, Pulicheria
Nagaraju v State of AP, 2006 Cr LJ 3899 , another similar case with this observation that a single
blow injury resulting in death is not a ground in itself for holding that the case would come
under section 304 and not under section 302. Khambam Raja Reddy v Public Prosecutor, HC,
Andhra, 2006 Cr LJ 4652 , allegation that on exhortation of the co-accused, the accused picked

up a big stone piece and threw it on the head of the deceased. This could not be true because

he was suffering from polio and could not have picked up the stone. His conviction was set
aside.
137.  Suresh Kumar v State of HP, (2008) 13 SCC 459 [LNIND 2008 SC 766] : AIR 2008 SC 1973
[LNIND 2008 SC 766] : 2008 Cr LJ 2247 . Bengaru Venkata Rao v State of AP, (2008) 9 SCC 707
[LNIND 2008 SC 1585] : 2008 Cr LJ 4353 .
138.  Anil v State of Haryana, (2007) 10 SCC 274 [LNIND 2007 SC 629] : 2007 Cr LJ 4294 .
139.  Bhagwan Munjaji, 1979 Cr LJ 49 (SC).
140.  Prabhu v State of UP, AIR 1991 SC 1069 : 1991 Cr LJ 1373 . Single assault attributed to
each of the accused in the course of sudden quarrel in heat of passion, Exception 4 to section
300 attracted, conviction altered from section 300 to section 304, Part II, Subodh Behera v State
of Orissa, 1996 Cr LJ 168 (Ori). The accused, seeing his father being beaten by the deceased,
caused death of the assailant by inﬂicting injuries on his head in a heat of passion but the
accused did not act in a cruel or unreasonable manner, held Exception 4 to section 300

attracted, the offence covered under section 304, Part I, State of MP v Mohandas, 1992 Cr LJ
101 (MP). The accused brother caused a single injury without pre-meditation in a sudden ﬁght
and in heat of passion to his brother which proved fatal, he neither took undue advantage nor
acted in a cruel manner, held Exception 4 to section 300 attracted, liable to be punished under
section 304, Part I and not under section 302. Suraj Mal v State of Punjab, AIR 1992 SC 559 :
1992 Cr LJ 520 : 1993 Supp (1) SCC 639 . The accused, over a trivial matter of the next day of
Holi festival and without any pre-meditation or any enmity with the victim, suddenly inﬂicted a
single knife blow on his chest which proved fatal, held, the offence fell within Exception 4 of

section 300, punishable under section 304, Part I, not under section 302. Prakash v State of
Rajasthan, 1994 Cr LJ 3019 (Raj). See also Pitchaimani v State of T.N., 1994 Cr LJ 2606 (Mad),
wordy duel, sudden quarrel, no pre-meditation, culpable homicide not amounting to murder.
141.  Sukhbir Singh v State of Haryana, AIR 2002 SC 1168 [LNIND 2002 SC 134] ; Bajjappa v State
of Karnataka, 1999 Cr LJ 958 (Kant), altercation resulting in violent assault at the spur of
moment. The accused was an agriculturist with clean record, had three children, in custody for
considerable period, sentence reduced to ﬁve years RI, ﬁne Rs. 1000. Lakhwinder Singh v State of
Punjab, AIR 2003 SC 2577 [LNIND 2002 SC 820] , the accused suffered 19 injuries, two of them

grievous, the prosecution could not say that they did not know such extensive injuries or that
they were self-accused, explanation by the prosecution was necessary, failure led to the
inference that the true genesis and manner of the incident was not disclosed. Ramesh Krishna
Madhusudan Nayar v State of Maharashtra, (2008) 14 SCC 491 [LNIND 2008 SC 18] : (2009) 2
SCC Cri 759 : AIR 2008 SC 927 [LNIND 2008 SC 18] : 2008 Cr LJ 1023 , two blows with a piece of
wood inﬂicted after quarrel for several hours about putting off the light of the staff room at
night. Exception 4 attracted. Arumugan v State, (2008) 115 SCC 490 : AIR 2009 SC 331 [LNIND
2008 SC 1994] , ﬁght over panchayat election, the victim dragged out from his home, exchange
of hot words, blows inﬂicted by the accused and his companions. Exception attracted. Raghbir

Singh v State of Haryana, (2008) 16 SCC 33 [LNIND 2008 SC 2228] : AIR 2009 SC 223 : (2009) 73
AIC 93 , lathi blows in the course of a sudden quarrel, exception applied. Parkash Chand v State
of HP, (2004) 11 SCC 381 [LNIND 2004 SC 759] : AIR 2004 SC 4496 [LNIND 2004 SC 759] , one
brother's dogs entered the kitchen of the other, the latter protested, heated altercation ensued,
one went into his room, came out with a gun, shot at the other from a distance of 35 feet, death
ensued. Exception applied. Preetam Singh v State of Rajasthan, (2003) 12 SCC 594 , there being
a background to the struggle, the court did not regard the ﬁght to be sudden. Hence, the
exception not attracted. State of Maharashtra v Manjurrya, (2003) 12 SCC 787 , the attacking

party came fully prepared and caused death as in an organised manner, no feature of a sudden
ﬁght. Sachchey Lal Tiwari v State of UP, (2004) 11 SCC 410 [LNIND 2004 SC 1041] : AIR 2004 SC

5039 [LNIND 2004 SC 1041] , dividing line between two ﬁelds dismissed by the attacking party,
ﬁred pistol shots at the opponent killing his two sons. The exception not applicable. Umesh Jha
v State of Bihar, (2004) 12 SCC 329 , genesis in lands dispute, but murder pre-meditated,
Exception 4 not applicable.
142.  Sikandar v State (Delhi) Admn, AIR 1999 SC 1406 [LNIND 1999 SC 351] : 1999 Cr LJ 2098 .
Hari Shankar v State of Rajasthan, AIR 1999 SC 2629 : 1999 Cr LJ 2902 , exchange of hard words,
burning kerosene stove wick thrown, knowledge of likely death, conviction under section 304.
143.  Mahesh Balmiki v State of MP, 1999 Cr LJ 4310 : AIR 1999 SC 3338 [LNIND 1999 SC 755] ;
Rameshraya v State of MP, AIR 2001 SC 1229 : 2001 Cr LJ 1452 (SC). Sudden ﬁght, but murder
committed in most brutal manner conviction under section 302. Abdul Kader v State of Gujarat,
1999 Cr LJ 5027 (Guj), police on duty during Muslim festivities tried to prevent gambling, the

accused, who was friendly with gamblers, gave one knife injury to a police constable resulting in
death. The court noted that there was no premeditation, the act was the result of heat of
passion, no undue advantage, Exception 4 attracted, conviction under section 304, Part II, seven
years' imprisonment. Resham Singh v State of Punjab, AIR 2002 SC 2625 : 2002 Cr LJ 3506 , ﬁght
from both sides, Exception 4 attracted, conviction under section 304, Part II. Naresh Janimal
Lohana v State, 1998 Cr LJ 3574 (Guj), domestic quarrel between parties on question of
throwing away some mango waste, male members came out and started taking part in the
sudden ﬁght, the accused gave one blow in the scuﬄe by wielding a knife in the sudden heat of
passion. No premeditation. Exception 4 attracted. Pawan Kumar v State, 1997 Cr LJ 3631 (P&H),

sudden quarrel over snatching of newspaper, single knife blow, acting at the spur of moment
without premeditation, Exception 4 attracted, conviction under section 304, Part II. Lekh Raj v
State, 1997 Cr LJ 3663 (HP), accused entered into victim's house and inﬂicted knife blows on
vital parts, conviction under section 302, Exception 4 not attracted. Surinder Kumar v State, 1997
Cr LJ 2872 (P&H), during an altercation, the accused pushed the victim, whose head dashed
against the wall causing death. The accused given beneﬁt of the exception, conviction under
section 304, Part I. Uday Singh v State of UP, AIR 2002 SC 3143 [LNIND 2002 SC 545] , sudden
ﬁght between the accused persons and their victim, both unarmed, both accused held their

victim by his neck with pressure that he died, neither knew about the pressure being put by the
other, no common intention to cause death, only knowledge, conviction under section 304, Part
II. Bala Baine Linga Raju v State of AP, (2009) 6 SCC 706 [LNIND 2009 SC 1104] : (2009) 3 SCC Cr
13 : 2009 Cr LJ 3426 , in the absence of appeal by state, the Supreme Court did not enhance the
sentence to that for murder despite the fact that the case was that of murder and not coming
under the exception.
144.  Sukhdev v State of Punjab, (2007) 16 SCC 364 . The court considered cases relating to
importance of premeditation and undue or unfair advantage. Rakesh v State of MP, (2007) 14
SCC 504 [LNIND 2008 SC 298] : AIR 2008 SC 1229 [LNIND 2008 SC 298] : 2008 Cr LJ 646 , one

of them assaulted their victim with knife, three others gave him kicks and ﬁsts blows. The trial
court convicted the main accused under section 302 and also others under sections 302/34.
The High Court maintained the conviction of main accused under section 302 and convicted
others under sections 326/34. The Supreme Court convicted and punished all of them under
sections 304/34, Part I, 10 years. Gurdev Raj v State of Punjab, (2007) 13 SCC 380 [LNIND 2007
SC 1180] : 2008 Cr LJ 382 , conviction altered from section 302 to section 304, Part I. Shambhao
Singh v State of Rajasthan, (2008) 11 SCC 637 [LNIND 2008 SC 1492] : AIR 2008 SC 3200 [LNIND
2008 SC 1492] , quarrel in land dispute, stabbing, one died, other family members injured,
conviction under section 304, Part 1, 10 years, would meet the ends of justice. Baij Nath v State

of UP, (2008) 11 SCC 738 [LNIND 2008 SC 1374] , one lathi blow on head, causing, fracture and
death, seven years under section 304, Part I.

145.  Sada Ram v State of Haryana, (2006) 13 SCC 528 . Sandhya Jadhav v State of Maharashtra,
2006 Cr LJ 2111 SC, landlord demanded rent, the tenant (accused) assaulted him, nephew of
landlord, who tried to intervene was given a knife blow causing death, conviction altered to
section 304, Part II from section 302.
146.  Suresh Chandra v State of UP, 2005 Cr LJ 3449 : AIR 2005 SC 9 [LNIND 2004 SC 1110] :
(2005) 1 SCC 122 [LNIND 2004 SC 1110] .
147.  Santokh Singh v State of Punjab, AIR 2009 SC 1923 [LNIND 2009 SC 328] : (2009) 11 SCC
[LNIND 2008 SC 1994] : (2008) 15 SCC 590 [LNIND 2008 SC 1994] ; D Sailu v State of AP, AIR
2008 SC 505 [LNIND 2007 SC 1347] : (2007) 14 SCC 397 [LNIND 2007 SC 1347] .
148.  Sridhar Bhuyan v State of Orissa, (2004) 11 SCC 395 [LNIND 2004 SC 758] : AIR 2004 SC
4100 [LNIND 2004 SC 758] : 2004 Cr LJ 3875 .
149.  Note M, p 145.
150.  Nayamuddin, (1891) 18 Cal 484 (FB).

151.  Ambalathil, AIR 1956 Mad 97 .
152.  Halliday, (1889) 61 LT 701 , 702.
153.  Towers, (1874) 12 Cox 530, 533.
154.  Lal Bahadur v State (NCT of Delhi), (2013) 4 SCC 557 [LNIND 2014 SC 553] ; 2013 Cr LJ
2205 : 2013 (2) SCC (Cr) 516.
155.  Adu Shikdar, (1885) 11Cal 635; Bhairon Lal, (1952) 2 Raj 669 ; Ram Chandra v State, AIR
1957 SC 381 : 1957 Cr LJ 559 .
156.  Rama Nand, 1981 Cr LJ 298 : AIR 1981 SC 738 [LNIND 1981 SC 5] . See further Manguli
Devi v State of Orissa, AIR 1989 SC 483 : 1989 Cr LJ 823 : 1989 Supp (1) SCC 161 , where dead
body was discovered in decomposed state and no wounds were visible yet the conviction of the
widow of the deceased on the basis of her confession was sustained; Rama Nand v State of UP,
AIR 1981 SC 738 [LNIND 1981 SC 5] : (1981) 2 SCR 444 [LNIND 1981 SC 5] : 1981 Cr LJ 298 :

1981 Mad LJ (Cr) 241. Amar Layek v State of WB, 1988 Cr LJ 1293 (Cal), only skeleton of bones
and other personal articles recovered on lead given by accused, held guilty of murder. Hari
Kishan v State of Haryana, 1990 Cr LJ 385 (P&H), good evidence, though corpus delecti not
traceable. But see Bhupendra Singh v State of UP, AIR 1991 SC 1083 [LNIND 1991 SC 151] : 1991
Cr LJ 1337 : (1991) 2 SCC 750 [LNIND 1991 SC 151] , where the body of the deceased was burnt
and pieces of bones which were recovered were not suﬃcient to establish the age, sex or
identity. Conviction even under section 201 was set aside. Sevaka Perumal v State of TN, AIR
1991 SC 1463 [LNIND 1991 SC 269] : 1991 Cr LJ 1845 , murder charge can be established by
evidence, though dead body may not be traceable. Arun Kumar v State of UP, 1989 Cr LJ 1460 :

AIR 1989 SC 1445 : 1989 Supp (2) 332 , dead body of victim of rape not traceable, conviction
under section 366 justiﬁed.
157.  Rishipal v State of Uttarakhand, 2013 Cr LJ 1534 (SC) : 2013 AIR (SCW) 1167; Lakshmi v
State of UP, 2002 (7) SCC 198 [LNIND 2002 SC 534] ; State of Karnataka v MV Mahesh, 2003 (3)
SCC 353 [LNIND 2003 SC 270] .
158.  Jitender Kumar v State of Haryana, 2012 Cr LJ 3085 : AIR 2012 SC 2488 [LNIND 2012 SC
331] : (2012) 6 SCC 204 [LNINDORD 2012 SC 412] ; The state of the contents of the stomach
found at the time of medical examination is not a safe guide for determining the time of the
occurrence because that would be a matter of speculation, in the absence of reliable evidence
on the question as to when the deceased had his last meal and what that meal consisted of.

Masjit Tato Rawool v State of Maharashtra, (1971) SCC (Cr) 732; Gopal Singh v State of UP, AIR
1979 SC 1932 ; Sheo Darshan v State of UP, (1972) SCC (Cr) 394. [The presence of faecal matter
in the intestines is not conclusive, as the deceased might be suffering from constipation. Where

there is positive direct evidence about the time of occurrence, it is not open to the court to
speculate about the time of occurrence by the presence of faecal matter in the intestines; Sheo
Dershan v State of UP, (1972) SCC (Cr) 394. The question of time of death of the victim should
not be decided only by taking into consideration the state of food in the stomach. That may be a
factor which should be considered along with other evidence, but that fact alone cannot be
decisive; R Prakash v State of UP, (1969) 1 SCC 48 . Also see Shivappa v State of Karnataka,
(1995) 2 SCC 76 [LNIND 1994 SC 1111] ; Jabbar Singh v State of Rajasthan, (1994) SCC (Cr)
1745. Bijendra Bhagat v State of Uttarakhand, 2015 Cr LJ 3150 , the injuries suffered by the
deceased are incised wounds and one ﬁre arm injury. However, none of the injuries on the
person of the deceased could be attributed to the lathi which was supposedly in the hands of
the appellant. Beneﬁt of doubt given.

159.  Raju v State of Chhatisgarh, 2014 Cr LJ 4425 : 2014 (9) SCJ 453 [LNINDORD 2014 SC
19031] .
160.  Deepa v State of Haryana, 2015 Cr LJ 2508 .
161.  Jagtar Singh v State of Haryana, 2015 Cr LJ 3418 .
162.  Alagarsamy v State by DSP, 2010 Cr LJ 29 : AIR 2010 SC 849 [LNIND 2009 SC 1914] . See
also Arun Kumar Sharma v State of Bihar, (2010) 1 SCC 108 [LNIND 2009 SC 1866] : 2010 Cr LJ
428 , where FIR was sent to the Magistrate after ﬁve days.
163.  Awadesh Kumar Shukla v State of UP, 2015 (7) ADJ 530 [LNIND 2015 ALL 190] : 2015 (6)
ALJ 665 (All).
164.  Dilawar Singh v State of Haryana, 2014 Cr LJ 4844 : (2015) 1 SCC 737 [LNIND 2014 SC 823]
.
165.  State of Rajasthan v Chandgi Ram, 2014 Cr LJ 4571 : 2014 (10) Scale 352 [LNIND 2014 SC
811] .
166.  Sudarshan v State of Maharashtra, 2014 Cr LJ 3232 : 2015 (5) SCJ 358 . See also State of
Karnataka v Sateesh, 2015 Cr LJ 3427 .

811] .
167.  Rishipal v State of Uttarakhand, 2013 Cr LJ 1534 (SC) : 2013 AIR (SCW) 1167; Sukhram v
State of Maharashtra, 2007 (7) SCC 502 [LNIND 2007 SC 969] ; Sunil Clifford Daniel (Dr) v State of
Punjab, 2012 (8) Scale 670 [LNIND 2012 SC 551] , Pannayar v State of TN by Inspector of Police,
2009 (9) SCC 152 [LNIND 2009 SC 1687] .
168.  Sanaulla Khan v State of Bihar, (2013) 3 SCC 52 [LNIND 2013 SC 120] : 2013 Cr LJ 1527 ;
Ujjagar Singh v State of Punjab, 2007 (13) SCC 90 [LNIND 2007 SC 1486] .
169.  Gosu Jairami Reddy v State of AP, AIR 2011 SC 3147 [LNIND 2011 SC 2666] : 2011 Cr LJ
4387 : (2011) 11 SCC 766 [LNIND 2011 SC 2666] ; Abu Thakir v State, (2010) 5 SCC 91 [LNIND
2010 SC 366] : AIR 2010 SC 2119 [LNIND 2010 SC 366] : 2010 Cr LJ 2840 .
170.  Ashok Rai v State of UP, 2014 Cr LJ 3085 : 2014 (10) SCJ 729 [LNINDU 2014 SC 21] .

171.  Rambraksh v State of Chhattisgarh, 2016 Cr LJ 2939 : 2016 (5) SCJ 600 ; Dharam Deo
Yadav v State of UP, 2014 Cr LJ 2371 : 2014 (2) ALT (Cr) 322 (SC).
172.  Rishipal v State of Uttarakhand, 2013 Cr LJ 1534 (SC) : 2013 AIR (SCW) 1167; Mohibur
Rahman v State of Assam, 2002 (6) SCC 715 ; in Arjun Marik v State of Bihar, 1994 Supp (2) SCC
372 , Supreme Court reiterated that the solitary circumstance of the accused and victim being
last seen will not complete the chain of circumstances for the Court to record a ﬁnding that it is
consistent only with the hypothesis of the guilt of the accused. No conviction on that basis
alone can, therefore, be founded. So also in Godabarish Mishra v Kuntala Mishra, 1996 (11) SCC
264 [LNIND 1996 SC 1719] , the Supreme Court declared that the theory of last seen together is

not of universal application and may not always be suﬃcient to sustain a conviction unless
supported by other links in the chain of circumstances; State of Goa v Sanjay Thakran, 2007 (3)
SCC 755 [LNIND 2007 SC 274] ; Bodh Raj @ Bodha v State of Jammu and Kashmir, 2002 (8) SCC

45 [LNIND 2002 SC 539] ; Jaswant Gir v State of Punjab, 2005 (12) SCC 438 ; see Manthuri Laxmi
Narasaiah v State of AP, 2012 Cr LJ 2172 : AIR 2011 SC (Supp) 73, in which the evidence of last
seen rejected by the Supreme Court.
173.  Also see Shyamal Ghosh v State of WB, (2012) 7 SCC 646 [LNIND 2012 SC 397] : 2012 Cr
LJ 3825 : AIR 2012 SC 3539 [LNIND 2012 SC 397] ; Inspector of Police TN v John David, (2011) 5
SCC 509 [LNIND 2011 SC 441] : 2011 Cr LJ 3366 : (2011) 2 SCC (Cri) 647 , 'last seen alive theory
accepted'. See also Mannan v State of Bihar, (2011) 5 SCC 317 [LNIND 2011 SC 440] : 2011 Cr
LJ 3380 : (2011) 2 SCC (Cri) 626 .
174.  Arabindra Mukherjee v State of WB, 2012 AIR (SCW) 1032 : 2012 Cr LJ 1207 .
175.  State Through CBI v Mahender Singh Dahiya, (2011) 3 SCC 109 [LNIND 2011 SC 114] : AIR
2011 SC 1017 [LNIND 2011 SC 114] : 2011 Cr LJ 2177 , last seen evidence would not always
mean that the accused had killed the deceased.
176.  C Perumal v Rajasekaran, 2012 AIR (SCW) 3641 : 2012 Cr LJ 3491 .

177.  Rambraksh v State of Chhattisgarh, 2016 Cr LJ 2939 : 2016 (5) SCJ 600 .
178.  Kanhaiya Lal v State of Rajasthan, 2014 Cr LJ 1950 : 2014 (4) WLN 299 (SC).
179.  Mahavir Singh v State of Haryana, 2014 Cr LJ 3228 : 2014 (7) Scale 477 .
180.  Surender Prashad v State, (2014) 209 DLT 461 : 2014 VI AD (Del) 234.
181.  Bikau Pandey v State of Bihar, AIR 2004 SC 997 [LNIND 2003 SC 1027] : (2003) 12 SCC 616
[LNIND 2003 SC 1027] ; Dalbir Singh v State of Haryana, AIR 2008 SC 2389 [LNIND 2008 SC
1218] : (2008) 11 SCC 425 [LNIND 2008 SC 1218] ; Nishan Singh v State of Punjab, AIR 2008 SC
1661 [LNIND 2008 SC 2718] : (2008) 17 SCC 505 [LNIND 2008 SC 2718] . See also Balraje v
State of Maharashtra, (2010) 6 SCC 673 [LNIND 2010 SC 487] : 2010 Cr LJ 3443 ; Satvir v State of
UP, AIR 2009 SC 1741 [LNIND 2009 SC 124] : 2009 Cr LJ 1586 : (2009) 4 SCC 289 [LNIND 2009
SC 124] .

SC 124] .
182.  Mukesh v State for NCT of Delhi, 2017 (5) Scale 506 .

[s 301] Culpable homicide by causing death of person other than person whose
death was intended.
If a person, by doing anything which he intends or knows to be likely to cause death,
commits culpable homicide by causing the death of any person, whose death he
neither intends nor knows himself to be likely to cause, the culpable homicide
committed by the offender is of the description of which it would have been if he had
caused the death of the person whose death he intended or knew himself to be likely
to cause.
COMMENT.—
Doctrine of transferred malice.—Section 301 of IPC, 1860 speciﬁes that if a person by
doing anything which he intends or knows to be likely to cause death, commits
culpable homicide by causing death of any person whose death he neither intends, nor
knows himself to be likely to cause, culpable homicide committed by the offender is of

the description of which it would have been, if he had caused the death of the person,
whose death he intended or knew himself to be likely to cause.183. Blow aimed at the
intended victim, if alights on another, offence is the same as it would have been if the
blow had struck the intended victim.184. This section lays down that culpable homicide
may be committed by causing the death of a person whom the offender neither
intended, nor knew himself to be likely, to kill. This section embodies what the English
authors describe as the doctrine of transfer of malice or the transmigration of motive.
Under this section, if A intends to kill B but kills C whose death he neither intends nor
knows himself to be likely to cause, the intention to kill C is, by law attributed to
him.185.

him.185.
If the killing takes place in the course of doing an act which a person intends or knows
to be likely to cause death, it ought to be treated as if the real intention of the killer had
been actually carried out.
Where a mistake is made in respect of the person, as where the offender shoots at A
supposing that he is shooting at B, it is clear that the difference of person can make
none in the offence or its consequences; the crime consists in the wilful doing of a
prohibited act; the act of shooting at A was wilful, although the offender mistook him
for another.
Where the accused was deliberately trying to shoot at a ﬂeeing man who had criticised
his father in a School Committee Meeting but unfortunately his own maternal uncle
came in between him and the intended victim and thus got killed, it was held that the

act of the accused was nothing but murder under section 302 read with section 301,
IPC, 1860.186. In an altercation between parties, the accused persons ﬁred
indiscriminately upon the ﬂeeing party, one shot hit a person and second caused the
death of the complainant's 10-year-old son. The episode took place in a commercial
locality. The death was held to be intentional murder punishable under sections

300/301.187. The accused reached his intended victim's house. The latter hid himself
somewhere else. The accused chased him there and standing before that house ﬁred
into it. The housewife became prey and fell dead. It was held that under the doctrine of
transfer of malice, the accused must be convicted under sections 302 and 307 and
sentenced to life imprisonment.188. Where the accused intended to kill a particular
person by his lorry but another person chanced to come before the lorry and happened
to be killed, an offence under this section was committed and the accused was
convicted under section 302.189.
Similarly, there will be no difference where the injury intended for one falls on another
by accident. If A makes a thrust at B, meaning to kill, and C throwing himself between,
receives the thrust and dies, A will answer for it as if his mortal purpose had taken
place on B.
The same principle is applicable where, through accident or the mistake of a party not

place on B.
privy to the criminal design, the mischief falls either on a person not intended, or on the
party intended but in a different manner from that intended.190. Accused had entered
the house of witness to kill him but due to non-availability of electricity and under the
wrong impression he killed the deceased. Death of deceased can be said to be
accidental due to mistaken identity rather than any intentional act of accused. Order of
conviction of accused under section 302, IPC, 1860 is modiﬁed to one under section
304, Part II, IPC, 1860.191.
In a scuﬄe between accused persons and the complainant's party, one member on the
accused's side ﬁred a shot at a particular member on the complainant's side but the
shot actually hit another person who died. The Court held that the doctrine of

transferred malice was attracted. The act of the accused would be covered by section
304 and he was liable to be convicted under Part II of that section, though the
deceased was neither aimed at nor intended to be harmed by the accused.192.
It is not a disputed fact as to whose ﬁre shot resulted in the death of the deceased. The
only question which is to be examined here is whether the offence committed by the
respondent is culpable homicide amounting to murder, punishable under section 302 or
culpable homicide not amounting to murder, punishable under section 304, Part I. Here,
the intention on the part of the respondent-accused in causing bodily injury as is likely
to cause death is also not a disputed fact. The only thing which is to be tested is
whether the bodily injury is covered under either of the clauses of section 300 of IPC,

1860 (transfer of malice doctrine applied).193.
[s 301.1] Transfer of malice.—
The accused intended to cause death of his victim. But the stab aimed at him fell on
the chest of the deceased resulting in his death. It was held that as per the doctrine of
transfer of malice, it must be presumed that the accused intended to cause death of
the deceased alone. His act attracted the offence under section 301 read with section
302.194.
[s 301.2] CASES.—
Four persons were shooting at R in furtherance of their common intention to kill M, in
the bona ﬁde belief that R was M. R died as a result of the gunshot wounds. It was held
by the Supreme Court that the accuseds were guilty under section 302 read with
section 34 and that section 301 had no application.195.

183.  Dan Behari v State of UP, 2003 Cr LJ 4959 .
184.  Viswanath Pillai v State of Kerala, 1994 Cr LJ 1037 , the court referred Ballan v The State,
AIR 1955 All 626 [LNIND 1955 ALL 71] , wherein the scope of section 301 was discussed and
Suba v Emperor, AIR 1928 Lah 344 : 1928 (29) Cr LJ 280 .
185.  Shankarlal, AIR 1965 SC 1260 [LNIND 1964 SC 230] : (1965) 2 Cr LJ 266 .
186.  Gyanendra Kumar v State, 1972 Cr LJ 308 : AIR 1972 SC 502 [LNIND 1971 SC 601] .
187.  Abdul v State of Gujarat, (1995) 1 Cr LJ 464 : AIR 1994 SC 1910 [LNIND 1994 SC 209] .
188.  Jagpal Singh v State of Punjab, AIR 1991 SC 982 : 1991 Cr LJ 597 : 1991 Supp (1) SCC 549
.
189.  Padmanabhan v State of Kerala, 1988 Cr LJ 591 (Ker).
190.  7th Parl Rep 26; Jeoli, (1916) 39 All 161 .
191.  Geja Sabar v State of Orissa, 2009 Cr LJ 4685 .
192.  Kashi Ram v State of MP, AIR 2001 SC 2902 [LNIND 2001 SC 2369] . Rameshwar v State of
UP, 1997 Cr LJ 2677 (All), a minor killed by gunshot injury, the accused wanted to kill the victim's

father. Conviction under section 304, Part I.
193.  State of Rajasthan v Ram Kailash, AIR 2016 SC 634 [LNIND 2016 SC 41] : (2016) 4 SCC 590
[LNIND 2016 SC 41] .
194.  Nagaraj v State, 2006 Cr LJ 3724 (Mad—DB).
195.  Shankarlal, AIR 1965 SC 1260 [LNIND 1964 SC 230] . See also Balwinder v State of Punjab,
(1987) 1 SCC 1 [LNIND 1986 SC 482] : 1987 Cr LJ 330 : AIR 1987 SC 350 [LNIND 1986 SC 482]
where a conviction was upheld on the basis of circumstantial evidence only, such as, last seen
together, abscondence, recovery of dead body at his instance, and false pleas. But no such
conviction was upheld in Kansa Bahera v State of Orissa, 1987 Cr LJ 1857 : (1987) 1 SCC 480 :
AIR 1987 SC 1507 [LNIND 1987 SC 383] , because the circumstances were not capable of

leading to the single point conclusion of the guilt of the accused person. The Supreme Court
has reiterated that a High Court should not grant anticipatory bail to a person against whom a
report of dowry death is under investigation. Samunder Singh v State of Rajasthan, (1987) 1 SCC
466 [LNIND 1987 SC 38] : AIR 1987 SC 737 [LNIND 1987 SC 38] . For an example of conviction
under the section for bride-burning see Surinder Kumar v State (Delhi Administration, Delhi),
(1987) 1 SCC 467 [LNIND 1987 SC 38] : AIR 1987 SC 692 : 1987 Cr LJ 537 . For burning a
mistress and conviction on the basis of her dying declaration, see, Suresh v State of MP, (1987) 2
SCC 32 : 1987 Cr LJ 775 : AIR 1987 SC 860 . Unless there is inﬁrmity, illegality, failure of justice

or question of principle, the court does not interfere in a concurrent sentence and conviction by
trial and High Court. Gopal v State of Tamil Nadu, (1986) 2 SCC 93 [LNIND 1986 SC 26] : AIR
1986 SC 702 [LNIND 1986 SC 26] . Ashok Kumar Chatterjee v State of M.P., AIR 1989 SC 1890 :
1989 Cr LJ 2124 : 1989 Supp (1) SCC 560 ; Death caused by gunshot injuries, remarkable eye-
witness account, conviction, Bikkar Singh v State of Punjab, AIR 1989 SC 1440 : 1989 Cr LJ 1457
, but acquittal where eye-witness's account was doubtful, prosecution version different from
dying declaration and no explanation of injuries on the person of the accused; State of U.P. v
Madan Mohan, AIR 1989 SC 1519 : 1989 Cr LJ 1485 : (1989) 3 SCC 390 ; charges of abduction,

murder and rape, trial court acquitting because body was not traceable, High Court convicting
for abduction, conviction sustained, Arun Kumar v State of U.P., AIR 1989 SC 1445 : 1989 Cr LJ

1460 : 1989 Supp (2) SCC 322 . Re-appreciation of evidence in the absence of the counsel,
conviction found justiﬁed, Daya Ram v State (Delhi) Admn), (1988) 1 SCC 615 [LNIND 1988 SC
41] : AIR 1988 SC 613 : 1988 Cr LJ 865 .

[s 302] Punishment for murder.
Whoever commits murder shall be punished with death, or 196.[imprisonment for life],
COMMENT.—
Section 302 provides the punishment for murder. It stipulates a punishment of death or
imprisonment for life and ﬁne. Once an offender is found by the Court to be guilty of
the offence of murder under section 302, then it has to sentence the offender to either
death or for imprisonment for life. The Court has no power to impose any lesser
sentence.
[s 302.1] Punishment for murder.—Evolution.—
Cr PC, 1898 had section 376(5) which required that if an accused is convicted of an
offence punishable with death and the Court sentences him with any punishment other
than death, the Court shall, in its judgment, give reasons why death sentence was not
passed. The provision of section 367(5) of the 1898 Code reads as follows:

(5) If the accused is convicted of an offence punishable with death, and the Court
sentences him to any punishment other than death, the Court shall in its judgment state
the reason why sentence of death was not passed.
In 1955, Cr PC (Amendment) Act, 1955 deleted the aforesaid section 367(5) of the
1898 Code. As a result of this amendment, which came into effect from 1 January
1956, it was no longer necessary for a Court to record in its judgment, in case of
conviction in connection with an offence punishable with death, any reason for not
imposing the death sentence. Thus, in the new Code, the discretion of the judge to
impose death sentence has been narrowed, for the Court has to provide special
reasons for imposing a sentence of death. It has made imprisonment for life the rule

and death sentence an exception, in the matter of awarding punishment for murder.197.
Reference to extenuating or mitigating circumstances in a case of death penalty was
made possibly for the ﬁrst time by Supreme Court in the case of Nawab Singh v State of
UP.198. The Court held that in the facts of that case, murder was a cruel and deliberate
one and there were no extenuating circumstances. After the amendment of 1898 Code,
in the year 1955, the ﬁrst case relating to death sentence, which came before Supreme
Court was that of Vadivelu Thevar v State of Madras,199. in which it was held that the
question of sentence has to be determined, not with reference to the volume or
character of the evidence adduced by the prosecution in support of the prosecution
case, but with reference to the fact whether there are any extenuating circumstances

which can be said to mitigate the enormity of the crime. If the Court is satisﬁed that
there are such mitigating circumstances, only then, it would be justiﬁed in imposing the
lesser of the two sentences provided by law.

[s 302.2] Constitutionality of Death penalty.—
The constitutionality of death sentence was challenged in the case of Jagmohan Singh
v State of UP.200. The Constitution Bench while upholding the constitutionality of death
penalty examined whether total discretion can be conferred on the judges in awarding
death sentence, when the statute does not provide any guidelines on how to exercise
the same. The decision in Jagmohan Singh (supra) was rendered when Cr PC, 1973
was not in existence. However, the aforesaid position substantially changed with the
introduction of a changed sentencing structure under Cr PC, 1973. In Rajendra Prasad v
State of UP,201. it was held that the special reasons necessary for imposing a death
penalty must relate not to the crime but to the criminal. It could be awarded only if the
security of the state and society, public order in the interest of the general public
compelled that course.
Proposition laid down by the Constitution Bench in Jagmohan Singh's Case

(i) The general legislative policy that underlines the structure of our criminal law,
principally contained in the IPC, 1860 and Cr PC, 1973, is to deﬁne an offence
with suﬃcient clarity and to prescribe only the maximum punishment therefore,
and to allow a very wide discretion to the Judge in the matter of ﬁxing the degree
of punishment.
With the solitary exception of section 303, the same policy permeates section
302 and some other sections of IPC, 1860, where the maximum punishment is
the death penalty.
(ii) (a) No exhaustive enumeration of aggravating or mitigating circumstances which
should be considered when sentencing an offender, is possible. "The inﬁnite
variety of cases and facets to each case would make general standards
either meaningless 'boiler plate' or a statement of the obvious that no Jury

(Judge) would need." (referred to McGoutha v California.202.
(b) The impossibility of laying down standards is at the very core of the
criminal law as administered in India which invests the Judges with a
very wide discretion in the matter of ﬁxing the degree of punishment.
(iii) The view taken by the plurality in Furman v Georgia,203. decided by the Supreme
Court of the United States, to the effect, that a law which gives uncontrolled and
unguided discretion to the Jury (or the Judge) to choose arbitrarily between a
sentence of death and imprisonment for a capital offence, violates the Eighth
Amendment, is not applicable in India. We do not have in our Constitution any
provision like the Eighth Amendment, nor are we at liberty to apply the test of
reasonableness with the freedom with which the Judges of the Supreme Court

of America are accustomed to apply "the due process" clause. There are grave
doubts about the expediency of transplanting western experience in our
country. Social conditions are different and so also the general intellectual level.
Arguments which would be valid in respect of one area of the world may not
hold good in respect of another area.
(iv) (a) This discretion in the matter of sentence is to be exercised by the Judge
judicially, after balancing all the aggravating and mitigating circumstances of
the crime.
(b) The discretion is liable to be corrected by Superior Courts. The
exercise of judicial discretion on well-recognised principles is, in the
ﬁnal analysis, the safest possible safeguard for the accused. In view
of the above, it will be impossible to say that there would be at all any

discrimination, since crime as crime may appear to be superﬁcially

the same, but the facts and circumstances of a crime are widely
different. Thus considered, the provision in section 302, IPC, 1860 is
not violative of Article 14 of the Constitution on the ground that it
confers on the Judges an unguided and uncontrolled discretion in the
matter of awarding capital punishment or imprisonment for life.
(v) (a) Relevant facts and circumstances impinging on the nature and
circumstances of the crime can be brought before the Court at the
preconviction stage, notwithstanding the fact that no formal procedure for
producing evidence regarding such facts and circumstances had been
speciﬁcally provided. Where counsel addresses the Court with regard to the
character and standing of the accused, they are duly considered by the Court
unless there is something in the evidence itself which belies him or the Public
Prosecutor challenges the facts.
(b) It is to be emphasised that in exercising its discretion to choose either

of the two alternative sentences provided in section 302, IPC, 1860:
the Court is principally concerned with the facts and circumstances
whether aggravating or mitigating, which are connected with the
particular crime under inquiry. All such facts and circumstances are
capable of being proved in accordance with the provisions of the
Indian Evidence Act in a trial regulated by the CrPC. The trial does not
come to an end until all the relevant facts are proved and the counsel
on both sides have an opportunity to address the Court. The only thing
that remains is for the Judge to decide on the guilt and punishment
and that is whats. 306(2) and s. 309(2), CrPC purport to provide for.
These provisions are part of the procedure established by law and
unless it is shown that they are invalid for any other reasons they must

be regarded as valid. No reasons are offered to show that they are
constitutionally invalid and hence the death sentence imposed after
trial in accordance with the procedure established by law is not
unconstitutional under Art. 21.
[Jagmohan Singh v State of UP.]204.
[s 302.3] Evolution of Sentencing Policy
Capital punishment has been a subject matter of great social and judicial discussion
and catechism. From whatever point of view it is examined, one undisputable
statement of law follows that it is neither possible nor prudent to state any universal
formula which would be applicable to all the cases of criminology where capital
punishment has been prescribed. It shall always depend upon the facts and
circumstances of a given case.205.
[s 302.4] Phase-I (Focus on Crime).—
Jagmohan Singh's Case (supra) laid down that discretion in the matter of sentencing is

to be exercised by the judge after balancing all the aggravating and mitigating
circumstances "of the crime". Jagmohan Singh also laid down in proposition that while
choosing between the two alternative sentences provided in section 302 of IPC, 1860
(sentence of death and sentence of life imprisonment), the Court is principally
concerned with the aggravating or mitigating circumstances connected with the
"particular crime under inquiry".

[s 302.5] Legislative Change.—
The 41st Law Commission Report proposed extensive changes in the 1898 Code. In
paragraph 23.2 of the said report, the Law Commission recommended a set of new
provisions for governing "trials before a Court of sessions". With regard tosection 309
of the 1898 Code, the Law Commission recommended that hearing of the accused was
most desirable before passing any sentence against him. This recommendation was
accepted and incorporated while enacting section 235, Cr PC in 1973 Code within
Chapter XVIII of the same under the heading "Trial before a Court of Sessions". The
most signiﬁcant change brought about by the incorporation of the recommendation of
the Law Commission, is the giving of an opportunity of hearing to the accused on the
question of sentence. This opportunity of hearing at the post-conviction stage gives the
accused an opportunity to raise fundamental issues for adjudication and effective

determination by Court of its sentencing discretion in a fair and reasonable manner. In
Santa Singh v State of Punjab,206. the Supreme Court held that this provision is in
consonance with the modern trends in penology and sentencing procedures. It was
further held that proper exercise of sentencing discretion calls for consideration of
various factors like the nature of offence, the circumstances—both extenuating or
aggravating, the prior criminal record, if any, of the offender, the age of the offender, his
background, his education, his personal life, his social adjustment, the emotional and
mental condition of the offender, the prospects for the rehabilitation of the offender, the
possibility of his rehabilitation in the life of community, the possibility of treatment or

training of the offender, the possibility that the sentence may serve as a deterrent to
crime by the offender or by others.
[s 302.6] Phase-II Doctrine of "Rarest of rare" (Shifting the focus from crime to
criminal).—
In Bachan Singh v State of Punjab,207. another Constitution Bench, while upholding the
constitutional validity of death sentence observed that for persons convicted of
murder, life imprisonment is the rule and death sentence an exception. The principal
questions considered in this case were:
(i) Whether death penalty provided for the offence of murder in Section 302, Penal Code is
unconstitutional.
(ii) If the answer to the foregoing question be in the negative, whether the sentencing
procedure provided in Section 354(3) of the CrPC, 1973 (Act 2 of 1974) is unconstitutional

on the ground that it invests the Court with unguided and untrammelled discretion and
allows death sentence to be arbitrarily or freakishly imposed on a person found guilty of
murder or any other capital offence punishable under the Indian Penal Code with death or, in
the alternative, with imprisonment for life.
The conclusion of the Constitution Bench was that the sentence of death ought to be
given only in the 'rarest of rare cases' [See the Box with 'Supreme Court Guidelines in
Bachan Singh'] and it should be given only when the option of awarding the sentence of
life imprisonment is "unquestionably foreclosed". It laid down the framework law on
this point. Bachan Singh effectively opened up Phase II of a sentencing policy by
shifting the focus from the crime to the crime and the criminal.

Supreme Court Guidelines in Bachan Singh
(i) The extreme penalty of death need not be inﬂicted except in gravest cases of
extreme culpability;
(ii) Before opting for the death penalty, the circumstances of the 'offender' also
require to be taken into consideration along with the circumstances of the

'crime';
(iii) Life imprisonment is the rule and death sentence is an exception. In other
words, death sentence must be imposed only when life imprisonment appears
to be an altogether inadequate punishment having regard to the relevant
circumstances of the crime, and only provided, the option to impose sentence
of imprisonment for life cannot be conscientiously exercised having regard to
the nature and circumstances of the crime and all the relevant circumstances;
(iv) A balance-sheet of aggravating and mitigating circumstances has to be drawn
up and in doing so the mitigating circumstances have to be accorded full
weightage and a just balance has to be struck between the aggravating and the
mitigating circumstances before the option is exercised.
[Bachan Singh v State of Punjab.208.]
The judgment in Machhi Singh v State of Rajasthan,209. did not only state the above
guidelines in some elaboration, but also speciﬁed the mitigating circumstances which

could be considered by the Court while determining such serious issues.210. Despite
the legislative change and Bachan Singh discarding proposition (iv)(a) of Jagmohan
Singh, Supreme Court in Machhi Singh revived the "balancing" of aggravating and
mitigating circumstances through a balance sheet theory. In doing so, it sought to
compare aggravating circumstances pertaining to a crime with the mitigating
circumstances pertaining to a criminal. It hardly need be stated, with respect, that
these are completely distinct and different elements and cannot be compared with one
another. A balance sheet cannot be drawn up of two distinct and different constituents
of an incident. Nevertheless, the balance sheet theory held the ﬁeld post Machhi
Singh.211.
Supreme Court Guidelines in Machhi Singh

Factors to be considered while determining the "rarest of rare" case
I. Manner of commission of murder
33. When the murder is committed in an extremely brutal, grotesque, diabolical,
revolting, or dastardly manner so as to arouse intense and extreme indignation of the
community. For instance.
(i) When the house of the victim is set aﬂame with the end in view to roast him alive
in the house,
(ii) When the victim is subjected to inhuman acts of torture or cruelty in order to
bring about his or her death.
(iii) When the body of the victim is cut into pieces or his body is dismembered in a
ﬁendish manner.
II. Motive for commission of murder
34. When the murder is committed for a motive which evinces total depravity and
meanness. For instance, when (a) a hired assassin commits murder for the sake of
money or reward; (b) a cold-blooded murder is committed with a deliberate design in

order to inherit property or to gain control over property of a ward or a person under the
control of the murderer or vis-a-vis whom the murderer is in a dominating position or in
a position of trust; (c) a murder is committed in the course for betrayal of the
motherland.
III. Anti-social or socially abhorrent nature of the crime

(a) When murder of a member of a Scheduled Caste or minority community etc., is
committed not for personal reasons but in circumstances which arouse social wrath.
For instance, when such a crime is committed in order to terrorise such persons and
frighten them into ﬂeeing from a place or in order to deprive them of, or make them
surrender, lands or beneﬁts conferred on them with a view to reverse past injustices
and in order to restore the social balance.
(b) In cases of 'bride burning' and what are known as 'dowry-deaths' or when murder is
committed in order to remarry for the sake of extracting dowry once again or to marry
another woman on account of infatuation.
IV. Magnitude of crime
35. When the crime is enormous in proportion. For instance, when multiple murders say
of all or almost all the members of a family or a large number of persons of a particular
caste, community, or locality, are committed.
V. Personality of victim of murder

36. When the victim of murder is (a) an innocent child who could not have or has not
provided even an excuse, much less a provocation, for murder, (b) a helpless woman or
a person rendered helpless by old age or inﬁrmity, (c) when the victim is a person vis-a-
vis whom the murderer is in a position of domination or trust, (d) when the victim is a
public ﬁgure generally loved and respected by the community for the services rendered
by him and the murder is committed for political or similar reasons other than personal
reasons.
[Machhi Singh v State of Punjab.212.]
It is always preferred not to fetter the judicial discretion by attempting to make
excessive enumeration, in one way or another; and that both aspects namely
aggravating and mitigating circumstances have to be given their respective weightage

and that the Court has to strike the balance between the two and see towards which
side the scale/balance of justice tilts.213.
The aggravating and mitigating circumstances required to be taken into consideration
while applying the doctrine of "rarest of rare" crime
39. Aggravating circumstances:
1. The offences relating to the commission of heinous crimes like murder, rape,
armed dacoity, etc. by the accused with a prior record of conviction for capital
felony.
2. The offence was committed while the offender was committing another serious
offence.
3. The offence was committed with the intention to create a fear psychosis in the
public at large and was committed in a public place by a weapon or device which
clearly could be hazardous to the life of more than one person.
4. The offence of murder was committed for ransom or like offences to receive

money or monetary beneﬁts.
5. Hired killings.
6. The offence was committed outrageously for want only while involving inhumane
treatment and torture to the victim.
7. The offence was committed by a person while in lawful custody.

8. The offence was committed to prevent a person lawfully carrying out his duty like
arrest or custody in a place of lawful conﬁnement of himself or another. For
instance, murder is of a person who had acted in lawful discharge of his duty
under section 43, Cr PC, 1973.
9. When the crime is enormous in proportion like making an attempt of murder of
the entire family or members of a particular community.
10. When the victim is innocent, helpless or a person relies upon the trust of
relationship and social norms, like a child, helpless woman, a daughter or a
niece staying with a father/uncle and is inﬂicted with the crime by such a
trusted person.
11. When murder is committed for a motive which evidences total depravity and
meanness.
12. When there is a cold-blooded murder without provocation.
13. The crime is committed so brutally that it pricks or shocks not only the judicial
conscience but even the conscience of the society.
Mitigating circumstances:

1. The manner and circumstances in and under which the offence was committed,
for example, extreme mental or emotional disturbance or extreme provocation in
contradistinction to all these situations in normal course.
2. The age of the accused is a relevant consideration but not a determinative factor
by itself.
3. The chances of the accused of not indulging in commission of the crime again
and the probability of the accused being reformed and rehabilitated.
4. The condition of the accused shows that he was mentally defective and the
defect impaired his capacity to appreciate the circumstances of his criminal
conduct.
5. The circumstances which, in normal course of life, would render such a
behaviour possible and could have the effect of giving rise to mental imbalance
in that given situation like persistent harassment or, in fact, leading to such a

peak of human behaviour that, in the facts and circumstances of the case, the
accused believed that he was morally justiﬁed in committing the offence.
6. Where the Court upon proper appreciation of evidence is of the view that the
crime was not committed in a pre-ordained manner and that the death resulted in
the course of commission of another crime and that there was a possibility of it
being construed as consequences to the commission of the primary crime.
7. Where it is absolutely unsafe to rely upon the testimony of a sole eye-witness
though prosecution has brought home the guilt of the accused.
40. While determining the questions relatable to sentencing policy, the Court has to
follow certain principles and those principles are the loadstar besides the above
considerations in imposition or otherwise of the death sentence.
Principles:

(1) The Court has to apply the test to determine, if it was the 'rarest of rare' case for
imposition of a death sentence.

(2) In the opinion of the Court, imposition of any other punishment, i.e., life
imprisonment would be completely inadequate and would not meet the ends of justice.
(3) Life imprisonment is the rule and death sentence is an exception.
(4) The option to impose sentence of imprisonment for life cannot be cautiously
exercised having regard to the nature and circumstances of the crime and all relevant
considerations.
(5) The method (planned or otherwise) and the manner (extent of brutality and
inhumanity, etc.) in which the crime was committed and the circumstances leading to
commission of such heinous crime.
Ramnaresh v State of Chhattisgarh;214. Brajendra Singh v State of MP.215.
[s 302.7] Considerations for or against death sentence.—Balance sheet of
aggravating and mitigating factors.—
Both in Bachan Singh and Machhi Singh's cases, guidelines have been indicated by the
Supreme Court as to when this extreme sentence should be awarded and when not. In

ﬁne, a balance-sheet of aggravating and mitigating circumstances has to be drawn up
and in doing so the mitigating circumstances have to be accorded full weightage and a
just balance has to be struck between the aggravating and mitigating circumstances
before the option is exercised to award one sentence or the other.
The cardinal questions to be asked and answered are:—
(a) Is there something uncommon about the crime which renders sentence of
imprisonment for life inadequate and calls for a death sentence?
(b) Are the circumstances of the crime such that there is no alternative but to
impose death sentence even after according maximum weightage to the
mitigating circumstances which speak in favour of the offender?
If after taking into consideration all these circumstances, it is felt that death sentence

is warranted, the Court would proceed to do so.216. Thus, where murder is
premeditated217. or is committed in an organised manner,218. or by a hired
assassin219. or by a lawyer220. or where it is gruesome221. or is committed with utmost
depravity,222. death sentence seems to be the proper sentence in all such cases.
[s 302.8] Need for ﬂexibility.—
The Supreme Court has re-examined the categories after a gap of 25 years in Swami
Shraddananda v State of Karnataka.223. The circumstances and conditions of life have
very seriously changed since then and, therefore, even if those categories are to be
observed, some scope for ﬂexibility should always be maintained. Giving a brief view of
the changed scenario, the Supreme Court noted that a careful reading of the Machhi
Singh categories makes it clear that the classiﬁcation was made looking at murder

mainly as an act of maladjusted individual criminal(s). In 1983, the country was
relatively free from organised and professional crime. Abduction for ransom and gang
rape and murders committed in course of those offences were yet to become a
menace for the society compelling the legislature to create special slots for those
offences in IPC, 1860. At the time of Machhi Singh, Delhi had not witnessed the

infamous Sikh carnage. There had been no attack on the country's Parliament. There
were no bombs planted by terrorists killing completely innocent people, men, women
and children in dozens with sickening frequency. There were no private armies, no
maﬁa cornering huge Government contracts purely by muscle power, no reports of
killings of social activists and "whistle-blowers", no reports of custodial deaths and
rape and fake encounters by police or even by armed forces. These developments
would unquestionably ﬁnd a more pronounced reﬂection in any classiﬁcation if one
were to be made today. Relying upon the observations in Bachan Singh, therefore, even
though the categories framed in Machhi Singh provide very useful guidelines,
nonetheless those cannot be taken as inﬂexible, absolute or immutable. Further, even
in those categories, there would be scope for ﬂexibility as observed in Bachan Singh
itself.
[s 302.9] Santosh Bariyar—A landmark.—

itself.
In Santosh Kumar Satishbhushan Bariyar v State of Maharashtra,224. while sharing
Supreme Court's "unease and sense of disquiet" it was observed that:
the balance sheet of aggravating and mitigating circumstances approach invoked on a case
by case basis has not worked suﬃciently well so as to remove the vice of arbitrariness from
our capital sentencing system. It can be safely said that the Bachan Singh threshold of "the
rarest of rare cases" has been most variedly and inconsistently applied by the various High
Courts as also this Court.
The Judgments which are held to be per incurium in Santhosh Bariyar:
(1) Shivaji @ Dadya Shankar Alhat v State of Maharashtra,225.
(2) Mohan Anna Chavan v State of Maharashtra,226.
(3) Bantu v State of UP,227.
(4) Surja Ram v State of Rajasthan,228.
(5) Dayanidhi Bisoi v State of Orissa,229. and
(6) State of UP v Sattan @ Satyendra.230.

In Sangeet v State of Haryana,231. in an unprecedented Judgment, a two-judge bench of
the Supreme Court held that the Court has not endorsed the approach of aggravating
and mitigating circumstances in the Constitution Bench Judgment in Bachan Singh and
observed that it needs a fresh look. [See the Box with 'Principles summarised in
Sangeet's Case by Supreme Court'.] The bench observed that even though Bachan Singh
intended "principled sentencing", sentencing has now really become judge-centric as
highlighted in Swamy Shraddananda and Bariyar. This aspect of the sentencing policy in
Phase II as introduced by the Constitution Bench in Bachan Singh seems to have been
lost in transition.
Principles summarised in Sangeet's Case by Supreme Court
80. 1. This Court has not endorsed the approach of aggravating and mitigating

circumstances in Bachan Singh. However, this approach has been adopted in several
decisions. This needs a fresh look. In any event, there is little or no uniformity in the
application of this approach.
2. Aggravating circumstances relate to the crime while mitigating circumstances relate to
the criminal. A balance sheet cannot be drawn up for comparing the two. The
considerations for both are distinct and unrelated. The use of the mantra of aggravating and
mitigating circumstances needs a review.

3. In the sentencing process, both the crime and the criminal are equally important. We
have, unfortunately, not taken the sentencing process as seriously as it should be with the
result that in capital offences, it has become judge-centric sentencing rather than principled
sentencing.
4. The Constitution Bench of this Court has not encouraged standardization and
categorization of crimes and even otherwise it is not possible to standardize and categorize
all crimes.
5. The grant of remissions is statutory. However, to prevent its arbitrary exercise, the
legislature has built in some procedural and substantive checks in the statute. These need
to be faithfully enforced.
6. Remission can be granted under Section 432 of the CrPC in the case of a deﬁnite term of
sentence. The power under this Section is available only for granting "additional" remission,
that is, for a period over and above the remission granted or awarded to a convict under the

Jail Manual or other statutory rules. If the term of sentence is indeﬁnite (as in life
imprisonment), the power under Section 432 of the CrPC can certainly be exercised but not
on the basis that life imprisonment is an arbitrary or notional ﬁgure of twenty years of
imprisonment.
7. Before actually exercising the power of remission under Section 432 of the CrPC the
appropriate Government must obtain the opinion (with reasons) of the presiding judge of
the convicting or conﬁrming Court. Remissions can, therefore, be given only on a case-by-
case basis and not in a wholesale manner.
[Sangeet v State of Haryana.]232.
In Mohinder Singh v State of Punjab,233. another two-Judge Bench analysed the various
principles laid down in decisions reported in Swamy Shraddananda @ Murali Manohar

Mishra v State of Karnataka,234. Santosh Kumar Satishbhushan Bariyar v State of
Maharashtra,235. Mohd Farooq Abdul Gafur v State of Maharashtra,236. Haresh
Mohandas Rajput v State of Maharashtra,237. State of Maharashtra v Goraksha Ambaji
Adsul,238. and the Supreme Court's decision reported in Mohammed Ajmal
Mohammadamir Kasab @ Abu Mujahid v State of Maharashtra,239. and held that a
conclusion as to the 'rarest of rare' aspect with respect to a matter shall entail
identiﬁcation of aggravating and mitigating circumstances relating both to the crime
and the criminal and the expression 'special reasons' obviously means ('exceptional
reasons') founded on the exceptionally grave circumstances of the particular case
relating to the crime as well as the criminal.240.
Principles summarised in Mohinder Singh's Case by Supreme Court

(i) A conclusion as to the 'rarest of rare' aspect with respect to a matter shall entail
and the criminal.
(ii) The expression 'special reasons' obviously means ('exceptional reasons') founded
on the exceptionally grave circumstances of the particular case relating to the crime as
well as the criminal.
(iii) The decision in Ravji @ Ram Chandra v State of Rajasthan,241. which was
subsequently followed in six other cases, namely, Shivaji @ Dadya Shankar Alhat v State
of Maharashtra,242. Mohan Anna Chavan v State of Maharashtra,243. Bantu v State of
UP,244. Surja Ram v State of Rajasthan,245. Dayanidhi Bisoi v State of Orissa,246. and
State of UP v Sattan @ Satyendra and Others,247. wherein it was held that it is only

characteristics relating to crime, to the exclusion of the ones relating to criminal, which
are relevant to sentencing in criminal trial, was rendered per incuriam qua Bachan Singh
(supra) in the decision reported in Santosh Kumar Satishbhushan Bariyar (supra) at 529.
(iv) Public opinion is diﬃcult to ﬁt in the 'rarest of rare' matrix. People's perception of
crime is neither an objective circumstance relating to crime nor to the criminal.

Perception of public is extraneous to conviction as also sentencing, at least in capital
sentencing according to the mandate of Bachan Singh (supra). [2009 (6) SCC 498
[LNIND 2009 SC 1278] at p 535.]
(v) Capital sentencing is one such ﬁeld where the safeguards continuously take
strength from the Constitution. [(2009) 6 SCC 498 [LNIND 2009 SC 1278] at 539.]
(vi) The Apex Court as the ﬁnal reviewing authority has a far more serious and intensive
duty to discharge and the Court not only has to ensure that award of death penalty
does not become a perfunctory exercise of discretion under section 302 after an
ostensible consideration of 'rarest of rare' doctrine, but also that the decision-making
process survives the special rigours of procedural justice applicable in this regard.248.
(vii) The 'rarest of rare' case comes when a convict would be a menace and threat to
the harmonious and peaceful coexistence of the society. The crime may be heinous or

brutal but may not be in the category of "the rarest of the rare case". There must be no
reason to believe that the accused cannot be reformed or rehabilitated and that he is
likely to continue criminal acts of violence as would constitute a continuing threat to
the society.249.
(viii) Life sentence is the rule and the death penalty is the exception. The condition of
providing special reasons for awarding death penalty is not to be construed
linguistically but it is to satisfy the basic features of a reasoning supporting and
making award of death penalty unquestionable.
(ix) The circumstances and the manner of committing the crime should be such that it
pricks the judicial conscience of the Court to the extent that the only and inevitable
conclusion should be awarding of death penalty.

State of Maharashtra v Goraksha Ambaji Adsul250. and Mohinder Singh v State of
Punjab.251.
[s 302.10] Crime Test, Criminal Test and RR Test.—
The tests that we have to apply, while awarding death sentence, are "crime test",
"criminal test" and the RR Test and not "balancing test". To award death sentence, the
"crime test" has to be fully satisﬁed, that is 100% and "criminal test" 0%, that is no
Mitigating Circumstance favouring the accused. If there is any circumstance favouring
the accused, like lack of intention to commit the crime, possibility of reformation,
young age of the accused, not a menace to the society, no previous track record, etc.,
the "criminal test" may favour the accused to avoid the capital punishment. Even if both
the tests are satisﬁed, that is the aggravating circumstances to the fullest extent and

no mitigating circumstances favouring the accused, still we have to apply ﬁnally the
Rarest of Rare Case test (RR Test). RR Test depends upon the perception of the society
that is "society centric" and not "Judge centric", that is, whether the society will approve
the awarding of death sentence to certainty types of crimes or not. While applying that
test, the Court has to look into variety of factors like society's abhorrence, extreme
indignation and antipathy to certain types of crimes like sexual assault and murder of
minor girls intellectually challenged, suffering from physical disability, old and inﬁrm
women with those disabilities, etc. Examples are only illustrative and not exhaustive.
Courts award death sentence since situation demands so, due to constitutional

compulsion, reﬂected by the will of the people and not the will of the judges.252.
Some Cases where the Court applied the Criminal test to avoid Death Penalty:

(1) Kumudi Lal v State of UP,253.
(2) Raju v State of Haryana,254.
(3) Bantu @ Naresh Giri v State of MP,255.
(4) State of Maharashtra v Suresh,256.
(5) Amrit Singh v State of Punjab,257.
(6) Rameshbhai Chandubhai Rathod v State of Gujarat,258.
(7) Surendra Pal Shivbalak v State of Gujarat,259.
(8) Amit v State of Maharashtra.260.
[s 302.11] Via media between Death Sentence and Life Imprisonment.—
It was in Swamy Shraddananda (2) v State of Karnataka,261. that a three-Judge Bench of
the Supreme Court concluded that there is a good and strong basis for the Court to
substitute a death sentence by life imprisonment or by a term in excess of 14 years and
further to direct that the convict must not be released from the prison for the rest of his
life or for the actual term as speciﬁed in the order, as the case may be. But a two-Judge
Bench in Sangeet v State of Haryana,262. in which it was held that:

In Sahib Hussain @ Sahib Jan v State of Rajasthan,263. another two-Judge Bench
reiterated the position held in Swamy Shraddananda (supra) by holding that the
Punjab,264. other two-Judge bench also termed the remarks in Sangeet (supra) as
'unwarranted' and opined that if the two-judge bench was of the opinion that earlier

the matter to the larger Bench. However, in some cases, the Court had also been
voicing concern about the statutory basis of such orders.265. In a judgment,266.
Supreme Court opined that:
We are of the view that it will do well in case a proper amendment u/s. 53 of IPC is provided,
introducing one more category of punishment—life imprisonment without commutation or
remission. Dr. Justice V. S. Malimath in the Report on "Committee of Reforms of Criminal
Justice System", submitted in 2003, had made such a suggestion but so far no serious
steps have been taken in that regard. There could be a provision for imprisonment till death
without remission or commutation.
[s 302.12] Sessions' Court's power.—

The Session Judges do not have the power to impose the harsher variety of life
sentence which is recognised by Swamy Shraddananda (2) v State of Karnataka267. as
an option available in law for the Courts to avoid the harshest, irreversible and
incorrectable sentence of death. That sentencing option is available only to
Constitutional Courts —the High Courts and the Supreme Court.268.
[s 302.13] Delay in execution of death sentence.—
It is well-established that exercising of power under Article 72/161 by the President or
the Governor is a Constitutional obligation and not a mere prerogative.269. Time taken
in Court proceedings cannot be taken into account to say that there is a delay which
would convert a death sentence into one for life.270. In TV Vatheeswaran,271. overruled
in Triveni Ben v State of Gujarat,272. a two-Judge Bench of Supreme Court considered
whether the accused, who was convicted for an offence of murder and sentenced to

death, kept in solitary conﬁnement for about eight years was entitled to commutation
of death sentence. It was held that delay exceeding two years in the execution of a
sentence of death should be considered suﬃcient to entitle the person under sentence
of death to invoke Article 21 and demand the quashing of the sentence of death.273.
But a three-Judge bench in Sher Singh v State of Punjab,274. held that though prolonged
delay in the execution of a death sentence is unquestionably an important
consideration for determining whether the sentence should be allowed to be executed,
no hard and fast rule that "delay exceeding two years in the execution of a sentence of
death should be considered suﬃcient to entitle the person under sentence of death to
invoke Art. 21 and demand the quashing of the sentence of death" can be laid down as

has been done in Vatheeswaran (supra). Javed Ahmed v State of Maharashtra,275. re-
iterated the proposition laid down in Vatheeswaran (supra) case and doubted the
competence of the three-judge bench to overrule the Vatheeswaran case. The
conﬂicting views are ﬁnally settled by the Constitution Bench in Triveni Ben v State of
Gujarat.276. It overruled Vatheeswaran (supra) holding that undue long delay in
execution of the sentence of death will entitle the condemned person to approach the
Supreme Court under Article 32 but the Court will only examine the nature of delay
caused and circumstances that ensued after sentence will ﬁnally be conﬁrmed by the
judicial process and will have no jurisdiction to reopen the conclusions reached by the
Court while ﬁnally maintaining the sentence of death. Court, however, may consider the

question of inordinate delay in the light of all circumstances of the case to decide
whether the execution of sentence should be carried out or should be altered into
imprisonment for life. No ﬁxed period of delay could be held to make the sentence of
death inexecutable and to this extent the decision in Vatheeswaran's case cannot be
said to lay down the correct law. In Madhu Mehta v UOI,277. Supreme Court commuted
the death sentence on the ground that the mercy petition was pending for eight years
after disposal of the criminal appeal by Supreme Court.
It is well established that exercising of power under Article 72/161 by the President or
the Governor is a constitutional obligation and not a mere prerogative. Considering the
high status of oﬃce, the Constitutional framers did not stipulate any outer time limit for

disposing the mercy petitions under the said Articles, which means it should be
decided within reasonable time. However, when the delay caused in disposing the
mercy petitions is seen to be unreasonable, unexplained and exorbitant, it is the duty of
the Supreme Court to step in and consider this aspect.278.
[s 302.13.1] Nirbhaya Case279..—

In this case, the Supreme Court analysed all the decisions, where the question of
imposing the death penalty was discussed and examined the aggravating and
mitigating circumstances and opined that the appetite for sex, the hunger for violence,
the position of the empowered and the attitude of perversity of the accused, to say the
least, are bound to shock the collective conscience which knows not what to do.
The Supreme Court observed that:
the casual manner with which she was treated and devilish manner in which they played
with her identity and dignity is humanly inconceivable. It sounds like a story from different
world where humanity has been treated with irreverence. Aggravating circumstances
outweigh mitigating circumstances.
The Supreme Court held the accused persons guilty of offences which are brutal,
diabolic and barbaric in nature and fall within category of rarest of rare cases. The
Supreme Court held that the sentence of death penalty was proper; there was no
reason to differ with same.280.

[s 302.14] Mitigating factors.
At the material time, the accused was under inﬂuence of alcohol and the fact that his
mental faculty was not in order, was considered as a relevant mitigating circumstance.
It was accordingly held that it was not a ﬁt case for extreme penalty. The sentence for
life imprisonment was conﬁrmed.281.
There was a conspiracy in the wake of a property dispute in which contract killers were
hired and death was caused. Sethi, J, of the Supreme Court said that this was not the
rarest of rare case. The accused was a misled youth. He was liable to be sentenced to
life imprisonment for the major offence of murder.282. In a case arising out of partition
between two brothers, one of them (the accused) killed his brother, his wife and

children. He was frustrated over his failure to resist partition of joint property. The
Court agreed that it was a heinous and brutal crime, but was not in the category of
rarest of rare cases. The accused did not have any criminal tendency. He was a State
Government employee and not a menace to the society. The Court directed his death
sentence to be reduced to 20 years actual imprisonment including the period already
undergone.283.
In a rape and murder case of an 11-year-old child, there was extra judicial confession
made to a senior person to seek his help. He indicated the place where the body of the
girl was lying. He struck her in the head twice over with a brick and then in the mouth
only when she threatened to disclose. This showed that he had no intention to commit

murder and injuries were inﬂicted only at the spur of the moment. He had no criminal
record nor he was in any way a danger to the society. Death sentence was commuted
to life imprisonment.284.
The Court has to draw a balance between the aggravating and mitigating factors. The
accused in this case was the member of a para-military force. He killed seven
members of a family in a pre-planned manner. He was 23 at the time and had no
criminal record. He and his family members were suffering agony at the hands of the
victim family. He had a cause to feel aggrieved for the injustice meted out to his family
members. The Court said that it was not the rarest of rare cases. His death sentence
was reduced to life imprisonment.285.
[s 302.14.1] Where attribution of exact role not possible.—

One of the accused persons was the relative of the deceased family. They not only
merely robbed the family of valuables but also killed three members of the family who
were present at the time. They also raped the only female member in the house. The
mitigating factors which the judge took into account in commuting death sentence into
life imprisonment were that they were neither too old nor too young to be beyond
reformation and rehabilitation. It was diﬃcult also to judge as to what part was played
by one or the other and, therefore, who among them would come in the "rarest"
category.286.
[s 302.14.2] Killing of wife and children in frustration.—
Though the accused had some suspicion about the character of his wife, the facts
showed that he killed his wife and children because of unhappiness and frustration and
not because of any criminal tendency. The penalty of death was set aside and he was
sentenced to life imprisonment.287. The accused requested his wife to accompany him

to his house. She turned it down. This created frustration and anger in his mind. He
picked up a sharp-edged weapon and mercilessly struck her and also his mother-in-law
repeatedly. Both of them fell dead. The Court said that the case was not of the rarest
category. Death sentence was commuted to life imprisonment.288.
[s 302.14.3] Death in custody.—
The Supreme Court observed as follows:
There is a rise in incidents of custodial deaths but accused cannot be convicted
completely de hors the evidence and its admissibility according to law. Court cannot
act on presumption merely on a strong suspicion or assumption and presumption. A
presumption can only be drawn when it is permissible under the law. Rushing into
conclusions without there being any proper link with commission of crime is improper.

The view taken by the trial Court was just and proper in the given facts and
circumstances of the case and it was not proper for the High Court to reverse the
ﬁnding. Reasons given by the High Court in reversing the order of acquittal of accused
persons were not cogent and did not appeal to reason so as to justify conviction of the
appellants. Hence, impugned judgment of the High Court was set aside.289.
[s 302.14.4] Restoration of death penalty after acquittal.—
The trial Court awarded death sentence. The High Court acquitted the accused in 1982.
The Supreme Court said that the accused having enjoyed acquittal, death sentence
could not be restored even if the case merited the imposition of death penalty.290.
[s 302.15] Delay.—
No hard-and-fast rules can be laid down with respect to the delay which could result as

a mitigating circumstance, and each case must depend on its own facts. In the present
case, there was no delay whatsoever that the circumstances necessitated imposition
of life sentence instead of death sentence.291.

[s 302.16] Capital (Death) sentence.—
The doctrine of rarest of rare case was enunciated by the Supreme Court in Bachan
Singh v State of Punjab.292. The trial Court, High Courts and even the Supreme Court
are duty bound to follow it.293. The Court explained in this case some of the relevant
factors as follows:
Not only the doctrine of proportionality but also doctrine of rehabilitation should be
taken into consideration, particularly in view of section 354(3), Cr PC, 1973, which must
be read with Article 21 of the Constitution. Where there was nothing to show that the
appellant-accused could not be reformed and rehabilitated, the mere manner of
disposal of the dead body, howsoever abhorrent, should not by itself be regarded
suﬃcient to bring the case in the rarest of rare category. In the present case, all the
accused including the appellant were unemployed young men in search of job. They
were not criminals. In exception of a plan proposed by the appellant and accepted by

them, they kidnapped a friend of theirs with the motive of procuring ransom from his
family but later murdered him, and after cutting his body into pieces, disposed of the
same at different places. One of the accuseds turned approver and prosecution case
was based exclusively on his evidence. Appellant-accused contradicted the approver's
version in respect of his role. In such a case, statement of approver regarding manner
of murder and role of accused and that of approver himself, should be tested on the
basis of prudence doctrine taking into consideration inter alia, evidence produced by
the accused for imposition of lesser punishment. Hence, death penalty awarded by the
Courts below, in the absence of any special reasons to support the same was
substituted by penalty of rigorous imprisonment for life.

Death punishment stands on a very different footing from other types of punishments.
It is unique in its total irrevocability. Incarceration, life or otherwise, potentially serves
more than one sentencing aims. Deterrence, incapacitation, rehabilitation and
retribution all ends are capable to be furthered in different degrees, by calibrating this
punishment in light of the overarching penal policy. But the same does not hold true of
death penalty.294.
One has to observe the global move away from the death penalty. Latest statistics
show that 138 nations have abolished death penalty in either law or practice (no
executions for 10 years).
Further, on 18 December 2007, the UN General Assembly adopted Resolution 62/149
calling upon countries that retain death penalty to establish a worldwide moratorium on

executions with a view to abolishing the death penalty. India is, however, one of the 59
nations that retain the death penalty.295.
The Law Commission of India in its Report No. 262 titled "The Death Penalty" has
recommended the abolition of death penalty for all the crimes other than terrorism
related offences and waging war (offences affecting National Security).
Where the question of whether death penalty could be imposed in a case which
depended upon circumstantial evidence, the Supreme Court said:
If the circumstantial evidence is found to be of unimpeachable character in
establishing the guilt of the accused, that form the foundation for conviction and that
has nothing to do with the question of sentence. Mitigating circumstances and the

aggravating circumstances have to be balanced and in the balance sheet of such
circumstances. The fact that the case rests on circumstantial evidence has no role to
play. In fact, in most of the cases where death sentences are awarded for rape and
murder and the like, there is practically no scope for getting an eyewitness. Such
offences are not committed in public view. Only available evidence in such cases is

circumstantial. If such evidence is found to be credible, cogent and trustworthy for the
purpose of recording conviction, to treat such evidence as a mitigating circumstance,
would amount to consideration of an irrelevant aspect. Hence, such plea is
unsustainable. Instant case fell in category of the rarest of rare cases. Circumstances
proved established the depraved acts of the accused, and they called for only one
sentence, that is, death sentence. Judgment of the High Court, conﬁrming the
conviction and sentence imposed by the trial Court, does not warrant any
interference.296.
[s 302.16.1] Punishment of terrorists.—
The prosecution case was that the accused persons came running to a police picket
and hurled bombs at security personnel. There was good identiﬁcation evidence.
Injuries on the persons of the accused were scabbed burn injuries caused by handling
of explosive substance. The medical evidence showed that abrasions on the body of

the deceased could have been caused by splinters from bomb explosions. The case
being proved beyond any reasonable doubt, the conviction for murder was fully
justiﬁed.297.
[s 302.16.2] Hearing before awarding death sentence.—
The matter was remitted where death sentence was awarded without hearing the
accused.298. It is necessary to afford opportunity of hearing to the accused on the
question of sentence, where life imprisonment or death sentence is awarded.299.
[s 302.17] Fine.—
It has been held that the words "shall also be liable to ﬁne" are not to be understood as
a legislative mandate that the Court must invariably impose ﬁne also as a part of the
punishment.300.
[s 302.18] Appeal against acquittal.—
Where the prosecution case of homicide and the defence version of suicide were both

found to be equally probable, the accused was held to be entitled to the beneﬁt of
doubt.301. Where there was a gross enmity between the parties and the medical
evidence did not support the ocular version, accused was given beneﬁt of doubt.302.
[s 302.19] Presumption of murder.—
Where the question was whether the death in question was homicidal or suicidal, and
the expert who examined the body was not sure either way, the presumption as to
murder was held to be something doubtful.303. Where a person is not proved to be
guilty, the presumption of innocence prevails in reference to him.304.
[s 302.20] As to the application of section 106 of the Evidence Act, 1872.—

In cases where mere circumstantial evidence exists, the burden of proof as envisaged
under section 106 of the Evidence Act, 1872, i.e., the burden of proving the fact, which
is especially within the knowledge of a person, plays an important role in several cases.
Where the dead body of the deceased was found in the river, the knowledge about that
incident was within the special knowledge of the accused. As the deceased was in the
custody of the accused and disappeared from their house, the accused did not reveal
what happened to the deceased. The Supreme Court held that the accused failed to
discharge their duty under section 106 of the Evidence Act, 1872. The prosecution is
not expected to give the exact manner in which the deceased was killed. Adverse
inference needs to be drawn against the accused, as they failed to explain how the
deceased was found dead in the river in one-foot deep water.
Referring to section 106 of the Evidence Act, 1872, it was propounded that the said

section was not intended to relieve the prosecution of its burden to prove the guilt of
the accused beyond reasonable doubt, but would apply to cases where prosecution
had succeeded in proving facts from which a reasonable inference could be drawn
regarding the existence of certain other facts, unless the accused, by virtue of his
special knowledge regarding such facts, succeeds in offering any explanation, to drive
the Court to draw a different inference.305.
In Gajanan Dashrath Kharate v State of Maharashtra,306. the deceased was found within
the company of the accused and on the next day was found dead. Blood stained dress
of the accused with the blood of the deceased was recovered. The Supreme Court held
that when an offence like murder is committed in secrecy inside a house, the initial

burden to establish the case would undoubtedly be upon the prosecution. In view of
section 106 of the Evidence Act, 1872, there will be a corresponding burden on the
inmates of the house to give cogent explanation as to how the crime was committed.
When the deceased is shown to be abducted, it is for the abductors to explain how they
dealt with the abducted victim. In the absence of an explanation, the Court is to draw
inference that the abductors are the murderers.307.
In the examination under section 313, Cr PC, 1973, the accused denied any knowledge
of the crime and alleged false implication. Section 106 of the Evidence Act, 1872
imposes an obligation on the accused to explain as to what happened after they were
last seen together.308.
The mere circumstance that the accused was last seen with the deceased is an unsafe

hypothesis to ﬁnd a conviction on a charge of murder. The lapse of time between the
point when the accused was last seen with the deceased and the time of death has to
be minimal.309. When the prosecution mainly relies on section 106 of the Evidence
Act,1872, the Supreme Court held, in a case where murder took place in a hotel room,
that to invoke that section, the main point to be established by the prosecution is that
the accused persons were present in the hotel room at the relevant time. In this case,
the prosecution failed to produce the CCTV footages available at the hotel where the
murder took place, the Court further observed that the CCTV footage being a crucial
piece of evidence, it is for the prosecution to have produced the best evidence, which
was missing.310.

In the absence of any persuasive evidence to hold that at the relevant time the
appellant was present in the house, it would also be impermissible to cast any burden
on him as contemplated under section 106 of the Evidence Act, 1872.311.
[s 302.21] Expert opinion.—

196.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-1956).
Merely because no expert opinion was obtained to prove as to whether bones
recovered were human or animal bones, it would not weaken the case of prosecution in
the light of the overwhelming evidence available on record to prove the complicity of
the appellants.312.
[s 302.22] Circumstantial evidence.—
The circumstance (that the accused persons were seen in the vicinity of the
neighbourhood of the crime little before the same was committed), if coupled with the
recovery of the ornaments of the deceased from the possession of the accused, at
best, create a highly suspicious situation; but beyond a strong suspicion nothing else
would follow in the absence of any other circumstance(s) which could suggest the
involvement of the accused in the offence/offences alleged. Even with the aid of the
presumption under section 114 of the Evidence Act, 1872, the charge of murder cannot

be brought home unless there is some evidence to show that the robbery and murder
occurred at the same time, i.e., in the course of the same transaction.313.
[s 302.23] Section 302 and section 396.—
The law clearly marks a distinction between culpable homicide amounting to murder
and culpable homicide not amounting to murder. Another distinction between sections
302 and 396 is that under the latter, wide discretion is vested in the Courts in relation to
awarding of punishment. The Court, in exercise of its jurisdiction and judicial discretion
in consonance with the established principles of law can award sentence of 10 years
with ﬁne or even award sentence of life imprisonment or sentence of death, as the case
may be. While under section 302, the Court cannot, in its discretion, award sentence

lesser than life imprisonment. The ingredients of both these offences, to some extent,
are also different inasmuch as to complete an offence of 'dacoity'. Under section 396,
IPC, 1860, ﬁve or more persons must conjointly commit the robbery while under section
302 of the IPC, 1860 even one person by himself can commit the offence of murder.
But, as already noticed, to attract the provisions of section 396, the offence of 'dacoity'
must be coupled with murder. In other words, the ingredients of section 302 becomes
an integral part of the offences punishable under section 396 of the IPC, 1860.314.
[s 302.24] Additional/alternate charge under section 302, prejudice caused.—
Charges were framed under sections 306 and 364. After examination of all the
witnesses (26) except the investigating oﬃcer, an alternate charge was framed under

section 302 and the accused convicted thereunder. The witnesses were cross-
examined as to the allegations related to the offences under sections 306 and 364.
Conviction under section 302 set aside as prejudiced.315.

197.  Ajitsingh Harnamsingh Gujral v State of Maharashtra, 2011 (10) Scale 394 [LNIND 2011 SC
902] : 2011 AIR (SCW) 5448 : AIR 2011 SC 3690 [LNIND 2011 SC 902] ; Rajesh Kumar v State,
2011 (11) Scale 182 [LNIND 2011 SC 2734] : 2011 AIR (SCW) 5997 : (2011) 13 SCC 706 [LNIND
2011 SC 2734] .
198.  Nawab Singh v State of UP, AIR 1954 SC 278 .
199.  Vadivelu Thevar v State of Madras, AIR 1957 SC 614 [LNIND 1957 SC 41] .
200.  Jagmohan Singh v State of UP, (1973) 1 SCC 20 [LNIND 1972 SC 477] .
201.  Rajendra Prasad v State of UP, (1979) 3 SCR 646 .
202.  McGoutha v California, (1971) 402 US 183.
203.  Furman v Georgia (1972) 408 US 238.
204.  Jagmohan Singh v State of UP, (1973) 1 SCC 20 [LNIND 1972 SC 477] .
205.  Sunder v State, AIR 2013 SC 777 [LNIND 2013 SC 91] : 2013 (3) SCC 215 [LNIND 2013 SC
91] .
206.  Santa Singh v State of Punjab, (1976) 4 SCC 190 [LNIND 1976 SC 268] .
207.  Bachan Singh v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260] : (1980) 2 SCC 684
[LNIND 1980 SC 261] .

91] .
208.  Bachan Singh v State of Punjab, (1980) 2 SCC 684 [LNIND 1980 SC 261] : AIR 1980 SC 898
[LNIND 1980 SC 260] .
209.  Machhi Singh v State of Rajasthan, 1983 (3) SCC 470 [LNIND 1983 SC 170] : AIR 1983 SC
957 [LNIND 1983 SC 170] .
210.  See the Box with 'Supreme Court Guidelines in Machi Singh'.
211.  Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452
[LNIND 2012 SC 719] .
212.  Machhi Singh v State of Punjab, AIR 1983 SC 957 [LNIND 1983 SC 170] : 1983 (3) SCC 470
[LNIND 1983 SC 170] .
213.  Vasanta Sampat Dupare v State of Maharashtra, AIR 2017 SC 2530 [LNIND 2017 SC 248] .
214.  Ramnaresh v State of Chhattisgarh, AIR 2012 SC 1357 [LNINDORD 2012 SC 404] .
215.  Brajendra Singh v State of MP, AIR 2012 SC 1552 [LNIND 2012 SC 159] .

216.  Machhi Singh v State of Punjab, (1983) 3 SCC 470 [LNIND 1983 SC 170] : AIR 1983 SC 957
[LNIND 1983 SC 170] : 1983 Cr LJ 1457 . See also State of Punjab v Garmej Shing, 2002 Cr LJ
3741 (SC), where also the court counted the factors and gave some illustrations. The accused
killed his brother and two members of his family. The incident was the result of a mistrust
created by a payment made by accused to his brother. The court was of the view that it was not
a rarest case and death penalty was improper. The court also said that the likelihood of the
accused being released prematurely was not a ground for imposing death penalty. The amount
of compensation to the victim should not exceed the ﬁne imposed. The only surviving member
was the daughter of the deceased. The amount of ﬁne was enhanced from Rs. 5000 to Rs.
20,000.

20,000.
217.  Jagmohan Singh, 1973 Cr LJ 370 : AIR 1973 SC 947 [LNIND 1972 SC 477] ; Mohinder Singh,
1973 Cr LJ 610 : AIR 1973 SC 697 ; Maghar Singh v State, 1975 Cr LJ 1102 : AIR 1975 SC 1320 .
218.  Gopal Chand Srivastava v State of UP, 1994 Cr LJ 2863 (All), all the inmates were told to
stay away and the victims were then hit by two assailants whom the court awarded death
sentence but the conﬁrming court reduced the sentence to life imprisonment in view of their
young years.
219.  Ramesh, 1979 Cr LJ 902 : AIR 1979 SC 871 .
220.  State of UP v Paras Nath, 1973 Cr LJ 850 : AIR 1973 SC 1073 [LNIND 1973 SC 14] .

221.  Munawar Harun Shah, 1983 Cr LJ 971 : AIR 1983 SC 585 [LNIND 1983 SC 113] : (1983) 3
SCC 254 . Followed in State v Ashok Kumar, (1995) 2 Cr LJ 1789 (Del), where the accused killed
the husband of the woman with whom he was in love; the killing was done when he was taken
away with the help of his wife and was struck while asleep, both convicted and sentenced to
death; ﬁne of one lakh rupees imposed on the lady accused for expenses of prosecution she
had gained anything from the offence nor had any means. Suresh Kumar v State of Rajasthan,
1995 Cr LJ 1853 (Raj), a boy of 20 years old, caused death of his wife and daughter, faced
prosecution for seven years, life imprisonment not enhanced to death sentence. James v State
of Kerala, (1995) 1 Cr LJ 55 (Ker), money-lender entered the home of the borrower and killed
him, his wife and his mother, entry could have been for the lawful purpose of seeking repayment,
death sentence reduced to life imprisonment, not rarest of rare case.

222.  Shankaria, 1978 Cr LJ 1251 : AIR 1978 SC 1248 [LNIND 1978 SC 138] . Raghunathan v State
of Kerala, (1995) 2 Cr LJ 1880 (Ker), death of old woman caused by strangulation and robbed of
ornaments, life imprisonment upheld. Sheikh Ayyub v State of Maharashtra, (1995) 1 Cr LJ 420 :
(1994) 2 Supp SCC 269 , accused killed two police oﬃcers while they were arresting him, he
snatched police pistol and handled it in confused manner, injuring his companion co-accused
also, death sentence reduced to life imprisonment. Deoraj Deju Suvarna v State of Maharashtra,
1994 Cr LJ 3602 (Bom), it would be most shocking for a judge to hear the accused on the
quantum of sentence after awarding him death sentence.
223.  (2008) 13 SCC 767 [LNIND 2008 SC 1488] : AIR 2008 SC 3040 [LNIND 2008 SC 1488] :

2008 Cr LJ 3911 . The Court also observed that decision would go by comparison of one case
with the other, comparison both quantitative and qualitative. The application of the sentencing
policy through aggravating and mitigating circumstances came up for consideration in Swamy
Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] : AIR 2008 SC
3040 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 . On a review, it was concluded in paragraph 48
of the Report that there is a lack of evenness in the sentencing process. The rarest of rare
principle has not been followed uniformly or consistently. Reference in this context was made
to Aloke Nath Dutta v State of WB, 2007 (12) SCC 230 [LNIND 2006 SC 1131] : 2007 (51) AIC 429
(SC) : 2008 (2) SCC (Cri) 264 [LNIND 2006 SC 1131] , which in turn referred to several earlier
decisions to bring home the point.

224.  Santosh Kumar Satishbhushan Bariyar v State of Maharashtra, 2009 (6) SCC 498 [LNIND
2009 SC 1278] : 2009 (2) SCC (Cr) 1149 : 2009 (79) AIC 26 : 2009 (7) Scale 341 [LNIND 2009 SC
1278] .
225.  Shivaji @ Dadya Shankar Alhat v State of Maharashtra, 2008 (15) SCC 269 [LNIND 2008 SC
1785] .
226.  Mohan Anna Chavan v State of Maharashtra, 2008 (7) SCC 561 [LNIND 2008 SC 1265] .
227.  Bantu v State of UP, 2008 (11) SCC 113 [LNIND 2008 SC 1496] .
228.  Surja Ram v State of Rajasthan, 1996 (6) SCC 271 [LNIND 1996 SC 1548] .
229.  Dayanidhi Bisoi v State of Orissa, 2003 (9) SCC 310 [LNIND 2003 SC 571] .
230.  State of UP v Sattan @ Satyendra, 2009 (4) SCC 736 [LNIND 2009 SC 485] .
231.  Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452
232.  Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452

233.  Mohinder Singh v State of Punjab, (2013) 3 SCC 294 [LNIND 2013 SC 71] : 2013 Cr LJ 1559
(SC).
234.  Swamy Shraddananda @ Murali Manohar Mishra v State of Karnataka, (2008) 13 SCC 767
[LNIND 2008 SC 1488] : AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 .

235.  Santosh Kumar Satishbhushan Bariyar v State of Maharashtra, 2009 (6) SCC 498 [LNIND
1278] .
236.  Mohd Farooq Abdul Gafur v State of Maharashtra, 2010 (14) SCC 641 [LNIND 2009 SC
1641] .
237.  Haresh Mohandas Rajput v State of Maharashtra, 2011 (12) SCC 56 [LNIND 2011 SC 928] .
238.  State of Maharashtra v Goraksha Ambaji Adsul, AIR 2011 SC 2689 [LNIND 2011 SC 627] .
239.  Mohammed Ajmal Mohammadamir Kasab @ Abu Mujahid v State of Maharashtra, JT 2012
(8) SC 4 [LNIND 2012 SC 1215] .
240.  See the Box with 'Principles summarised in Mohinder Singh's Case by Supreme Court'.
241.  Ravji @ Ram Chandra v State of Rajasthan, 1996 (2) SCC 175 [LNIND 1995 SC 1247] .
242.  Shivaji @ Dadya Shankar Alhat v State of Maharashtra, 2008 (15) SCC 269 [LNIND 2008 SC
1785] .
243.  Mohan Anna Chavan v State of Maharashtra, 2008 (7) SCC 561 [LNIND 2008 SC 1265] .
244.  Bantu v State of UP, 2008 (11) SCC 113 [LNIND 2008 SC 1496] .

1785] .
245.  Surja Ram v State of Rajasthan, 1996 (6) SCC 271 [LNIND 1996 SC 1548] .
246.  Dayanidhi Bisoi v State of Orissa,246 2003 (9) SCC 310 [LNIND 2003 SC 571] .
247.  State of UP v Sattan @ Satyendra and Others, 2009 (4) SCC 736 [LNIND 2009 SC 485] .
248.  Mohd Farooq Abdul Gafur v State of Maharashtra, 2010 (14) SCC 641 [LNIND 2009 SC
1641] , 692.
249.  Haresh Mohandas Rajput v State of Maharashtra, 2011 (12) SCC 56 [LNIND 2011 SC 928] at
p 63, para 20.
250.  State of Maharashtra v Goraksha Ambaji Adsul, AIR 2011 SC 2689 [LNIND 2011 SC 627] .
251.  Mohinder Singh v State of Punjab, (2013) 3 SCC 294 [LNIND 2013 SC 71] : 2013 Cr LJ 1559
(SC).
252.  Shankar Kisanrao Khade v State of Maharashtra, 2013 Cr LJ 2595 (SC) : (2013) 5 SCC 546
[LNIND 2013 SC 429] . Gurvail Singh @ Gala v State of Punjab, AIR 2013 SC 1177 [LNIND 2013 SC
94] .

(SC).
94] .
253.  Kumudi Lal v State of UP, (1994) 4 SCC 108 .
254.  Raju v State of Haryana, (2001) 9 SCC 50 [LNIND 2001 SC 1147] .
255.  Bantu @ Naresh Giri v State of MP, (2001) 9 SCC 615 [LNIND 2001 SC 2372] .
256.  State of Maharashtra v Suresh, (2000) 1 SCC 471 [LNIND 1999 SC 1126] .
257.  Amrit Singh v State of Punjab, AIR 2007 SC 132 [LNIND 2006 SC 944] .
258.  Rameshbhai Chandubhai Rathod v State of Gujarat, (2011) 2 SCC 764 [LNIND 2011 SC 96] .
259.  Surendra Pal Shivbalak v State of Gujarat, (2005) 3 SCC 127 .
260.  Amit v State of Maharashtra, (2003) 8 SCC 93 [LNIND 2003 SC 642] .
261.  Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :
AIR 2008 SC 3040 [LNIND 2008 SC 1488] : 2008 Cr LJ 3911 ; also see State of UP v Sanjay
Kumar, (2012) 8 SCC 537 [LNINDORD 2012 SC 416] .

262.  Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452
263.  Sahib Hussain @ Sahib Jan v State of Rajasthan, 2013 Cr LJ 2359 : 2013 (6) Scale 219
264.  Gurvail Singh @ Gala v State of Punjab, 2013 (10) Scale 671 [LNINDORD 2013 SC 1147] .
265.  Sangeet v State of Haryana, AIR 2013 SC 447 [LNIND 2012 SC 719] : (2013) 2 SCC 452
266.  State of Rajasthan v Jamil Khan, 2013 (12) Scale 200 [LNIND 2013 SC 883] .

267.  Swamy Shraddananda (2) v State of Karnataka, 2008 (13) SCC 767 [LNIND 2008 SC 1488] :
268.  Unni v State of Kerala, 2013 Cr LJ 2819 (SC).
269.  Shatrughan Chauhan v UOI, 2014 Cr LJ 1327 : [2014] 1 SCR 609 [LNIND 2014 SC 40] .
270.  Mohd Arif v The Registrar, Supreme Court of India, 2014 Cr LJ 4598 : 2014 (87) All CC 939.
271.  TV Vatheeswaran, AIR 1983 SC 361 [LNIND 1983 SC 43] , 1983 SCR (2) 348 .
272.  Triveni Ben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678
[LNIND 1989 SC 885] .
273.  In Ediga Annamma's case (1974 (3) SCR 329) [LNIND 1974 SC 34] , two years was
considered suﬃcient to justify interference with the sentence of death. In Bhagwan Baux's case
(AI R 1978 SC 34 ), two and a half years and in Sadhu Singh's case ( AIR 1978 SC 1506 ), three
and a half years were taken as suﬃcient to justify altering the sentence of death into one of

imprisonment for life; see also KP Mohammed v State of Kerala, (1985) 1 SCC (Cr) 142 : 1984
Supp SCC 684.
274.  Sher Singh v State of Punjab, AIR 1983 SC 465 [LNIND 1983 SC 89] : (1983) 2 SCC 344
275.  Javed Ahmed v State of Maharashtra, AIR 1985 SC 231 [LNIND 1984 SC 310] : (1985) 1 SCC
276.  Triveni Ben v State of Gujarat, AIR 1989 SC 1335 [LNIND 1989 SC 885] : (1989) 1 SCC 678
277.  Madhu Mehta v UOI, (1989) 3 SCR 775 [LNIND 1989 SC 390] .
278.  Shatrughan Chauhan v UOI, 2014 Cr LJ 1327 : [2014] 1 SCR 609 [LNIND 2014 SC 40] .
279.  Mukesh v State for NCT of Delhi, 2017 (5) Scale 506 .
280.  Mukesh v State for NCT of Delhi, AIR 2017 SC 2161 [LNIND 2017 SC 252] .

281.  Siraj Khan v State of Gujarat, 1994 Cr LJ 1502 (Guj). Kurale Pullaiah v State, 2003 Cr LJ 1060
(AP), the accused stabbed the victim with knife, snatching the knife from the victim himself,
inﬂicted only one stab injury, not a cold-blooded or heartless homicide, death sentence
converted into life imprisonment.
282.  State of Maharashtra v Bharat Chaganlal Raghani, AIR 2002 SC 409 [LNIND 2001 SC 1312]
at 432.
283.  Prakash Dhawal Khairnar v State of Maharashtra, AIR 2002 SC 340 [LNIND 2001 SC 2841] at
350, relying on Bhagwan v State of Rajasthan, 2001 AIR SCW 2189 : AIR 2001 SC 2342 [LNIND
2001 SC 1234] : (2001) Cr LJ 2925 : (2001) 6 SCC 2961 , wherein while reducing the death
sentence to imprisonment for life, the court considered section 57, IPC, 1860 and referred to the
following observation in Dalbir Singh v State of Punjab, (1979) 3 SCC 745 [LNIND 1979 SC 281] :

AIR 1979 SC 1384 [LNIND 1979 SC 281] : 1979 Cr LJ 1058 .
"The sentences of death in the present appeal are liable to be reduced to life imprisonment. We
may add a footnote to the ruling in Rajendra Prasad v. State of U.P., (1979) 3 SCC 646 [LNIND
1979 SC 107] .Taking the clue from the English Legislation on abolition, we may suggest that life
imprisonment which strictly means imprisonment for the whole of the man's life, but in practice
amounts to incarceration for a period between 10 and 14 years may, at the option of the
convicting Court, be subject to the conditions that the sentence of imprisonment shall last as
long as life lasts where there are exceptional indications of murderous recidivism and the
community cannot run the risk of the convict being at large. This takes care of judicial

apprehensions that unless physically liquidated the culprit may at some remote time repeat
murder." This should be contrasted with Surja Ram v State of Rajasthan, AIR 1997 SC 18 [LNIND
1996 SC 1548] : 1997 Cr LJ 51 , the accused killed his real brother, his two minor sons, and aunt

while asleep, also attempted to murder the brother's wife and daughter, deaths caused in cool
and calculated manner, rarest, death sentence justiﬁed. Bantu v State of MP, AIR 2002 SC 70
[LNIND 2001 SC 2372] : 2002 Cr LJ 211 , the accused was sentenced to death for rape and
murder of six-year-old child. He was of 22 years. There was no criminal record. He was not likely
to be a grave danger to the society. His act, though heinous and condemnable, did not come in
the category of rarest of rare cases. Death sentence was commuted to imprisonment for life.
This should be contrasted with Jai Kumar v State of MP, AIR 1999 SC 1860 [LNIND 1999 SC 524]
: 1999 Cr LJ 2569 . The accused committed a cold-blooded and gruesome and brutal murder of
his sister-in-law and her eight-year-old daughter without any provocation. The Court did not
regard his age of 22 years as any relevant factor. Death penalty was conﬁrmed. Deepak Kumar v
Ravi Virmani, 2002 Cr LJ 1781 (SC) : AIR 2002 SC 1320 [LNIND 2002 SC 1] , death sentence

reduced to life imprisonment in a case in which there was heinous killing of four family
members. The accused spared a child which showed humane conduct.
284.  Raju v State of Haryana, AIR 2001 SC 2043 [LNIND 2001 SC 1147] .
285.  Om Prakash v State of Haryana, AIR 1999 SC 1332 [LNIND 1999 SC 1282] : 1999 Cr LJ
2044 . Another case stressing the need for balancing process is Anil v State of UP, 2002 Cr LJ
2694 (All), the accused had his shop opposite a house. The house owner had the shop closed
because of customer nuisance. The accused in revenge got him killed. Taking all the factors
into account, the court said that he would not pose any danger to the society if his life was
spared. The death sentence awarded to him was reduced to life imprisonment.

286.  Ronny v State of Maharashtra, AIR 1998 SC 1251 [LNIND 1998 SC 302] : 1998 Cr LJ 1638 .
State of UP v Mutahir Mian, (2008) 10 SCC 223 [LNIND 2008 SC 1922] : AIR 2009 SC 839 [LNIND
2008 SC 1922] , acquittal because of irreconciliable facts. State of MP v Chamru, (2007) 12 SCC
423 [LNIND 2007 SC 802] : AIR 2007 SC 2400 [LNIND 2007 SC 802] : 2007 Cr LJ 3509 , four
murders, nobody could be punished because witnesses not natural. State of MP v Basodi, (2007)
14 SCC 548 [LNIND 2007 SC 919] , killing alleged by uncle by gunshot, extra-judicial confession
found to be myth, acquittal. Ramappa Halappa Pujar v State of Karnataka, (2007) 13 SCC 31
[LNIND 2007 SC 561] , High Court reversed acquittal, Supreme Court upheld conviction. State of
UP v Atar Singh, (2007) 14 SCC 193 [LNIND 2007 SC 1316] : AIR 2008 SC 411 [LNIND 2007 SC

1316] : (2008) 1 All LJ 227, acquittal justiﬁed because of weakness of circumstantial evidence.
Jagdish v State of MP, (2007) 13 SCC 12 [LNIND 2007 SC 1091] : 2008 Cr LJ 350 , acquittal
justiﬁed on appreciation of evidence. Bhagga v State of MP, (2007) 13 SCC 442 [LNIND 2007 SC
1208] : AIR 2008 SC 175 [LNIND 2007 SC 1208] , accused to whom no overt act could be
attributed, acquitted, no common object. Ajay Singh v State of Maharashtra, (2007) 12 SCC 341
[LNIND 2007 SC 438] : AIR 2007 SC 2188 [LNIND 2007 SC 438] , bride burning, prosecution
failed to establish charge.
287.  Shaikh Ayub v State of Maharashtra, AIR 1999 SC 1285 : 1998 Cr LJ 1656 ; Heera Lal (Dr) v
State of UP, 2001 Cr LJ 2849 (All), killed wife and three children because of debt burden and

attempted suicide. He was in great stress, frustration and mentally disturbed. Death sentence
reduced to life imprisonment.
288.  Mani Ram v State of Uttaranchal, 2001 Cr LJ 3403 (Uttaranchal).
289.  Sadashio Mundaji Bhalerao v State of Maharashtra, (2007) 15 SCC 421 [LNIND 2006 SC
1047] .
290.  State of MP v Dhirendra Kumar, AIR 1997 SC 318 [LNIND 1996 SC 1830] : (1997) 1 SCC 93
[LNIND 1996 SC 1830] ; Subhash Chander v Krishanlal, 2001 Cr LJ 1825 (SC), refusal to interfere
in the commutation of death sentence into life imprisonment by High Court.
291.  Jagdish v State of MP, (2009) 9 SCC 495 [LNINDORD 2009 SC 210] : (2009) 4 AP LJ 1 .

292.  Bachan Singh v State of Punjab, AIR 1980 SC 898 [LNIND 1980 SC 260] : (1980) 2 SCC 684
293.  Santosh Kumar SatishBhushan Bariyar v State of Maharashtra, (2009) 6 SCC 498 [LNIND
2009 SC 1278] : (2009) 2 SCC (Cr) 1149.
294.  Ibid.
295.  Ibid.
296.  Shivaji v State of Maharashtra, (2008) 15 SCC 269 [LNIND 2008 SC 1785] : AIR 2009 SC 56
[LNIND 2008 SC 1785] .
297.  Ayyub v State of UP, AIR 2002 SC 1192 [LNIND 2002 SC 156] ; MA Antony v State of Kerala,
(2009) 6 SCC 220 [LNIND 2009 SC 961] : AIR 2009 SC 2549 [LNIND 2009 SC 961] : (2009) 2 SCC
(Cr) 959, murder of all the six members of a family at their residence at night, motive of money
was proved, accused present in the house during the night till next morning and his absence
from his home established, important recoveries, judicial and extra-judicial confession,
complete chain of circumstances, death sentence conﬁrmed.
298.  Sattan v State of UP, 2001 Cr LJ 676 (All).
299.  Ram Deo Chauhan v Raj Nath Chauhan, 2001 Cr LJ 2902 (SC).

300.  Bidhan Nagh v State of Assam, 2000 Cr LJ 1144 (Gau).
301.  State of Maharashtra v Sanjay, 2003 SCC (Cr) 231. State of Punjab v Ajaib Singh, AIR 2004
SC 2466 [LNIND 2004 SC 478] : 2004 Cr LJ 2547 .
302.  State of UP v Garibuddi, 2012 AIR (SCW) 92 : 2012 Cr LJ 772 ; Kailash Gour v State of
Assam, (2012) 2 SCC 34 : AIR 2012 SC 786 : 2012 Cr LJ 1050 .
303.  Dinesh Borthakar v State of Assam, (2008) 3 SCC 6967 : AIR 2008 SC 2205 [LNIND 2008 SC
675] .
304.  Ghurey Lal v State of UP, (2008) 10 SCC 450 [LNIND 2008 SC 1535] .
305.  Chaman v State of Uttarakhand, AIR 2016 SC 1912 [LNIND 2016 SC 167] : 2016 Cr LJ 2330 .
306.  Gajanan Dashrath Kharate v State of Maharashtra, 2016 Cr LJ 1900 : 2016 (3) SCJ 176 .
307.  Paramsivam v State through Inspector of Police, 2014 Cr LJ 4085 : AIR 2014 SC 2936
[LNIND 2014 SC 617] .

308.  Dilip Mallick v State of WB, 2017 (1) Crimes 328 (SC) : 2017 (3) Scale 71 [LNINDU 2017 SC
56] .
309.  Ganpat Singh v State of MP, AIR 2017 SC 4839 [LNIND 2017 SC 2956] .
310.  Tomaso Bruno v State of UP, (2015) 7 SCC 178 [LNIND 2015 SC 40] : 2015 Cr LJ 1690 .
311.  Jose v The Sub-Inspector of Police, Koyilandy, (2016) 10 SCC 519 [LNIND 2016 SC 403] :
AIR 2016 SC 4581 [LNIND 2016 SC 403] .
312.  Ram Chander v State of Haryana, 2017 (1) Scale 73 [LNIND 2017 SC 7] : (2017) 2 SCC 321
[LNIND 2017 SC 7] .
313.  Raj Kumar v State (NCT of Delhi), AIR 2017 SC 614 [LNIND 2017 SC 30] : (2017) 237 DLT
173 .
314.  Raﬁq Ahmed v State of UP, (2011) 8 SCC 300 [LNIND 2011 SC 726] : AIR 2011 SC 3114
[LNIND 2011 SC 726] : 2011 Cr LJ 4399 .
315.  R Rachaiah v Home Secretary, Bangalore, AIR 2016 SC 2447 [LNIND 2016 SC 203] : 2016 Cr
LJ 2943 .

[s 303] Punishment for murder by life convict.
Whoever, being under sentence of 316.[imprisonment for life], commits murder, shall
be punished with death.
316.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1-1-1956).
317.  Mithu, 1983 Cr LJ 811 (SC) : AIR 1983 SC 473 [LNIND 1983 SC 105] : 1983 Mad LJ (Cr) 485
: (1983) 2 SCC 277 [LNIND 1983 SC 105] : 1983 SCC (Cr) 405 : (1983) 1 SCJ 327 [LNIND 1983
SC 105] . See Balkar Singh v State of Punjab, AIR 1991 SC 1225 : 1991 Cr LJ 1712 , sentence of
participating co-accused found guilty by virtue of section 34 converted into life imprisonment. A
prosecution under section 302 for causing death by a motor vehicle is not a bar to a civil claim
arising out of the same accident. The civil proceeding is not likely to prejudice the position of
the accused in the criminal proceeding. Raja Ram Garg v Chhanga Singh, AIR 1992 All 28 [LNIND

1991 ALL 397] . See also Bhagwan Bax Singh, 1984 Cr LJ 928 (SC) : AIR 1984 SC 1120 : (1984) 1
SCC 278 .
318.  State of Punjab v Dalbir Singh, AIR 2012 SC 1040 [LNIND 2012 SC 93] : 2012 (3) SCC 346
[LNIND 2012 SC 93] . See also State of Rajasthan v Manoj Yadav, 2012 Cr LJ 456 (Raj).
COMMENT.—
This section has been struck down by the Supreme Court as void and unconstitutional
being violative of both Articles 14 and 21 of the Constitution. It regards life convict to
be a dangerous class without any scientiﬁc basis and, thus, violates Article 14 and
similarly by completely cutting out judicial discretion it becomes a law which is not just,
fair and reasonable within the meaning of Article 21.317. So all murders are punishable
under section 302, IPC, 1860. For the same reasons, Supreme Court declared section

27(3) of Arms Act 1959, ultra vires the Constitution. It was held that by imposing
mandatory death penalty, section 27(3) of the Arms Act, 1959 runs contrary to those
statutory safeguards which give judiciary the discretion in the matter imposing death
penalty. Section 27(3) of the Act is thus ultra vires the concept of judicial review which
is one of the basic features of our Constitution.318.

[s 304] Punishment for culpable homicide not amounting to murder.
Whoever commits culpable homicide not amounting to murder shall be punished with
319.[imprisonment for life], or imprisonment of either description for a term which
may extend to ten years, and shall also be liable to ﬁne, if the act by which the death
is caused is done with the intention of causing death, or of causing such bodily injury
as is likely to cause death,
or with imprisonment of either description for a term which may extend to ten years,
or with ﬁne, or with both, if the act is done with the knowledge that it is likely to cause
death, but without any intention to cause death, or to cause such bodily injury as is
likely to cause death.
COMMENT.—
This section provides punishment for culpable homicide not amounting to murder.
Under it, there are two kinds of punishments applying to two different circumstances:

COMMENT.—
(1) If the act by which death is caused is done with intention of causing death or such
bodily injury as is likely to cause death, the punishment is imprisonment for life, or
imprisonment of either description for a term which may extend to 10 years and ﬁne.
(2) If the act is done with knowledge that it is likely to cause death but without any
intention to cause death or such bodily injury as is likely to cause death, the punishment
is imprisonment of either description for a term which may extend to 10 years, or with
A conviction under Part II of this section read with section 34 is legal and valid. Part II
of this section can be read together with section 34, notwithstanding that Part II speaks
only of knowledge while section 34 deals with intention.320.

Commission of the offence of culpable homicide would require some positive act on
the part of the accused as distinguished from silence, inaction or a mere lapse.
Allegations of not carrying out a prompt search of the missing children; of delay in the
lodging of formal complaint with the police and failure to take adequate measures to
guard the access from the ashram to the river, which are the principal allegations made
in the FIR, cannot make out a case of culpable homicide not amounting to murder
punishable under section 304, IPC, 1860.321.
[s 304.1] Distinction between the provisions of section 304, Part I and Part II.—
Linguistic distinction between the two Parts of section 304 is evident from the very
language of this section. There are two apparent distinctions, one in relation to the

punishment while other is founded on the intention of causing that act, without any
intention but with the knowledge that the act is likely to cause death. It is neither
advisable nor possible to state any straight-jacket formula that would be universally

applicable to all cases for such determination. Every case essentially must be decided
on its own merits. The Court has to perform the very delicate function of applying the
provisions of the Code to the facts of the case with a clear demarcation as to under
what category of cases, the case at hand falls and accordingly punish the accused.322.
[s 304.2] Is section 304, Part II applicable only when exceptions to section 300
cover a case?.—
The plea that section 304, Part II applies only when exceptions to section 300 cover a
case is misconceived. The decision in Harendra Mandal's case,323. was rendered in a
different context and observations in the same case cannot be read out of context.
That was a case where death itself had not been caused and therefore, question of
applying section 304, IPC, 1860 did not arise.324. Section 304, Part II comes into play
when the death is caused by doing an act with knowledge that it is likely to cause death

but there is no intention on the part of the accused either to cause death or to cause
such bodily injury as is likely to cause death.325.
[s 304.3] Section 302 or section 304.—Judicial dilemma.—
The Indian Penal Code was enacted in the year 1860 under which the offences within
the territory of India have been tried ever since it was enacted dealing with countless
number of cases leading either to acquittal or conviction. Yet, the task of the decision-
making authorities/Courts of whether an offence of culpable homicide is murder or
culpable homicide does not amount to murder in the prevailing facts and
circumstances of the case is a perennial question with which the Courts are often
confronted. When the evidence discloses a clear case of murder or makes out a ﬁnding

of culpable homicide not amounting to murder, the task of the Courts to record
conviction or acquittal is generally an easy one. But this task surely becomes an
undaunted one when the accused commits culpable homicide/murder but the
circumstances disclose many a times that it is done without premeditation or pre-
planning, may be to cause grievous hurt, yet it is so grave in nature that it results into
death and the role of the factum causing death without premeditation becomes a
secondary consideration due to which the decision of the Courts in such cases often
hinges on discretion while considering whether the case would fall under section 302,
IPC, 1860 or it would be under section 304, Part I or even Part II, IPC, 1860. On a plain
reading of section 299, section 300, section 302 and section 304 of IPC, 1860, it

appears that given cases can be conveniently classiﬁed into two categories, viz.,
culpable homicide amounting to murder which is section 302, IPC, 1860 or culpable
homicide not amounting to murder which is section 304 IPC, 1860. But when it comes
to the actual application of these two sections in a given case, the Courts are often
confronted with a dilemma as to whether a case would fall under section 302, IPC,
1860 or would fall under section 304, IPC, 1860. Many a time, this gives rise to
conﬂicting decisions of one Court or the other giving rise to the popular perception
among litigants and members of the Bar that a particular Court is an acquitting Court
or is a convicting one. This confusion or dilemma often emerges in a case when the
question for consideration is whether a given case would fall under section 302, IPC,

1860 or section 304, IPC, 1860 when it is diﬃcult to decipher from the evidence
whether the intention was to cause merely bodily injury which would not make out an
offence of murder or there was clear intention to kill the victim making out a clear case
of an offence of murder.326. Section 300 states both, what is murder and what is not.
First ﬁnds place in section 300 in its four stated categories, while the second ﬁnds
detailed mention in the stated ﬁve exceptions to section 300. The legislature in its

wisdom, thus, covered the entire gamut of culpable homicide that 'amounting to
murder' as well as that 'not amounting to murder' in a composite manner in section 300
of the Code. It is neither advisable nor possible to state any straightjacket formula that
would be universally applicable to all cases for such determination. Every case
essentially must be decided on its own merits. The Court has to perform the very
delicate function of applying the provisions of the Code to the facts of the case with a
clear demarcation as to under what category of cases, the case at hand falls and
accordingly punish the accused.327. It has been held that unless the case falls under
one of the speciﬁed exception in section 300, it cannot be brought under Part I or Part II
of section 304 of IPC, 1860.328.
[s 304.4] CASES.—
Where the accused husband suspecting the ﬁdelity of his wife quarrelled with her,
poured kerosene on her body and set her on ﬁre and subsequently, when she screamed

for help, tried to extinguish ﬁre by pouring water, the Supreme Court held that he was
having full knowledge that his act would cause her death and the attempt of
extinguishing the ﬁre will not mitigate the offence, hence he was liable under section
302, IPC, 1860 and not under section 304, IPC, 1860.329. The accused followed his
daughter into the women's public toilet of the village and assaulted her. The fatal
injuries resulted in her instant death. None of the exceptions in section 300 of IPC,
1860 was attracted. It would necessarily follow that the accused committed murder of
his daughter. He was liable to be punished with either imprisonment for life or death
under section 302, IPC, 1860 alone.330. The accused killed his stepfather, who was an

inﬁrm old man and an invalid, with the latter's consent, his motive being to get three
innocent men (his enemies) hanged. It was held that the offence was covered by
Exception 5 to section 300 and was punishable under the ﬁrst Part of this section.331.
Where the deceased, an old man with an enlarged and ﬂabby heart, was lifted by the
accused during a quarrel and thrown on the ground from some distance with suﬃcient
force and the deceased got his ribs fractured and died of a rupture of the heart, it was
held that the offence fell under section 325 and not under Part II of this section, as the
accused had no intention or knowledge to cause death.332. Accused stabbed the
deceased in a sudden incident during an election fever which resulted in his death four

days later in hospital where he had been operated upon in a bid to save his life. There
was no evidence that the accused intended to cause death or cause such bodily injury
as was suﬃcient in ordinary course of nature to cause death. In the circumstances, it
was held that the case fell within clause (b) of section 299 but did not fall within clause
3 of section 300, IPC, 1860, and as such his conviction under section 302 was set aside
and he was convicted under section 304, Part I of the Code.333. Similarly, where a
young lad of 18½ years old gave only one kassi blow to the deceased following an
altercation between his father and the deceased, which resulted in latter's death six
days after, it could not be said that he had intended to cause an injury which was

suﬃcient in ordinary course of nature to cause death within the meaning of clause 3 of
section 300, IPC, 1860. He could be at best saddled with knowledge that his act might
result in death. His conviction was, therefore, changed from section 302 to section 304,
Part II, IPC, 1860.334. Accused, in a sudden quarrel gave a blow on the head of his
friend with a stick weighing only 210 grams which caused his death. It was held that
his conviction under section 304, Part II, IPC, 1860, was improper as it could not be said
that he had knowledge that such a blow would cause death. His conviction was,
therefore, changed to one under section 323, IPC, 1860.335. In a dispute regarding the
right of way, the accused gave a single ﬁst blow on the head of the deceased which
resulted into his death. No weapon was used, nor was there any past enmity between

them. The accused was not held to be responsible for the death of the deceased and

was sentenced under section 323, IPC, 1860.336. Where a man lifted a four-year-old
child and threw him on the ground and thus caused his death, it was held that
knowledge of death under section 299, IPC, 1860, could be safely attributed to him and
he was therefore liable under section 304, Part-II, IPC, 1860.337. In a sudden quarrel, the
accused, a young man, administered a single knife blow on the chest of the deceased
causing his death, it was held that the case did not fall under clauses 1 and 2 of section
300 but since he had knowledge that death might follow, he was guilty under section
304, Part II, IPC, 1860.338. A police oﬃcer was punished under Part II of this section
with seven-year RI for causing death in custody by resorting to third-degree
methods.339. A woman deserted her husband and started living with her paramour six
months before the incident. Her ﬁsherman husband, on way back from his work,
spotted her sitting among women at outside of a neighbouring house. He approached

towards her. On seeing him, she ran inside. He chased and stabbed her to death. His
conviction under Part II and sentence of ﬁve-year rigorous imprisonment was held to be
not excessive.340. A group of persons called out the deceased from his home with a
view to lodging a protest but suddenly one of them inﬂicted a knife wound which falling
on the chest killed the deceased. The Supreme Court convicted the single wound-
causing accused under this section saying that the heat of passion generated at the
spur of the moment and not any intention to cause death was responsible for the
incident.341. In another case of the same kind before the Supreme Court, the ﬁnding
was that the wrestler-accused had an altercation with the deceased two or three days
before the incident. The prosecution showed that the accused came to the house of

the deceased, but suppressed further knowledge about the incident. Drops of blood in
the house showed that the deceased was injured there, ran out and fell dead. There
was only one major injury. Conviction under Part I of this section was considered to be
appropriate.342. Annoyance was caused by the deceased singing a vulgar song. Quarrel
and beating in consequence continued for some time. Accused started beating the
deceased with a stick not thick enough to cause rupture of the spleen. He might not
have had the intention to cause death but had knowledge that death might result. His
conviction under section 300 (second) was converted into one under section 304, Part
II.343. Where the victim was dragged for about 120 feet and then struck with a crowbar
not using much force, the accused knowing that the assault might cause death but not

intending it. Part II was held to be attracted and not Part I.344. A person reaching home
in a drunken state started beating his wife. Their son intervened and the accused
hurled stones on him twice. The boy succumbed to the head injury then and there.
Conviction was shifted from under section 302 to 304, Part II, knowledge that death
might be caused.345.
Persons exceeding the right of private defence are punished under section 304, Part I
and not under section 302.346. Where the deceased died due to the negligent ﬁring by a
person, who came for celebrating a marriage function with a gun, it was held that
though it is not possible to attribute intention, it is equally not possible to hold that the
act was done without the knowledge that it is likely to cause death. Everybody, who

carries a gun with live cartridges and even others know that ﬁring a gun and that too in
the presence of several people is an act, which is likely to cause death. Hence, the
liability under section 304, Part II. The appellant caused the death of his wife by beating
her with a wooden stick. No intention to cause death was proved. He was convicted
under section 304, Part II.347.
Where the death of a player was caused by blowing a cricket stump on him in a friendly
cricket match and it was found that the accused player did not know that his act would
cause an injury which would cause death or which was likely to cause death, it was
held that a conviction under section 304, Part II was not proper, but that an offence
under section 325 was made out as the injury was caused by a stump which is a blunt
weapon.348.

A married woman (25 years) met a sudden death in her matrimonial home. Her letters
and complaints spoke of harassment. The medical report put the cause of death as
rupture of spleen and pancreas caused by external pressure. Her husband, who was
attempting to escape by resorting to the theory of death by poisoning, was found guilty
and his conviction under Part II of this section and sentence of ﬁve years of RI was
upheld by the Supreme Court. Though he might not have intended to cause death, he
did cause an injury about which he must have known that it might cause death.349.
Where one of the accused came forward and delivered a blow on the head of a man
which proved fatal, the Apex Court was of the view that his act did not attract clause (1)
or (3) of section 300 because the accused was armed with no deadly weapon and the
head injury was caused by a farmer with an agricultural instrument which he happened
to carry with him. Conviction of the accused causing head injury under section 300 was

altered to one under section 304, Part II.350. Several persons surrounded a man. Firstly,
he was pushed down on the ground and then two injuries were caused to him one each
by two assailants one of whom was acquitted. Opinion of the doctor was that the
victim died due to shock and haemorrhage resulting from both the injuries. The one
injury alone caused by the accused was not individually suﬃcient to cause death. His
conviction was altered from section 300 to that under section 304, Part II.351. Where
the accused inﬂicted a single knife wound in the abdomen of a man which proved fatal
and the opinion of the doctor was that, but for complications, the injury was not
suﬃcient to cause death, it was held that the offence did not attract clause (3) of
section 300. He was convicted under section 304, Part II.352. A husband, without any

history of ill-feeling with his wife, attacked her with the blunt side of an axe and caused
a head injury after she fell down of which she died, his conviction under Part I of this
section was held to be proper.353. Where a person killed his wife under grave and
sudden provocation, a lenient punishment of two years' imprisonment was awarded to
him taking into consideration the welfare of his children.354. Where the accused
delivered a single stab blow on the chest of his wife out of sheer frustration,
momentary impulse and anger, on her refusal to oblige him with sex without any
intention to cause her death, his act was held to be culpable homicide not amounting to
murder and his conviction was altered from section 302 to section 304, Part I.355.
A pregnant woman went to draw water from a well but she was stopped from doing so

by several persons armed with 'lathis' and started abusing her and one of them dealt a
'lathi' blow on her head and another kicked her abdomen, as a result she died on the
spot and her son who tried to rescue her was also injured. Looking at the conduct of
the accused, it could not be said that they had common object to kill the woman or
cause injury to her son. Both the assailants were convicted under section 304, Part II
and others were acquitted.356.
The death of a young boy was caused in a brutal and cruel manner. The trial Court
convicted under sections 302/304. The High Court converted it to section 304 without
specifying whether the case fell within Part I or II. Sentence of seven years'
imprisonment was imposed. The Supreme Court did not interfere.357.
[s 304.5] CASES under Part I.—

Where the accused with the intention of obstructing the marriage of his sister with the
deceased, gave only one blow which proved fatal and the accused did not repeat the
blow though there was nothing to stop him, conviction and sentence of the accused
under section 302 was altered to one under section 304, Part I.358. Where the accused
under misapprehension that the deceased came to abduct his daughter attacked the
deceased with a sharp-edged weapon, without pre-meditation, causing only one injury
and he died after three days, conviction of the accused was altered from under section

300 to one under section 304, Part I.359. Where three accused persons assaulted the
deceased, one of the accused gave the fatal blow on the victim's head, the second
accused caused simple injuries on the knee and arm with spear, and the third gave
simple blows, it was held that the ﬁrst accused was liable to be convicted under
section 304, Part I, and as section 34 was not applicable, the second was convicted
under section 324 and the conviction of the third accused under section 323 was
upheld.360.
Where most of the injuries found on the body of the deceased were external and on
lower legs and on arms, it was held that intention of the accused was to cause grievous
hurt and not murder. Conviction of the accused was altered from sections 304/34, Part
I to sections 325/34.361.
[s 304.5.1] Death essential to attract section 304.—
In Harendra Nath Mandal v State of Bihar the accused caused injury on the head of a
man with back portion of his weapon. The injured survived the injury. Still the accused

was convicted under section 304, Part I. It was held by the Supreme Court that the
accused could not be convicted under section 304 because for the application of
section 304, death must have been caused under any of the circumstances mentioned
in ﬁve Exceptions of section 300.362.
[s 304.5.2] Exceeding right of private defence.—
Whenever accused sustains injuries in the same occurrence and when the injuries are
grievous in nature, it is incumbent upon the prosecution to explain the injuries on the
person of the accused. The non-explanation of injuries sustained by the accused may
give rise to a possibility that the accused has acted in self-defence.363. In a murder
case, both the parties sustained injuries in a free ﬁght. The accused received a stab
wound on his right shoulder. No explanation of this injury was given by the prosecution.

It was held that the accused had caused injuries to the deceased in right of private
defence, but that he exceeded his right. He was punished under section 304, Part I and
not under section 302.364. In a dispute over possession of land, persons belong to both
the sides were injured. The accused were in actual possession at the relevant time.
Two of the accused received gunshot injuries. They were held to be entitled to the right
of private defence but they exceeded their right. Conviction of the accused under
sections 302/149 was altered to one under section 304 Part I.365. In a ﬁght between
two groups, the accused ﬁred from a distance killing one person of the other group.
Fighting groups were not close enough so as to apprehend immediate danger to
anybody's life, when the ﬁring took place. It was held that the accused had exceeded

the right of private defence. He was convicted under section 304, Part I.366. Where the
accused received injuries at the hands of the deceased and his party, it was held that
the accused were entitled to the right of private defence but by using heavy cutting
weapons like 'gandasas' and causing serious injuries to the deceased, they had
exceeded the right of private defence and were liable to be punished under section 304,
Part I but not for murder.367.
[s 304.5.3] Sudden quarrel.—
Where as a result of provocation caused in a heat of passion upon a sudden quarrel,
the accused chased the deceased to some distance and then gave the single fatal
blow, it was held that the whole incident was a continuous sequence. Hence, the

conviction of the accused was shifted from under section 300 to under section 304,
Part I.368. Where the accused came to the house at midnight, went to sleep with the
deceased but suddenly a quarrel took place and the death occurred on account of
asphyxia, the incident occurred all of a sudden, without any premeditation, the accused
had not taken undue advantage or acted in a cruel or unusual manner; therefore, his
conviction under section 304, Part I of IPC, 1860 was held proper.369.
[s 304.6] Single blow.—
Where a solitary blow was given with a small wooden yoke on the head of the
deceased, conviction under section 300 was altered to one under section 304, Part
I.370.
[s 304.6.1] Provocation.—
The accused suspected the ﬁdelity of his wife who in turn labelled him as impotent. In
the resulting quarrel, the husband picked up a sharp weapon and struck on her vital
parts causing death. It was held that Exception I to section 300 was attracted and the
accused was punishable under section 304, Part I.371.

[s 304.7] Death after discharging from the hospital.—
The victim received gunshot injury on head. On the condition of the victim becoming
better, he was discharged from the hospital. After two months of the incident, he died
due to septicaemia. It was held that having regard to the fact that the victim survived
for 62 days and that his condition was stable when he was discharged from the
hospital, the Court cannot draw an inference that the intended injury caused was
suﬃcient in the ordinary course of nature to cause death so as to attract clause (3) of
section 300 of IPC, 1860. But as the accused used ﬁrearms and ﬁred at the victim on
his head and he had the intention of causing such bodily injury as is likely to cause
death, the conviction was altered to section 304, Part I.372.
[s 304.8] Suicide pact.—

The death of the deceased was not premeditated and the act of the accused causing
death of his wife appeared to be in furtherance of the understanding between them to
commit suicide and the consent of the deceased and the act of the accused falls under
Exception 5 of section 300, IPC, 1860.373.
[s 304.9] Civil Disputes.—
In view of the civil disputes between the families, there was a sudden minor verbal
exchange bloated into a sudden physical attack. Several persons of the accused group
wielding weapons attacked the deceased and inﬂicted two simple injuries; one such
simple injury turned out to be fatal sometime later. There was no intention to cause
death, though the accused had knowledge that the weapon used by him to inﬂict injury
on the scalp of the deceased might cause death. As there was absence of intention to

cause death or to cause such bodily injury as was likely to cause death, the accused

persons were held guilty for an offence punishable under section 304, Part II, IPC, 1860
and not for the offence under section 300, IPC, 1860.374.
[s 304.10] Maximum punishment.—
The maximum punishment that is awardable in case of offence under section 304, Part
II, IPC, 1860 is 10 years. In a case, the accused persons were Police Personnel whose
duty was to act in accordance with law and caused death when the deceased was in
police custody. The accused fudged the General Diary Register of the Police Station to
put up their defence and put up a false plea of alibi. The accused-in-charge of police
station prepared a false memo sending the deceased to the hospital when he was
already dead. The accused persons were found guilty of commission of the offence
under section 304, Part II read with section 34, IPC, 1860 and were convicted under
section 304, Part II read with section 34, IPC, 1860 and were sentenced to suffer RI for
a period of 10 years.375.
[s 304.11] Probation.—

Accused was convicted under sections 304(II)/149, IPC, 1860 and sentenced to three
years' RI. He secured a Doctorate and got employed as Senior Assistant Professor in
the Department of Strategic and Regional Studies, University of Jammu. Keeping in
view his conduct and attainments after his involvement in the matter, justiﬁed his
release on probation.376.
[s 304.12] Section 304, Part II when attracted in cases of death caused by
driving.—
In a case where negligence or rashness is the cause of death and nothing more,
section 304A may be attracted, but where the rash or negligent act is preceded with the
knowledge that such act is likely to cause death, section 304, Part II, IPC, 1860 may be
attracted and if such a rash and negligent act is preceded by real intention on the part
of the wrong doer to cause death, offence may be punishable under section 302, IPC,

1860.377. If a person wilfully drives a motor vehicle into the midst of a crowd and
thereby causes death to some person, it will not be a case of mere rash and negligent
driving and the act will amount to culpable homicide. Doing an act with the intent to kill
a person or knowledge that doing an act was likely to cause a person's death is
culpable homicide. When intent or knowledge is the direct motivating force of the act,
section 304A has to make room for the graver and more serious charge of culpable
homicide.378.
[s 304.13] BMW CASE.—
The accused in an inebriated state, after consuming excessive alcohol, was driving the
vehicle without license, in a rash and negligent manner in a high speed which resulted
in the death of six persons. Trial Court convicted the accused under section 304, Part II,

but High Court altered the conviction to section 304A.The Supreme Court held that the
accused had suﬃcient knowledge that his action was likely to cause death and such
action would, in the facts and circumstances of the case fall under section 304, Part II,

319.  Subs. by Act 26 of 1955, section 117 and Sch, for transportation for life (w.e.f. 1-1-1956).
320.  Afrahim Sheikh, AIR 1964 SC 1263 [LNIND 1964 SC 1] : (1964) 2 Cr LJ 350 .
321.  SJ Vaghela v State of Gujarat, AIR 2013 SC 571 [LNIND 2012 SC 1562] : 2013 Cr LJ 390
(SC).
322.  Rampal Singh v State of UP, 2012 Cr LJ 3765 : (2012) 8 SCC 289 [LNIND 2012 SC 425]
relied on Mohinder Pal Jolly v State of Punjab, 1979 AIR SC 577.
323.  Harendra Mandal's case, JT 1993 (3) SC 650 [LNIND 1993 SC 177] : 1993 (1) Crimes 984
[LNIND 1993 SC 177] .
324.  Ruli Ram v State of Haryana, AIR 2002 SC 3360 [LNIND 2002 SC 585] : (2002) 7 SCC 691
[LNIND 2002 SC 585] .
325.  Jagriti Devi v State of HP, (2009) 14 SCC 771 [LNIND 2009 SC 1376] ; Surajit Sarkar v State
of WB, AIR 2013 SC 807 [LNINDORD 2012 SC 361] : 2013 (2) Cr LJ 1137 , when the accused had
knowledge that hitting with iron rod is likely to cause death, he is liable to be convicted under

IPC, 1860 and the trial Court has rightly held so.379. In another hit and run case,380.
which killed seven persons and caused injuries to eight persons, the Court held that the
case falls under section 304, Part II and not under section 304A by holding that the
person must be presumed to have had the knowledge that, his act of driving the vehicle
without a licence in a high speed after consuming liquor beyond the permissible limit,
is likely or suﬃcient in the ordinary course of nature to cause death of the pedestrians
on the road.
[s 304.14] Alteration of Charge from section 304A to section 304, Part II.—
Permissibility.—
Neither of the sides would have been in any manner prejudiced in the trial by framing of
a charge either under section 304A or section 304, Part II, IPC, 1860 except for the fact

that the forum trying the charge might have been different, which by itself, in our
opinion, would not cause any prejudice. This is because at any stage of the trial, it
would have been open to the concerned Court to have altered the charge appropriately
depending on the material that is brought before it in the form of evidence.381.
Permissibility to try and convict a person for the offence punishable under section 304,
Part II, IPC, 1860 and the offence punishable under section 338, IPC, 1860 for a single
act of the same transaction. There is no incongruity, if simultaneous with the offence
under section 304, Part II, a person who has done an act so rashly or negligently
endangering human life or the personal safety of the others and causes grievous hurt

to any person is tried for the offence under section 338, IPC, 1860. In view of the above,
the Court opined that, there is no impediment in law for an offender being charged for
the offence under section 304, Part II IPC, 1860 and also under sections 337 and 338,
IPC, 1860. The two charges under section 304, Part II, IPC, 1860 and section 338, IPC,
1860 can legally co-exist in a case of single rash or negligent act where a rash or
negligent act is done with the knowledge of likelihood of its dangerous
consequences.382.

section 304, Part II; Ranjitham v Basavaraj, (2012) 1 SCC 414 [LNIND 2011 SC 1185] : 2012 Cr LJ
2135 : AIR 2012 SC 1856 [LNIND 2011 SC 1185] .
326.  Ajit Singh v State of Punjab, 2011 (10) Scale 127 [LNIND 2011 SC 844] : (2011) 9 SCC 462
[LNIND 2011 SC 844] : (2011) 3 SCC (Cr) 712; on facts, when Justice Gyan Sudha Mishra
concluded that the case falls under section 304, Part II, Justice Bedi held it as a clear case of
murder punishable under section 302. The question referred to the larger bench.
327.  Rampal Singh v State of UP, 2012 AIR (SCW) 4211 : 2012 Cr LJ 3765 : (2012) 8 SCC 289
[LNIND 2012 SC 425] .
328.  Gandi Doddabasappa v State of Karnataka, AIR 2017 SC 1208 [LNIND 2017 SC 103] .
329.  Santosh v State of Maharashtra, 2015 Cr LJ 4880 : (2015) 7 SCC 641 [LNIND 2015 SC 275] .
330.  Gandi Doddabasappa v State of Karnataka, AIR 2017 SC 1208 [LNIND 2017 SC 103] .
331.  Ujagar Singh, (1917) PR No 45 of 1917.
332.  Putti Lal, 1969 Cr LJ 531 . Death by single hammer blow falling on head, knowledge but no

intention, conviction under Part II, Swarup Singh v State of Haryana, AIR 1995 SC 2452 : 1995 Cr
LJ 4168 . Injury inﬂicted by the accused was suﬃcient in the ordinary course of nature to cause
death but he had no intention to cause such injury to the victim who came in between, it was
held that section 300, Thirdly, could not be invoked and conviction of the accused was
converted to one under section 304, Part II, Sebastian v State of Kerala, 1992 Cr LJ 3642 (Ker).
333.  Jayaraj, 1976 Cr LJ 1186 : AIR 1976 SC 1519 . Public v State of AP, (1995) 2 Cr LJ 1738
(AP), murder without motive, conviction based on appreciation of evidence, punished under Part
I. Bhua Singh v State of Punjab, (1995) 2 Cr LJ 1531 , 1531 (P&H), in a sudden occurrence and
without pre-meditation, the accused gave a single blow with a blunt weapon which fell upon

head causing death, the accused was held to be punishable under Part I. His sentence of eight-
year term was reduced to four years. Pandurang v State of Maharashtra, (1995) 1 Cr LJ 762
(Bom), in an altercation and ﬁght, one taking out pen-knife from his pocket and inﬂicting a chest
blow, punished under Part I, section 304. Karnail Singh v State of Punjab, AIR 1995 SC 1972 :
1995 Cr LJ 3625 : 1997 SCC (Cri) 749 , the accused causing a number of injuries to the
deceased, his conviction under Part I not disturbed. State of Punjab v Karnail Singh, AIR 1995 SC
1970 : 1995 Cr LJ 3624 , unarmed victims, ﬁred at, one ﬁred at while running away, no danger
from them, conviction under section 300 and section 304, Part I. Devku Bhika v State of Gujarat,

AIR 1995 SC 2171 : 1995 Cr LJ 3975 (SC). Where the accused infuriated by the refusal of the
deceased to send his daughter to spend one night with him, picked up a stick lying nearby and
assaulted him with it without any prior enmity causing injuries on the vital parts of the body but
simple in nature, it was held he could be convicted under section 304, Part II and not under
section 302. In the case of Bonda Devesu v State of AP, 1996 (7) SCC 115 , the accused
belonged to a tribal community and the deceased had behaved in an obscene way with wife of
the accused. Having regard to the socio-economic background of the accused, the Court held it
to be an offence punishable under section 304, Part I and not section 302, IPC, 1860.
334.  Randhir Singh, 1982 Cr LJ 195 (SC) : AIR 1982 SC 55 : (1981) 4 SCC 484 . See also Gurdip

Singh v State of Punjab, AIR 1987 SC 1151 : 1987 Cr LJ 987 : (1987) 2 SCC 14 , where there was
no intention to cause death, but death nevertheless resulted, conviction under section 302 was
converted to one under this section with seven-year RI; Ramesh Laxman Pardesi v State of
Maharashtra, 1987 SCC (Cr) 615 : 1987 Supp SCC 1 , single blow under heated exchange of
words resulting in death, seven-year RI already undergone, held suﬃcient.
335.  Dhyaneshwar, 1982 Cr LJ 1870 (SC).
336.  Rupinder Singh Sandhu v State of Punjab, AIR 2018 SC 2395 [LNIND 2018 SC 276] .
337.  Sarabjeet, 1983 Cr LJ 961 (SC) : AIR 1983 SC 529 [LNIND 1982 SC 173] : (1984) 1 SCC 673
[LNIND 1982 SC 173] . Assault by several persons, injuries, none suﬃcient to cause death

individually, conviction under sections 326/34 and not 302/34, Ram Meru v State of Gujarat, AIR
1992 SC 969 : 1992 Cr LJ 1265 . A woman protested against construction on the adjoining land.
The accused abused her, snatched her six-year-old daughter from her hand and threw her away
in order to give a good thrashing to the woman. The baby died, held, no intention, nor knowledge,
punishable under section 325 and not 299, Ram Pal Singh v State of UP, 1993 Cr LJ 2715 (All).
Shankar Kondiba Gore v State of Maharashtra, (1995) 1 Cr LJ 93 (Bom), single stab injury on
abdomen puncturing artery at ilium, death, knowledge attributed, conviction under Part II. NK
Khakre v State of Maharashtra, 1996 Cr LJ 562 (Bom), striking at the head of eight-year-old child
resulting in death, knowledge but not intention, conviction under Part II. Balaur Singh v State of
Punjab, AIR 1995 SC 1956 : 1995 Cr LJ 3611 , in a free-ﬁght between two parties, the accused

caused a single injury by means of a gandasa on the head of the deceased and he died after six
days because of complications of coma and asphyxia, caused by the injury, the dimension of
the injury or situs thereof was not found to be calculated or targeted intentionally, besides the
blow was not repeated, conviction of the accused was altered from section 302 to section 304,
Part II.
338.  Jagtar Singh, 1983 Cr LJ 852 (SC) : AIR 1983 SC 463 [LNIND 1996 SC 826] : (1983) 2 SCC
342 ; see also Hari Ram, 1983 Cr LJ 346 (SC) : AIR 1983 SC 185 ; Jawaharlal, 1983 Cr LJ 429
(SC) : AIR 1983 SC 284 ; Tholan, 1984 Cr LJ 478 : AIR 1984 SC 759 : (1984) 2 SCC 133 ;
Bhabagrahi, 1985 Cr LJ 1847 (Ori). The conviction of an accused who did not come under

section 302 and who had no intention to kill converted by the Supreme Court in Gurdip Singh v
State of Punjab, (1987) 2 SCC 14 : AIR 1987 SC 1151 : 1987 Cr LJ 987 into one under section
304, Part I; State of UP v Ram Swarup, 1988 SCC (Cr) 552 : AIR 1988 SC 1028 : 1988 All LJ 555 :
1988 Supp SCC 262 ; Manibhai Vithalbai v State of Gujarat, 1988 BLJR 464 : (1988) 25 All CC 223
: 1988 Supp SCC 791; Babu Khan v State of MP, 1988 Cr LJ 1441 MP, single blow falling on heart,
conviction under section 304 II, setting aside under section 302; State of UP v Jodha Singh, 1989
Cr LJ 2113 : AIR 1989 SC 1822 : (1989) 3 SCC 465 : 1989 SCC (Cr) 591, punishment for death
caused in sudden ﬁght restricted to the period already spent in jail. Sudden heated exchange of

words between two fellow-hunters resulting in death of one by gun ﬁre, held punishable under
Part I; Radha Kishan v State of Haryana, AIR 1987 SC 768 : 1987 Cr LJ 713 : (1987) 2 SCC 652 ;
another case of single blow in a state of drunkenness, Tarsen Singh v State of Punjab, 1987
Supp. SCC 600 : AIR 1987 SC 806 [LNIND 1987 SC 112] ; Kartar Singh v State of Punjab, (1988) 1
SCC 690 : AIR 1988 SC 2122 , accused contended that he acted in self-defence, prosecution
case weak, held punishable under Part II. Kailash Kaur v State of Punjab, AIR 1987 SC 1368
[LNIND 1987 SC 434] : 1987 Cr LJ 1127 : (1987) 2 SCC 631 [LNIND 1987 SC 434] , life term for
wife burning : Ram Lal v State of Punjab, 1989 Supp (1) SCC 21 : 1989 SCC (Cr) 123 : AIR 1989
SC 1985 [LNIND 1989 SC 471] , conviction for death caused in a sudden ﬁght by one coming to

a shop bare-handed for collection of dues, and sentence under section 302 converted to one
under section 304, Part I, i.e., eight years' RI; Dharam Pal Singh v State (Delhi Administration),
1989 Supp (1) SCC 165 : 1989 SCC (Cr) 319, a matter of the same kind and Supreme Court
holding that death sentence was not called for and also RN Agarwal v Dharam Pal, 1989 Supp (1)
SCC 386 : 1988 SCC (Cr) 451.
339.  Gauri Shanker Sharma v State of UP, AIR 1990 SC 709 [LNIND 1990 SC 8] : 1990 Supp SCC
182 .
340.  Shanmugham v IP Marina Police, 1996 Cr LJ 3702 (Mad).
341.  Hem Raj v State (Delhi Admn), AIR 1990 SC 2252 : 1990 Supp SCC 291 : 1990 Cr LJ 2655 .
Anil Ruidas v State, 1988 Cr LJ 1610 , son-in-law struck father-in-law in quarrel, conviction under
section 304, Part II.

342.  State of Karnataka v Siddappa B Patil, AIR 1990 SC 1047 : 1990 Cr LJ 1116 : 1990 Supp
SCC 257 . See Jayaram Shiva Tagore v State of Maharashtra, AIR 1991 SC 1735 : 1991 Cr LJ
2192 , a plea of earlier release can be considered only when more than 14 years already served.
See further, Abdul Hamid v State of UP, AIR 1991 SC 339 [LNIND 1990 SC 637] : 1991 Cr LJ 431 ,
where there was no proof who out of the four who were present administered lathi blow,
acquittal of all under this section as well as section 149. The court relied upon its own earlier
decision in Gajanand v State of UP, AIR 1954 SC 695 : 1954 Cr LJ 1746 . For another case of
acquittal by the Supreme Court on reappreciation of evidence, see Nain Singh v State of UP,
(1991) 2 SCC 432 [LNIND 1991 SC 119] ; State of UP v Suresh Chand Shukla, AIR 1991 SC 968 :
1991 Cr LJ 604 . Another similar conviction on direct evidence, Munir Ahmed v State of
Rajasthan, 1989 Cr LJ 845 : AIR 1989 SC 705 : 1989 Supp (1) SCC 377 .

343.  Tota v State of MP, (1995) 2 Cr LJ 1515 (MP), sentence was reduced to that already
undergone, following Karam Singh v State of Punjab, 1993 Cr LJ 3673 : (1994) SCC (Cr) 64.
Where the accused continued to inﬂict injuries even after the deceased fell down, he exceeded
private defence, conviction under this section.
344.  Krupasindhu v State of Orissa, (1995) 2 Cr LJ 1488 (Ori).
345.  Lalya Dharma v State of Maharashtra, (1995) 1 Cr LJ 556 (Bom), conviction on the basis of
the sole evidence of the wife. Sukhram v State of MP, (1995) 1 Cr LJ 595 (MP), a child of tender
years testifying that her father struck her mother's head by a grinding stone, not relied upon, alibi
also proved. Phani Bhushan v State of WB, AIR 1991 SC 317 : 1991 Cr LJ 551 , death by blunt
weapon, conviction for dowry death quashed which was 21 years ago.

346.  Sundaramurthy v State of TN, 1990 Cr LJ 2198 : AIR 1990 SC 2007 : 1990 Supp SCC 267 ;
BV Danny Mao v State of Nagaland, 1989 Cr LJ 226 (Gau), scuﬄe. Hanumantappa v State of
Karnataka, AIR 1992 SC 599 : 1992 Cr LJ 405 , the owner of a crop tried to prevent a person who
came there with his son to cut his crop and bit at his ﬁnger. This provoked his son who struck
with the back side of the axe which he was carrying, convicted under this Part. State v Harisingh,
1998 Cr LJ 2815 (MP), dispute as to right to cultivable land, right of private defence exceeded,
punishment under Part I. Baburam v State, 1998 Cr LJ 3212 (Raj), single blow on head causing
death, conviction under Part I. Harahari Naik v State of Orissa, 1998 Cr LJ 3948 (Ori), no previous
meeting between accused persons, each responsible for his own act under section 304, Part I.

See also Vijai Bahadur Singh v State of UP, 1998 Cr LJ 2358 (All); Jaya Madhavan v State of
Kerala, 1998 Cr LJ 2666 (Ker); Ramanna Ku v State of AP, 1998 Cr LJ 2716 (AP); Sukhlal v State
of MP, 1998 Cr LJ 3187 (MP); Malkiat Singh v State, 1998 Cr LJ 4724 (P&H).
347.  Kusha Laxman Waghmare v State of Maharashtra, 2014 Cr LJ 4394 : 2014 (10) Scale 49
[LNIND 2014 SC 777] .
348.  Shailesh v State of Maharashtra, (1995) 1 Cr LJ 914 (Bom).
349.  SD Soni v State of Gujarat, AIR 1991 SC 917 [LNIND 1990 SC 807] : 1991 Cr LJ 330 .
Another case which had resulted in ﬁve years RI, the Supreme Court reduced the sentence to
one year which was already undergone and maintained the sentence of ﬁne, Kuldeep Singh v
State of Haryana, 1996 Cr LJ 1884 : AIR 1996 SC 2988 [LNIND 1996 SC 317] . The accused

religious teacher killed one of his woman disciples with his trishul, held, ought to be punished
under section 302 and not under Part I of this section. State of Maharashtra v Vishwas Baburao
Desai, 1989 Cr LJ 677 (Bom). Bride died of burns in matrimonial home within seven years of
marriage, there was evidence of cruelty and harassment for dowry, husband convicted under
Part II, Prakash Chander v State, (1995) 1 Cr LJ 368 (Del). A man struck his mother with the blunt
side of an axe all of a sudden because she hurled abuses on him, resulting in death, punishment
under Part I to be proper, Malkami v State of Orissa, 1995 Cr LJ 1484 (Ori). Two persons armed
with sharp weapons assaulted a man with the blunt side of their weapons till he fell down, they

were held liable to be convicted under Part II, Barkau v State of UP, 1993 Cr LJ 2954 (All). The
accused more than once pounced on a lonesome person hitting him with kicks and ﬁst blows
intending to assault him severely but not intending to cause death, their conviction under
section 302 reduced to one under section 304, Part II, Ramesh Kumar v State of Bihar, AIR 1993
SC 2317 [LNIND 1994 SC 1303] : 1993 Cr LJ 3137 .
350.  Pularu v State of MP, AIR 1993 SC 1375 : 1993 Cr LJ 1809 . Bilai v Orissa, 1996 Cr LJ 3171
(Ori), accused persons attacked the deceased with deadly weapons, no injuries caused after the
deceased fell down, conviction under section 304, Part II.
351.  Bawa Singh v State of Punjab, 1993 Cr LJ 49 .
352.  Ramaswamy v State of TN, 1993 AIR SCW 2683 : 1993 Cr LJ 3253 .
353.  Brushava Bartha v State of Orissa, 1988 Cr LJ 1916 (Ori); Jagbar Singh v State of Punjab,
AIR 1983 SC 463 [LNIND 1996 SC 826] : 1983 Cr LJ 852 , a person passing across the house of

the accused was injured by a projecting 'parnala' (drain pipe), he protested resulting in scuﬄe
between the young house inmate (the accused) and him whereupon the accused stabbed with
knife causing death because the stab cut the chest, held guilty under section 304, Part II and not
section 302. See also Kulwant Rai v State of Punjab, AIR 1982 SC 126 and Re Sundarpandian,
1988 LW (Cr) 64. Babrubahan Jal v State of Assam, 1991 Cr LJ 279 . Ram Kumar v State of UP,
1990 Cr LJ 1973 (All). Accused's wife went away with a friend. Her father brought her from the
friend and deposited her for a short while at a relative's. The accused, a boy of 16–17 years of
age came there to persuade her for family life and on her point-blank refusal, he lost himself,

pulled out knife from his pocket, attempted one blow which the relative warded off but
succeeded in piercing the stomach in second blow. This injury proved fatal in course of time.
Held guilty under section 304, Part II. State v Sunil Biswas, 1990 Cr LJ 2093 (Cal), punished
under this section the police who arrested and subsequently beat the prisoner to death. Two
friends bathing in river water, one putting the other as a matter of sport into fast ﬂowing water.
Thereafter, they tried to save but failed. Sentence of ﬁve years' RI was reduced to three months'
RI and a ﬁne of Rs. 5,000. Benny Francis v State of Kerala, 1991 Cr LJ 2411 (Ker). Bishwanath
Dusadh v State of Bihar, 1991 Cr LJ 108 , Sudden quarrel, Maniyan v State of Kerala, 1990 Cr LJ

2515 , poison in toddy mixed on the tree itself. Deceased stealthily consumed from pot, section
304, Part II, not section 304A. Santa Singh v State, 1987 Cr LJ 342 (Del), the accused living in
Gurudwara with his son and daughter, his wife had deserted him and was living with her
paramour, he all of a sudden killed his daughter, convicted under section 304, Part I and not
section 302. Chanda Lal v State of Rajasthan, AIR 1992 SC 597 : 1992 Cr LJ 523 , 20-year long
history of conviction, acquittal and appeal arising out of an episode involving injuries to both
sides but two deaths on one side only, punished under section 304, Part II, sentence reduced to
that already undergone. Sukhdev Singh v State of Punjab, AIR 1992 SC 755 : 1992 Cr LJ 700 ,

where several attacked, the accused-appellant gave blows even after the victim fell, but it could
not be said to be the fatal blow, conviction under Part II of section 304. Murugan v State of TN,
1992 Cr LJ 930 (Mad), accused ran away after causing single knife wound, no enmity, conviction
under this Part.
354.  State of Karnataka v R Varadraju, (1995) 2 Cr LJ 1429 (Kant). But see T Anjanamma v State
of AP, AIR 1995 SC 946 : (1995) 2 Cr LJ 1462 , here wife killed her husband by burning him
down. The same was fully proved. The Supreme Court felt that scaling down conviction for
murder to Part I of section 304 was not proper but it was not disturbed because there was no
appeal against it by the State. Vedpal v State of Haryana, 1995 Cr LJ 3556 (P&H), single blow on

head with 'Kassi' (spade) without any prior enmity, death caused, knowledge that the act was
likely to cause death, conviction under Part I. State of Punjab v Tejinder Singh, AIR 1995 SC 2466

[LNIND 1995 SC 808] : 1995 Cr LJ 4169 , all the injuries caused with a 'gandasa' were on non-
vital part, except one head-injury, conviction under Part I.
355.  Ghansham v State of Maharashtra, 1996 Cr LJ 27 (Bom).
356.  Roop Ram v State of UP, 1995 Cr LJ 3499 (All).
357.  Naval Kishore Singh v State of Bihar, (2004) 7 SCC 502 . Ramu v State of UP, (2004) 12 SCC
250 [LNIND 2004 SC 146] : AIR 2004 SC 1605 [LNIND 2004 SC 146] : 2004 Cr LJ 1407 , fatal
injury by spear, no motive, six persons took part in the melee, conviction under section 326,
three years' RI considered appropriate. Madan v State of Rajasthan, (2003) 11 SCC 756 , right of
private defence exceeded, defence of property, the accused being a sick person, sentence of
seven years' imprisonment was considered appropriate. Bagdi Ram v State of MP, (2004) 12
SCC 302 [LNIND 2003 SC 1047] : AIR 2004 SC 387 [LNIND 2003 SC 1047] : (2004) 98 Cut LT 225
: 2004 Cr LJ 632, one blow with gainti lying nearby in a heat of passion caused by quarrel, no

second attack showed no intention to cause death, conviction under section 304, Part I proper.
Bishan Kumar v State of Delhi, (2003) 12 SCC 771 , one holding the victim, the other stabbing in
the abdomen resulting in death, 10 years' RI reduced to seven years' RI, ﬁne of 1000 rupees
maintained, Chanakya Dhibar v State of WB, (2004) 12 SCC 398 [LNIND 2003 SC 1146] , unlawful
assembly, common object, surrounded the victim, assaulted him, acquittal by the High Court set
aside, conviction by the trial judge restored. State of Rajasthan v Maharaj Singh, AIR 2004 SC
4205 [LNIND 2004 SC 1662] : (2004) 98 Cut LT 686 : 2004 Cr LJ 4195, conviction justiﬁed
because of overwhelming evidence, sentence reduced from 10 years' RI to ﬁve years' RI. N
Somashekar v State of Karnataka, (2004) 11 SCC 334 [LNIND 2004 SC 625] , police oﬃcer at a

swimming pool with wife, the victim sniggered at her, the oﬃcer administered him three blows
on the mouth, neck and shoulder, he fell dead into the swimming pool, the oﬃcer tried to cover it
up as drowning, but found guilty, convicted by the High Court as upheld by the Supreme Court.
358.  Gulzar Hussain v State of UP, AIR 1992 SC 2027 : 1992 Cr LJ 3659 .
359.  Uttam Singh v State of UP, 1992 Cr LJ 708 (All). Pirthi v State of Haryana, 1993 Cr LJ 3517
(P&H).
360.  Kedar Prasad v State of MP, AIR 1992 SC 1629 : 1992 Cr LJ 2520 .
361.  Parasuraman v State of TN, AIR 1993 SC 141 [LNIND 1991 SC 447] : 1992 Cr LJ 3939 .
Madhusudan Satpathy v State of Orissa, AIR 1994 SC 474 : 1994 Cr LJ 144 , the sentence of a
convict under Part I was reduced because death resulted from a single blow caused with non-

deadly weapon, Mohammed Salam v State of MP, 1992 Cr LJ 1612 (MP), blow with dagger, but
not with much force, conviction under Part I.
State of Punjab v Gurcharan Singh, 1998 Cr LJ 4560 : AIR 1998 SC 3115 [LNIND 1998 SC 842] ,
incident at the spur of moment, no intention, only one blow in sudden quarrel. Order of High
Court convicting accused under section 304, Part I was held to be proper. Malkiat Singh v State
of Bihar, 1998 Cr LJ 4712 (Pat), accused and his victim were under inﬂuence of drink, injuries
caused at the spur of moment without any previous enmity, no undue advantage was taken.
Conviction under section 304, Part I. Another similar ruling is in Jaya Madhavan v State of Kerala,
1998 Cr LJ 2666 (Ker). See also Sita Ram v State of Rajasthan, 1998 Cr LJ 287 (Raj). Kasam

Abdulla Haﬁz v State of Maharashtra, 1998 Cr LJ 1422 : AIR 1998 SC 1451 [LNIND 1997 SC 1558]
, stabbing moved inside intestines, conviction under Part I. Rameshwar v State of UP, 1997 Cr LJ
2677 (All), attack in connection with land dispute, unintentional killing, conviction under section
304, Part I. Gopal v State of TN, 1997 Cr LJ 105 (Mad), killing wife by inﬂicting indiscriminate
cuts on her neck. His surrender supported the inference of his being the killer, conviction.
Paramasivam v State of TN, 1997 Cr LJ 165 (Mad), one accused committed the offence and the

others, in order only to save him, gave out a false statement before the Village Administrative
Oﬃcer, conviction under sections 304, Part I and 201.
362.  Harendra Nath Mandal v State of Bihar, AIR 1993 SC 1977 [LNIND 1993 SC 177] : 1993 Cr
LJ 2830 : (1993) 2 SCC 435 [LNIND 1993 SC 177] .
363.  Manphool Singh v State of Haryana, AIR 2018 SC 3995 .
364.  Bachan Singh v State of Punjab, AIR 1993 SC 305 : 1993 Cr LJ 66 : 1993 Supp (2) SCC 490 ;
Trilok Singh v State (Delhi Admn.), 1994 Cr LJ 639 : 1995 SCC (Cri) 158 : AIR 1994 SC 654 , the
accused apprehended danger, seeing two enemies approaching him with arms, he went inside,
came back with knife and without move inﬂicted knife blows on them, one died, the right of
private defence exceeded, conviction under Part I. Savita Kumari v UOI, 1993 AIR SCW 1174 :
1993 Cr LJ 1590 : (1993) 2 SCC 357 [LNIND 1993 SC 87] , clash between two groups, one
causing more than one ﬁrearm injuries, right of private defence exceeded, punishable under Part

I. Ranveer Singh v State of MP, (2009) 3 SCC 384 [LNIND 2009 SC 123] : AIR 2009 SC 1658
[LNIND 2009 SC 123] : (2009) Cr LJ 1534 , exceeding the right of private defence, the High Court
rightly punished under Part I.
365.  Khuddu v State of UP, AIR 1993 SC 1538 : 1993 Cr LJ 2008 : 1993 Supp (3) SCC 15 .
366.  Hari Ram v State of Rajasthan, 1992 Cr LJ 3168 (Raj).
367.  Bahadur Singh v State of Punjab, AIR 1993 SC 70 : 1992 Cr LJ 3709 : (1992) 4 SCC 503 .
Pramod v State of UP, 2001 Cr LJ 925 (All), enmity on account of evidence against the accused,
the latter entered the house, the victim lady told him to go away and turned back, the accused
struck her at the back with a knife. The court felt that there was no intention to cause death. He
was young boy of 17 years old, no criminal record. Life imprisonment was reduced to ﬁve years'

RI. Sekar v State of TN, 2003 Cr LJ 53 (SC), altercation over grazing sheep, owner of sheep
struck the other and struck him in the neck again even after he had fallen down. Private defence
exceeded conviction under section 302 shifted to section 304, Part I, 10 years' imprisonment
instead of life imprisonment.
368.  V Sreedharan v State of Kerala, AIR 1992 SC 754 : 1992 Cr LJ 701 : 1992 Supp (3) SCC 21 .
Subramaniam v State of Kerala, 1993 Cr LJ 1387 : 1993 AIR SCW 1014, minor injuries, none on
vital part, conviction under Part I. RC Atodaria v State of Gujarat, AIR 1994 SC 1060 : 1994 Cr LJ
1425 , sudden quarrel, one stab injury, punished under Part I. State of Rajasthan v
Satyanarayanan, AIR 1998 SC 2060 [LNIND 1998 SC 88] : 1998 Cr LJ 2911 , sudden quarrel

between two neighbours over boundary dispute. One came out with a knife. Other's brother
intervened who chanced to receive the knife wound to death. Punishment under Part I.
369.  State of MP v Abdul Latif, AIR 2018 SC 1409 [LNINDU 2018 SC 19] .
370.  V Subramani v State of TN, 2005 Cr LJ 1727 : AIR 2005 SC 1983 [LNIND 2005 SC 224] :
371.  Changdeo v State of Maharashtra, 1992 Cr LJ 1240 (Bom). See also Avula Venkateswarlu v
State of AP, 1994 Cr LJ 2232 (AP), quarrel between husband and wife over a petty matter, the
husband caused multiple injuries resulting in death, conviction under Part I; Madaiah v State of
Karnataka, 1992 Cr LJ 502 (Kant).
372.  Sanjay v State of UP, 2016 Cr LJ 1117 : AIR 2016 SC 282 [LNINDU 2016 SC 8] .

373.  Narendra v State of Rajasthan, 2014 Cr LJ 4396 : 2014 All MR (Cr) 3760.
374.  Manoj Kumar v State of Himachal Pradesh, AIR 2018 SC 2693 [LNIND 2018 SC 274] .
375.  State through CBI, v Sanvlo Naik, AIR 2017 SC 4976 .
376.  Monir Alam v State of Bihar, AIR 2010 SC 698 [LNIND 2009 SC 2013] : 2010 Cr LJ 1418 :
(2010) 12 SCC 26 [LNIND 2009 SC 2013] .

377.  Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648
[LNIND 2012 SC 15] : AIR 2012 SC 3802 [LNIND 2012 SC 15] .
378.  Naresh Giri v State of MP, (2008) 1 SCC 791 [LNIND 2007 SC 1313] : 2007 (13) Scale 7
[LNIND 2007 SC 1313] .
379.  State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC
459] : 2012 Cr LJ 4174 : AIR 2012 SC 3104 [LNIND 2012 SC 459] .
380.  Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648
381.  State of Maharashtra v Salman Salim Khan, AIR 2004 SC 1189 [LNIND 2003 SC 1122] :
(2004) 1 SCC 525 [LNIND 2003 SC 1122] .
382.  Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648

383.[[s 304A] Causing death by negligence
Whoever causes the death of any person by doing any rash or negligent act 1 not
amounting to culpable homicide, 2 shall be punished with imprisonment of either
description for a term which may extend to two years, or with ﬁne, or with both.]
COMMENT.—
Section 304A was inserted in IPC, 1860 by IPC (Amendment) Act, 1870 (27 of 1870) to
cover those cases wherein a person caused the death of another by such acts as are
rash or negligent but there is no intention to cause death and no knowledge that the act
will cause death. The case should not be covered by sections 299 and 300 only then it
will come under this section. The section provides punishment of either description for
a term which may extend to two years or ﬁne or both in case of homicide by rash or
negligent act.384.
Essential ingredients of section 304A are the following:
(i) Death of a person

(ii) Death was caused by accused during any rash or negligence act.
(iii) Act does not amount to culpable homicide.
And to prove negligence under Criminal Law, the prosecution must prove:
(i) The existence of duty.
(ii) A breach of the duty causing death.
(iii) The breach of the duty must be characterised as gross negligence.385.
[s 304A.1] Scope.—
In order that a person may be guilty under this section, the rash or negligent act must
be the direct or proximate cause of the death.386. The section deals with homicide by
negligence.
[s 304A.2] Concept of Negligence in Civil law and Criminal Law.—
The jurisprudential concept of negligence differs in civil and criminal law. What may be
negligence in civil law may not necessarily be negligence in criminal law. For

negligence to amount to an offence, the element of mens rea must be shown to exist.
For an act to amount to criminal negligence, the degree of negligence should be of a
much higher degree. A negligence which is not of such a high degree may provide a
ground for action in civil law but cannot form the basis for prosecution. To prosecute a

medical professional for negligence under criminal law, it must be shown that the
accused did something or failed to do something which in the given facts and
circumstances no medical professional in his ordinary senses and prudence would
have done or failed to do.387. For an act of negligence to be culpable in criminal law,
the degree of such negligence must be higher than what is suﬃcient to prove a case of
negligence in a civil action. Judicial pronouncements have repeatedly declared that in
order to constitute an offence, negligence must be gross in nature.388.
1. 'Rash or negligent act'.—The term negligence is not deﬁned in the Code. As per
Straight, J, the criminality lies in running the risk of doing such an act with recklessness
or indifference as to the consequences. Criminal negligence is the gross and culpable
neglect or failure to exercise that reasonable and proper care and precaution to guard
against injury either to the public generally or to an individual in particular, which,

having regard to all the circumstances out of which the charge has arisen, it was the
imperative, duty of the accused person to have adopted.389. It may be stated that
negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs would do,
or doing something which a reasonable and prudent man would not do.390. The
distinction between the "rashness" and "negligence" is that while in the former, the doer
knows about the consequences, but in the latter, the doer is unaware of the
consequences. A rash act is a negligent act done precipitately. Negligence is the genus,
(sic) of which rashness is the species. It has sometimes been observed that in
rashness the action is done precipitately that the mischievous or illegal consequences

may fall, but with a hope that they will not.391. The section explicitly lays down that only
that 'act' which is "so rashly or negligently as to endanger human life, or the personal
safety of others, shall be punished...". Thus, the section itself carves out the standard of
criminal negligence intended to distinguish between those whose failure is culpable
and those whose conduct, although not up to standard, is not deserving of
punishment.392.
Negligence signiﬁes the breach of a duty to do something which a reasonably prudent
man would under the circumstances have done or doing something which when judged
from reasonably prudent standards should not have been done. The essence of
negligence whether arising from an act of commission or omission lies in neglect of
care towards a person to whom the Defendant or the accused as the case may be

owes a duty of care to prevent damage or injury to the property or the person of the
victim. The existence of a duty to care is, thus, the ﬁrst and most fundamental of
ingredients in any civil or criminal action brought on the basis of negligence, breach of
such duty and consequences ﬂowing from the same being the other two. It follows that
in any forensic exercise aimed at ﬁnding out whether there was any negligence on the
part of the Defendant/accused, the Courts will have to address the above three aspects
to ﬁnd a correct answer to the charge.393.
Culpable rashness is acting with the consciousness that the mischievous and illegal
that the actor has taken suﬃcient precaution to prevent their happening. The

imputability arises from acting despite the consciousness (luxuria). Culpable
negligence is acting without the consciousness that the illegal and mischievous effect
caution incumbent upon him, and that, if he had, he would have had the consciousness.
The imputability arises from the neglect of the civic duty of circumspection. It is
manifest that personal injury, consciously and intentionally caused, cannot fall within
either of these categories, which are wholly inapplicable to the case of an act or series
of acts, themselves intended, which are the direct producers of death. To say that
because, in the opinion of the operator, the sufferer could have borne a little more
without death following, the act amounts merely to rashness because he has carried

the experiment too far results from an obvious and dangerous misconception...It is
clear, however, that if the words, 'not amounting to culpable homicide,' are a part of the
deﬁnition, the offence deﬁned by this section consists of the rash or negligent act not
falling under that category, as much as of its fulﬁlling the positive requirement of being
the cause of death.394.
A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is
partly deliberate, it is done without due thought and caution.395. Illegal omission is "act"
under this section and may constitute an offence if it is negligent.396. In this
connection, see also sub-para entitled "Rash or Negligent" under section 279, IPC,
1860, ante.
Death should have been the direct result of a rash and negligent act of the accused,
and that act must be the proximate and eﬃcient cause without the intervention of
another's negligence. It must be the causa causans, it is not enough that it may have

been the causa sine qua non.397. This view has been approved by the Supreme
Court.398. The Bombay High Court has said that in cases falling under this section, it is
dangerous to attempt to distinguish between the approximate and ultimate cause of
death.399. Where the accused, a motor driver, ran over and killed a woman, but there
was no rashness or negligence on the part of the driver so far as his use of the road or
manner of driving was concerned, it was held that the accused could not be convicted
under this section on the ground that the brakes of the lorry were not in perfect order
and that the lorry carried no horn. The "rash or negligent act" referred to in the section
means the act which is the immediate cause of death and not any act or omission,
which can at most be said to be a remote cause of death.400. Negligence on the part of

a motorist cannot be presumed under this section by the mere fact that a man is
knocked down and killed by him.401. To render a person liable for neglect of duty, there
must be such a degree of culpability as to amount to gross negligence on his part. It is
not every little slip or mistake that will make a man so liable.402. A passenger was
standing on the footboard of a bus to the knowledge of the driver and even so the
driver negotiated a sharp turn without slowing down. The passenger fell off to his
death. The driver was held to be guilty under the section.403. A woman was boarding
the bus from the front entrance. The conductor whistled and the driver took off
speedily. Either of them could have known whether she had come in or not, but neither
cared to do so. She fell off and was crushed by the rear wheel. No doubt remained in

the mind that the driver and the conductor were guilty of a rash and negligent act.404.
Intentional shooting at a ﬂeeing person and hitting someone else to death would come
under section 300 read with section 301. It is not a negligent act so as to come under
section 304A.405.
2. 'Not amounting to culpable homicide'.—
Section 304A is directed at offences outside the range of ss. 299 and 300, and obviously
contemplates those cases into which neither intention nor knowledge enters. For the rash or
negligent act which is declared to be a crime is one 'not amounting to culpable homicide',
and it must therefore be taken that intentionally or knowingly inﬂicted violence, directly and
wilfully caused, is excluded. Section 304A does not say that every unjustiﬁable or

inexcusable act of killing not hereinbefore mentioned shall be punishable under the
provisions of this section, but it speciﬁcally and in terms limits itself to those rash or
negligent acts which cause death but fall short of culpable homicide of either
description.406.
[s 304A.3] Doctrine of reasonable care.—
imposes an obligation or a duty upon a person (for example a driver) to care for the
pedestrian on the road and this duty attains a higher degree when pedestrians happen

to be children of tender years. It is axiomatic to say that while driving a vehicle on a
public way, there is an implicit duty cast on the drivers to see that their driving does not
endanger the life of the right users of the road, maybe either vehicular users or
pedestrians. They are expected to take suﬃcient care to avoid danger to others.
'Negligence' means omission to do something which a reasonable and prudent person
guided by the considerations which ordinarily regulate human affairs would do or doing
something which a prudent and reasonable person guided by similar considerations
would not do. Negligence is not an absolute term but is a relative one; it is rather a
comparative term. It is diﬃcult to state with precision any mathematically exact
formula by which negligence or lack of it can be infallibly measured in a given case.
Whether there exists negligence per se or the course of conduct amounts to
negligence, will normally depend upon the attending and surrounding facts and

circumstances which have to be taken into consideration by the Court. In a given case,
even not doing what one was ought to do can constitute negligence.407.
[s 304A.4] Contributory negligence.—
The doctrine of contributory negligence does not apply to criminal liability, that is,
where the death of a person is caused partly by the negligence of the accused and
partly by his own negligence. If the accused is charged with contributing to the death of
the deceased by his negligence, it matters not whether the deceased was deaf, or
drunk, or negligent, or in part contributed to his own death.408. In this connection, see
also sub-para entitled "Contributory negligence" under section 279, IPC, 1860, ante.
[s 304A.5] Laying trap by live wire.—
The accused had connected live wire with his bicycle with a view to ward off mischief

making children. A child touched the bicycle and got shock and ultimately died. It was
held that the act of the accused amounted to negligence as he placed no sign board,
caution or warning for not touching the bicycle and was liable to be punished under
section 304A and under section 304, Part II.409.
[s 304A.6] Degree and nature of care expected of an occupier of a cinema building.—
The Supreme Court, in Sushil Ansal v State Through CBI,410. (Uphaar Cinema building
tragedy case) opined that:
Reverting back to the degree and nature of care expected of an occupier of a cinema hall,
we must at the outset say that the nature and degree of care is expected to be such as
would ensure the safety of the visitors against all foreseeable dangers and harm. That is the
essence of the duty which an occupier owes to the invitees whether contractual or

otherwise. The nature of care that the occupier must, therefore, take would depend upon the
fact situation in which duty to care arises. For instance, in the case of a hotel which offers to
its clients the facility of a swimming pool, the nature of the care that the occupier of the
hotel would be expected to take would be different from what is expected of an occupier of
a cinema hall.
An occupier of a cinema would be expected to take all those steps which are a part of his
duty to care for the safety and security of all those visiting the cinema for watching a
cinematograph exhibition. What is important is that the duty to care is not a onetime affair.
It is a continuing obligation which the occupier owes towards every invitee contractual or
otherwise every time an exhibition of the cinematograph takes place. What is equally

important is that not only under the common law but even under the statutory regimen, the
obligation to ensure safety of the invitees is undeniable, and any neglect of the duty is
actionable both as a civil and criminal wrong, depending upon whether the negligence is
simple or gross.
[s 304A.6.1] Mens rea.—
charge in a criminal Court consists of criminal negligence.411.

[s 304A.6.2] Res ipsa Loquitur.—
This doctrine serves two purposes—one that an accident may by its nature be more
accident is prima facie evidence of such negligence. Second, it is to avoid hardship in
(c) Accused was negligent and owed a duty of care towards the victim.412. In our
current conditions, the law under section 304A, IPC, 1860 and under the rubric of

negligence, must have due regard to the fatal frequency of rash driving of heavy duty
vehicles and of speeding menaces. Thus viewed, it is fair to apply the rule of res ipsa
loquitur, of course, with care. Conventional defences, except under compelling
evidence, must break down before the pragmatic Court and must be given short shrift.
Looked at from this angle, the Court held that the present case deserved no
consideration on the question of conviction.413. The principle of res ipsa loquitur is only
a rule of evidence to determine the onus of proof in actions relating to negligence. The
said principle has application only when the nature of the accident and the attending
circumstances would reasonably lead to the belief that in the absence of negligence
the accident would not have occurred and that the thing which caused injury is shown

to have been under the management and control of the alleged wrongdoer.414. Res ipsa
loquitur is only a rule of evidence and operates in the domain of civil law specially in
cases of torts and helps in determining the onus of proof in actions relating to
negligence. It cannot be pressed in service for determining per se the liability for
application in trial on a charge of criminal negligence.415. Where a vehicle was being
driven on a wrong side and an accident took place resulting in the death of two
persons, the principle of res ipsa loquitur should have been applied.416. In the case of
Thakur Singh v State of Punjab,417. the accused drove a bus rashly and negligently with

41 passengers and while crossing a bridge, the bus fell into the nearby canal resulting
in death of all the passengers. The Court applied the doctrine of res ipsa loquitur since
admittedly the petitioner was driving the bus at the relevant time and it was going over
the bridge when it fell down. Evidence on record discloses that the bus had gone and
dashed into a standing tree situated on the right side of the road. Unless, the vehicle
had been driven rashly and/or negligently, the vehicle which had no mechanical defect
would not have dashed to a standing tree, that too, on the right side of the road. The
factum of accident having been admitted in section 313, Cr PC, 1973 statement, the
legal doctrine res ipsa loquitur gets attracted.418.
Where a vehicle driven at a high speed knocked down the deceased who was walking

on the left side of the road and breaking the roadside fencing got stuck up in a ditch, it
was held that the maxim res ipsa loquitur was applicable and the accused driver could
be held guilty of rash and negligent driving.419.
The Supreme Court explained the principle in the following words.420.
The principle of res ipsa loquitor is only a rule of evidence to determine the onus of proof in
actions relating to negligence. The principle has application only when the nature of the
accident and attending circumstances would reasonably lead to the belief that in the

absence of negligence the accident would not have occurred and the thing which caused
injury is shown to have been under the management and control of the alleged wrongdoer.
The maxim, however, was not applicable to the present case. The bus moved away
while a passenger was trying to board it. He fell down to his injuries. There could be no
presumption of negligence. It had to be further shown that the driver moved away the
bus suddenly or before getting signal from the conductor where a car hit a tree
resulting in the death of one of the passengers and injuries to others and though the
road was of suﬃcient width and no obstruction was present and the report of the
motor vehicles inspector was that there was no mechanical defect in the car, it was
held that a presumption as to negligence could be drawn and the burden was on the
driver to show that there was no negligence on his part.421.
[s 304A.7] Accidents.—Defence of mechanical failure.—

According to the defence, the vehicle turned turtle due to mechanical failure, i.e., non-
functioning of the hydraulic system in a proper manner. The manner in which the
accident occurred due to detachment of the trailer from the tractor and the distance to
which the tractor moved vividly reveals that the vehicle in question was driven
recklessly at a high speed. The plea of mechanical failure as put forth by the accused
was not even suggested to the Inspector. Plea rejected.422. Accused took the plea that
accident happened due to bursting of tyre of scooter. Bursting of tyre may happen only
when the tube and tyre have already spent their lives or in the event of poor
maintenance of same. Mechanical failure of a vehicle contributing to cause of an

accident is also a factor coming under "poor maintenance". Rejecting the plea, the
Orissa High Court held that poor maintenance of vehicle is itself a negligent act.423.
[s 304A.8] High Speed.—
Driving at a high speed is not in itself a negligent act.424. In the case of Ravi Kapur v
State of Rajasthan,425. the Apex Court has observed that, a person who drives a vehicle
on the road is liable to be held responsible for the act as well as for the result and that
it may not always be possible to determine with reference to the speed of a vehicle
whether a person was driving rashly and negligently and that even when one is driving a
vehicle at slow speed, but, recklessly and negligently, it would amount to rash and
negligent driving within the meaning of the language of section 279, IPC, 1860. Mere

driving of a vehicle at a high speed or slow speed does not lead to an inference that
negligent or rash driving had caused the accident resulting in injuries to the
complainant. In fact, the speed is no criteria to establish the fact of rash and negligent
driving of a vehicle.426. Absence of rash speed itself cannot absolve the petitioner.427.
Where the accused came driving canter at a very fast speed in rash and negligent
manner and dashed against victim girls resulting into death of one and injuries to
another, relying on the testimony of complainant, Court convicted the accused under
section 304A.428. In a case, the accused drove the vehicle ignoring the signal given to
stop the bus by a police oﬃcer in uniform. There was absolutely no turn or bend on the
road which could have prevented the accused from noticing the victim in uniform on

road. Accident occurred on account of rash and negligent act of applicant/accused and
led to death of victim. Conviction of accused was held proper by the Bombay High
Court.429.
[s 304A.9] Medical negligence.—
In PB Desai (Dr) v State of Maharashtra,430.,431. the Supreme Court held that due to the
very nature of the medical profession, the degree of responsibility on the practitioner is
higher than that of any other service provider. To fasten liability in criminal law, the
degree of negligence has to be higher than that of negligence enough to fasten liability
for damages in civil law. The essential ingredient of mens rea cannot be excluded from

consideration when the charge in a criminal Court consists of criminal negligence.
Where negligence is an essential ingredient of the offence, the negligence to be
established by the prosecution must be culpable or gross and not the negligence
merely based upon an error of judgment.
[s 304A.9.1] Bolam Test.—
The test for determining medical negligence as laid down in Bolam v Friern Hospital
Management Committee,432. holds good in its applicability in India.433. In the Bolam
case, it was held that:
Where you get a situation which involves the use of some special skill or competence, then
the test as to whether there has been negligence or not is not the test of the man on the top
of a Clapham omnibus, because he has not got this special skill. The test is the standard of
the ordinary skilled man exercising and professing to have that special skill... A man need
not possess the highest expert skill; it is well established law that it is suﬃcient if he

exercises the ordinary skill of an ordinary competent man exercising that particular art.
In many cases, the Supreme Court approved and applied this test for determining the
negligence. In Jacob Mathew v State of Punjab,434. the Supreme Court observed:
The water of Bolam test has ever since ﬂown and passed under several bridges, having
been cited and dealt with in several judicial pronouncements, one after the other and has
continued to be well received by every shore it has touched as neat, clean and well-
condensed one.
When a patient agrees to go for medical treatment or surgical operation, every careless
act of the medical man cannot be termed as 'criminal.' It can be termed 'criminal' only
when the medical man exhibits a gross lack of competence or inaction and wanton

indifference to his patient's safety and which is found to have arisen from gross
ignorance or gross negligence. Where a patient's death results merely from error of
judgment or an accident, no criminal liability should be attached to it. Mere
liability but would not suﬃce to hold him criminally liable.435. Negligence cannot be
attributed to a doctor so long as he performs his duties with reasonable skill and
competence. Merely because the doctor chooses one course of action in preference to
the other one available, he would not be liable if the course of action chosen by him
was acceptable to the medical profession.436. In Suresh Gupta (Dr) v Govt of NCT of
Delhi,437. the Apex Court held that where the medical practitioner failed to take

appropriate steps, viz., "not putting a cuffed endotracheal tube of proper size" so as to
prevent aspiration of blood blocking respiratory passage, the act attributed to him may
be described as negligent act but not so reckless as to make him criminally liable.
[s 304A.10] Duty of the Investigating Oﬃcer.—
A doctor accused of rashness or negligence may not be arrested in a routine manner
(simply because a charge has been levelled against him). Unless his arrest is
necessary for furthering the investigation or for collecting evidence or unless the
investigating oﬃcer feels satisﬁed that the doctor proceeded against would not make
himself available to face the prosecution unless arrested, the arrest may be
withheld.438.
[s 304A.11] Private Complaint.—
A private complaint may not be entertained unless the complainant has produced

prima facie evidence before the Court in the form of a credible opinion given by another
competent doctor to support the charge of rashness or negligence on the part of the
accused doctor.439. Complaint alleging Medical Negligence in treatment of husband of

complainant. In absence of any expert opinion regarding negligence of doctor, criminal
prosecution against him is not maintainable.440.
[s 304A.12] Burden of proof.—
In a case involving medical negligence, once the initial burden has been discharged by
the complainant by making out a case of negligence on the part of the hospital or the
doctor concerned, the onus then shifts on to the hospital or to the attending doctors
and it is for the hospital to satisfy the Court that there was no lack of care or
diligence.441.
[s 304A.13] Individual liability of Doctors.—
For establishing medical negligence or deﬁciency in service, the Courts would
determine the following:
(i) No guarantee is given by any doctor or surgeon that the patient would be cured.
(ii) The doctor, however, must undertake a fair, reasonable and competent degree of
skill, which may not be the highest skill.
(iii) Adoption of one of the modes of treatment, if there are many, and treating the

patient with due care and caution would not constitute any negligence.
(iv) Failure to act in accordance with the standard, reasonable, competent medical
means at the time would not constitute a negligence. However, a medical
practitioner must exercise the reasonable degree of care and skill and
knowledge which he possesses. Failure to use due skill in diagnosis with the
result that wrong treatment is given would be negligence.
(v) In a complicated case, the Court would be slow in contributing negligence on the
part of the doctor, if he is performing his duties to the best of his ability.442.
Law relating to medical negligence laid down by the Supreme Court in Jacob Mathew
Case
(1) Negligence is the breach of a duty caused by omission to do something which a
reasonable man guided by those considerations which ordinarily regulate the conduct

Case
of human affairs would do, or doing something which a prudent and reasonable man
would not do. The deﬁnition of negligence as given in Ratanlal Ranchhoddas, and
Dhirajlal Keshavlal Thakore, The Law of Torts, 26th Edn, Bombay law reporter Oﬃce,
2013 (edited by Justice G.P. Singh), referred to hereinabove, holds good. Negligence
becomes actionable on account of injury resulting from the act or omission amounting
to negligence attributable to the person sued. The essential components of negligence
are three: 'duty', 'breach' and 'resulting damage'.
(2) Negligence in the context of medical profession necessarily calls for a treatment
with a difference. To infer rashness or negligence on the part of a professional, in
particular a doctor, additional considerations apply. A case of occupational negligence

is different from one of professional negligence. A simple lack of care, an error of
judgment or an accident, is not proof of negligence on the part of a medical
professional. So long as a doctor follows a practice acceptable to the medical
profession of that day, he cannot be held liable for negligence merely because a better
alternative course or method of treatment was also available or simply because a more
skilled doctor would not have chosen to follow or resort to that practice or procedure
which the accused followed. When it comes to the failure of taking precautions, what
has to be seen is whether those precautions were taken which the ordinary experience
of men has found to be suﬃcient; a failure to use special or extraordinary precautions

which might have prevented the particular happening cannot be the standard for
judging the alleged negligence. So also, the standard of care, while assessing the
practice as adopted, is judged in the light of knowledge available at the time of the
incident, and not at the date of trial. Similarly, when the charge of negligence arises out
of failure to use some particular equipment, the charge would fail if the equipment was
not generally available at that particular time (that is, the time of the incident) at which
it is suggested it should have been used.
(3) A professional may be held liable for negligence on one of the two ﬁndings: either
he was not possessed of the requisite skill which he professed to have possessed, or,
he did not exercise, with reasonable competence in the given case, the skill which he
did possess. The standard to be applied for judging, whether the person charged has
been negligent or not, would be that of an ordinary competent person exercising

ordinary skill in that profession. It is not possible for every professional to possess the
highest level of expertise or skills in that branch which he practices. A highly skilled
professional may be possessed of better qualities, but that cannot be made the basis
or the yardstick for judging the performance of the professional proceeded against on
indictment of negligence.
(4) The test for determining medical negligence as laid down in Bolam v Friern Hospital
Management Committee,443. holds good in its applicability in India.
(5) The jurisprudential concept of negligence differs in civil and criminal law. What may
be negligence in civil law may not necessarily be negligence in criminal law. For

For an act to amount to criminal negligence, the degree of negligence should be much
higher, i.e., gross or of a very high degree. Negligence which is neither gross nor of a
higher degree may provide a ground for action in civil law but cannot form the basis for
(6) The word 'gross' has not been used in section 304A of IPC, 1860, yet it is settled
that in criminal law negligence or recklessness, to be so held, must be of such a high
degree as to be 'gross'. The expression 'rash or negligent act' as occurring in section
304A of the IPC, 1860 has to be read as qualiﬁed by the word 'grossly'.
(7) To prosecute a medical professional for negligence under criminal law, it must be

such a nature that the injury which resulted was most likely imminent.
(8) Res ipsa loquitur is only a rule of evidence and operates in the domain of civil law
specially in cases of torts and helps in determining the onus of proof in actions relating
to negligence. It cannot be pressed in service for determining per se the liability for
application in trial on a charge of criminal negligence.
[Jacob Mathew v State of Punjab.444. See also PB Desai (Dr) v State of Maharashtra.445.]
A person sustained fracture injuries in an accident. He died while he was under

operation. The cause of death was found to be administration of spinal anaesthesia
which was injected through spinal cord without checking the bearing capacity of the
patient. It amounted to criminal negligence. The failure of the surgeons to check the
state of the patient after anaesthesia might also amount to negligence, the Court said.
Conviction under the section would have been proper. This would also attract civil
liability. The quashing of the criminal proceedings was not a bar to institution of a civil
suit.446.

The accused was not a qualiﬁed doctor. He administered an injection to a patient who
died because the possible reaction was not tested beforehand. The Court said that the
accused was guilty of causing death by rash and negligent act.447.
The degree of negligence suﬃcient to fasten liability under section 304A is higher than
that required to fasten liability in civil proceedings. Non-exercise of reasonable care on
the part of the doctor may suﬃce to fasten on him civil liability but in order to fasten
criminal liability, gross negligence on his part amounting to recklessness has to be
proved.448.
Supreme Court Guidelines in Medical Negligence Cases
On scrutiny of the leading cases of medical negligence both in our country and other
countries, specially United Kingdom, some basic principles emerge in dealing with the
cases of medical negligence. While deciding whether the medical professional is guilty
of medical negligence, following well-known principles must be kept in view:

(I) Negligence is the breach of a duty exercised by omission to do something which a
reasonable man, guided by those considerations which ordinarily regulate the conduct
of human affairs, would do, or doing something which a prudent and reasonable man
would not do.
(II) Negligence is an essential ingredient of the offence. The negligence to be
(III) The medical professional is expected to bring a reasonable degree of skill and
knowledge and must exercise a reasonable degree of care. Neither the very highest nor
a very low degree of care and competence judged in the light of the particular
circumstances of each case is what the law requires.
(IV) A medical practitioner would be liable only where his conduct fell below that of the

standards of a reasonably competent practitioner in his ﬁeld.
(V) In the realm of diagnosis and treatment, there is scope for genuine difference of
opinion and one professional doctor is clearly not negligent merely because his
conclusion differs from that of another professional doctor.
(VI) The medical professional is often called upon to adopt a procedure which involves
higher element of risk, but which he honestly believes as providing greater chances of
success for the patient, rather than a procedure involving lesser risk but higher chances
of failure. Just because a professional looking to the gravity of illness has taken higher
element of risk to redeem the patient out of his/her suffering which did not yield the
desired result may not amount to negligence.
(VII) Negligence cannot be attributed to a doctor so long as he performs his duties with

reasonable skill and competence. Merely because the doctor chooses one course of
action in preference to the other one available, he would not be liable if the course of
action chosen by him was acceptable to the medical profession.
(VIII) It would not be conducive to the eﬃciency of the medical profession if no Doctor
could administer medicine without a halter round his neck.
(IX) It is our bounden duty and obligation of the civil society to ensure that the medical
professionals are not unnecessarily harassed or humiliated so that they can perform
their professional duties without fear and apprehension.
(X) The medical practitioners at times also have to be saved from such a class of
complainants who use criminal process as a tool for pressurising the medical

professionals/hospitals particularly private hospitals or clinics for extracting uncalled
for compensation. Such malicious proceedings deserve to be discarded against the
medical practitioners.
(XI) The medical professionals are entitled to get protection so long as they perform
their duties with reasonable skill and competence and in the interest of the patients.
The interest and welfare of the patients have to be paramount for the medical
professionals.
[Kusum Sharma v Batra Hospital and Medical Research Centre.449.]
[s 304A.14] CASES.—Medical Negligence.—
Non-providing of ambulance when attendants were shifting the patient to Trauma
Centre, even if it was not asked for by them, may be an instance where there is no
negligence in the treatment but may be deﬁciency in service or civil negligence as was
held in similar circumstances in the case of Pravat Kumar Mukherjee v Ruby General
Hospital.450. In a case, a Cardiac surgeon was indicted in a prosecution under section

304A on the grounds that he chose to conduct the angioplasty without having a
surgical standby unit and such failure resulted in delay of ﬁve hours in conducting by-
pass after the angioplasty failed; and he did not consult a cardio anaesthetist before
conducting an angioplasty. According to the High Court, both the above-mentioned
'lapses' on the part of the appellant "clearly show the negligence" of the accused-
surgeon. While quashing the proceedings, the Supreme Court held that the prosecution
of the accused is uncalled for as pointed out by the Court in Jacob Mathew's case
(supra) that the negligence, if any, on the part of the accused cannot be said to be
"gross".451.
[s 304A.15] Delegation of responsibility.—
Even delegation of responsibility to another may amount to negligence in certain

circumstances. A consultant could be negligent where he delegates the responsibility
to his junior with the knowledge that the junior was incapable of performing his duties
properly.452.
[s 304A.16] Negligence of nurse.—
Where the allegation that the accused nurse told the doctor that the vaccine for snake
bite was not available, when it was actually available, considering the delay of two and
half hours in bringing the patient to the hospital, it was held that there was no direct
nexus between the rash and negligent act and death of deceased.453.
The accused, a Homeopathic practitioner, administered to a patient suffering from
guinea worm, 24 drops of stramonium and a leaf of dhatura without studying its effect;
the patient died of poisoning. The accused was held guilty under this section.454.

[s 304A.17] Negligence on the part of the bus driver when a passenger fell down from
a bus.—
A passenger might fall down from a moving vehicle due to one of the following causes:
it could be accidental; it could be due to the negligence of the passenger himself; it
could be due to the negligent taking off the bus by the driver. However, to fasten the
liability with the driver for negligent driving in such a situation, there should be the
evidence that he moved the bus suddenly before the passenger could get into the
vehicle or that the driver moved the vehicle even before getting any signal from the rear
side. Merely because a passenger fell down from the bus while boarding the bus, no
presumption of negligence can be drawn against the driver of the bus.455. When

deceased was alighting from the bus, the accused driver suddenly started the bus, as a
result of which, he fell down and sustained injuries. It cannot be said that driver had not
seen the deceased alighting from bus—negligence and rashness is writ large. It does
not require any imagination to hold that it was basic duty of driver to ascertain as to
whether any passenger was boarding or alighting from bus—Conviction was held
proper.456. Prosecution case is that when deceased, a girl studying in the 8th standard
was about to board the offending bus driven by accused/ driver, he took the bus
speedily and made her fall down whereby she sustained injuries and ultimately died.
Conviction of both the accused driver and conductor is held proper.457. In another case,
one person had gone on the roof top of the bus and driver started the vehicle while he
was there and by falling from bus, passenger sustained injuries and succumbed in
hospital. There was no evidence to show that the driver had knowledge that any

passenger was on the rooftop of the bus. Supreme Court acquitted the accused.458.
[s 304A.18] CASES.—Act not rash or negligent.—
If the driver of a motor vehicle does not blow the horn because the prevailing traﬃc
rules prohibit him from doing so, it cannot be said that he has failed to exercise
reasonable and proper care, nor can it be said that duty to blow the horn was
imperative upon him, so as to hold him guilty of negligence under this section.459. If a
pedestrian suddenly crosses a road without taking note of an approaching bus, and,
thus, gets killed by dashing against the bus, the driver cannot be held responsible for
any rash or negligent act.460. Where a bus driver ﬁnding a level crossing gate open at a
time when there was no train scheduled to pass, tried to cross the railway line and the

rear portion of the bus collided with an oncoming goods train resulting in the death of
four passengers, the driver cannot be held responsible for an offence under this
section.461. A bus with some corrugated sheets on the roof was being driven by the
accused. On the way, due to jolting, these sheets got loose and fell down on the heads
of passersby, one of which later died. The investigating oﬃcer did not care to seize
either those sheets and even ascertain who the owner of the bus was who actually
loaded those sheets without tying them properly. It was held that the bus driver could
not be held liable under this section.462. The accused was driving a passenger bus at
moderate speed along a narrow 12' road which had deep ditches on either side of the
road. When the bus reached a place where a kaccha road bifurcated for a nearby

village, a girl of four years old suddenly ran across the road from left to right. The
accused in order to save the girl swerved the bus to the right to the extent possible but
still the left wheel hit the girl and she died on the spot. In setting aside his conviction
under this section, the Supreme Court held that it was a case of pure error of judgment
and not a rash or negligent act. It further held that the doctrine of res ipsa loquitur (i.e.,
let thing speak for itself) had no application in a criminal case.463.
Where the bus conductor whistled the bus to start only after he had seen each and
every passenger had got out of the bus, but a passenger was injured because he had
slipped and not because the bus suddenly started moving, the conductor was given the
beneﬁt of doubt.464. Where the charge that the driver started the bus without waiting

for signal from the conductor and as a result a passenger who was still at the roof of
the bus for bringing down his luggage fell down to death, the Court was of the opinion
that because the conductor was not examined as a witness and without his evidence,
the case was nothing but a version of the prosecution and, therefore, the conviction of
the driver was set aside.465. Accused who was trying to overtake other vehicles and in
that process took his vehicle completely on the wrong side of the road, giving a dash to
a scooterist resulting in his death. Conviction of appellant under section 304A of IPC,
1860 was held proper.466.
[s 304A.19] Accidents in Construction sites.

Where the Deceased, a labourer sustained injuries at construction site of petitioner
during the course of demolition of house and succumbed to his death, Evidence
showing that in spite of repeated warnings and caution notes, petitioner did not pay
any heed and continued the work without care and caution which ought to have been
exercised by a reasonable and a prudent person. The Delhi High Court conﬁrmed the
conviction under section 304A.467.
[s 304A.20] Accidental ﬁre from riﬂe.—
Fire occurred from riﬂe of the accused when he was about to take metal powder kept
under cot. Deceased sustained bleeding injuries on his head and fell down on the cot
and the accused being unconscious was lying on his cot. Two versions were given by
the witnesses. The High Court took the view favouring the acquittal.468.
[s 304A.21] Death of caddie by player's stroke.—
A golf-player missed the ball and instead struck the caddie to his death. Two other

caddies, who were not around, expressed the opinion that there was negligence in the
stroke. This opinion was not accepted because neither they were experts nor they were
around. The Court felt that the incident must have been due to accidental omission to
hit the ball. The charge under section 304A was not likely to succeed and, therefore, it
was quashed.469.
[s 304A.22] Death of child by slipping on school stairs.—
A child slipped on school stairs and sustained head injury. He was taken to the school
dispensary where the pharmacist applied ice and ointment and instructed that the child
be taken home. The Court said it was the duty of the pharmacist to either make proper
diagnosis or advice for medical check-up by an expert doctor. The child died. The head
master or class teacher were held not liable for causing death by negligence.470.

Where a Maruti van carrying number of children was driven by accused/owner, lid of
dicky was open and ﬁre crackers were stored in dicky. Fire crackers stored in dicky
caught ﬁre resulting to death of children. It was held that the incident took place purely
by accident. Accused were liable to be charged only under sections 304A and 435 of
IPC, 1860.471.
[s 304A.23] Death of a child in swimming pool.—
Complainant's son drowned in swimming pool and died due to negligent attitude of
owner, supervisor and observer of swimming pool. In the FIR, it was speciﬁcally
mentioned that proposed accused is owner of Resorts. Accused was present in resort
at time of admission of deceased boy and on date of incident too. Plea that the
accused had already leased out the resort is of no consequence. High Court directed

the magistrate to proceed against accused under section 319, Cr PC, 1973.472. A boy
entered into the swimming pool of a club surreptitiously and without notice of the
chowkidar. He was lost in drowning. The secretary of the club and chowkidar were
prosecuted under this section. It was alleged that the club had no caution board and no
life-saving guard. The Court dismissed the case. If the entry of the boy could be due to
want of these precautions, only then there could have been a ﬁnding of negligence. The
negligence, if at all, was of civil nature.473. In another case, where death of deceased
boy was due to drowning in swimming pool, the evidence showed that the deceased
boy himself had unauthorisedly and surreptitiously entered in pool which was meant
for adult trained swimmers and drowned. There was no nexus between the death of

boy with only rash and negligent act of accused. Accused acquitted.474.
[s 304A.24] Distinction between sections 304 and 304A.—

The Supreme Court stated as follows: There is distinction between sections 304 and
304A. Section 304A deals with homicidal death by rash or negligent act. It does not
create a new offence. It is directed against the offences outside the range of sections
299 and 300 and covers those cases where death has been caused without intention or
knowledge. Section 304A carves out cases where death is caused by doing a rash or
negligent act which does not amount to culpable homicide not amounting to murder
within the meaning of section 299 or culpable homicide amounting to murder under
section 300. In other words, section 304A excludes all the ingredients of section 299 as
also of section 300. Where intention or knowledge is the "motivating force" of the act
complained of, section 304A will have to make room for the graver and more serious
charge of culpable homicide not amounting to murder or amounting to murder as the
facts disclose. The words "not amounting to culpable homicide" in section 304A are

signiﬁcant and clearly convey that the section seeks to embrace those cases where
there is neither intention to cause death nor knowledge that the act done will in all
probability result into death. It applies to acts which are rash or negligent and are
directly the cause of death of another person.475. Undoubtedly, "rashness" does contain
an element of knowledge. But a distinction has to be made between section 304, IPC,
1860, requiring knowledge, with regard to the consequences of the act and section
304A, IPC, 1860, "rashness", having an element of knowledge about the consequences,
but with the hope that the consequences would not follow. Furthermore, in order to
understand the distinction between sections 304 and 304A, IPC, 1860, it is pertinent to
note that while the former section deals with an act 'amounting to culpable homicide',

the latter section deals with an act 'not amounting to culpable homicide'. Although
"rashness" does contain an element of "knowledge", even then the case would not fall
within the ambit of section 304, IPC, 1860. For, in section 304, IPC, 1860, the knowledge
is about the consequences as the consequences would naturally and obviously follow
from the nature of the act. But in "rashness", although there is a knowledge that the
consequences may follow or are likely to follow, the doer hopes that the consequences
would not follow. Thus, even if the element of knowledge is common in sections 304
and 304A, IPC, 1860, the extent and ambit of "knowledge" defers in its nature.
Therefore, the element of "knowledge" should not lead to any confusion between the
scope of section 304, IPC, 1860 and scope of section 304A, IPC, 1860.476. If a person

wilfully drives a motor vehicle into the midst of a crowd and thereby causes death to
some person, it will not be a case of mere rash and negligent driving and the act will
amount to culpable homicide. Doing an act with the intent to kill a person or knowledge
that doing an act was likely to cause a person's death is culpable homicide. When
intent or knowledge is the direct motivating force of the act, section 304A, has to make
room for the graver and more serious charge of culpable homicide.477.
[s 304A.25] Bhopal Gas Tragedy Case.—
On the night of 2 December 1984, there was a massive escape of lethal gas from the
MIC storage tank at the Bhopal plant of the Union Carbide (I) Ltd. (UCIL) into the
atmosphere causing the death of 5,295 people, leaving 5,68,292 people suffering from

different kinds of injuries ranging from permanent total disablement to less serious
injuries. CBI ﬁled the charge for offences under sections 304, 324, 326, 429 read with
section 35 of IPC, 1860. Additional Sessions Judge, Bhopal passed an order framing
charges against the accused Nos. 5–9 under sections 304 (Part II), 324, 326 and 429
of IPC, 1860 and against accused Nos. 2, 3, 4 and 12 under the very same sections but
with the aid of section 35 of IPC, 1860. But the Supreme Court in Keshub Mahindra v
State of MP.478. held that on the material led by the prosecution, appropriate charges
which are required to be framed against the concerned accused are under section
304A, IPC, 1860 so far as the accused Nos. 5, 6, 7, 8 and 9 are concerned while so far
as accused Nos. 2, 6, 4 and 12 are concerned, charges under section 304A read with

section 35, IPC, 1860 will have to be framed. Ultimately on 7 June 2010, the CJM vide
his judgment convicted accused Nos. 2 to 5, 7 to 9 and 12 under sections 304A, 336,
337, 338 read with section 35, IPC, 1860 and sentenced them to two years'

imprisonment. On 29 June 2010, Criminal Appeal No. 369 of 2010 was ﬁled by State of
Madhya Pradesh before the Court of Sessions with a prayer for enhancement of
sentences under the existing charges. On the same day, the State of Madhya Pradesh
also ﬁled Criminal Revision Application No. 330 of 2010 before the Court of Sessions
under section 397, Cr PC, 1973, challenging the alleged failure of the CJM to enhance
the charges to section 304 (Part II) in exercise of his jurisdiction under section 216, Cr
PC, 1973, and to commit the trial of the case to Sessions under section 323, Cr PC,
1973 and inter alia praying for a direction to enhance charges and commit. Meanwhile,
CBI ﬁled a curative petition against judgment Keshub Mahindra v State of MP (supra)
quashing of charges under sections 304, Part II, 324 and 429, IPC, 1860 and direction
to the trial Court to frame charges under section 304A, IPC, 1860. Dismissing the
curative petition which was ﬁled after 14 years of the judgment impugned held that if

according to the curative petitioner, the learned Magistrate failed to appreciate the
correct legal position and misread the decision dated 13 September 1996 as tying his
hands from exercising the power under section 323 or under section 216 of the Code, it
can certainly be corrected by the appellate/revisional Court.479.
[s 304A.26] Three cases.—Death due to drunken driving.—offence under section 304A
or section 304, Part II.—
In State of Maharashtra v Salman Salim Khan,480. the allegation was that the accused
drove his car under the inﬂuence of alcohol, in a rash manner and caused the death of
one person and caused grievous injuries to four others who happened to be sleeping
on the footpath. A few days later, the charge-sheet ﬁled came to be modiﬁed based on
the additional statement of the complainant, and instead of section 304A, IPC, 1860,

section 304, Part II, IPC, 1860 was substituted. The Sessions Court framed charges
under section 304, Part II. The High Court quashed the order framing charge under
section 304, Part II, IPC, 1860 and directed the appropriate Magistrate's Court to frame
de novo charges under various sections mentioned in the said impugned order of the
High Court including one under section 304A, IPC, 1860. In the appeal ﬁled by the State,
the Supreme Court held that neither of the sides would have been in any manner
prejudiced in the trial by framing of a charge either under section 304A or section 304,
Part II, IPC, 1860 except for the fact that the forum trying the charge might have been
different, which by itself, being open to the concerned Court to have altered the charge
appropriately depending on the material that is brought before it in the form of

evidence.
[s 304A.27] BMW Case.—
vehicle without licence, in a rash and negligent manner in a high speed which resulted
action would, in the facts and circumstances of the case, fall under section 304, Part II,
IPC, 1860 and the trial Court has rightly held so.481.
[s 304A.28] Alister Anthony Pareira's case.—
In Alister Anthony Pareira's case,482. in which seven persons were killed and injuries
were caused to eight persons, the Court held that the case falls under section 304, Part

II and not under section 304A by holding that the person must be presumed to have
had the knowledge that his act of driving the vehicle without a licence in a high speed
after consuming liquor beyond the permissible limit is likely or suﬃcient in the ordinary
course of nature to cause death of the pedestrians on the road.
[s 304A.29] Uphaar Cinema Hall Tragedy.—

Answering the question of whether the negligence of Ansal brothers—the occupiers of
the cinema was so gross so as to be culpable under section 304A, of IPC, 1860, the
Supreme Court held that its answer to that question was in the aﬃrmative. The reasons
were not far to seek. In the ﬁrst place, the degree of care expected from an occupier of
a place which is frequented everyday by hundreds and if not thousands is very high in
comparison to any other place that is less frequented or more sparingly used for public
functions. The higher the number of visitors to a place and the greater the frequency of
such visits, the higher would be the degree of care required to be observed for their
safety. The duty is continuing which starts with every exhibition of cinematograph and
continues till the patrons safely exit from the cinema complex. That the patrons are
admitted to the cinema for a price, makes them contractual invitees or visitors qua

whom the duty to care is even higher than others. The need for high degree of care for
the safety of the visitors to such public places offering entertainment is evident from
the fact that the Parliament has enacted the Cinematograph Act, 1952 and the
Cinematograph Rules, 1983, which cast speciﬁc obligations upon the
owners/occupiers/licensees with a view to ensuring the safety of those frequenting
such places.483.
The Supreme Court observed that in cases of negligence leading to public disaster,
imposition of expiatory ﬁne in addition to incarceration serve the penological purpose
of deterrence as also public purpose. Under section 304A of IPC, 1860, either
imprisonment only or with ﬁne or ﬁne alone, is the prescribed punishment. The
punishment by both imprisonment and exemplary ﬁne would be an appropriate

punishment in a case like this. The licensee and the person actually running the Uphaar
cinema are equally responsible for the tragedy. Taking note of the licensee's age-
related complications, sentence was reduced to the period already undergone, in case
he pays Rs. 30 crores. The court held that on principle of parity, the same beneﬁt
cannot be extended to the person actually running the cinema as he never had a case
of any age-related complications. Thus, his sentence of one-year imprisonment was
maintained and he was also held liable to a ﬁne of Rs. 30 crores.484.
[s 304A.30] Sentencing.—
The Apex Court in the case of State of Karnataka v Krishna @ Raju,485. while dealing
with the concept of adequate punishment in relation to an offence under section 304A
of the IPC, 1860, has held that considerations of undue sympathy in such cases will not

only lead to miscarriage of justice but will also undermine the conﬁdence of the public
in the eﬃcacy of the criminal justice dispensation system. If the accuseds are found
guilty of rash and negligent driving, Courts have to be on guard to ensure that they do
not escape the clutches of law very lightly. The sentence imposed by the Courts should
have deterrent effect on potential wrong-doers and it should be commensurate with the
seriousness of the offence.486.
The Supreme Court relied upon cases emphasising deterrent effect of punishment on
lax and inattentive drivers. A seven-year-old child was killed due to rash and negligent
driving. Simple imprisonment for six months plus one month and ﬁne of Rs. 1000 plus
Rs. 500 was held to be proper.487.
[s 304A.31] New approach in Sentencing.—Community Service and Contribution to the

relief fund for victims.—
In the BMW Case,488. the Supreme Court issued the following directions instead of
enhancing the jail term (1) Accused has to pay an amount of Rs. 50 lakh to the Union of
India within six months, which will be utilised for providing compensation to the victim
of motor accidents, where the vehicle owner, driver etc. could not be traced, like victims
of hit and run cases. On default, he will have to undergo simple imprisonment for one
year. This amount be kept in a different head to be used for the aforesaid purpose only.

383.  Ins. by Act 27 of 1870, section 12.
384.  State of Punjab v Balwinder Singh, 2012 (2) SCC 182 [LNIND 2012 SC 8] : AIR 2012 SC 861
[LNIND 2012 SC 8] .
385.  Malay Kumar Ganguly v Sukumar Mukherjee, (2009) 9 SCC 221 [LNIND 2009 SC 1647] : AIR
2010 SC 1162 [LNIND 2009 SC 1647].
386.  Kurban Hussain, (1964) 67 Bom LR 447 (SC).
387.  Malay Kumar Ganguly v Sukumar Mukherjee, (2009) 9 SCC 221 [LNIND 2009 SC 1647] : AIR
2010 SC 1162 [LNIND 2009 SC 1647] .
388.  Sushil Ansal v State Through CBI, (2014) 6 SCC 173 [LNIND 2014 SC 527] .
389.  Empress of India v Idu Beg, (1881) I LR 3 All 776.
390.  Mahadev Prasad Kaushik v State of UP, (2008) 14 SCC 479 [LNIND 2008 SC 2043] : AIR
2009 SC 125 [LNIND 2008 SC 2043] : (2009) 1 All LJ 96.
391.  Abdul Kalam Musalman v State of Rajasthan, 2011 Cr LJ 2507 (Raj); Prabhakaran v State of
Kerala, (2007) 14 SCC 269 [LNIND 2007 SC 824] : AIR 2007 SC 2376 [LNIND 2007 SC 824] .
392.  PB Desai (Dr) v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .

393.  Sushil Ansal v State through CBI, (2014) 6 SCC 173 [LNIND 2014 SC 527] .
394.  Nidamarti Nagabhushanam, (1872) 7 Mad HCR 119 , 120; Smith v State, (1925) 53 Cal 333 ;
Rangaswamy, (1952) Nag 93.
395.  Gaya Prasad, (1928) 51 All 465 .
(2) The accused would do community service for two years which will be arranged by
the Ministry of Social Justice and Empowerment within two months. On default, he will
have to undergo simple imprisonment for two years. But it was held that grant of
compensation under section 357(3) with a direction that the same should be paid to
person who has suffered any loss or injury by reason of the act for which the accused
has been sentenced has a different contour and the same is not to be regarded as a
substitute in all circumstances for adequate sentence.489.

[s 304A.32] Probation of Offenders Act, 1958, when to be extended.—
Bearing in mind the galloping trend in road accidents in India and the devastating
consequences visiting the victims and their families, criminal Courts cannot treat the
nature of the offence under section 304A, IPC, 1860 as attracting the benevolent
provisions of section 4 of the Probation of Offenders Act, 1958. While considering the
quantum of sentence to be imposed for the offence of causing death by rash or
negligent driving of automobiles, one of the prime considerations should be deterrence.
This is the role which the Courts can play, particularly at the level of trial Courts, for
lessening the high rate of motor accidents due to callous driving of automobiles.490. It
is settled law that sentencing must have a policy of correction. If anyone has to

become a good driver, he must have a better training in traﬃc laws and moral
responsibility with special reference to the potential injury to human life and limb.
Considering the increased number of road accidents, the Court, on several occasions,
has reminded the criminal Courts dealing with the offences relating to motor accidents
that they cannot treat the nature of the offence under section 304A, IPC, 1860 as
attracting the benevolent provisions of section 4 of the Probation of Offenders Act,
1958.491.

396.  Captain D'Souza v Pashupati Nath Sarkar, 1968 Cr LJ 405 . Raj Karan Singh v State of UP,
2000 Cr LJ 555 (All), the gun of a police constable went off while he was loading it and killed a
person, trigger went off because of positive act of moving belt of the gun. His failure to keep the
safety catch in back position was an illegal omission within the meaning of section 22
conviction. Sita Ram v State of Rajasthan, 1998 Cr LJ 287 (Raj), the accused labourer was
digging earth by spade, another worker was taking away the soil and was hit by the spade in
that process to his death. Criminal negligence. Sentence imposed on him was reduced to the
397.  Omkar, (1902) 4 Bom LR 679 , followed in Akbar Ali, (1936) 12 Luck 336 ; Chinubhai
Haridas, (1959) 61 Bom LR 1309 . Jaunath Sahu v Sasibhusan Rath, 1995 Cr LJ 4070 (Ori).
398.  Kurban Hussein, (1965) 2 SCR 622 [LNIND 1964 SC 355] : 67 Bom LR 447; See also AD
Bhatt, 1972 Cr LJ 727 (SC).
399.  Khanmahomed, (1936) 38 Bom LR 1111 .

400.  Akbar Ali v State, (1936) 12 Luck 336 .
401.  Tukaram Sitaram, (1970) 72 Bom LR 492 .
402.  Finney, (1874) 12 Cox 625; Sat Narain Pandey, (1932) 55 All 263 . For an example of
unconscionably lenient sentence, i.e., for two months only of simple imprisonment for causing
death by rash and negligent driving, see State of Karnataka v Krishna, (1987) 1 SCC 538 [LNIND
1987 SC 701] : AIR 1987 SC 861 [LNIND 1987 SC 701] : 1987 Cr LJ 776 , the Supreme Court
increased it to six months' RI. Indramani Jena v State of Orissa, 1992 Cr LJ 72 (Ori), rash and
negligent driving of a bullock cart, an old man killed by a young man of 30, jail term knocked out,
only ﬁne of Rs. 5,000 imposed. Madhab Bagh v State of Orissa, 1992 Cr LJ 116 , speed of the
vehicle is not always an important consideration.

403.  Shivder Singh v State, (1995) 2 Cr LJ 2142 (Del), sentence of one year was reduced to that
already undergone in view of the fact that the occurrence was 23 years old, a ﬁne of Rs. 5000.
404.  Kaliaperumal v State of TN, 1996 Cr LJ 3658 (Mad).
405.  Abdul Ise Suleman v State of Gujarat, (1995) 1 Cr LJ 464 (SC).
406.  Idu Beg v State, (1881) 3 All 776 , 778, 779. Shankar Narayan Bhadolkar v State of
Maharashtra, AIR 2004 SC 1966 [LNIND 2004 SC 1370] : 2004 Cr LJ 1778 , no knowledge or
intention should be there, in this case a gun was unlocked, loaded and ﬁred to cause death from
close range, intention or knowledge could not be denied, section not attracted.
407.  Ravi Kapur v State of Rajasthan, 2012 AIR SCW 4659 : AIR 2012 SC 2986 [LNIND 2012 SC
474] ; relied in Shivappa v State, 2013 Cr LJ 1680 (Kant).
408.  Swindall, (1846) 2 C & K 230.

409.  Kalaji v State of Gujarat, 1992 Cr LJ 2397 (Guj).
410.  Sushil Ansal v State through CBI, (2014) 6 SCC 173 [LNIND 2014 SC 527]
411.  PB Desai (Dr) v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .
412.  Ravi Kapur v State of Rajasthan, AIR 2012 SC 2986 [LNIND 2012 SC 474] : (2012) 9 SCC
284 [LNIND 2012 SC 474] : 2012 Cr LJ 4403 ; Syed Akbar v State of Karnataka, 1980 SCC (Cr) 59 :
AIR 1979 SC 1848 [LNIND 1979 SC 297] ; B Nagabhushanam v State of Karnataka, 2008 (5) SCC
730 [LNIND 2008 SC 1172] : AIR 2008 SC 2557 [LNIND 2008 SC 1172] .
413.  Rattan Singh v State of Punjab,1980 SCC (Cr) 17 : AIR 1980 SC 84 [LNIND 1979 SC 388] .
414.  Mohd Aynuddin @ Miyam v State of AP, 2000 (7) SCC 72 [LNIND 2000 SC 1014] : AIR 2000
SC 2511 [LNIND 2000 SC 1014] : 2000 SCC (Cr) 1281 : 2000 Cr LJ 3508 .

415.  Jacob Mathew v State of Punjab, 2005 AIR SCW 3685 : AIR 2005 SC 3180 [LNIND 2005 SC
587] .

416.  Francis Xavier Rodriguez v State of Maharashtra, 1997 Cr LJ 1374 (Bom). The plea of
compassion was not taken before the lower court. Conﬁning punishment to ﬁne only was not
accepted. Dwarka Das v State of Rajasthan, 1997 Cr LJ 4601 (Raj), bus driven in a wavering
manner and at high speed killing a person, the case being 16 years old, ﬁne was enhanced
instead of maintaining the sentence of imprisonment.
417.  Thakur Singh v State of Punjab, 2003 (9) SCC 208 .
418.  Shivappa v State, 2013 Cr LJ 1680 (Kant).
419.  State of MP v Jagdish, 1992 Cr LJ 746 (MP). Rajpal v State, 1992 Cr LJ 1470 (Del), wrong
side, high speed, ramming into autorickshaw claiming two lives and injuring a third, convicted, it
was immaterial that he would be losing his service.
420.  Mohammed Aynuddin v State of AP, AIR 2002 SC 2511 at p 2512 : 2000 Cr LJ 3508 .
421.  Keshavamurthy v State of Karnataka, 2002 Cr LJ 103 (Kant), the court also said that the

report of the motor vehicle inspector is no evidence unless he is examined. Suyambhu v State of
TN, 2001 Cr LJ 1577 (Mad), high speed bus, driver losing control, hitting a jeep and killing all the
passengers in it, res ipsa loquitor applied to hold the bus driver liable. Chunnilal v State of
Rajasthan, 2000 Cr LJ 2499 (Raj), rash driving, accident, persons in the truck, some killed, some
injured, no probation, one year RI & Rs. 250 ﬁne. Manjit Singh v State, 1997 Cr LJ 331 (P&H),
truck hitting rickshaw from behind, conviction.
422.  Guru Basavaraj v State of Karnataka, 2012 Cr LJ 4474 : JT 2012 (8) SC 246 [LNIND 2012 SC
1561] : 2012 (8) Scale 47 [LNIND 2012 SC 1561] : 2012 AIR (SCW) 4822 : (2012) 8 SCC 734
[LNIND 2012 SC 1561] . See also Haradhan Gope v State of Tripura, 2012 Cr LJ 3232 (Gau); State

of HP v Manohar Singh, 2011 Cr LJ 3402 (HP).
423.  Binoda Bihari Sharma v State of Orissa, 2011 Cr LJ 1989 (Ori).
424.  Pradeep Kumar v State of Haryana, 2000 Cr LJ 2394 (P&H). K Srinivas v State of Karnataka,
2002 Cr LJ 3865 (Kant), bus involved in accident, evidence was inconsistent. The court said that
the speed of the bus could not be the sole factor for attribution of rashness or negligence.
425.  Ravi Kapur v State of Rajasthan, 2012 AIR SCW 4659 : AIR 2012 SC 2986 [LNIND 2012 SC
474] .
426.  State v Parmodh Singh, 2009 Cr LJ (NOC) 277 .
427.  Mehnga Singh v State, 2012 Cr LJ 4930 (Del).
428.  Kewal Singh v State of Punjab, 2011 Cr LJ 3004 (P&H).
429.  Sanjay Rambhau Patil v State of Maharashtra, 2010 Cr LJ 1407 (Bom).
430.  PB Desai (Dr) v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .

431.  See also Kusum Sharma v Batra Hospital and Medical Research Centre, (2010) 3 SCC 480
[LNIND 2010 SC 164] ; Suresh Gupta (Dr) v Govt of NCT of Delhi, (2004) 6 SCC 422 [LNIND 2004
SC 744] : AIR 2004 SC 4091 [LNIND 2004 SC 744] .
432.  Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582 .
433.  Shivanand Doddamani (Dr) v State of Karnataka, 2011 Cr LJ 230 (Kant).
434.  Jacob Mathew v State of Punjab, 2005 AIR SCW 3685 : AIR 2005 SC 3180 [LNIND 2005 SC
587] .
435.  Suresh Gupta (Dr) v Govt of NCT of Delhi, (2004) 6 SCC 422 [LNIND 2004 SC 744] : AIR 2004
SC 4091 [LNIND 2004 SC 744] .
436.  Kusum Sharma v Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 [LNIND
437.  Suresh Gupta (Dr) v Govt of NCT of Delhi, (2004) 6 SCC 422 [LNIND 2004 SC 744] : AIR 2004

438.  Jacob Mathew v State of Punjab, (2005) 6 SCC 1 [LNIND 2005 SC 587] : AIR 2005 SC 3180
[LNIND 2005 SC 587] ; ASV Narayanan Rao v Ratnamala, 2013 (4) Mad LJ (Cr) 67 : 2013 (11)
Scale 390 [LNINDORD 2013 SC 19863] .
439.  Jacob Mathew v State of Punjab, (2005) 6 SCC 1 [LNIND 2005 SC 587] : AIR 2005 SC 3180
440.  Sudesh v State of UP, 2012 Cr LJ 1460 (All).
441.  Nizam's Institute of Medical Sciences v Prasanth S Dhananka, (2009) 6 SCC 1 [LNIND 2009
SC 1292] : 2009 Cr LJ 3012 .
442.  Malay Kumar Ganguly v Sukumar Mukherjee, (2009) 9 SCC 221 [LNIND 2009 SC 1647] : AIR
443.  Bolam v Friern Hospital Management Committee, (1957) 1 WLR 582 , 586.
444.  Jacob Mathew v State of Punjab, (2005) 6 SCC 1 [LNIND 2005 SC 587] : AIR 2005 SC 3180
[LNIND 2005 SC 587] .
445.  PB Desai (Dr) v State of Maharashtra, 2013 (11) Scale 429 [LNIND 2013 SC 815] .

446.  Lakshmanan Prakash (Dr) v State of TN, 1999 Cr LJ 2348 (Mad).
447.  Ram Niwas v State of UP, 1998 Cr LJ 615 (All).
448.  Martin F D'Souza v Mohd Ishfaq, (2009) 3 SCC 1 [LNIND 2009 SC 375] : AIR 2009 SC 2049
[LNIND 2009 SC 375] : (2009) 3 All LJ 165 : (2009) 1 CPJ 32 [LNIND 2009 SC 375] . The court
cited the concept of gross negligence as stated in Jacob Mathew case, (2005) 6 SCC 1 [LNIND
2005 SC 587] : AIR 2005 SC 3180 [LNIND 2005 SC 587] .
449.  Kusum Sharma v Batra Hospital and Medical Research Centre, (2010) 3 SCC 480 [LNIND
450.  Pravat Kumar Mukherjee v Ruby General Hospital, II 2005 CPJ 35 (NC).
451.  ASV Narayanan Rao v Ratnamala, 2013 (4) MLJ (Cr) 67 : 2013 (11) Scale 390 [LNINDORD
2013 SC 19863] . Other cases relating to medical negligence—Marwari Maternity Hospital v

Praveen Jain, 2013 Cr LJ 307 (Gau); M K Rai (Dr) v State of Chhattisgarh, 2012 Cr LJ 4384 (Chh);
Saroja Dharmapal Patil v State of Maharashtra, 2011 Cr LJ 1060 (Bom); A R Srivastava (Dr) v State
of Jharkhand, 2010 Cr LJ 1539 (Jha); Dashavatar Gopalkrishna Bade v State of Maharashtra, 2010
Cr LJ 4056 (Bom).
452.  Spring Meadows Hospital v Harjol Ahluwalia, 1998 (4) SCC 39 [LNIND 1998 SC 357] : AIR
1998 SC 1801 [LNIND 1998 SC 357] .
453.  V Marie v State of AP, 2011 Cr LJ 3985 (AP).
454.  Juggankhan, AIR 1965 SC 831 [LNIND 1964 SC 195] .
455.  Mohammed Aynuddin @ Miyam v State of AP, (2000) 7 SCC 72 [LNIND 2000 SC 1014] : AIR
2000 SC 2511 [LNIND 2000 SC 1014] .
456.  Ram Asra v State of HP, 2011 Cr LJ 1038 (HP).
457.  Rajaram v State, 2010 Cr LJ 1644 (Mad).

458.  Braham Dass v State of HP, AIR 2009 SC 3181 [LNIND 2009 SC 1130] : (2009) 7 SCC 353
[LNIND 2009 SC 1130] .
459.  Tukaram Sitaram, (1970) 72 Bom LR 492 .
460.  MH Lokre, 1972 Cr LJ 49 : AIR 1972 SC 214 [LNIND 1971 SC 662] . State of Rajasthan v
Jolta, 2002 Cr LJ 3514 (Raj), a person sitting on the mudguard of a tractor fell off to death,
persons sitting on trolley did not speak of negligence on driver's part. Acquittal.
461.  SN Hussain, 1972 Cr LJ 496 : AIR 1972 SC 700 . See also Renu Kunta Mallaiah v State of AP,
AIR 2009 SC 133 [LNIND 2008 SC 2037] : (2008) 10 SCC 220 [LNIND 2008 SC 2037] .
462.  Baijnath Singh, 1972 Cr LJ 919 : AIR 1972 SC 1485 .

463.  Syed Akbar, 1979 Cr LJ 1374 : AIR 1979 SC 1848 [LNIND 1979 SC 297] . Trial on a charge
of rash and negligent driving was held to be vitiated by delay of 9½ years in taking cognizance.
Srinivas Pal v UT Arunachal Pradesh, 1988 Cr LJ 1803 : AIR 1988 SC 1729 [LNIND 1988 SC 327] ,
reversing (1988) 1 Crimes 383 [LNIND 1987 GAU 49] (Gau).
464.  Altyarkunju & Shahajahan v State of Kerala, 2002 Cr LJ 1981 (Ker). State of Karnataka v
Sharanappa Basnagouda, AIR 2002 SC 1529 [LNIND 2002 SC 234] : 2002 Cr LJ 2020 , no
interference in the matter of punishment awarded by the revisional court. The accused was
sentenced to undergo simple imprisonment for six months for offence under section 304A
(dashing against car by mini-lorry). Niranjan Singh v State, 1997 Cr LJ 336 (Del), a bus passenger
fell to death but cause of fall, could not be proved, driver acquitted. Sudalaimuthu v State of TN,
1997 Cr LJ 1038 (Mad), there must be direct nexus between death and rash and negligent act. A

passenger died because he tried to get down after conductor's whistle and the driver's starting
of the bus. Negligence not proved.
465.  Braham Das v State of HP, (2009) 7 SCC 353 [LNIND 2009 SC 1130] : (2009) 3 SCC (Cr) 406
: (2009) 81 AIC 265 . State of Haryana v Sher Singh, (2008) 15 SCC 571 [LNIND 2008 SC 2028] :
AIR 2009 SC 823 [LNIND 2008 SC 2028] , another case of failure of evidence, dying declaration
of a passenger did not talk of driver's negligence, nor was there any proof who the driver was.
466.  Zamir Khan v State, 2011 Cr LJ 4044 (Bom).
467.  Ram Karan v State (Delhi Admn), 2010 Cr LJ 966 (Del). See also Kumar v State of Kerala,
2012 Cr LJ 3193 (Ker); Geetha Ramesh v Sub-Inspector of Police, Udagamandalam, 2010 Cr LJ
762 (Mad).
468.  Krushna Mohan Samal v State of Orissa, 2012 Cr LJ 180 (Ori).

762 (Mad).
469.  M Shaﬁ Goroo v State, 2000 Cr LJ 2172 (Del).
470.  Ramesh Chandra Mohapatra v State of Orissa, 2002 Cr LJ 3453 (Ori).
471.  Suresh Narvekar v State of Goa, 2010 Cr LJ 2007 (Bom).
472.  Kolishetty Venkateswarlu v Bandaru Venkat Reddy, 2010 Cr LJ 712 (AP).
473.  BP Ram v State of MP, 1991 Cr LJ 473 , considering Suleman Rahiman v State of
Maharashtra, AIR 1968 SC 829 [LNIND 1967 SC 354] : 1968 Cr LJ 1013 . Joseph v State of Kerala,
1990 Cr LJ 56 (Ker). There was the allegation that the accused carried excess passengers than
capacity in his boat. The boat capsized and some passengers were lost. There was no proof
that the accused was present in the boat at the time of sailing or that mere overloading was the
cause of capsization. Mere negligence not suﬃcient for conviction.

474.  State of Maharashtra v Dhananjay Laxmanrao Bhagat, 2010 Cr LJ 1987 (Bom).
475.  Mahadev Prasad Kaushik v State of UP, (2008) 14 SCC 479 [LNIND 2008 SC 2043] : AIR
2009 SC 125 [LNIND 2008 SC 2043] . See also Madhusudan v State of Karnataka, 2011 Cr LJ 215
(Kant) for difference between sections 304 and 304A.
476.  Abdul Kalam Musalman v State of Rajasthan, 2011 Cr LJ 2507 (Raj); Prabhakaran v State of
Kerala, JT 2007 (9) SC 346 [LNIND 2007 SC 824] : AIR 2007 SC 2376 [LNIND 2007 SC 824] .
477.  Naresh Giri v State of MP, (2008) 1 SCC 791 [LNIND 2007 SC 1313] : 2007 (13) Scale 7
478.  Keshub Mahindra v State of MP, (1996) 6 SCC 129 [LNIND 1996 SC 2462] : 1999 SCC (Cr)
1124.
479.  CBI v Keshub Mahindra, (2011) 6 SCC 216 [LNIND 2011 SC 514] : AIR 2011 SC 2037
[LNINDORD 2011 SC 209] .

1124.
480.  State of Maharashtra v Salman Salim Khan, AIR 2004 SC 1189 [LNIND 2003 SC 1122] :
(2004) 1 SCC 525 [LNIND 2003 SC 1122] ,
481.  State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC

482.  Alister Anthony Pareira's case, 2012 CLJ 1160 (SC) : (2012) 2 SCC 648 [LNIND 2012 SC 15]
: AIR 2012 SC 3802 [LNIND 2012 SC 15] .
483.  Sushil Ansal v State through CBI, (2014) 6 SCC 173 [LNIND 2014 SC 527] .
484.  Association of Victims of Uphaar Tragedy v Sushil Ansal, AIR 2017 SC 976 .
485.  State of Karnataka v Krishna @ Raju, 1987 (1) SCC 538 [LNIND 1987 SC 701] : AIR 1987 SC
861 [LNIND 1987 SC 701] .
486.  State of Karnataka v Sharanappa Basanagouda Aregoudar, 2002 (3) SCC 738 [LNIND 2002
SC 234] : AIR 2002 SC 1529 [LNIND 2002 SC 234] .
487.  B Nagabhushanam v State of Karnataka, (2008) 5 SCC 730 [LNIND 2008 SC 1172] : AIR
2008 SC 2557 [LNIND 2008 SC 1172] .
488.  State Tr PS Lodhi Colony New Delhi v Sanjeev Nanda, (2012) 8 SCC 450 [LNIND 2012 SC
489.  Guru Basavaraj v State of Karnataka, (2012) 8 SCC 734 [LNIND 2012 SC 1561] : 2012 Cr LJ
4474 .
490.  B Nagabhushanam v State of Karnataka, 2008 (5) SCC 730 [LNIND 2008 SC 1172] : AIR

4474 .
2008 SC 2557 [LNIND 2008 SC 1172] ; Dalbir Singh v State of Haryana, (2000) 5 SCC 82 [LNIND
2000 SC 810] .
491.  State of Punjab v Balwinder Singh, 2012 (2) SCC 182 [LNIND 2012 SC 8] : AIR 2012 SC 86
[LNIND 2011 SC 1146] ; Sanjay Rambhau Patil v State of Maharashtra, 2010 Cr LJ 1407 (Bom);
Zamir Khan v State, 2011 Cr LJ 4044 (Bom).

492.[[s 304B] Dowry death.
(1) Where the death of a woman is caused by any burns or bodily injury or occurs
otherwise than under normal circumstances within seven years of her marriage
and it is shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for, or in connection
with, any demand for dowry, such death shall be called "dowry death", and such
husband or relative shall be deemed to have caused her death.
Explanation.—For the purpose of this sub-section, "dowry" shall have the same
meaning as in section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).
(2) Whoever commits dowry death shall be punished with imprisonment for a term
which shall not be less than seven years but which may extend to
imprisonment for life.]
COMMENT.—
The above provision was inserted by Dowry Prohibition (Amendment) Act 1986, (Act 43

COMMENT.—
of 1986) and came into force with effect from 19 November 1986. The necessity for
insertion of the provisions has been amply analysed by the Law Commission of India in
its 21st Report dated 10 August 1988 on 'Dowry Deaths and Law Reform.' Keeping in
view the impediment in the pre-existing law in securing evidence to prove dowry-related
deaths, legislature thought it's wise to insert a provision relating to presumption of
dowry death (section 113B, Evidence Act, 1872) on proof of certain essentials.493.
[s 304B.1] Object.—
Both section 304B, IPC, 1860 and section 113B, Evidence Act, 1872, were inserted by
the Dowry Prohibition (Amendment) Act, 1986, for combating the menace of dowry
killings. The attempt was to encounter diﬃculties of proof by creating a
presumption.494.
[s 304B.2] Ingredients.—

The Supreme Court took occasion in Shanti v State of Haryana, AIR 1991 SC 1226
[LNIND 1990 SC 696] : 1991 Cr LJ 1713 ,495.,496. to explain the ingredients of section
304B. K Jayachandra Reddy, J, said;497.
A careful analysis of s. 304B shows that this section has the following essentials : (1) The
death of a woman should be caused by burns or bodily injury or otherwise than under
normal circumstances;498. (2) Such death should have occurred within seven years of her
marriage;499. (3) She must have been subjected to cruelty or harassment by her husband or
any relative of her husband soon before her death; (4) Such cruelty or harassment should be
for or in connection with demand for dowry.500. This section will apply whenever the
occurrence of death is preceded by cruelty or harassment by husband or in - laws for dowry

and death occurs in unnatural circumstances. The intention behind the section is to fasten
guilt on the husband or in - laws though they did not in fact caused the death.501.
To establish the offence of dowry death under section 304B, IPC, 1860, the prosecution
has to prove beyond reasonable doubt that the husband or his relative had subjected
the deceased to cruelty or harassment in connection with demand of dowry soon
before her death.502.
[s 304B.3] Dowry—meaning of.—
For the purposes of the section, "dowry" shall have the same meaning as in section 2 of
the Dowry Prohibition Act, 1961. "Dowry" means any property or valuable security given
or agreed to be given either directly or indirectly– (a) by one party to a marriage to the
other party to the marriage; or (b) by the parent of either party to a marriage or by any
other person, to either party to the marriage or to any other person, at or before 503.[or any
time after the marriage] 504.[in connection with the marriage of the said parties, but does

not include] dower or mahr in the case of persons to whom the Muslim Personal Law
(Shariat) applies.505. From the above deﬁnition it is clear that, 'dowry' means any
property or valuable security given or agreed to be given either directly or indirectly by
one party to another, by parents of either party to each other or any other person at,
before, or at any time after the marriage and in connection with the marriage of the
said parties but does not include dower or mahr under the Muslim Personal Law
(Shariat) Application Act, 1937. All the expressions used under this section are of a
very wide magnitude. The expressions 'or any time after marriage' and 'in connection
with the marriage of the said parties' were introduced by amending Dowry Prohibition

(Amendment) Act 1984, (Act 63 of 1984) and Dowry Prohibition (Amendment) Act
1986, (Act 43 of 1986) with effect from 2 October 1985 and 19 November 1986,
respectively. These amendments appear to have been made with the intention to cover
all demands at the time, before and even after the marriage so far they were in
connection with the marriage of the said parties. This clearly shows the intent of the
legislature that these expressions are of wide meaning and scope. The expression 'in
connection with the marriage' cannot be given a restricted or a narrower meaning. The
expression 'in connection with the marriage' even in common parlance and in its plain
language has to be understood generally. The object being that everything which is
offending at any time, i.e. at, before or after the marriage, would be covered under this

deﬁnition, but the demand of dowry has to be 'in connection with the marriage' and not
so customary that it would not attract, on the face of it, the provisions of this
section.506. The payments which are customary payments, for example, given at the
time of birth of a child or other ceremonies as are prevalent in the society or families to
the marriage, would not be covered under the expression 'dowry'.507. Furnishing of a
list of ornaments and other household articles, such as refrigerator, furniture and
electrical appliances etc., to the parents or guardians of the bride, at the time of
settlement of the marriage, prima facie amounts to demand of dowry within the
meaning of section 2 of the Act.508. The deﬁnition of 'dowry' is not restricted to
agreement or demand for payment of dowry before and at the time of marriage but

even include subsequent demands.509. It is not necessary for the purposes of the
offence under the section to show that there was an agreement for payment of
dowry.510.
The in-laws of the deceased woman could not be roped in only because they were
close relatives. The overt-acts which are attributed to them would require to be proved
beyond reasonable doubt.511.
[s 304B.4] "Husband"—meaning of.—
It would be appropriate to construe the expression 'husband' to cover a person who
enters into marital relationship and under the colour of such proclaimed or feigned

status of husband and subjects the woman concerned to cruelty or coerces her in any
manner or for any of the purposes enumerated in the relevant provisions–sections
304B/498A, whatever be the legitimacy of the marriage itself for the limited purpose of
sections 498A and 304B, IPC, 1860. Such an interpretation, known and recognised as
purposive construction has to come into play in a case of this nature. The absence of a
deﬁnition of 'husband' to speciﬁcally include such persons who enter into contract
marriages ostensibly and cohabitate with such woman, in the purported exercise of his
role and status as 'husband' is no ground to exclude them from the purview of sections
304B or 498A, IPC, 1860, viewed in the context of the very object and aim of the
legislations introducing those provisions.512.
[s 304B.5] Relative of the husband.—
The word "relative of the husband" in section 304B of IPC, 1860 would mean such
persons, who are related by blood, marriage or adoption. The brother of the aunt of the

husband is not a relative.513.
[s 304B.6] "Soon before death".—
To attract the provisions of section 304B, IPC, 1860, one of the main ingredients of the
offence which is required to be established is that "soon before her death" she was
subjected to cruelty and harassment "in connection with the demand for dowry".514.
The provision does not employ the term "at any time before" or "immediately before"
and must be construed according to its true import.515. The expression "soon before
her death" cannot be given a restricted or a narrower meaning. They must be
understood in their plain language and with reference to their meaning in common
parlance. These are the provisions relating to human behaviour and, therefore, cannot
be given such a narrower meaning, which would defeat the very purpose of the

provisions of the Act. Of course, these are penal provisions and must receive strict
construction. But, even the rule of strict construction requires that the provisions have
to be read in conjunction with other relevant provisions and scheme of the Act. Further,
the interpretation given should be one which would avoid absurd results on the one
hand and would further the object and cause of the law so enacted on the other.516.
The legislative object in providing such a radius of time by employing the words 'soon
before her death' is to emphasise the idea that her death should, in all probabilities,
have been the aftermath of such cruelty or harassment. In other words, there should be
a reasonable, if not direct, nexus between her death and the dowry-related cruelty or
harassment inﬂicted on her.517. There was a demand of Maruti Car being pressed by

the two accused persons after about six months of the marriage of the deceased
(which took place about three years before the incident) and of her being pestered,
nagged, tortured and maltreated on non-fulﬁlment of the said demand which was
conveyed by her to her parents from time to time on her visits to her parental home and
on telephone. She might have thought that things would improve with the passage of
time, but it seemed that that did not happen. It, however, cannot be taken to mean that
the demand made by the two accused persons had subsided or was given up by them.
The test of 'soon before' was held satisﬁed in the facts, evidence and circumstances of
the present case.518. Evidence that the deceased told her mother one month prior to
her unnatural death, that the accused husband used to subject her to cruelty, was held

to be not within the four corners of time frame.519. Where the death occurred after ﬁve
days of the demand of dowry, it was considered to be soon before death.520.
The expression "soon before" is a relative term. It has to be construed in the context of
speciﬁc circumstances of each case. No hard and fast rule of a universal application
can be laid down by prescribing a time-limit.521. These words are to be understood in a
relative and ﬂexible sense. There can be no ﬁxed period of time in this regard.522. If the
incident alleged of cruelty is remote in time and has become ineffective, so as not to

disturb the mental equilibrium of the victim concerned, it would be of no
consequence.523.
Where the death was due to electrocution and there is evidence that the victim was
subjected to cruelty demanding a motor bike, it was held that the harassment made
15–20 days before her death was considered to be soon before her death.524. Cruelty
caused to her (the deceased) on any day from the date of her marriage, i.e., 20 April
1994 till the date of her death, i.e., 22 July 1994 could be cruelty caused 'soon before'
her death.525.
[s 304B.7] Proximity Test.—
The expression "soon before her death" used in section 304B, IPC, 1860 and section
113B of the Evidence Act, 1872 is present with the idea of proximity test. Though the
language used is "soon before her death", no deﬁnite period has been enacted and the
expression "soon before her death" has not been deﬁned in both the enactments.
Accordingly, the determination of the period which can come within the term "soon

before her death" is to be determined by the Courts, depending upon the facts and
circumstances of each case. However, the said expression would normally imply that
the interval should not be much between the concerned cruelty or harassment and the
death in question. In other words, there must be existence of a proximate and live link
between the effect of cruelty based on dowry demand and the concerned death. If the
alleged incident of cruelty is remote in time and has become stale enough not to
disturb the mental equilibrium of the woman concerned, it would be of no
consequence.526. The section was not attracted where there had been no harassment
for about 15 months prior to the occurrence.527. Where the wife was persistently
subjected to cruelty and harassment by the husband and other in-laws for gold

ornaments and the last such torture was practiced 15 days before the occurrence, the
Court said that the requirement of "soon before" was very well satisﬁed.528. The import
of this expression was examined by the Orissa High Court529. in a case in which there
was a history of beating the wife up for dowry. But the couple reconciled and resumed
joint life. The wife joined her husband after a long stay with her parents. The husband
left her back with her parents and after a fortnight took her away. Within two days
thereafter her parents were informed of her death. During the fortnight, she had not
made any complaint to her parents about dowry or torture. The Court held that the
section was not attracted because there was no cruelty or harassment soon before her
death. The Court compared section 304B with section 113B of the Evidence Act, 1872

where also the words "soon before" occur and said:530. A conjoint reading of section
113B of the Act and section 304B, IPC, 1860 shows that there must be material to
show that soon before her death the victim was subjected to cruelty or harassment.
Prosecution has to rule out the possibility of a natural or accidental death so as to
bring it within the purview of the "death occurring otherwise than in normal
circumstances." The determination of the period which can come within the term "soon
before" is left to be determined by the Courts, depending upon facts and circumstances
of each case. Suﬃce, however, to indicate that the expression "soon before" would
normally imply that the interval should not be much between the concerned cruelty or
harassment and the death in question. There must be existence of a proximate and live

link between the effect of cruelty based on dowry demand and the concerned death. If
the alleged incident of cruelty is remote in time and has become stale enough not to
disturb mental equilibrium of the woman concerned, it would be of no consequence.
Thus, the cruelty, harassment and demand of dowry should not be so ancient
whereafter, the couple and the family members have lived happily and that it would
result in abuse of the said protection. Such demand or harassment may not strictly and
squarely fall within the scope of these provisions unless deﬁnite evidence was led to
show to the contrary. These matters, of course, will have to be examined on the facts
and circumstances of a given case.531.

Principles relating to section 304B IPC, 1860 and 113B Evidence Act summarised by
Supreme Court
(a) To attract the provisions of section 304B, IPC, 1860, the main ingredient of the
offence to be established is that soon before the death of the deceased, she was
subjected to cruelty and harassment in connection with the demand of dowry.
(b) The death of the deceased woman was caused by any burn or bodily injury or some
other circumstance which was not normal.
(c) Such death occurs within seven years from the date of her marriage.
(d) That the victim was subjected to cruelty or harassment by her husband or any
relative of her husband.
(e) Such cruelty or harassment should be for or in connection with demand of dowry.
(f) It should be established that such cruelty and harassment was made soon before
her death.
(g) The expression (soon before) is a relative term and it would depend upon
circumstances of each case and no straightjacket formula can be laid down as to what

her death.
would constitute a period of soon before the occurrence.
(h) It would be hazardous to indicate any ﬁxed period and that brings in the importance
of a proximity test both for the proof of an offence of dowry death as well as for raising
a presumption under section 113B of the Evidence Act, 1872.
(i) Therefore, the expression "soon before" would normally imply that the interval
should not be much between the concerned cruelty or harassment and the death in
question. There must be existence of a proximate or life link between the effect of
cruelty based on dowry demand and the concerned death. In other words, it should not
be remote in point of time and thereby make it a stale one.
(j) However, the expression "soon before" should not be given a narrow meaning which

would otherwise defeat the very purpose of the provisions of the Act and should not
lead to absurd results.
(k) Section 304B is an exception to the cardinal principles of criminal jurisprudence
that a suspect in the Indian Law is entitled to the protection of Article 20 of the
Constitution, as well as, a presumption of innocence in his favour. The concept of
deeming ﬁction is hardly applicable to criminal jurisprudence but in contradistinction to
this aspect of criminal law, the legislature applied the concept of deeming ﬁction to the
provisions of section 304B.
(l) Such deeming ﬁction resulting in a presumption is, however, a rebuttable
presumption and the husband and his relatives, can, by leading their defence prove that
the ingredients of section 304B were not satisﬁed.
(m) The speciﬁc signiﬁcance to be attached is to the time of the alleged cruelty and

harassment to which the victim was subjected to, the time of her death and whether
the alleged demand of dowry was in connection with the marriage. Once the said
ingredients were satisﬁed, it will be called dowry death and by deemed ﬁction of law,
the husband or the relatives will be deemed to have committed that offence.
Kashmir Kaur v State of Punjab.532.
[s 304B.8] Comparison between section 304B and section 498A.—

Cruelty has been deﬁned in the explanation for the purpose of section 498A.
Substantive section 498A, IPC, 1860 and presumptive section 113A of the Evidence
Act, 1872 have been inserted in the respective statutes by Criminal Law (Second
Amendment) Act, 1983. It is to be noted that sections 304B and 498A, IPC, 1860
cannot be held to be mutually exclusive. These provisions deal with two distinct
offences. It is true that cruelty is a common essential to both the sections and that has
to be proved. The Explanation to section 498A gives the meaning of "cruelty". In section
304B, there is no such Explanation about the meaning of "cruelty". But having regard to
common background to these offences, it has to be taken that the meaning of "cruelty
or harassment" is the same as prescribed in the Explanation to section 498A under
which "cruelty" by itself amounts to an offence. Under section 304B, it is "dowry death"
that is punishable and such death should have occurred within seven years of

marriage. No such period is mentioned in section 498A. A person charged and
acquitted under section 304B can be convicted under section 498A without that charge
being there, if such a case is made out. If the case is established, there can be a
conviction under both the sections.533. Section 498A, IPC, 1860 and section 113A of
the Evidence Act, 1872 include in their amplitude past event of cruelty. Period of
operation of section 113A of the Evidence Act, 1872 is seven years. Presumption arises
when a woman committed suicide within a period of seven years from the date of
marriage.534.
Following this in Nand Kishore v State of Maharashtra,535.,536. it was held that all the
ingredients of this section must exist conjunctively. There must be nexus between
cruelty and harassment to raise the presumption of dowry death under section 113B of

the Evidence Act, 1872.
The Supreme Court again explained the expression "soon before death" in Hans Raj v
State of Punjab.537.,538. There should have been continuous cruelty connected with
demand of dowry and the same should have been shown to be in existence till date
when the deceased met her parents two days before her death. In this case, there was
no intervening circumstance on record showing settlement regarding demand of
dowry. The existence of harassment for dowry would be deemed to be there right up to
the point of death. The accused was liable to be convicted. The meaning of the
expression is to be decided by the Court after analysing facts and circumstances
leading to the victim's death to see whether there is any proximate connection between
the cruelty or harassment for dowry demand and the death.539.

The Supreme Court held under section 2 of the Dowry Prohibition Act, 1961 that an
agreement for dowry is not always necessary. There was in this case a persistent
demand for a TV set and a scooter. The demand was related with marriage. It fell
within the meaning of the word dowry under section 304B.540. The woman died of self-
poisoning. The evidence of her sister revealed that she had informed her about the
harassment about one and a half years before death. The Court said that such
harassment could not come within the words "soon before death". There was no
convincing evidence to prove the grave charge of "dowry death". The accused persons
were acquitted.541. A harassment shown to have taken place eight months before the
suicide was held to be not coming within the scope of the words "soon before". The

conviction under section 304B was set aside. The evidence showed that cruelty was
there. The accused persons were not able to explain why the deceased wife committed
suicide. The conviction and sentence under section 306 (abetment of suicide), section
498A and section 4 of the Dowry Prohibition Act, 1961 was maintained.542.
[s 304B.9] Presumption of guilt and Doctrine of reverse burden.—
The rule of law requires a person to be innocent till proved guilty. The concept of
deeming ﬁction is hardly applicable to the criminal jurisprudence. In contradiction to

this aspect, the legislature has applied the concept of deeming ﬁction to the provisions
of section 304B. Where other ingredients of section 304B are satisﬁed, in that event,
the husband or all relatives shall be deemed to have caused her death. In other words,
the offence shall be deemed to have been committed by ﬁction of law. Once the
prosecution proves its case with regard to the basic ingredients of section 304B, the
Court will presume by deemed ﬁction of law that the husband or the relatives
complained of, has caused her death. Such a presumption can be drawn by the Court
keeping in view the evidence produced by the prosecution in support of the substantive
charge under section 304B of the Code. Of course, deemed ﬁction would introduce a
rebuttable presumption and the husband and his relatives may, by leading their defence
and proving that the ingredients of section 304B were not satisﬁed, rebut the same.543.
By a deeming ﬁction in law, the onus shifts on to the accused to prove as to how the

deceased died. It is for the accused to show that the death of the deceased did not
result from any cruelty or demand of dowry by the accused persons.544. The Court has
to presume that the appellant has committed the offence under section 304B, IPC,
1860. The prosecution had led suﬃcient evidence before the Court to raise a
presumption that the appellant had caused the dowry death of the deceased and it
was, therefore, for the appellant to rebut this presumption. The appellant has chosen
not to examine any defence witness to rebut this presumption of dowry death against
him under section 113B of Evidence Act, 1872. The Courts below were, thus, right in
holding that the appellant was guilty of the offence under section 304B, IPC, 1860.545.
As the ﬁnancial status of both the families seems to be very very poor, the demand of

dowry and meeting out such demand seems to be highly improbable.
[s 304B.10] Section 113B of Evidence Act, 1872.—
Alongside insertion of section 304B in IPC, 1860, the legislature also introduced
section 113B of the Evidence Act, 1872, which lays down when the question as to
whether a person has committed the dowry death of a woman and it is shown that soon
before her death such woman had been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the Court shall presume that
such person had caused the dowry death. If section 304B, IPC, 1860 is read together
with section 113B of the Evidence Act, 1872, a comprehensive picture emerges that if a
married woman dies in unnatural circumstances at her matrimonial home within seven

years from her marriage and there are allegations of cruelty or harassment upon such
married woman for or in connection with demand of dowry by the husband or relatives
of the husband, the case would squarely come under "dowry death" and there shall be a
presumption against the husband and the relatives.546. When the question is whether a
person has committed the dowry death of a woman and it is shown that soon before
her death such woman has been subjected by such person to cruelty or harassment for,
or in connection with, any demand for dowry, the Court shall presume that such person
had caused the dowry death.547. The Court shall not presume the same unless it is
established that soon before her death, a woman has been subjected to cruelty or
harassment for or in connection with any demand for dowry.548. For the purposes of

this section, "dowry death" shall have the same meaning as in section 304B of IPC,
1860 (45 of 1860).549. As per the deﬁnition of "dowry death" in section 304B, IPC, 1860
and the wording in the presumptive section 113B of the Evidence Act, 1872, one of the
essential ingredients amongst others, in both the provisions is that the woman
concerned must have been 'soon before her death' subjected to cruelty or harassment
"for or in connection with the demand for dowry".550. But the prosecution under section
304B of IPC, 1860 cannot escape from the burden of proof that the harassment or
cruelty was related to the demand for dowry and such was caused "soon before her
death.551.
The presumption shall be raised only on proof of the following essentials:

(1) The question before the Court must be whether the accused has committed the
dowry death of a woman. (This means that the presumption can be raised only if the
accused is being tried for the offence under section 304B, IPC, 1860.)
(2) The woman was subjected to cruelty or harassment by her husband or his relatives.
(3) Such cruelty or harassment was for, or in connection with, any demand for dowry.
(4) Such cruelty or harassment was soon before her death552.
[s 304B.11] Injuries insuﬃcient to cause death.—
Where injuries as found on the person of the deceased could not have caused her
death, the offence would not attract the mischief of the section 304B, though there
might have been history of torture for dowry.553.
Asphyxia only means that the death took place due to lack of air going to the lungs.
The Doctor had to clearly opine whether this was due to strangulation or hanging and if
it was due to hanging, whether the hanging was suicidal or homicidal.554.
[s 304B.12] Normal circumstances.—

These words apparently carry the meaning of natural death. The expression "otherwise
than under normal circumstances" means a death not taking place in the course of
nature and apparently under suspicious circumstances if not caused by burns or bodily
injury.555.
[s 304B.13] Nexus between suicide and harassment.—
The prosecution has to show nexus between suicide and harassment in the sense that
the victim was induced by the cruelty to take the extreme step. In this case, the
accused was not able to point out any other cause. Evidence showed that she was
driven away from the matrimonial home and came back because of the intervention of
Panchayat. Within a period of two months thereafter, there was the suicide. The Court
said that the cruelty and suicide were inter-related. Presumption under section 113B of

the Evidence Act, 1872 became applicable. The accused was convicted under the
section.556.
[s 304B.14] Presumption.—
Where there was suﬃcient evidence to prove dowry demand and death had also taken
place within seven years, the Supreme Court held that the presumption arising under
the section did not become automatically rebutted by the fact that the accused
persons had been acquitted under section 302. There were 15 injuries on her person
which were not self-inﬂicted. Thus, they were homicidal.557.
[s 304B.15] Section attracted whether death homicidal or suicidal.—
Where the suicide is due to demand of dowry soon before bride's death, section 304B
would apply. The section applies irrespective of the fact whether there is homicide or
suicide.558.
[s 304B.16] Comparison with section 498A, IPC, 1860.—

Where two women were acquitted of chargesunder section 498A which deals with
cruelty by husband or relatives of husband. Disapproving the High Court view, K
Jayachandra Reddy, J, observed559. that sections 304B and 498A cannot be held to be
mutually exclusive.

These provisions deal with two distinct offences. It is true that cruelty is a common
essential to both the sections and that has to be proved. The Explanation to s. 498A gives
the meaning of "cruelty". In s. 304B there is no such Explanation about the meaning of
"cruelty". But having regard to the common background to these offences we have to take
that the meaning of "cruelty or harassment" be the same as we ﬁnd in the Explanation to s.
498A under which "cruelty" by itself amounts to an offence. Under s. 304B it is "dowry death"
that is punishable and such death should have occurred within seven years of marriage. No
such period is mentioned in s. 498A.... Further it must also be borne in mind that a person
charged and acquitted u/s. 304B can be convicted u/s. 498A without that charge being
there, if such a case is made out...
If the case is established, there can be a conviction under both the sections but no
separate sentence would be necessary under section 498A in view of the substantive

sentence being awarded for the major offence under section 304B.560.
[s 304B.17] Comparison with Dowry Prohibition Act, 1961.—
The Supreme Court stated this comparison in the following words:
The object of s. 4, Dowry Prohibition Act 1961 is to discourage the very demand for property
or valuable security as consideration for a marriage between the parties thereto. Section 4
prohibits the demand for "giving" property or valuable security which demand, if satisﬁed,
would constitute an offence u/s. 3 read with s. 2 of the Act. Thus, the ambit and scope of
ss. 3 and 4 of the 1961 Act are different from the ambit and scope of s. 304-B IPC. Hence
the ingredients of s. 498-A IPC and ss. 3 and 4, Dowry Prohibition Act, are different from the
ingredients of s. 304-B IPC. The High Court gravely erred in coming to the ﬁnding that once

the charge u/s. 304-B IPC could not be proved, then conviction u/s. 498-A IPC and ss. 3 and
4 of the 1961 Act also could not be recorded.561. Section 4 of the Act is the penal section
and demanding a "dowry", as deﬁned u/s. 2 of the Act, is punishable under this section.562.
[s 304B.18] New offence.—
Retrospective operation.—The section creates a new offence. An act committed prior to
its enactment and enforcement cannot be tried under this section.563. The Allahabad
High Court proceeded somewhat differently. In reference to the offence of bride
burning for dowry which occurred before coming into force of section 304B, it cannot
be said that section 304B is an ex post facto law and it cannot apply in connection with
an occurrence which took place prior to its enactment. The new offence of 'bride

burning' was unknown on the date of occurrence in this case. Section 304B does not
create a new offence, rather it reiterates in substance the offence under section 302
under which such offences were punished. So, doctrine of ex post facto would not
apply.564.
[s 304B.19] Inclusion of section 302 in all Dowry death Cases.—
In Rajibir v State of Haryana,565. a two-Judge Bench of the Supreme Court directed all
trial Court to ordinarily add section 302 to the charge of section 304B, so that death
sentences can be imposed in such heinous and barbaric crimes against women. The
Supreme Court has clariﬁed the direction in Rajbir by observing that:
Be that as it may the common thread running through both the orders is that this Court had
in Rajbir's case566. directed the addition of a charge u/s. 302 IPC to every case in which the

accused are charged with s. 304-B. That was not, in our opinion, the true purport of the
order passed by this Court. The direction was not meant to be followed mechanically and
without due regard to the nature of the evidence available in the case. All that this Court
meant to say was that in a case where a charge alleging dowry death is framed, a charge
u/s. 302 can also be framed if the evidence otherwise permits.
[s 304B.20] Charge under section 304B.—Conviction under section 306.—
An offence of abetment of suicide punishable under section 306 of IPC, 1860 is much
broader in scope than an offence punishable under section 304B of IPC, 1860.567. Plea
that only charge under section 304B, IPC, 1860 framed and no charge under section
306, IPC, 1860 framed the appellant could not be convicted for offence punishable

492.  Ins. by Act 43 of 1986, section 10 (w.e.f. 19-11-1986).
493.  Dhan Singh v State of UP, 2012 Cr LJ 3156 (All).
494.  Kunhiabdulla v State of Kerala, (2004) 4 SCC 13 [LNIND 2004 SC 291] : AIR 2004 SC 1731
[LNIND 2004 SC 291] : (2004) 2 KLT 152 . State of AP v Raj Gopal Asawa, (2004) 9 SCC 157
[LNIND 2003 SC 715] : 2003 Cr LJ 157 .
495.  State of HP v Jagroop Singh, 1993 Cr LJ 2766 (HP), though there was proof of harassment,
but near about the period of the incident, cordial relations prevailed, no presumption, Ratan Lal v
State of MP, 1993 Cr LJ 3723 (MP), no presumption because, no proof of marriage beyond
under section 306, IPC, 1860 repealed.568. Accused originally charged and convicted
under section 304B of IPC, 1860. The Court found Conviction for dowry death
unsustainable. Prosecution adduced evidence on the issue of cruelty to deceased not
only on ground of alleged demand of dowry but also on ground of her having no issue.

Court held that mere failure to mention section 306 in charge cannot adversely
prejudice the defence of accused. Held while acquitting accused for offence
punishable under section 304B of IPC, 1860, conviction can be recorded under section
306 of IPC, 1860.569. In K Prema S Rao v Yadla Srinivasa Rao,570. the Court, analysing
the evidence, ruled thus:
The same facts found in evidence, which justify conviction of the appellant u/s. 498A for
cruel treatment of his wife, make out a case against him u/s. 306 IPC of having abetted
commission of suicide by the wife. The appellant was charged for an offence of higher
degree causing "dowry death" u/s. 304B which is punishable with minimum sentence of
seven years' rigorous imprisonment and maximum for life. Presumption u/s. 113A of the

Evidence Act could also be raised against him on same facts constituting offence of cruelty
u/s. 498A IPC. No further opportunity of defence is required to be granted to the appellant
when he had ample opportunity to meet the charge u/s. 498A IPC.
In a case, the Supreme Court said:
the basic ingredients of the offence u/s. 306 IPC have been established by the prosecution
inasmuch as the death has occurred within seven years in an abnormal circumstance and
the deceased was meted out with mental cruelty. Thus, we convert the conviction from one
u/s. 304B IPC to that u/s. 306 IPC.571.
[s 304B.21] Sections 304B and 306 together–
The Supreme Court, in Bhupendra v State of MP,572. examined that whether an offence
under sections 304B and 306 together would be attracted in a case and was of the

opinion that section 306 of IPC, 1860 is much broader in its application and takes
within its fold one aspect of section 304B of the IPC, 1860. These two sections are not
mutually exclusive. If a conviction for causing a suicide is based on section 304B of
IPC, 1860, it will necessarily attract section 306 of IPC, 1860. However, the converse is
not true.
[s 304B.22] Evidence of date of marriage.—
The presumption starts running from the date of marriage. The prosecution has
therefore to prove the date of marriage. The prosecution failed to do so. It was held
that the Courts below erred in shifting the burden of showing the date of marriage to
the defence and then the presumption on the basis of their statement about the fact of
marriage.573. Where the marriage had taken place more than seven years before the

incident, the husband was acquitted under the section.574.

reasonable doubt, nor of harassment, nor of death within the statutory period. Sankara Suri Babu
v State of AP, 1991 Cr LJ 1480 (AP), proof of demand of dowry four years after marriage, hence
no presumption. Nunna Venkateswarlu v State of AP, 1996 Cr LJ 108 (AP), no agreement for
dowry at the time of marriage; about the subsequent demands, the court said, they would not
create the presumption. Rajinder Kumar v State of Haryana, 1996 Cr LJ 3742 (P&H), there was no
evidence showing demand, the husband made desperate attempt to save the deceased and
himself got severely burnt, acquittal. Anil Kumar Jain v State of MP, (1996) Cr LJ 3191 (MP),
evidence of dowry demand which was fulﬁlled, no evidence of harassment either then or
subsequently, the wife was depressed by reason of her illness also, no mention of harassment
in dying declaration, section not attracted.
496.  Shanti v State of Haryana, AIR 1991 SC 1226 [LNIND 1990 SC 696] : 1991 Cr LJ 1713 .

497.  Shanti v State of Haryana, AIR 1991 SC 1226 [LNIND 1990 SC 696] at p 1229 : 1991 Cr LJ
1713 .
498.  As to this see Akula Ravinder v State of AP, AIR 1991 SC 1142 : 1991 SCC (Cr) 990, where it
is emphasised that death must be proved to be one out of the course of nature and the mere
fact that the deceased was young and death was not accidental is not suﬃcient to establish
that death must have occurred otherwise than under normal circumstances. Ashok Kumar v
State of Punjab, 1987 Cr LJ 1412 (P&H), where the wife died of self-poisoning within the
statutory period, but there was no proof of cruelty by the husband or others. Mohan Lal v State of
Punjab, (1984) 1 Chand L Rep 647, suicide by married woman by burning herself and the
evidence only showed some maltreatment on some earlier occasions for inadequate dowry, not

suﬃcient for conviction. Gurditta Singh v State of Rajasthan, 1992 Cr LJ 309 (DB), single judge
session, 1991 Cr LJ 303 (Raj), where the court said that simply because a young wife had
brought her life to a tragic end by committing suicide by consuming insecticide, it could not be
said that she had embraced death on account of any demand of dowry by her husband or
mother-in-law.
499.  For the effect of not being able to show the date of marriage, see Arbind kumar Ambasta v
State of Jharkhand, 2002 Cr LJ 3973 (Jhar), the effect being that the charge would have to be an
ordinary one of murder and the beneﬁt of the special provision would not be available.
500.  Kashmir Kaur v State of Punjab, AIR 2013 SC 1039 [LNIND 2012 SC 802] : 2013 Cr LJ 689 ;
GA Mohd Moideen v State of TN, 2000 Cr LJ 4355 (Mad), a mere demand of money made by

accused husband for the purpose of taking a shop on lease and refusal or delay in meeting the
demand would not be suﬃcient to infer compulsion for suicide. Bajrang v State of Rajasthan,
1998 Cr LJ 134 (Raj), cruelty soon before death for demand for dowry are necessary
constituents without which the offence is not complete. Satvir Singh v State, 1998 Cr LJ 405
(P&H), the married woman failed in her attempt at suicide, the offence under the section could
not arise. Nilamani Nath v State of Orissa, 1998 Cr LJ 962 (Ori), dowry demand could not be
proved nor the fact who caused death, mere production of a stick with which death was
supposed to have been caused was not suﬃcient. Another case in which demand for dowry and
ill-treatment could not be proved and was before the Supreme Court was Ramaswamy v Dasari

Mohan, 1998 Cr LJ 1105 : AIR 1998 SC 774 [LNIND 1998 SC 17] . Gurnam Singh v State, 1998 Cr
LJ 3694 (P&H), the husband could not be shown to be guilty, rather he took his wife to the
hospital and in the process was himself partly burnt, acquittal. Bhagwandas v Sham Lal, AIR
1997 SC 1873 [LNIND 1997 SC 304] : 1997 Cr LJ 1927 , the victim wife had left home and was
residing with her parents. She was taken back after an amicable settlement. There was no
cruelty thereafter. Thus, no presumption of dowry death. Conviction under section 498A and not
under section 304B. State of HP v Jog Raj, 1997 Cr LJ 2033 (HP), no conviction because the
alleged demand of Rs. 15,000 was not proved and was also not in itself a dowry demand.

Balasaheb v State of Maharashtra, 1997 Cr LJ 3476 (Bom), demands made for celebration of
seventh month of wife's pregnancy. It could not be interpreted as a demand in connection with
marriage under the Dowry Prohibition Act, 1961. Conviction set aside. Gati Bahera v State of
Orissa, 1997 Cr LJ 4331 (Ori), death due to diarrhoea, in village areas it cannot be said to be
unnatural. It is not uncommon for ailing persons to remain without medical care. Kishan Singh v
State of Punjab, (2007) 14 SCC 204 [LNIND 2007 SC 1218] : AIR 2008 SC 233 [LNIND 2007 SC
1218] , Supreme Court restated ingredients. Biswajit Halder v State of WB, (2008) 1 SCC 202
[LNIND 2007 SC 344] : 2007 Cr LJ 2300 , dowry demand was there but there was no proof of any
cruelty or harassment being practiced, bride's suicide followed in about four months after
marriage. Nallam Veera Satyanarayanadam v PP High Court of AP, (2004) 10 SCC 769 [LNIND
2004 SC 250] : AIR 2004 SC 1708 [LNIND 2004 SC 250] , all ingredients of the defence satisﬁed.

Balwant Singh v State of Punjab, (2004) 7 SCC 724 , no proof against mother-in-law, she could
not be punished only for the fact of being mother-in-law. Surinder Kaur v State of Haryana, (2004)
4 SCC 109 [LNIND 2004 SC 256] : AIR 2004 SC 1747 [LNIND 2004 SC 256] : 2004 Cr LJ 1765 .
Conviction of two sister-in-laws was wrongful there being no evidence against them. Arun Garg v
State of Punjab, (2004) 8 SCC 251 [LNIND 2004 SC 1012] , dowry demand proved because twice
over she rang to her father stating that she was being threatened with death for dowry, she died
of poisoning, husband convicted.
501.  Bakshish Ram v State of Punjab, AIR 2013 SC 1484 [LNIND 2013 SC 1157] : (2013) 4 SCC
131 [LNIND 2013 SC 1157] .
502.  Indrajit Sureshprasad Bind v State of Gujarat, (2013) 14 SCC 678 [LNIND 2013 SC 219] :

(2013) 2 SCR 931 [LNIND 2013 SC 219] .
503.  Subs. by Act 43 of 1986, section 2, for "or after the marriage" (w.e.f. 19-11-1986).
504.  Subs. by Act 63 of 1984, section 2, for certain words (w.e.f. 2-10-1985).
505.  Section 2 of the Dowry Prohibition Act, 1961.
506.  Ashok Kumar v State of Haryana, 2010 (12) SCC 350 [LNIND 2010 SC 582] : AIR 2010 SC
2839 [LNIND 2010 SC 582] : 2010 Cr LJ 4402 .
507.  Ram Singh v State of Haryana, (2008) 4 SCC 70 [LNIND 2008 SC 204] ; Satbir Singh v State
of Punjab, AIR 2001 SC 2828 [LNIND 2001 SC 2168] .
508.  Madhu Sudan Malhotra v KC Bhandari, (1988) Supp 1 SCC 424.
509.  State of Andhra Pradesh v Raj Gopal Asawa, (2004) 4 SCC 470 [LNIND 2004 SC 347] .
510.  Vidhya Devi v State of Haryana, (2004) 9 SCC 476 [LNIND 2004 SC 78] : AIR 2004 SC 1757
[LNIND 2004 SC 78] , there was additional demand for dowry after marriage. State of AP v Raj

Gopal Asawa, (2004) 4 SCC 470 [LNIND 2004 SC 347] : AIR 2004 SC 1933 [LNIND 2004 SC 347] ,
mere demand for dowry is enough.
511.  Kans Raj v State of Punjab, 2000 Cr LJ 2993 : AIR 2000 SC 2324 [LNIND 2000 SC 735] .
512.  Koppisetti Subbharao v State of AP, AIR 2009 SC 2684 [LNIND 2009 SC 1038] : (2009) 12
SCC 331 [LNIND 2009 SC 1038] ; Reema Aggarwal v Anupam, (2004) 3 SCC 199 [LNIND 2004 SC
1499] : AIR 2004 SC 1418 [LNIND 2004 SC 1499] .
513.  State of Punjab v Gurmit Singh, 2014 Cr LJ 3586 : AIR 2014 SC 2561 [LNIND 2014 SC 518] .
514.  K Prema S Rao v Yadla Srinivasa Rao, 2003 (1) SCC 217 [LNIND 2002 SC 662] : AIR 2003 SC
11 [LNIND 2002 SC 662] : 2003 SCC (Cr) 271 : 2003 Cr LJ 69 .
515.  Tummala Venkateswar Rao v State of Andhra Pradesh, 2014 Cr LJ 1641 : 2014 (4) SCJ 322
[LNIND 2013 SC 1090] .

516.  Ashok Kumar v State of Haryana, 2010 (12) SCC 350 [LNIND 2010 SC 582] : AIR 2010 SC
517.  Tarsem Singh v State of Punjab, AIR 2009 SC 1454 [LNIND 2008 SC 2415] , Yashoda v State
of MP, (2004) 3 SCC 98 [LNIND 2004 SC 155] .

518.  Satya Narayan Tiwari v State of UP, 2011 Cr LJ 445 : (2010) 13 SCC 689 [LNINDORD 2010
SC 188] : (2011) 2 SCC (Cr) 393.
519.  State of Rajasthan v Girdhari Lal, 2014 Cr LJ 41 : 2014 (3) SCJ 584 [LNIND 2013 SC 908] .
520.  Sukhwinder Singh v State of Punjab, 2014 Cr LJ 446 : 2014 (2) SCJ 629 .
521.  Vidhya Devi v State of Haryana, (2004) 9 SCC 476 [LNIND 2004 SC 78] : AIR 2004 SC 476 .
522.  Deen Dayal v State of UP, (2009) 11 SCC 157 [LNIND 2009 SC 19] : AIR 2009 SC 1238
[LNIND 2009 SC 19] : 2009 Cr LJ 1119 : (2009) 2 All LJ 169. On facts, the offence was
established. Narayanamurthy v State of Karnataka, (2008) 16 SCC 512 [LNIND 2008 SC 1179] :
AIR 2008 SC 2377 [LNIND 2008 SC 1179] , mere cruelty is not suﬃcient, it has to be in
connection with dowry and continue up to a period soon before death. Govindaraju v State of
Karnataka, (2009) 14 SCC 236 [LNIND 2009 SC 1362] : 2009 Cr LJ 3457 : (2009) 2 APLJ 203 ,
mental torture proved by the fact that she had not taken any food for two days before her death,

her death in her own bed room, in the early hours of morning by burns not explained by the
accused, conviction under section 304B justiﬁed. Raja Lal Singh v State of Jharkhand, (2007) 15
SCC 415 [LNIND 2007 SC 609] : [2007] 6 SCR 105 [LNIND 2007 SC 609] , death within seven
months of marriage, ingredients of the offence established. Tarsem Singh v State of Punjab,
(2008) 16 SCC 155 [LNIND 2008 SC 2415] : AIR 2009 SC 1454 [LNIND 2008 SC 2415] ,
ingredients restated, meaning of dowry explained, object of provision explained, offence not
covered because ultimately inability to bear a child was the cause for harassment. Dharam
Chand v State of Punjab, (2008) 15 SCC 513 [LNIND 2008 SC 2160] : AIR 2009 SC 1304 [LNIND
2008 SC 2160] , remission of sentence not applicable to the offence under the section,

government order of 14 August 2002. Under section 433, Cr PC, 1973. Prem Kumar v State of
Rajasthan, (2009) 3 SCC 726 [LNIND 2009 SC 23] : AIR 2009 SC 1242 [LNIND 2009 SC 23] : 2009
Cr LJ 1123 , death by burn injuries and head-bone fracture proved, taunting and harassment for
insuﬃcient dowry also proved, the High Court set aside the acquittal by the trial Court and
convicted under the section, upheld by the Supreme Court.
523.  Pradipsinh Nanubha Zala v State of Gujarat, 2016 Cr LJ 4779 (Guj).
524.  Suresh Kumar v State of Haryana, 2014 Cr LJ 551 : 2013 (14) Scale 90 .
525.  Surinder Singh v State of Haryana, 2014 Cr LJ 561 : AIR 2014 SC 817 [LNIND 2013 SC 1006]
.
526.  Mustafa Shahadal Shaikh v State of Maharashtra, 2012 AIR (SCW) 5308 : 2012 Cr LJ 4763 :

.
2012 (8) Scale 692 [LNIND 2012 SC 590] ; Kaliyaperumal v State of TN, JT 2003 (7) SC 392
[LNIND 2003 SC 715] : AIR 2003 SC 3828 [LNIND 2003 SC 715] ; Yashoda v State of MP, JT 2004
(2) SC 318 [LNIND 2004 SC 155] : 2004 (3) SCC 98 [LNIND 2004 SC 155] ; Uday Chakraborty v
State of WB, AIR 2010 SC 3506 [LNIND 2010 SC 593] ; State of Andhra Pradesh v Raj Gopal
Asawa, AIR 2004 SC 1933 [LNIND 2004 SC 347] : (2004) 4 SCC 470 [LNIND 2004 SC 347] .
527.  Balwant Singh v State of Punjab, (2004) 7 SCC 724 : AIR 2004 SC 4368 [LNIND 2004 SC
796] .
528.  Yashoda v State of MP, (2004) 3 SCC 98 [LNIND 2004 SC 155] : AIR 2005 SC 1411 [LNIND
2004 SC 155] .
529.  Keshab Chandra Panda v State of Orissa, (1995) 1 Cr LJ 174 (Ori). Another case on dowry
theme, Gordhan Ram v State of Rajasthan, 1995 Cr LJ 273 (Raj), the husband was convicted

under sections 304B and 498A because there was evidence to show harassment and cruelty
and the wife had taken spray poison within seven years of marriage. Sant Gopal v State of UP,
(1995) 1 Cr LJ 312 (All), there was no evidence of dowry torture, but the offence of murder
simpliciter under section 300 was made out. Babaji Charan Barik v State, 1994 Cr LJ 1684 (Ori),
no proof of harassment. About the expression "soon before", the court said that it is a relative

term and it would depend upon the circumstances of each case and no ﬁxed period can be
indicated in that regard.
530.  Keshab Chandra Panda v State of Orissa, (1995) 1 Cr LJ 174 (Ori) at p. 178.
531.  Ashok Kumar v State of Haryana, 2010 (12) SCC 350 [LNIND 2010 SC 582] : AIR 2010 SC
2839 [LNIND 2010 SC 582] : 2010 Cr LJ 4402 ; Pathan Hussain Basha v State of AP, JT 2012 (7)
SC 432 [LNIND 2012 SC 473] .
532.  Kashmir Kaur v State of Punjab, AIR 2013 SC 1039 [LNIND 2012 SC 802] : 2013 689.
533.  See Akula Ravinder v State of Andhra Pradesh, AIR 1991 SC 1142 .
534.  Where there was no proof of harassment soon before death, conviction under section
304B was set aside, and was converted to one under section 498A. See also Dilip v State of
Orissa, 2002 Cr LJ 1613 (Ori), only the father-in-law was convicted to 10-year imprisonment and
ﬁne of Rs. 1,000 under this section read with section 498A, husband and mother-in-law were
acquitted. Venugopal v State of Karnataka, AIR 1999 SC 146 [LNIND 1998 SC 1339] : 1999 Cr LJ

29 , there was unnatural death of wife within two years of marriage. Evidence showed that she
was ill-treated, harassed and beaten by the accused husband many a time for dowry. Evidence
also showed that she was ill-treated by her husband before her death. Plea of suicide was not
acceptable. Conviction for murder under the section. Prem Singh v State of Haryana, AIR 1998
SC 2628 [LNIND 1998 SC 721] : 1998 Cr LJ 4019 , wife died in the husband's house of burn
injuries. He was not able to explain the happening. There was evidence of dowry harassment
conviction for murder upheld. Satpal v State of Haryana, AIR 1999 SC 1476 : 1999 Cr LJ 594 ,
harassment on account of dowry demand was not proved, but there was direct and convincing
evidence to show that the wife had been humiliated and treated with cruelty on some occasions

by the accused husband. His conviction under section 498A was maintained. Bhuneshwar Pd
Chaurasia v Bhuneshwar Chaurasia, 2001 Cr LJ 3541 (Pat), death by poisoning, the body was
cremated hurriedly on the same night without informing police or relatives. There was evidence
of dowry demand soon before death. The husband convicted but his father acquitted, there
being no evidence against him. Budhi Singh v State of HP, 2000 Cr LJ 4879 , no evidence to
show that soon before death, the housewife who committed suicide was subjected to
harassment or cruelty. She became compelled for suicide because of other quarrels with her
husband. The accused could be convicted only under section 498A. Surveshwar Singh v State of
Rajasthan, 1999 Cr LJ 2179 (Raj), no evidence of cruelty soon before death, that is to say, in the

immediate past, acquittal. State of Karnataka v MV Manjunathogowda, AIR 2003 SC 809 [LNIND
2003 SC 5] , death of wife within six months, the testimony of her father and brother established
that soon before her death she was being subjected to cruelty in connection with demand for
dowry. The accused husband was sentenced to RI for 10 years.
535.  The Court referred to Shanti v State of Haryana, AIR 1991 SC 1226 [LNIND 1990 SC 696] :
1991 Cr LJ 1713 . Also followed in Keshab Chandra Panda v State of Orissa, 1995 Cr LJ 174 (Ori),
recounting the ingredients into ﬁve points. Pramila Patnaik v State of Orissa, 1992 Cr LJ 2385
(Ori), no proof of harassment etc. PP Rao v State of AP, 1994 Cr LJ 2632 (AP), offence proved,
conviction.
536.  Nand Kishore v State of Maharashtra, 1995 Cr LJ 3706 (Bom).

537.  There were details in the statements of the witnesses of the items already given and the
fact of withdrawal by the husband of the whole amount from the wife's account which was
opened by her father.
538.  Hans Raj v State of Punjab, AIR 2000 SC 2324 [LNIND 2000 SC 735] : 2000 Cr LJ 2993 .
539.  State of Rajasthan v Jaggu Ram, (2008) 12 SCC 51 [LNIND 2007 SC 1514] : AIR 2008 SC
982 [LNIND 2007 SC 1514] : 2008 Cr LJ 1039 , death within 1½ years of marriage, cruel
treatment and harassment started immediately after marriage and continued till death. High

Court erred in acquitting by giving undue weightage of some discrepancies, ignoring the fact
that she suffered head injuries at her in-laws' place and died of them, her parents not informed,
cremation in hush-hush manner.
540.  Pawan Kumar v State of Haryana, AIR 1998 SC 958 [LNIND 1998 SC 176] : 1998 Cr LJ 1144
. Meka Ramaswamy v Dasari Mohan, AIR 1998 SC 774 [LNIND 1998 SC 17] : 1998 Cr LJ 1105 ,
there was no proof of any demand. The mere fact that death took place within four months was
not suﬃcient to convict. Mahesh Kumar v State, 2001 Cr LJ 4417 (All), death caused within 11
months of marriage by throttling and body burnt to give it the touch of suicide. Her statement to
her brother two to three days before death that she would not be permitted to leave till the
demand for scooter was met. The statement was held to be made soon before her death. The
Orissa High Court has expressed the opinion that the proximity of time between ill-treatment

and time of death is not a highly relevant factor and not an essential item to prove by evidence.
See Niranjan v State, 1998 Cr LJ 630 (Ori). State v Srikanth, 2002 Cr LJ 3605 (Kant), allegation
that the wife was driven to suicide by cruelty, the court found that the harassment had ceased
three to four years before the suicide, there was no nexus between the cruelty and suicide. The
fact of husband contemplating remarriage which could have become the cause of suicide was
also not evident. The court also said that grandparents should not be charged without
something speciﬁc against them. Cases in which charge not proved: Mangal Ram v State of MP,
1999 Cr LJ 4342 (MP), death within seven years, there was harassment for four tolas of gold.
She was beaten and turned out. But it seemed that the cause of suicide was quarrel with some

persons and not dowry demand. Hence offence under section 498A made out but not under
section 304B. T Raghunatha Reddy v State of AP, 1999 Cr LJ 4857 (AP), death of wife and child
due to drowning, evidence not clear, possibility of accident not ruled out, acquittal.
541.  Public Prosecutor, HC of AP v Appireddy Madhavan Reddy, 2003 Cr LJ NOC 28 (AP) : (2002)
2 Andh LT (Cri) 590 .
542.  Savalram v State of Maharashtra, 2003 Cr LJ 2831 (Bom).
543.  Ashok Kumar v State of Haryana, 2010 (12) SCC 350 [LNIND 2010 SC 582] : AIR 2010 SC
2839 [LNIND 2010 SC 582] : 2010 Cr LJ 4402 ; GV Siddaramesh v State of Karnataka, 2010) 3
SCC 152 [LNIND 2010 SC 145] : 2010 Cr LJ1649, accused has not rebutted or discharged the
presumption. Conviction upheld.
544.  Pathan Hussain Basha v State of AP, 2012 Cr LJ 4230 : (2012) 8 SCC 594 [LNIND 2012 SC

473] : AIR 2012 SC 3205 [LNIND 2012 SC 473] .
545.  Amar Singh v State of Rajasthan, AIR 2010 SC 3391 [LNIND 2010 SC 701] : (2010) 3 SCC
(Cr) 1130.
546.  Pathan Hussain Basha v State of AP, 2012 Cr LJ 4230 : (2012) 8 SCC 594 [LNIND 2012 SC
473] : AIR 2012 SC 3205 [LNIND 2012 SC 473] ; Biswajit Halder @ Babu Halder v State of WB,
(2008) 1 SCC 202 [LNIND 2007 SC 344] .
547.  Section 113B of Evidence Act, 1872.
548.  Jagjit Singh v State of Punjab, AIR 2018 SC 5719 [LNIND 2018 SC 498] .
549.  Section 113B of Evidence Act, 1872.
550.  Bakshish Ram v State of Punjab, AIR 2013 SC 1484 [LNIND 2013 SC 1157] : (2013) 4 SCC
551.  Mustafa Shahadal Shaikh v State of Maharashtra, 2012 AIR (SCW) 5308 : 2012 Cr LJ 4763 :
2012 (8) Scale 692 [LNIND 2012 SC 590] .
552.  M Srinivasulu v State of AP, 2007 (12) SCC 443 [LNIND 2007 SC 1047] : AIR 2007 SC 3146

[LNIND 2007 SC 1047] ; Kulwant Singh v State of Punjab, AIR 2013 SC 1567 [LNIND 2013 SC 205]
: (2013) 4 SCC 177 [LNIND 2013 SC 271] : 2013 Cr LJ 2199 (SC); Tarsem Singh v State of Punjab,
(2008) 16 SCC 155 [LNIND 2008 SC 2415] .

553.  State of HP v Nikku Ram, 1995 Cr LJ 4184 . Bhaskar Ramappa Madar v State of Karnataka,
(2009) 11 SCC 690 [LNIND 2009 SC 723] : 2009 Cr LJ 2422 , no proof of dowry demand, hence
no abetment by such demand. State of Rajasthan v Teg Bahadur, 2005 SCC (Cr) 218, no proof of
dowry demand.
554.  Krishna Punitram Dhobi v State of Chhattisgarh, 2016 Cr LJ 4800 (Chh).
555.  Kailash v State of MP, (2006) 12 SCC 667 [LNIND 2006 SC 803] : AIR 2007 SC 107 [LNIND
2006 SC 803] .
556.  Dhian Singh v State of Punjab, (2004) 7 SCC 759 : AIR 2005 SC 1450 .
557.  Rameshwar Das v State of Punjab, (2007) 14 SCC 696 [LNIND 2007 SC 1474] : AIR 2008 SC
890 [LNIND 2007 SC 1474] : 2008 Cr LJ 1400 , part of dowry demands fulﬁlled and also proved,
death by suicide within seven years, the very fact that a pregnant woman should commit suicide
speaks of unbearable harassment. Conviction under section 304B not interfered with.
558.  Bhagwan Das v Kartar Singh, (2007) 11 SCC 205 [LNIND 2007 SC 650] : AIR 2007 SC 2045

[LNIND 2007 SC 650] , in this case, no charge under the section had been framed, the accused
could not be convicted under this section.
559.  Shanti v State of Haryana, AIR 1991 SC 1226 [LNIND 1990 SC 696] at p 1230 : 1991 Cr LJ
1713 . Noorjahan v State, (2008) 11 SCC 55 [LNIND 2008 SC 950] : AIR 2008 SC 2131 [LNIND
2008 SC 950] , cruelty is a common essential to both the sections and has to be proved. But
otherwise these provisions have created distinct offences.
560.  See also Padmaben Shambalbhai Patel v State of Gujarat, (1991) 1 SCC 744 : (1991) 1 GLH
125 , where the conviction of the sister of the deceased woman's husband was sustained on the
basis of the dying declaration ignoring hypertechnicalities about the mode of recording a dying
declaration. For another case of the conviction of the husband for burning his wife which

conviction was founded on dying declaration, see Ved Prakash v State (Delhi Admn), 1991 Supp
1 SCC 296. See also Ashok Kumar v State of Rajasthan, AIR 1990 SC 2134 [LNIND 1990 SC 515] :
1990 Cr LJ 2276 : (1991) 1 SCC 166 [LNIND 1990 SC 515] , where the social background of the
provisions for protection of the person of married women is explained. Ravi Kumar v State, 1991
Cr LJ 2579 (Del), applicant losing his wife leaving 20 months old baby, his parents inﬁrm, bail
allowed. State of Kerala v Rajayyan, (1995) 1 Cr LJ 989 (Ker) here death within seven years was
caused by drowning in a well, all the ingredients of section 304B were made out, hence
conviction. Prakash Chander v State, (1995) 1 Cr LJ 368 (Del), husband convicted under section

304B for burning off his wife because all the ingredients were proved. His mother was convicted
under section 498A which only meant her acquittal under section 304B. In an appeal against
this acquittal, it was held that the High Court had no power to convict her under section 304B. D
Jayana v State of Karnataka, (2009) 6 SCC 575 [LNIND 2009 SC 1188] : (2009) 3 SCC (Cr) 75,
there was suﬃcient evidence relating to demand of dowry to attract section 498A but the same
was not suﬃcient for the purposes of section 304B, conviction under section 304B, was set
aside and that under section 498A, was maintained. Custodial sentence of 3½ years already
served was held to be suﬃcient. Jagjit Singh v State of Punjab, (2009) 4 SCC 759 [LNIND 2009
SC 544] : AIR 2009 SC 2133 [LNIND 2009 SC 544] : 2009 Cr LJ 2440 , facts established, since

the minimum sentence imposed, no interference in appeal. Anand Kumar v State of MP, (2009) 3
SCC 799 [LNIND 2009 SC 404] : AIR 2009 SC 2155 [LNIND 2009 SC 404] , onus on the accused
under section 306 is not as heavy as in the case of a dowry death under section 304B. State of
UP v Santosh Kumar, (2009) 9 SCC 626 [LNIND 2009 SC 1770] , comparison with section 498A
restated. Kanti Lal v State of Rajasthan, (2009) 12 SCC 498 [LNIND 2009 SC 902] : AIR 2009 SC
2703 [LNIND 2009 SC 902] : (2009) 9 AP LJ 95 , charge proved through witnesses. Madan Lal v
State of UP, (2009) 11 SCC 527 [LNIND 2009 SC 540] : AIR 2009 SC 2175 [LNIND 2009 SC 540] :
(2009) 3 All LJ 806, two injuries on neck, wind pipe and sound box fractured, medical opinion

that it could be due to epileptic ﬁt was unfounded, even Modi's Medical Jurisprudence did not
say so, offence proved.
561.  State of UP v Santosh Kumar, (2009) 9 SCC 626 [LNIND 2009 SC 1770] .
562.  Pathan Hussain Basha v State of AP, (2012) 8 SCC 594 [LNIND 2012 SC 473] : AIR 2012 SC
3205 [LNIND 2012 SC 473] .
563.  Soni Devrajbhai Babubhai v State of Gujarat, 1991 Cr LJ 3135 (SC), in view of the protection
under Article 20(1) of the Constitution. See also Praveen Malhotra v State, 1990 Cr LJ 2184 (Del),
where the husband's bail application was not allowed to be opposed as of right by the father of
the deceased bride or by a women's organisation. Amarnath Gupta v State of MP, 1991 Cr LJ
2163 (MP), neither suicide note nor the fact that the accused was lawyer by profession was
considered enough by itself for grant of bail. Premwati v State of MP, 1991 Cr LJ 268 , treatment
by in-laws such that the bride was left with no choice but to end her life.
564.  Bhoora Singh v State of UP, 1992 Cr LJ 2294 (All).

565.  Rajibir v State of Haryana, AIR 2011 SC 568 [LNIND 2009 SC 1352] .
566.  Rajibir v State of Haryana, AIR 2011 SC 568 [LNIND 2009 SC 1352] .
567.  Karan Singh v State of Haryana, 2014 Cr LJ 2708 : (2014) 5 SCC 738 [LNINDU 2014 SC 38] .
568.  Narwinder Singh v State of Punjab, (2011) 2 SCC 47 [LNIND 2011 SC 25] : AIR 2011 SC 686
[LNIND 2011 SC 25] .
569.  Ashaben v State of Gujarat, 2011 Cr LJ 854 (Guj).
570.  K Prema S Rao v Yadla Srinivasa Rao, 2003 (1) SCC 217 [LNIND 2002 SC 662] : AIR 2003
SC.
571.  Gurnaib Singh v State of Punjab, (2013) 7 SCC 108 [LNIND 2013 SC 1343] : 2013 (7) Scale
89 [LNIND 2013 SC 1343] .
572.  Bhupendra v State of MP, 2014 Cr LJ 546 : 2014 (1) SCJ 627 .
573.  Baljeet Singh v State of Haryana, (2004) 3 SCC 122 [LNIND 2004 SC 249] : AIR 2004 SC
1714 [LNIND 2004 SC 249] .

574.  Dalbir Singh v State of UP, (2004) 5 SCC 334 [LNIND 2004 SC 455] : AIR 2004 SC 1990
[LNIND 2004 SC 455] : 2004 All LJ 1448 : 2004 Cr LJ 2025 .

[s 305] Abetment of suicide of child or insane person.
If any person under eighteen years of age, any insane person, any delirious person,
any idiot, or any person in a state of intoxication, commits suicide, whoever abets the
commission of such suicide, shall be punished with death or 575.[imprisonment for
life], or imprisonment for a term not exceeding ten years, and shall also be liable to
ﬁne.
575.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
576.  Chandan Soni v State, 2006 Cr LJ 3528 (Chh).
COMMENT.—
This and the following section have been inserted because the ordinary law of
abetment is inapplicable. They apply when suicide is in fact committed. In order to
frame charge under section 305 of IPC, 1860 the material placed by the prosecution
before the trial judge must be such that if it is accepted at its face value, it would

establish that the commission of suicide by the girl below 18 years of age was the
direct and proximate cause of the abetment or instigation offered by the applicant.576.

[s 306] Abetment of suicide.
If any person commits suicide, whoever abets the commission of such suicide, shall
ten years, and shall also be liable to ﬁne.
COMMENT.—
Abetment of suicide is punishable under this section and attempt to commit suicide,
under section 309.
[s 306.1] Ingredients.—
The ingredients of abetment of suicide are as follows:
The prosecution has to prove—
(i) the deceased committed suicide;
(ii) the accused instigated or abetted the commission of suicide;
(iii) direct involvement by the accused in such abetment or instigation is
necessary.577. In Ramesh Kumar v State of Chhattisgarh,578. the Supreme Court
held that where the accused by his acts or by a continued course of conduct
creates such circumstances that the deceased was left with no other option but

to commit suicide, an "instigation" may be inferred. In other words, in order to
prove that the accused abetted commission of suicide by a person, it has to be
established that
(a) the accused kept on irritating or annoying the deceased by words, deeds
or wilful omission or conduct which may even be a wilful silence until the
deceased reacted or pushed or forced the deceased by his deeds, words
or wilful omission or conduct to make the deceased move forward more
quickly in a forward direction, and
(b) that the accused had the intention to provoke, urge or encourage the
deceased to commit suicide while acting in the manner noted above.
Undoubtedly, presence of mens rea is the necessary concomitant of
instigation.
Relevantly, it may be mentioned that there is a marked difference between

"intimidatory" statement and "instigatory" statement. "Intimidatory" statements may
give rise to two types of consequences, (a) either the person to whom such statements
are made may be frightened and may be on receiving end or he may be angry enough
to retaliate, whereas (b) instigatory statements falls within the category of goading,
provoking, etc.579. Abetment involves a mental process of instigating a person or

intentionally aiding a person in doing a thing. Without a positive act on the part of the
accused to instigate or aid in committing suicide, conviction cannot be sustained.580.
[s 306.2] The scope and ambit of section 107 IPC, 1860 and its co-relation
with section 306 IPC, 1860.—
person in doing of a thing. Without a positive act on the part of the accused to instigate
or aid in committing suicide, conviction cannot be sustained.581. The intention and
involvement of the accused to aid or instigate the commission of suicide is imperative.
Any severance or absence of any of this constituents would militate against this
indictment. Remoteness of the culpable acts or omissions rooted in the intention of the
accused to actualise the suicide would fall short as well of the offence of abetment
essential to attract the punitive mandate of section 306, IPC, 1860. Contiguity,

continuity, culpability and complicity of the indictable acts or omission are the
concomitant indices of abetment. Section 306 IPC, thus criminalises the sustained
incitement for suicide.582. In the case of M Mohan v State,583. the Apex Court held that
there should be some live link, or a proximate link between the act of the accused and
the act of committing of suicide. If the live link is missing, it cannot be said that the
accused has instigated, or intentionally aided the commission of suicide. Mere threats
of involving the family in a false and frivolous cases cannot be tantamount to
instigation.584.
Words uttered in a ﬁt of anger or emotion without any intention could not be regarded
as an instigation.585. A type of active role which can be described as amounting to

instigation or aiding for doing something is requisite before a person can be said to
have committed the offence under the section.586.
[s 306.3] What, if the abetted survives.—
The Supreme Court in Satvir Singh v State of Punjab,587. explained this particular
situation and held that a person can be convicted only when the abetted person
commits suicide. If it ends in an attempt, the abetter cannot be convicted. It is possible
to abet the commission of suicide. But nobody would abet a mere attempt to commit
suicide. It is also inconceivable to have abetment of an abetment. Hence, there cannot
be an offence under section 116 read with section 306, IPC, 1860.
[s 306.4] Maltreatment of wife.—
Mere stray instances of quarrel between husband and wife or the evidence that at

times the appellant used to consume liquor cannot be termed as abetment as deﬁned
under section 107 IPC, 1860. In these circumstances, it cannot be said that the
accused/appellant instigated or abetted the deceased to end her life and that being the
position his conviction under section 306 IPC, 1860 is not justiﬁed, and therefore, liable
to be set aside.588. Where husband maltreating and beating wife for not conceiving and
wife committed suicide, husband is liable to be convicted under section 306.589. The
accused husband, a drunkard, always ill-treated his wife, beat her and imputed
unchastity. The wife in a quarrel set herself ablaze and died. The husband along with
others attempted to stamp out ﬂames. The conviction of the accused for murder was
set aside and he was convicted under section 306.590.

[s 306.5] Vicious habits like drinking and gambling and beating wife.—
The wife of the accused poured kerosene oil on herself and set herself ablaze. In her
dying declaration she said that her husband used to take liquor after borrowing money
from villagers and beat her after taking liquor. The Court said that this in itself did not
amount to abetment.591. The statement in the dying declaration was that the husband
used to get drunk, beat her and consistently abuse her. He also told her that he did not
bother if she lived or died and asked her to die. The Court held that this did not mean
that the accused intended to lead her to commit suicide. The offence of abetment was
not made out.592.
[s 306.6] Extra-marital relationship.—
Extra-marital relationship as such is not deﬁned in the IPC, 1860. The mere fact that the
husband has developed some intimacy with another, during the subsistence of
marriage and failed to discharge his marital obligations, as such would not amount to

"cruelty", but it must be of such a nature as is likely to drive the spouse to commit
suicide to fall within the explanation to section 498A, IPC, 1860. Court, on facts, found
that the alleged extra-marital relationship was not of such a nature as to drive the wife
to commit suicide.593.
It has been held that the creation of circumstances for the victim to commit suicide
amounts to abetment. In this case, the deceased husband felt humiliated at the
activities of indulgence of his wife with the accused. The accused openly spoke of his
relationship with the wife of the deceased. The outrageous acts of the accused drove
the deceased to suicide. The accused was held to be guilty of abetting suicide.594.
[s 306.7] Failure to appear at arranged marriage, no abetment.—
The accused settled marriage ceremony date with the girl with whom he was in love

affair but did not turn up. The girl committed suicide. It was not proved that the
accused intended to lead her to suicide by not marrying or knew that suicide was a
likely consequence. It being an independent act of the victim girl, the accused was
acquitted.595.
[s 306.8] Pressure for repayment of loan.—
Where the accused had lent a certain amount to a lady and he was persistently
demanding repayment from her, which was no offence, the accused did not know that
she had purchased poisonous tablets and might commit suicide, he was held not liable
for abetment of suicide.596.
[s 306.9] Pressure for accounting proceeds—importance of suicide note.—
The deceased was the owner of a ﬁnance ﬁrm. The accused joined as a partner of the
group of persons who owned land. The deceased sold the plots and handed over

proceeds to the accused who neither handed over the money to the group nor effected

transfer in favour of purchasers. The latter pressurised the deceased as a result of
which he committed suicide.
This fact ﬁgured in the suicide note. The Court attached importance to this fact and
held the accused guilty of causing abetment.597.
[s 306.10] Pressure for parting with s t r e e d h a n .—
The accused was forcing his wife to transfer the land to his name which she had
received as a part of her streedhan from her father. He concealed her letters. These
facts drove her to suicide. He was convicted under section 498A for the offence of
cruelty. On the same evidence he was convicted under section 306 read with section
221, Cr PC, 1973.598.
[s 306.11] Demand for recruitment money.—
A demand for a sum of money for recruitment in a job does not amount to instigating
suicide.599.
[s 306.12] Advice.—
Instigation necessarily indicates some active suggestion or support or stimulation to
the commission of the act itself, and advice can become an instigation only if it is

found that it was an advice which was meant actively to suggest or stimulate the
commission of an offence.600. Following this, it was held that where two persons were
in love with a married woman and quarrelled over her and one of them (the accused)
along with the lady taunted the other to commit suicide. The frustration thus caused
led him to suicide. It was held that no fault could be found with cognizance of the
offence under section 306.601.
[s 306.13] Abetment by defamation.—
The publication of a defamatory article against the victim was held to be not suﬃcient
abetment for leading the victim to suicide.602.
[s 306.14] Abetment by rape.—
The Supreme Court examined the possibility of such an abetment, but there was no
punishment because the incident of rape itself could not be proved. The suicide was

committed by the woman more than ﬁve and a half months after the incident. Her
statements could not be regarded as dying declaration because there were no
circumstances at the time which were related with her death. There was delay in
lodging FIR and also in conducting medical examination. There was no evidence to
connect the accused with the crime. The cause for commission of suicide was not
legally proved.603. Where the suicide was allegedly committed because of rape, if the
rape is not proved, conviction of accused for abetment to suicide is not proper.604.

[s 306.15] Instigation from Superior oﬃcers.—
In Madan Mohan Singh v State of Gujarat,605. the deceased was a driver in the
Microwave Project Department. He had undergone a bypass surgery for his heart, just
before the occurrence of such incident and his doctor had advised him against
performing any stressful duties. The accused was a superior oﬃcer to the deceased.
When the deceased failed to comply with the orders of the accused, the accused
became very angry and threatened to suspend the deceased, rebuking him very harshly
for not listening to him. The accused also asked the deceased how he still found the
will to live, despite being insulted so the driver committed suicide. For the purpose of
bringing home any charge, vis-à-vis section 306/107 IPC, 1860 against the accused,
Supreme Court stated that there must be allegations to the effect that the accused had
either instigated the deceased in some way, to commit suicide or had engaged with

some other persons in a conspiracy to do so, or that the accused had in some way
aided any act or illegal omission to cause the said suicide. If the making of
observations by a superior oﬃcer, regarding the work of his subordinate, is termed as
abetment to suicide, it would become almost impossible, for superior oﬃcers to
discharge their duties as senior employees. In Vaijnath Kondiba Khandke v State of
Maharashtra,606. action was taken against the deceased and his salary was stopped for
a month. The Supreme Court held that merely on that count it cannot be said that there
was guilty mind or criminal intent to drive a person to commit suicide. That action
simplicitor cannot be considered to be pointer against such superior oﬃcer for
attracting section 306 IPC, 1860, unless the situation is created deliberately so as to

drive a person to commit suicide.
[s 306.16] Instigation by principal/Teachers.—
Student committed suicide, because the Principal scolded, hit and asked him to
apologise before students in the assembly, when gutka pouches were recovered from
his bag. Even if these allegations are taken as unrebutted facts even then there is no
evidence to show that the petitioner had instigated or intentionally aided the
commission of suicide.607. Accused, supervisor of school gave beatings to deceased
student for sitting on his scooter. The deceased on account of the above incident had
committed suicide. Even if it is true that accused had beaten the deceased, it could not
be said that it was an act of attempt to commit suicide or instigating the commission
of suicide by deceased.608.
[s 306.17] Failure to provide plot after taking money.—

The allegation against the accused was that he had taken money from the deceased
for providing him a plot of land but refused to do so and that led to the commission of
suicide. There was no evidence to the effect that the accused goaded or urged, or
provoked or incited or even encouraged the commission of suicide. The Court said that
the mere failure to fulﬁl the promise concerning a plot of land was not suﬃcient for
satisfying the ingredients of section 306.609.
[s 306.18] 304B and 306 IPC, 1860.—Difference.—
It has been held that cruelty or harassment sans demand of dowry which drives the
wife to commit suicide attracts the offence of abetment of suicide under section 306

IPC, 1860.610.
[s 306.19] Sentence under sections 306 and 498A.—
The Calcutta High Court observed that composite sentence for conviction under both
the sections should not be passed.611.
[s 306.20] Proof.—
Instigation has to be gathered from the circumstances of the case. All cases may not
be of direct evidence in regard to instigation having a direct nexus to the suicide. There
could be cases where the circumstances created by the accused are such that a
person feels totally frustrated and ﬁnds it diﬃcult to continue existence.612. In Chitresh
Kumar Chopra v State (Govt of NCT of Delhi),613. the Supreme Court reiterated the legal
position laid down in its earlier three Judges Bench judgment in the case of Ramesh
Kumar v State of Chhattisgarh,614. and held that where the accused by his acts or
continued course of conduct creates such circumstances that the deceased was left
with no other option except to commit suicide, an instigation may be inferred. In order

to prove that the accused abetted commission of suicide by a person, it has to be
established that:—
reacted; or pushed or forced the deceased by his deeds, words or wilful omission
presence of mens rea is the necessary concomitant of instigation.615.
[s 306.21] Burden of Proof.—
The effect of these new provisions on the matter of burden of proof is amply
demonstrated by the decision of the Supreme Court in Gurbachan Singh v Satpal

Singh.616. The bride died in her in-laws' home within seven months of her marriage.
Evidence ruled out accidental death thus conﬁrming the prosecution version of suicide.
As to the question of instigation, Ray J, proceeded as follows:617.
The prosecution witnesses clearly testiﬁed to the greedy and lustful nature of the husband
and others in that they persistently taunted the deceased and tortured her for not having
brought suﬃcient dowry from her father. It is also in evidence that they taunted her for
carrying an illegitimate child. All this … caused depression in her mind and drove her to take
the extreme step of putting an end to her life by sprinkling kerosene oil on person and
setting it aﬁre. Circumstantial evidence (unaccounted delay in providing treatment and

informing her parents living not far away) and the evidence of prosecution witnesses clearly
proves beyond reasonable doubt that the accused persons instigated and abetted Ravinder
Kaur. The ﬁndings arrived at by the High Court without considering the circumstantial
evidence as well as the evidence of prosecution witnesses cannot be sustained. As such
the ﬁndings of the High Court are liable to be reversed and set aside.

The Supreme Court has reiterated in Wazir Chand v State of Haryana618. that before
section 306 can be acted upon, there must be clear proof of the fact that the death in
question was a suicidal death. In this case the evidence adduced was not able to justify
a ﬁnding of suicide. The only other possibility was accidental burning of the newly-
married woman though she was being victimised for insuﬃcient dowry and there is no
chance of an accident being abetted. The husband and in-laws were, however, found
guilty under section 498A for causing harassment for dowry.
[s 306.22] Section 113A of Indian Evidence Act, 1872.—
Section 113A was inserted by the Criminal Law (Second Amendment) Act, 1983, w.e.f.
26 December 1983. When death takes place within seven years of her marriage,
presumption under section 113A of the Indian Evidence Act, 1872 springs into action.
When the question is whether the commission of suicide by a woman had been abetted

by her husband or any relative of her husband and it is shown that she had committed
suicide within a period of seven years from the date of her marriage and that her
husband or such relative of her husband had subjected her to cruelty, the Court may
presume, having regard to all the other circumstances of the case, that such suicide
had been abetted by her husband or by such relative of her husband.619. Section 113A
only deals with a presumption which the Court may draw in a particular fact situation
which may arise when necessary ingredients in order to attract that provision are
established. Criminal law amendment and the rule of procedure was necessitated so
as to meet the social challenge of saving the married woman from being ill-treated or
forcing to commit suicide by the husband or his relatives, demanding dowry.

Legislative mandate of the section is that when a woman commits suicide within seven
years of her marriage and it is shown that her husband or any relative of her husband
had subjected her to cruelty as per the terms deﬁned in section 498A IPC, 1860, the
Court may presume having regard to all other circumstances of the case that such
suicide has been abetted by the husband or such person. Though a presumption could
be drawn, the burden of proof of showing that such an offence has been committed by
the accused under section 498A, IPC, 1860 is on the prosecution.620.
Once the prosecution succeeds in establishing the component of cruelty leading to a
conviction under section 498A, in our view only in a rare case, the Court can refuse to
invoke the presumption of abetment, if other requirements of section 113A of the

Indian Evidence Act, 1872 stand satisﬁed.621.
[s 306.23] Constitutional validity.—
The scope of the pronouncement of the Apex Court that attempt to commit suicide is
ultra vires the Constitution does not make the offence of abetment to commit suicide
ultra vires the Constitution because the former is volitional and well-planned act of the
person concerned whereas the latter is on the different footing as therein a third person
forces the other person to take his life by committing suicide.622. The Constitutional
validity of section 306 (abetment of suicide) has been upheld in a decision of the
Bombay High Court also.623. Section 306 constitutes an entirely independent offence.
It is based on this principle of public policy that nobody should involve himself in, or

instigate or aid, the commission of a crime. It is not violative of Article 14 or 21 of the
Constitution.

577.  Jagannath Mondal v State of WB, 2013 Cr LJ 1994 (Cal).
578.  Ramesh Kumar v State of Chhattisgarh, 2001 (9) SCC 618 [LNIND 2001 SC 2368] : 2001 Cr
LJ 4724 .
579.  Jagannath Mondal v State of WB, 2013 Cr LJ 1994 (Cal).
580.  M Mohan v State, Represented by the Deputy Superintendent of Police, (2011) 3 SCC 626
1978] ; Rakesh Kumar v State of Chhattisgarh, (2001) 9 SCC 618 [LNIND 2001 SC 2368] ; Gangula
Mohan Reddy v State of AP, (2010) 1 SCC 750 [LNIND 2010 SC 3] ; Thanu Ram v State of MP, 2010
(10) Scale 557 [LNIND 2010 SC 962] : (2010) 10 SCC 353 [LNIND 2010 SC 962] : (2010) 3 SCC
(Cr) 1502; SS Chheena v Vijay Kumar Mahajan, (2010) 12 SCC 190 [LNIND 2010 SC 746] : 2010
AIR SCW 4938; Sohan Raj Sharma v State of Haryana, AIR 2008 SC 2108 [LNIND 2008 SC 845] :
(2008) 11 SCC 215 [LNIND 2008 SC 845] .

581.  S S Chheena v Vijay Kumar Mahajan, 2010 (12) SCC 190 [LNIND 2010 SC 746] : 2010 AIR
SCW 4938.
582.  Gurcharan Singh v State of Punjab, AIR 2017 SC 74 [LNIND 2016 SC 582] .
583.  M Mohan v State, AIR 2011 SC 1238 [LNIND 2011 SC 246] : 2011 (3) SCC 626 [LNIND 2011
SC 246] .
[s 306.24] Abetment of attempt to commit Suicide.—
section 107 IPC, 1860.624. A conviction in terms of section 107 IPC, 1860 is not
sustainable on mere allegation of harassment without any positive action in proximity
to the time of occurrence on the part of the accused that led a person to commit

suicide. A casual remark that is likely to cause harassment in ordinary course of things
will not come within the purview of instigation. A mere reprimand or a word in a ﬁt of
anger will not earn the status of abetment. There has to be positive action that creates
a situation for the victim to put an end to life.625.
[s 306.25] Euthanasia.—
also prevent the danger inherent in the absence of such a penal provision. The
Constitution Bench in Gian Kaur v State of Punjab,626. held that both euthanasia and
assisted suicide are not lawful in India which overruled the two Judge Bench decision
of the Supreme Court in P Rathinam v UOI.627. The Court held that the right to life under

Article 21 of the Constitution does not include the right to die. But in Aruna Ramchandra
Shanbaug v UOI,628. the Supreme Court held that passive euthanasia can be allowed
under exceptional circumstances under the strict monitoring of the Court.629.

584.  Vijay Kumar Rastogi v State of Rajasthan, 2012 (2) Crimes 628 (Raj).
585.  Sonti Rama Krishna v Sonti Shanti Sree, (2009) 1 SCC 554 [LNIND 2008 SC 2319] : AIR 2009
SC 923 [LNIND 2008 SC 2319] .
586.  Randhir Singh v State of Punjab, AIR 2005 SC 5097 . Darbar Singh v State of Chhattisgarh,
2013 Cr LJ 1612 (Chh).
587.  Satvir Singh v State of Punjab, AIR 2001 SC 2826 [LNIND 2001 SC 2200] : 2001 Cr LJ 4625 .
588.  Sanjay Jain v State of MP, 2013 Cr LJ 668 (Chh).
589.  Sudarshan Kumar v State of Haryana, AIR 2011 SC 3024 [LNIND 2011 SC 699] : 2011 Cr LJ
4364 .
590.  Jeevan Babu Desai v State of Maharashtra, 1992 Cr LJ 2996 (Bom). Surender v State of
Haryana, (2006) 12 SCC 375 [LNIND 2006 SC 1015] : 2007 Cr LJ 375 , the husband subjected her
to cruelty, inference drawn from facts and circumstances of the case that there was intention to
abet and to instigate her to suicide. Conviction under this section and not under section 302.

591.  Pachipala Laxmaiah v State of MP, 2001 Cr LJ 4063 (AP). State of Gujarat v Jivabhai, 2001
Cr LJ 1343 (Guj) suicide by married woman by pouring kerosene and setting herself on ﬁre. No
evidence of abetment by the husband or anybody else.
592.  Bammidi Rajamallu v State of AP, 2001 Cr LJ 1319 (AP).
593.  Pinakin Mahipatray Rawal v State of Gujarat, 2013 (3) Mad LJ (Crl) 700 : 2013 (II) Ori LR 867
: 2013 (4) RCR (Criminal) 271 : 2013 (11) Scale 198 [LNIND 2013 SC 803] .
594.  Dammu Sreenu v State of AP, 2003 Cr LJ 2185 (AP).
595.  Satish v State of Maharashtra, 1997 Cr LJ 935 (Bom).
596.  Manish Kumar Sharma v State of Rajasthan, 1995 Cr LJ 3066 (Raj).
597.  Didigam Bhikshapathi v State of AP, AIR 2008 SC 527 [LNIND 2007 SC 1386] : (2008) 2 SCC
403 [LNIND 2007 SC 1386] : 2008 Cr LJ 724 : (2008) 106 Cut LT 313.

598.  K Prema S Rao v Yadla Srinivasa Rao, AIR 2003 SC 11 [LNIND 2002 SC 662] , sentenced to
ﬁve years imprisonment and ﬁne of Rs. 20,000.
599.  JS Ghura v State of Rajasthan, 1996 Cr LJ 2158 (Raj).
600.  Raghunath Dass v Emperor, AIR 1920 Pat 502 : (1920) 21 Cr LJ 213 .
601.  Prahlad Das Chela v State of MP, 1996 Cr LJ 3659 (MP).
602.  State of Gujarat v Pradyman, 1999 Cr LJ 736 (Guj).
603.  Sudhakar v State of Maharashtra, AIR 2000 SC 2602 [LNIND 2000 SC 920] : 2000 Cr LJ
3490 .
604.  Partha Dey v State of Tripura, 2013 Cr LJ 2101 (Gau).
605.  Madan Mohan Singh v State of Gujarat, (2010) 8 SCC 628 [LNIND 2010 SC 763] . See also
Praveen Pradhan v State of Uttaranchal, (2012) 9 SCC 734 [LNIND 2012 SC 612] : 2012 (9) Scale
745 : 2012 Cr LJ 4925 .
606.  Vaijnath Kondiba Khandke v State of Maharashtra, AIR 2018 SC 2659 .

607.  Aroma Philemon v State, 2013 Cr LJ 1933 (Raj).
608.  Hasmukhbhai Gokaldas Shah v State of Gujarat, 2009 Cr LJ 2919 (Guj).
609.  Mahesh v State of MP, 2003 Cr LJ (NOC) 50 (MP).
610.  Narwinder Singh v State of Punjab, 2011 (2) SCC 47 [LNIND 2011 SC 25] : AIR 2011 SC 686
611.  Samir Samanta v State of WB, 1993 Cr LJ 134 (Cal).
612.  Amit Kapoor v Ramesh Chander, JT 2012 (9) SC 312 [LNIND 2012 SC 564] : 2012 (9) Scale
613.  Chitresh Kumar Chopra v State (Govt of NCT of Delhi), 2009 (16) SCC 605 [LNIND 2009 SC

614.  Ramesh Kumar v State of Chhattisgarh, AIR 2001 SC 3837 [LNIND 2001 SC 2368] : ( 2001
Cr LJ 4724 .
615.  State of MP v Shrideen Chhatri Prasad Suryawanshi, 2012 Cr LJ 2106 (MP); Jetha Ram v
616.  Gurbachan Singh v Satpal Singh, (1990) 1 SCC 445 [LNIND 1989 SC 475] at p 458 : AIR
1990 SC 209 [LNIND 1989 SC 475] : 1990 Cr LJ 562 . See also Wazir Chand v State of Haryana,
(1990) 1 SCC 445 [LNIND 1989 SC 475] : AIR 1990 SC 209 [LNIND 1989 SC 475] : 1990 Cr LJ
562 .
617.  Gurbachan Singh v Satpal Singh, (1990) 1 SCC 445 [LNIND 1989 SC 475] at p 458 : AIR
1990 SC 209 [LNIND 1989 SC 475] : 1990 Cr LJ 562 .
618.  Wazir Chand v State of Haryana, AIR 1989 SC 378 [LNIND 1988 SC 569] : 1989 Cr LJ 809 :
(1989) 1 SCC 244 [LNIND 1988 SC 569] . Another case of acquittal on charge of abetment for
suicide is Chanchal Kumari v Union Territory of Chandigarh, AIR 1986 SC 752 : 1986 Cr LJ 816 .

Dalip Singh v State of Punjab, 1988 (1) Crimes 211 [LNIND 1953 SC 61] , wife died of hanging
within one year, the prosecution case well established, conviction not to be struck out only
because there were only two witnesses and those too the father and brother of deceased wife.
Shyama Devi v State of WB, 1987 Cr LJ 1163 where also the evidence of relatives was
considered to be suﬃcient without any corroboration from outside evidence. PB Bikshdhapathi v
State of AP, 1989 Cr LJ 1186 , drinking and coming late of the husband coupled with beating and
demanding dowry was taken to amount to cruelty as deﬁned in section 498A, IPC, 1860.
Khemraj Hiralal Agarwal v State of Maharashtra, 1995 Cr LJ 2271 (Bom), an attempt to abuse the
section by proceeding against a husband who, far from demanding anything, was helping the

family members of his wife, was frustrated by the court. Gajanan Singh v Maharashtra, 1996 Cr
LJ 2921 (Bom), evidence not clear to show that the death of the married woman was
immolation or murder, the section not attracted.
619.  Section 113A of the Indian Evidence Act, 1872.
620.  Pinakin Mahipatray Rawal v State of Gujarat, 2013 (3) Mad LJ (Crl) 700 : 2013 (II) Ori LR 867
621.  Satish Shetty v State of Karnataka, 2016 Cr LJ 3147 : AIR 2016 SC 2689 [LNIND 2016 SC
245] .
622.  Krishan Lal v UOI, 1994 Cr LJ 3472 (P&H); Gian Kaur v State of Punjab, 1996 Cr LJ 1660 :
AIR 1996 SC 946 [LNIND 1996 SC 653] , provision for penalising attempt to commit suicide and
abetment of suicide, held constitutional; overruling P Rathinam v UOI, 1994 AIR SCW 1764 :

1994 Cr LJ 1605 : AIR 1994 SC 1844 [LNIND 1994 SC 1533] : (1994) 3 SCC 394 [LNIND 1994 SC
1533] .
623.  Naresh Morotrao v UOI, (1995) 1 Cr LJ 96 (Bom).
624.  Gian Kaur v State of Punjab, AIR 1996 SC 946 [LNIND 1996 SC 653] : (1996) 2 SCC 648
625.  Pawan Kumar v State of HP, AIR 2017 SC 2459 [LNIND 2017 SC 241] .
626.  Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC 653] .
627.  P Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994 SC 1533] : 1994 (3) SCC 394 [LNIND
1994 SC 1533] .
628.  Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC
629.  In March 2018, a ﬁve-judge Constitution Bench gave legal sanction to passive euthanasia,
permitting 'living will' by patients on withdrawing medical support if they slip into irreversible

coma. The SC held that the right to die with dignity is a fundamental right; see Common Cause
(A Regd. Society) v UOI, LNIND 2018 SC 87 .

[s 307] Attempt to murder.
Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of murder, shall
ten years, and shall also be liable to ﬁne, and if hurt is caused to any person by such
act, the offender shall be liable either to 630.[imprisonment for life], or to such
punishment as is hereinbefore mentioned.
Attempts by life convicts.
631.[When any person offending under this section is under sentence of 632.
[imprisonment for life], he may, if hurt is caused, be punished with death.]
(a) A shoots at Z with intention to kill him, under such circumstances that, if
death ensued. A would be guilty of murder. A is liable to punishment under
(b) A, with the intention of causing the death of a child of tender years, exposes

it in a desert place. A has committed the offence deﬁned by this section,
though the death of the child does not ensue.
(c) A, intending to murder Z, buys a gun and loads it. A has not yet committed
the offence. A ﬁres the gun at Z. He has committed the offence deﬁned in
this section, and if by such ﬁring he wounds Z, he is liable to the punishment
provided by the latter part of 633.[the ﬁrst paragraph of] this section.
(d) A, intending to murder Z by poison, purchases poison and mixes the same
with food which remains in A's keeping; A has not yet committed the
offence deﬁned in this section. A places the food on Z's table or delivers it
to Z's servant to place it on Z's table. A has committed the offence deﬁned
in this section.
COMMENT.—
Attempt to murder.—This and the following section seem to apply to attempts to

COMMENT.—
murder, in which there has been not merely a commencement of an execution of the
purpose, but something little short of a complete execution, the consummation being
hindered by circumstances independent of the will of the author. The act or omission,
although it does not cause death, is carried to such a length as, at the time of carrying
it to that length, the offender considers suﬃcient to cause death.634.
The essential ingredients required to be proved in the case of an offence under section
307 are:

(i) that the death of a human being was attempted;
(ii) that such death was attempted to be caused by, or in consequence of the act of
the accused; and
(iii) that such act was done with the intention of causing death; or that it was done
with the intention of causing such bodily injury as:
(a) the accused knew to be likely to cause death; or
(b) was suﬃcient in the ordinary course of nature to cause death, or that the
accused attempted to cause death by doing an act known to him to be
so imminently dangerous that it must in all probability cause (a) death, or
(b) such bodily injury as is likely to cause death, the accused having no
excuse for incurring the risk of causing such death or injury.635.
To justify a conviction under this section, it is not essential that bodily injury capable of
causing death should have been inﬂicted. Although the nature of injury actually caused
may often give considerable assistance in coming to a ﬁnding as to the intention of the

accused, such intention may also be deduced from other circumstances, and may even,
in some cases, be ascertained without any reference at all to actual wounds. The
section makes a distinction between an act of the accused and its result, if any. Such
an act may not be attended by any result so far as the person assaulted is concerned,
but still there may be cases in which the culprit would be liable under this section. It is
not necessary that the injury actually caused to the victim of the assault should be
suﬃcient under ordinary circumstances to cause the death of the person assaulted.
What the Court has to see is whether the act, irrespective of its result, was done with
the intention or knowledge and under circumstances mentioned in the section. An

attempt in order to be criminal need not be the penultimate act. It is suﬃcient in law, if
there is present an intent coupled with some over act in execution thereof.636. To bring
a case within the ambit of section 307, the prosecution has to make out the facts and
circumstances envisaged by section 300. If the ingredients of section 300 are wholly
lacking, there can be no conviction under section 307.637. The ingredients of the
section are (1) intention or knowledge relating to commission of murder; and (2) the
doing of an act towards it.638. The Supreme Court held in Pulicherla Nagaraju v State of
AP that:
The intention to cause death can be gathered generally from a combination of a few or
several of the following, among other, circumstances: (i) nature of the weapon used; (ii)

AP that:
whether the weapon was carried by the accused or was picked up from the spot; (iii)
whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in
causing injury; (v) whether the act was in the course of sudden quarrel or sudden ﬁght or
free for all ﬁght; (vi) whether the incident occurs by chance or whether there was any pre-
meditation; (vii) whether there was any prior enmity or whether the deceased was a
stranger; (viii) whether there was any grave and sudden provocation, and if so, the cause for
such provocation; (ix) whether it was in the heat of passion; (x) whether the person inﬂicting
the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi)
whether the accused dealt a single blow or several blows. The above list of circumstances

is, of course, not exhaustive and there may be several other special circumstances with
reference to individual cases which may throw light on the question of intention.639.
In a group clash, one person died and several others were injured, some of them
seriously. The accused also received injuries. Two of the accused were convicted under
section 307 and others under section 324. The Supreme Court held that, though the
injuries caused by the two accused were somewhat serious, the offence for attempt to
murder was not made out as their case stood on the same footing as that of others
and altered their conviction to one under section 324.640.
[s 307.1] Attempt.—

Attempt is an intentional preparatory action which fails in its object—which so fails
through circumstances independent of the person who seeks its accomplishment.641.
The mere use of lethal weapons is suﬃcient to invoke the provisions of section
307.642. There was evidence that the accused dealt with not only one blow but two
blows successively with an axe on the head of the victim. It was held that the intention
to cause death could be gathered from the circumstances.643. It is not necessary to
constitute the offence that the attack should result in an injury. An attempt is itself
suﬃcient if there is requisite intention. An intention to murder can be gathered from
circumstances other than the existence or nature of the injury.644.
To attract the offence the injury need not be caused to vital parts.645.
[s 307.2] Whether act committed must be capable of causing death.—
The section makes a distinction between the act of the accused and its result, if any.

The Court has to see whether the act, irrespective of its result, was done with the
intention or knowledge and under circumstances mentioned in the section. Therefore,
an accused charged under section 307 IPC, 1860 cannot be acquitted merely because
the injuries inﬂicted on the victim were in the nature of a simple hurt.646. It is not
essential that bodily injury capable of causing death should have been inﬂicted in order
that the charge under section 307 be made out. It is enough if there is an intention
coupled with some common act in execution thereof.647. In Hari Singh,648. the Supreme
Court added that:
the intention or knowledge of the accused must be such as is necessary to constitute
murder. Without this ingredient being established there can be no offence of attempt to

murder … The intention is to be gathered from all the circumstances, and not merely from
the consequences that ensue.
The nature of the weapon used, the manner in which it is used, motive for the crime,
severity of the blow, and the part of the body where the injury is inﬂicted, are some of
the factors that may be taken into consideration to determine the intention.
[s 307.3] Acting in self-defence.—
The accused alleged that he was attacked by the assailant party. The plea seemed to
the Court to be true because there was no explanation from the prosecution side about
injuries sustained by the accused. The medical papers of the complainant did not
mention the name of the assailant though it was a medico-legal case. The conviction
of the accused for attempt to murder was held liable to be set aside.649.

[s 307.4] Rape on young girl.—
Where the accused took away a girl of four years to a lonely place near a canal,
sexually assaulted her and threw her in the canal, but was saved by a passer-by, his
sentence of three years RI with ﬁne of Rs. 500 under section 307 was raised to seven
years RI and ﬁne of Rs. 1,000.650.
[s 307.5] Simple hurt.—

630.  Subs. by Act 26 of 1955, section 117 and Sch., for transportation for life (w.e.f. 1-1-1956).
631.  Ins. by Act 27 of 1870, section 11.
632.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-1956).
633.  Ins. by Act 12 of 1891, section 2 and Sch II.
634.  M&M 274; Rawal Arab, (1898) Unrep Cr C 964. Lugga Singh v State of Punjab, (2008) Cr LJ
90 (P&H), two accused had altercation with a worker because of offering his labour at low wage,
one of them struck the victim with gandasi at head, there being no such common intention, the
Intention is an essential ingredient of the offence of attempt to murder. Where the
injuries caused were simple in nature and also not on vital parts of the body, the Court
said that the intention for attempt to murder could not be inferred. The Court held that
no offence under section 324 was made out because injuries were caused with a
sharp-cutting weapon.651. Where the accused persons had no common intention to kill

or have knowledge that death was likely to ensue but only intended to vent their ire
against their neighbour for having assaulted their bullocks, when the injuries sustained
by the injured persons were simple in nature, the Supreme Court held the accused
persons cannot be convicted under section 307 r/w 34.652.
[s 307.6] Nature of injuries is not determinative.—
The nature of injuries has been held by the Supreme Court to be not a determinative
factor. The framing of charge was challenged in this case on the ground that the
injuries inﬂicted on the victim were simple in nature and no injury was found on any
vital part of the body. The determinative factor is intention or knowledge and not the
nature of injury.653. The circumstances that the injury inﬂicted by the accused was

simple or minor will not by itself rule out application of section 307, IPC, 1860. The
determinative question is the intention or knowledge, as the case may be, and not
nature of the injury.654.
[s 307.7] Section 307 and Section 326.—
A bare perusal of these two provisions clearly reveals that while section 307 IPC, 1860
uses the words "under such circumstances", these words are conspicuously missing
from section 326 IPC, 1860. Therefore, while deciding whether the case falls under
section 307 IPC, 1860 or under section 326 IPC, 1860 the Court must necessarily
examine the circumstances in which the assault was made. Considering the fact that
the assault was made after some premeditation and pre-planning, considering the fact
that assault was carried out in the dead of the night, considering the nature of the

weapon, used, nature of the injuries caused, obviously, the present case falls under the
ambit of section 307 IPC, 1860 and not under section 326 IPC, 1860. Therefore, the
learned trial Court was certainly justiﬁed in acquitting the appellant for offence under
section 326 IPC, 1860 and in convicting him for offence under section 307 IPC,
1860.655.

non-attacking accused was acquitted. Asharam v State of MP, (2007) 11 SCC 164 [LNIND 2007
SC 534] : AIR 2007 SC 2594 [LNIND 2007 SC 534] , accused ﬂed from the scene taking the
victim to be dead, testimony of injured witness corroborated by medical evidence, conviction
upheld.
635.  Chimanbhai Jagabhai Patel v State of Gujarat, AIR 2009 SC 3223 [LNIND 2009 SC 568] :
(2009) 11 SCC 273 [LNIND 2009 SC 568] .
636.  State of MP v Kedar Yadav, 2011 (1) SCC (Cr) 1008.
637.  Arjun Thakur v State of Orissa, 1994 Cr LJ 3526 (Ori). Hemant Kumar Mondal v State of WB,
1993 Cr LJ 82 (Cal), the accused instigated three persons for committing the offence of murder;
he was guilty of abetment, convicted under sections 307/109. Cr LJ 1340 (Gau), militants,
engaged police in an encounter, presumption of intention to kill. Chhota Master v State of Orissa,
1998 Cr LJ 3185 (Ori), accused persons stabbed the victim in the stomach, intestines came out,

threw him into river from bridge and pelted stones, conviction under sections 307/34 not
interfered with. Balakrishna Tripathy v State of Orissa, 1998 Cr LJ 3591 (Ori), only one accused
allowed to be charged, there was no evidence against others; Hingu v State of UP, 1998 Cr LJ
365 : AIR 1998 SC 198 [LNIND 1997 SC 1528] . Santosh Kumar v State of UP, 1997 under section
307 was held to be made out. Raja v State, 1997 Cr LJ 1863 (Del), injuries with dagger,
serologist's report on blood on dagger not necessary where there was suﬃcient evidence
otherwise to connect the accused with the attempt.; Achhaibar Pd v State of UP, 1997 Cr LJ 2666
: 1997 All LJ 705, the accused ﬁred at police constable at close range, the bullet pierced the

chest through and through, dying declaration, section 307 attracted. Another ruling on the same
facts, Ranveer Singh v State of UP, 1997 Cr LJ 2266 (All), no leniency in punishment. Pulkit
Purbey v State of Bihar, 1997 Cr LJ 2371 (Pat), several injuries of simple nature on non-vital
parts, only one on head, no intention to cause death, conviction under section 326. Sirish
Chandra Paul v State of Assam, 1997 Cr LJ 2617 (Gau), injury on vital part, intention to cause
death, conviction under section 307.
638.  Sumersimbh Umedsinh Rajput v State of Gujarat, (2007) 13 SCC 83 [LNIND 2007 SC 1450] :
AIR 2008 SC 904 [LNIND 2007 SC 1450] : 2008 Cr LJ 1388 .
639.  Pulicherla Nagaraju v State of AP, (2006) 11 SCC 444 [LNIND 2006 SC 621] : AIR 2006 SC

3010 [LNIND 2006 SC 621] : 2006 Cr LJ 3899 ; Mangesh v State of Maharashtra, (2011) 2 SCC
123 [LNIND 2011 SC 20] : AIR 2011 SC 637 [LNIND 2011 SC 20] : 2011 Cr LJ 1166 .
640.  Dharam Pal v State of Punjab, AIR 1993 SC 2484 : 1993 Cr LJ 2856 (SC). Parsuram Pandey v
State of Bihar, AIR 2004 SC 5068 [LNIND 2004 SC 1075] : (2004) 13 SCC 189 [LNIND 2004 SC
1075] , the Supreme Court explained the ingredients of the offence. State of UP v Virendra
Prasad, (2004) 9 SCC 37 [LNIND 2004 SC 138] : AIR 2004 SC 1517 [LNIND 2004 SC 138] , ﬁring
at police from close range, intention clear conviction.
641.  Luxman, (1899) 2 Bom LR 286 . Sagayam v State of Karnataka, AIR 2000 SC 2161 [LNIND
2000 SC 740] : 2000 Cr LJ 3182 , police search of the house of the accused. The latter tried to
assault the police oﬃcer and his staff but they escaped. The accused threatened that he would

kill them. The court said that it was only a threat. The overt act attributed to him did not amount
to attempt to murder. Parveen v State of Haryana, AIR 1997 SC 310 [LNIND 1996 SC 1723] : 1997
Cr LJ 252 , the victim of attack testiﬁed that the accused on being refused glasses for taking
liquor, went to his tractor and came to the hotel with a gun, ﬁred at him, but he was saved as he
stretched to the ground, convicted. Pratap Singh v State, 2001 Cr LJ 3154 (Uttaranchal),
conviction for attempt to murder, injury caused on death with sharp-edged weapon, injury
grievous but short of death. Shankar Lal v State of Haryana, 1998 Cr LJ 4595 : AIR 1998 SC 3271
[LNIND 1998 SC 632] , evidence of victim alone is suﬃcient. Parveen v State of Haryana, AIR
1997 SC 310 [LNIND 1996 SC 1723] : 1997 Cr LJ 252 , offence proved.

642.  Narayan v State of Karnataka, 1998 Cr LJ 1549 (Kant). The accused was also held guilty of
murder because his attack on the son succeeding in killing him, the mother survived in injured
state and became witness. Prakash Chandra Yadav v State of Bihar, (2007) 13 SCC 134 [LNIND
2007 SC 1232] : 2008 Cr LJ 438 , doing of an act with intention or knowledge to cause death is a
necessary ingredient. Receipt of injury by the victim is not a prerequisite for conviction under the
ﬁrst part. The second part is attracted when the victim receives an injury. In a rivalry between
tenderers, two bombs were hurled on the rival, one did not explode, the other exploded, but
victim escaped unhurt. Trial Court convicted the accused. High Court acquitted him because of
no injury. Validity of the judgment on evidence was not considered. Case relegated to HC for
reconsideration. Balmiki Singh v Ramchandra Singh, (2008) 10 SCC 218 [LNIND 2008 SC 1866] :

AIR 2009 SC 377 [LNIND 2008 SC 1866] , Supreme Court did not interfere in the order of
acquittal by the HC because of discrepancies in evidence. Jagdish Murar v State of UP, (2006) 12
SCC 626 [LNIND 2006 SC 648] , allegation of ﬁring a shot not properly investigated, beneﬁt of
doubt given to accused.
643.  Bansidhar Mallick v State of Orissa, 1998 Cr LJ 897 (Ori).
644.  Manik Bandu Gawali v State of Maharashtra, 1998 Cr LJ 2246 (Bom). In Joginder Singh v
State of Punjab, 1998 Cr LJ 2255 (SC), the Supreme Court set aside a conviction which did not
seem to have been based upon a fair investigation. Bir Singh v State of HP, 2006 Cr LJ 2456 : AIR
2006 SC 1944 [LNIND 2006 SC 305] : (2006) 9 SCC 579 [LNIND 2006 SC 305] , incident of
attempted murder took place in police post, information given immediately, injuries

corroborated medical evidence and constable on duty, could not be disbelieved only because
the village Pradhan had turned hostile. Jagdish v State of Haryana, 2005 Cr LJ 3073 : AIR 2005
SC 2576 [LNIND 2005 SC 507] , land dispute, attack on victim with lathi and gandasa,
amputation of arms, conviction under section 307, reducing sentence from 10 years to eight
years RI and ﬁne of Rs. 1 lac.
645.  Anjani Kumar Chaudhary v State of Bihar, 2014 Cr LJ 3798 : 2014 (3) AJR 628 .
646.  State of MP v Kedar Yadav, 2011 (1) SCC (Cri) 1008 [LNIND 2006 SC 1061] ; Ajay v State of
Chattisgarh, 2013 Cr LJ 13409 (Chh); State of MP v Kashiram, (2009) 4 SCC 26 [LNIND 2009 SC
215] : AIR 2009 SC 1642 [LNIND 2009 SC 215] ; Manoj Kumar Mishra v State of Chhattisgarh,
2013 Cr LJ 1487 (Chh); State of Maharashtra v Balram Bama Patil, 1983 (2) SCC 28 [LNIND 1983

SC 40] ; Girija Shanker v State of UP, 2004 (3) SCC 793 [LNIND 2004 SC 154] , R Parkash v State of
Karnataka, JT 2004 (2) SC 348 [LNIND 2004 SC 189] and State of MP v Saleem @ Chamaru, 2005
(5) SCC 554 [LNIND 2005 SC 1070] .
647.  Chhanga v State of MP, AIR 2017 SC 1415 [LNIND 2017 SC 97] .
648.  Hari Singh, (1988) 4 SCC 551 [LNIND 1988 SC 411] : AIR 1988 SC 2127 [LNIND 1988 SC
411] . See also AG Bhagwat v UT Chandigarh, 1989 Cr LJ 214 (P&H), acid thrown on lady
colleague for disﬁguring her, not liable under this section. Ram Kumar v State (NCT) of Delhi, AIR
1999 SC 2259 [LNIND 1999 SC 1277] : 1999 Cr LJ 3522 , accused ﬁred a shot from country-
made pistol. The victim, a near relative, was injured. The act showed the intention of the
accused. Hence, convicted. The sentence was reduced from 10 years RI to seven years RI. Rajan

v State of MP, 2000 Cr LJ 2423 (MP), allegation that accused ﬁred at police party which had
gone into jungle to catch him, nobody was aimed at in the group or individually, ﬁring struck no
body, acquittal. Dnyaneshwar v State of Maharashtra, 2013 Cr LJ 2152 (Bom)— Beneﬁt of doubt
given to the accused.
649.  Rehmat v State of Haryana, AIR 1997 SC 1526 [LNIND 1996 SC 1386] : 1997 Cr LJ 764 .
Nasir Sikander Shaikh v State of Maharashtra, 2005 Cr LJ 2621 : AIR 2005 SC 2533 [LNIND 2005
SC 474] , burden is heavy on the prosecution to prove every ingredient of the offence, the
defence has only to probabilise the material which is there in support of the defence plea. Karan

Singh v State of MP, (2003) 12 SCC 587 [LNIND 2003 SC 840] , the plea of self-defence found to
be not real.
650.  State of Maharashtra v Umesh Krishna Pawar, 1994 Cr LJ 774 (Bom).
651.  Sarjug Turi v State of Bihar, 2003 Cr LJ 2864 (Jhar), conviction was shifted to u/s. 324, the
offence and prosecution being of 17 years long standing, the accused was released on
probation.
652.  Lakshmi Chand v State of UP, AIR 2018 SC 3961 .
653.  Ratan Singh v State of MP, (2009) 12 SCC 585 [LNIND 2009 SC 984] : AIR 2010 SC 597
[LNIND 2009 SC 984] .
654.  State of MP v Kashiram, AIR 2009 SC 1642 [LNIND 2009 SC 215] . Therefore, whether the
injury is simple or grievous in nature hardly matters to invoke the provisions of section 307. Sk
Khaja Sk Dawood v State of Maharashtra, 2011 Cr LJ 1150 (Bom).
655.  Pooran Singh Seera Alias Pooran Meena v State of Rajasthan, 2011 Cr LJ 2100 (Raj);
Raghunath v State By Police of Vijayapura Police Station, 2011 Cr LJ 549 (Kar); Neelam Bahal v

State of Uttarakhand, AIR 2010 SC 428 [LNIND 2009 SC 2056] : (2010) 2 SCC 229 [LNIND 2009
SC 2056] .

[s 308] Attempt to commit culpable homicide.
Whoever does any act with such intention or knowledge and under such
circumstances that, if he by that act caused death, he would be guilty of culpable
homicide not amounting to murder, shall be punished with imprisonment of either
description for a term which may extend to three years, or with ﬁne, or with both; and,
if hurt is caused to any person by such act, shall be punished with imprisonment of
both.
A, on grave and sudden provocation, ﬁres a pistol at Z, under such circumstances that
if he thereby caused death he would be guilty of culpable homicide not amounting to
murder. A has committed the offence deﬁned in this section.
COMMENT.—
The wording of this section is the same as that of the preceding one except that it

COMMENT.—
deals with an attempt to commit culpable homicide. The punishment provided is,
therefore, not so severe. Before an accused can be held to be guilty under section 308
IPC, 1860 it was necessary to arrive at a ﬁnding that the ingredients thereof, namely,
requisite intention or knowledge was existing.656. When the accused can be attributed
only knowledge that by inﬂicting such injuries he was likely to cause death and an
attempt to commit such an offence would be one punishable under section 308 IPC,
1860.657.
[s 308.1] Nature of injury.—
Whether the injury was grievous or simple deserved a back seat in face of the charge
under section 308/34 IPC, 1860. Offence punishable under section 308 IPC, 1860
postulates doing of an act with such intention or knowledge and under such
circumstances that if one by that act caused death, he would be guilty of culpable

homicide not amounting to murder. An attempt of that nature may actually result in
hurt or may not. It is the attempt to commit culpable homicide which is punishable
under section 308 IPC, 1860 whereas punishment for simple hurts can be meted out
under sections 323 and 324 and for grievous hurts under sections 325 and 326 IPC,
1860. Qualitatively, these offences are different.658.
[s 308.2] Self-defence.—
Merely because the prosecution witnesses had suffered more injuries than the
respondents, would not be suﬃcient to hold that the respondents were the aggressor
party. In other words, the defence version cannot be discarded only on the basis of

656.  Bishan Singh v State, AIR 2008 SC 131 [LNIND 2007 SC 1178] : (2007) 13 SCC 65 [LNIND
2007 SC 1178] ; Sheetala Prasad v Sri Kant, (2010) 2 SCC 190 [LNIND 2009 SC 2121] : AIR 2010
SC 1140 [LNIND 2009 SC 2121] .
657.  Tukaram Gundu Naik v State of Maharashtra, (1994) 1 SCC 465 [LNIND 1993 SC 820] : 1994
Cr LJ 224 .
658.  Sunil Kumar v NCT Delhi, (1998) 8 SCC 557 : 1998 SCC (Cr) 1522.
659.  State of UP v Munni Ram, (2011) 3 SCC (Cr) 745 : AIR 2011 SC (Supp) 573.
660.  Shaukat v State of Uttaranchal, (2010) 5 SCC 68 [LNIND 2010 SC 387] : 2010 Cr LJ 4310 :
(2010) 2 SCC (Cr) 1238.
661.  Lakhan v State of MP, (2013) 1 SCC 363 [LNIND 2012 SC 796] .
662.  State v Ravindra Singh, 2013 Cr LJ 2874 (Utt). See also Jameel v State of UP, (2010) 12 SCC
532 [LNIND 2009 SC 1960] : AIR 2010 SC (Supp) 303.
lesser number of injuries having been suffered by them. Appeal against acquittal
dismissed.659. On the facts and in the circumstances of the case, the Supreme Court

found that plea of self-defence was not made out by the appellant and, therefore,
contention that the ﬁnding recorded by the High Court that he was guilty under section
304, Part-I IPC, 1860 for causing death of the deceased and under section 308, IPC,
1860 for causing injuries to Rahmat should be sustained cannot be accepted.660.
[s 308.3] Sentence.—
Trial Court convicted accused under section 308 r/w 149 and sentenced them to three
years RI and ﬁne of Rs. 500 each. The High Court conﬁrmed the conviction and
sentence. The Supreme Court modiﬁed the sentence by reducing the imprisonment to
one year and increased the ﬁne amount to Rs. 25,000.661. Accused was convicted
under section 308, IPC, 1860. Offence was committed when the accused was 17 years
old. High Court released him under section 4 of Probation of Offenders Act, 1958.662.

[s 309] Attempt to commit suicide.
Whoever attempts to commit suicide and does any act towards the commission of
such offence, shall be punished with simple imprisonment for a term which may
extend to one year 663.[or with ﬁne, or with both].
COMMENT.—
one time it was a felony in England.664. It is a unique legal phenomenon in the IPC,
1860 that the only act, the attempt of which alone will become an offence. The person
who attempts to commit suicide is guilty of the offence under section 309 IPC, 1860
whereas the person who committed suicide cannot be reached at all. Section 306
renders the person who abets the commission of suicide punishable for which the
condition precedent is that suicide should necessarily have been committed.665.
The act done must be in the course of the attempt, otherwise no offence is committed.

Where a woman with the intention of committing suicide by throwing herself in a well,
actually ran towards it, when she was seized by a person, it was held that she might
have changed her mind, and she was caught before she did anything which might have
been regarded as the commencement of the offence.666. Her act simply amounted to
preparation. The pounding of oleander roots with an intention to poison oneself with
the same was held not to constitute this offence.667. Where the accused jumped into a
well to avoid and escape from police, and when rescued he came out of the well of his
own accord, it was held that, in the absence of evidence that he jumped into the well to
commit suicide, he could not be convicted of this offence.668. A village woman of 20
years old was ill-treated by her husband. There was a quarrel between the two, and the

husband threatened that he would beat her. Late that night the woman, taking her six
months' old baby in her arms, slipped away from the house. After she had gone some
distance she heard somebody coming up behind her, and when she turned round and
saw her husband pursuing her, she got into a panic and jumped down a well nearby
with the baby in her arms. The result was that the baby died but the woman recovered.
One of the charges against her was attempt to commit suicide. It was held that she
should not be convicted under this section of an attempt to commit suicide, for the
word "attempt" connotes some conscious endeavour to accomplish the act, and the
accused in jumping down the well was not thinking at all of taking her own life but only
of escaping from her husband.669. If a person openly declares that he will fast to death

and then proceeds to refuse all nourishment until the stage is reached when there is
imminent danger of death ensuing, he can be held guilty under this section but when
the evidence falls short of this, it cannot be said to be suﬃcient to sustain the
charge.670. A woman who had been suffering from chronic incurable disease retired to
bed with her one and a half-year-old child but was found with the child inside a well
about 200 feet away from her house in the early morning of the next day when they
were both taken out of the well, it was found that though the woman was alive the child
had died. On being prosecuted under sections 302 and 309 IPC, 1860, she denied

having jumped into the well. She further pleaded that she was too ill and there was
something wrong with her brain. The trial Judge did not give her the beneﬁt of section
84 IPC, 1860 and convicted her of both the offences charged. In acquitting her the High
Court of Bombay held that in the absence of any evidence that she deliberately jumped
into the well along with the child, she could not be convicted merely on the basis of
imagination or denied the beneﬁt of section 84 IPC, 1860. In any case, the Judge
should have given her the beneﬁt of doubt.671. Moreover, suspicion however strong is
not proof.672. Where a desolate woman jumped into a well with her two children and
was released with admonition for the offence under section 309 but was sentenced to
imprisonment for three months for the offence under section 307 IPC, 1860, the
Supreme Court directed that she should also be released with admonition for the
offence under section 307 IPC, 1860.673. Witness clearly stated that deceased was

shouting, pleading with the accused to not kill her, when accused gave sword blows to
her. There is no material available to establish that deceased volunteered herself for
death — Exception 5 to section 300 could not be invoked. Conviction and sentence, as
recorded by trial Court under sections 302 and 309 of IPC, 1860 against appellant was
held proper.674.
[s 309.1] Voluntary termination of life.—
A person cannot claim his own life by saying that he had led a successful life and the
mission of his life was fulﬁlled. It would amount to suicide as it would attract the
provisions of sections 306 and 309. The Court said that no distinction could be made
between suicide as ordinarily understood and the right to voluntarily put an end to one's
life.675.
[s 309.2] Fast-unto-death.—

life.675.
Where a person commenced fast-unto-death for certain demands but even before his
demands were conceded, he chose to get himself treated medically without protest, it
was held that the mens rea to destroy himself was absent and it could not be said that
he attempted to commit suicide.676.
[s 309.3] Constitutional validity of section 309.—
In P Rathinam v UOI,677.,678. the constitutional validity of section 309 was challenged
and the Supreme Court observed that the provision punishing attempt to commit
suicide is cruel and irrational and is violative of Article 21 of the Constitution and it
deserves to be effaced from the statute book to humanalise penal laws. It added that
the act of attempted suicide has no baneful effect on society and it is also not against
religion, morality or public policy, besides suicide or attempt to commit it causes no
harm to others.

This decision was subsequently reversed and it has been held again that the provision
for penalising attempt to commit suicide and abetment of suicide is not
unconstitutional.679.
The Constitution Bench in a subsequent decision in Gian Kaur v State of Punjab680. and
other connected matters has overruled the view taken in the case of P Rathinam681.
that section 309 IPC, 1860 is constitutionally invalid. It was held that, on the facts
which are not only proved but are also admitted by A1 the acquittal of A1 under section

309, IPC, 1860 has to be set aside and he will have to be convicted under that
section.682.
[s 309.4] The Mental Healthcare Act, 2017
Parliament has now enacted the Mental Healthcare Act, 2017 which vide section 115
lays down that:
(1) Notwithstanding anything contained in section 309 of the Indian Penal Code any
person who attempts to commit suicide shall be presumed, unless proved otherwise, to
have severe stress and shall not be tried and punished under the said Code.
(2) The appropriate Government shall have a duty to provide care, treatment and
rehabilitation to a person, having severe stress and who attempted to commit suicide,
to reduce the risk of recurrence of attempt to commit suicide.
In view of the above provisions, if a person attempts to commit suicide, it shall be
presumed, unless proved otherwise, that he has severe stress and he shall not be tried
and punished under section 309 of the IPC, 1860. By inverting the presumption against

guilt but retaining the provision in the statute book, attempt to suicide is still a criminal
offence. In order to render conviction, prosecution will be required to lead evidence and
prove that the survivor did not have severe stress and did not suffer any issue of
mental health.
[s 309.5] Euthanasia.—
(abetment to suicide). The Constitution Bench in Gian Kaur v State of Punjab,683. held
that both euthanasia and assisted suicide are not lawful in India which overruled the
two Judge Bench decision of the Supreme Court in P Rathinam v UOI.684. The Court
held that the right to life under Article 21 of the Constitution does not include the right

to die. But in Aruna Ramchandra Shanbaug v UOI,685. the Supreme Court held that
passive euthanasia can be allowed under exceptional circumstances under the strict
monitoring of the Court. The difference between 'active' and passive' euthanasia is that
in active euthanasia something is done to end the patient's life while in passive
euthanasia, something is not done that would have preserved the patient's life. It is
usually deﬁned as withdrawing medical treatment with a deliberate intention to causing
the patient's death. In Common Cause (A Regd. Society) v UOI,686. a ﬁve-judge
Constitution Bench gave legal sanction to passive euthanasia, permitting 'living will' by
patients on withdrawing medical support if they slip into irreversible coma. The
Supreme Court held that the right to die with dignity is a fundamental right.

[s 309.6] Procedure for passive euthanasia.—
Article 226 gives abundant power to the High Court to pass suitable orders on the
application ﬁled by the near relatives or next friend or the doctors/hospital staff praying
for permission to withdraw the life support to an incompetent person of the kind above
mentioned. When such an application is ﬁled the Chief Justice of the High Court should
forthwith constitute a Bench of at least two Judges who should decide to grant
approval or not. Before doing so the Bench should seek the opinion of a committee of

663.  Subs. by Act 8 of 1882, section 7, for "and shall also be liable to ﬁne".
664.  Gangula Mohan Reddy v State of AP, AIR 2010 SC 327 [LNIND 2010 SC 3] : (2010) 1 SCC
327 ; Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC 653] : AIR 1996 SC 946
665.  Satvir Singh v State of Punjab, (2001) 8 SCC 633 [LNIND 2001 SC 2168] : 2001 Cr LJ 4625 .
666.  Ramakka, (1884) 8 Mad 5.
667.  Tayee, (1883) Unrep Cr C 188.
668.  Dwarka Poonja, (1912) 14 Bom LR 146 [LNIND 1912 BOM 6] .
669.  Dhirajia, (1940) All 647 .
670.  Ram Sunder, AIR 1962 All 262 [LNIND 1961 ALL 65] .
671.  Phulabai, 1976 Cr LJ 1519 (Bom).
672.  Brij Bhusan Singh, AIR 1946 PC 38 .
673.  Radharani, 1981 Cr LJ 1705 (SC) : AIR 1981 SC 1776 (2) : 1981 (Supp) SCC 84. Rukhmina
Devi v State of UP, 1989 Cr LJ 548 (All), mother locked herself up with her son after altercation
with family. She killed the child and then attempted suicide. Convicted under this section and

section 300 with a remark that because her husband had also rejected her and she was the
victim of rage, her sentence might be remitted by the State. For a case in which the
circumstances ruled out the possibility of suicide, see Subedar Tewari v State of UP, AIR 1989 SC
three reputed doctors to be nominated by the Bench after consulting such medical
authorities/medical practitioners as it may deem ﬁt. Preferably one of the three doctors
should be a neurologist, one should be a psychiatrist, and the third a physician. For this
purpose a panel of doctors in every city may be prepared by the High Court in
consultation with the State Government/Union Territory and their fees for this purpose
may be ﬁxed. The committee of three doctors nominated by the Bench should carefully

examine the patient and also consult the record of the patient as well as taking the
views of the hospital staff and submit its report to the High Court Bench.
Simultaneously with appointing the committee of doctors, the High Court Bench shall
also issue notice to the State and close relatives, e.g., parents, spouse,
brothers/sisters, etc., of the patient, and in their absence his/her next friend, and supply
a copy of the report of the doctor's committee to them as soon as it is available. After
hearing them, the High Court bench should give its verdict. The above procedure
should be followed all over India until Parliament makes legislation on this subject.687.
[s 309.7] Abetment of attempt to commit Suicide.—

attempt to commit suicide. The history of use of the provisions of section 309 shows
that the section has been pressed into service primarily in the case of Sati, where the
widow commits suicide and others have various reasons – economic and social, to
abet such hapless woman to commit suicide. If a hapless Sati victim is goaded to
commit suicide and the abetters abet her to jump into the funeral pyre of her husband,
it would be preposterous for law to hold the abetters not guilty of any offence merely
because she escapes or is saved from death later.688.

733 : 1989 Cr LJ 923 : 1989 (Supp) SCC 91. Kavita v State of TN, AIR 1998 SC 2473 [LNIND 1998
SC 642] : 1998 Cr LJ 3624 no proof that the woman threw her children into the well and then
herself jumped into it to commit suicide. Conviction set aside. Ram Kumar v State of Gujarat, AIR
1998 SC 2732 [LNIND 1998 SC 772] : 1998 Cr LJ 4048 the deceased-woman and her accused
husband were alone in the house. There was ligature mark on her neck. Her body was on a cot
and not hanging. The court said that the theory of suicide became demolished and that of
murder could be inferred. State of Maharashtra v Maruti; State of UP v Sikandar Ali, 1998 Cr LJ
2520 : AIR 1998 SC 1862 [LNIND 1998 SC 1231] double murder, conviction. Death penalty not
warranted, life imprisonment. State of HP v Jeet Singh, AIR 1999 SC 1293 : 1999 Cr LJ 2025 ,
whether death was homicidal or suicidal, injuries found on both leg of the dead body on the
basis of which the doctor stated that death might have been due to smothering. This opinion

was formed without chemical examiner's report. The ﬁnding of the High Court that the
deceased might have committed suicide was held liable to be set aside.
674.  Narendra v State of Rajasthan, 2012 Cr LJ 723 (Raj); Ujwala Sonyabapu Bhujade v State of
Maharashtra, 2011 Cr LJ 1791 (Bom)— offences under sections 302 and 309 IPC, 1860 not
proved.
675.  CA Thomas Master v UOI, 2000 Cr LJ 3729 (Ker).
676.  Ramamoorthy v State of TN, 1992 Cr LJ 2074 (Mad). Banwarilal Sharma v State of UP,
(1998) 3 SCC 604 : JT 1998 (4) SC 466 ; Balamani v State, 2010 (4)Ker LT 329 .
677.  Jagadeeswar v State of AP, 1988 Cr LJ 549 approved and Dubal v State of Maharashtra,
1987 Cr LJ 743 overruled. The court also noted the distinction between suicide and euthanasia
and section 306 and section 309.
678.  P Rathinam v UOI, 1994 Cr LJ 1605 .

679.  Gian Kaur v State of Punjab, 1994 Cr LJ 1660 (SC), the decision of Division Bench in P
Rathinam v UOI, 1994 AIR SCW 1764 : (1994) 3 SCC 394 [LNIND 1994 SC 1533] : 1994 Cr LJ
1605 : AIR 1994 SC 1844 [LNIND 1994 SC 1533] overruled by Constitution Bench.
680.  Supra.
681.  Supra.
682.  Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC
683.  Gian Kaur v State of Punjab, 1996 (2) SCC 648 [LNIND 1996 SC 653] .
684.  P Rathinam v UOI, AIR 1994 SC 1844 [LNIND 1994 SC 1533] : 1994 (3) SCC 394 [LNIND
685.  Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC
686.  Common Cause (A Regd. Society) v UOI, LNIND 2018 SC 87 .
687.  Aruna Ramchandra Shanbaug v UOI, (2011) 4 SCC 454 [LNIND 2011 SC 265] : AIR 2011 SC

688.  Berin P Varghese v State of Kerala, 2008 Cr LJ 1759 .

[s 310] Thug.
Whoever, at any time after the passing of this Act, shall have been habitually
associated with any other or others for the purpose of committing robbery or child-
stealing by means of or accompanied with murder, is a thug.
COMMENT.—
This and the following section incorporate the provisions of the Thuggee Act of 1836.

[s 311] Punishment.
Whoever is a thug shall be punished with 689.[imprisonment for life], and shall also be
689.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-1956).
COMMENT.—
Gangs of persons habitually associated for the purpose of inveigling and murdering
travellers or others in order to take their property, etc., are called thugs. Thugs are
robbers and dacoits, but all robbers and dacoits are not thugs. Thugs committed
robbery or dacoity or kidnapping are always accompanied with murder. Killing of the
victim was the essential thing (still in MP & UP ravines).

Of the Causing of Miscarriage, of Injuries to unborn Children, of the
Exposure of Infants, and of the Concealment of Births.
[s 312] Causing miscarriage.
Whoever voluntarily causes a woman with child1 to miscarry, shall, if such
miscarriage2 be not caused in good faith for the purpose of saving the life of the
woman, be punished with imprisonment of either description for a term which may
extend to three years, or with ﬁne, or with both; and, if the woman be quick with
child,3 shall be punished with imprisonment of either description for a term which
E x p l a n a t i o n .—A woman who causes herself to miscarry, is within the meaning of this
section.
COMMENT.—
This section deals with the causing of miscarriage with the consent of the woman,
while the next section deals with the causing of miscarriage without such consent.

section.
COMMENT.—
The Medical Termination of Pregnancy Act, 1971 (34 of 1971) provides for the
termination of pregnancy by registered medical practitioners where its continuance
would involve a risk to the life of the pregnant woman or grave injury to her physical or
mental health or where there is a substantial risk that if the child was born, it would
suffer from such physical or mental abnormalities as to be seriously handicapped.
Where the pregnancy is alleged to have been caused by rape or as a result of failure of
a contraceptive used by a married woman or her husband, it would be presumed to
constitute a grave injury to the mental health of the pregnant woman. The termination
of a pregnancy by a person who is not a registered medical practitioner will be an

offence under the IPC, 1860, which to that extent is modiﬁed. It is high time that this
section too was suitably amended in terms of Medical Termination of Pregnancy Act,
1971 (34 of 1971) to include the various other grounds on account of which a
pregnancy can now be terminated by registered medical practitioner. In this connection
see also comment under section 91 ante. The Medical Termination of Pregnancy Act,
1971 does not empower the husband, far less his relations, to prevent the concerned
woman from causing abortion if her case is covered under section 3 of that Act. Under
section 312 of the IPC, 1860 causing miscarriage is a penal offence. Relevant civil law
has since been embodied in the Act legalising termination of pregnancy under certain
circumstances. Since law is liberal for effecting such termination, the Act does not lay

down any provision on husband's consent in any situation.690.
1. 'With child' means pregnant, and it is not necessary to show that 'quickening', that is,
perception by the mother of the movements of the foetus, has taken place or that the
embryo has assumed a foetal form, the stage to which pregnancy has advanced and
the form which the ovum or embryo may have assumed are immaterial. Where a

690.  Dr Mangla Dogra v AK Malhotra, AIR 2012 CC 1401 : 2012 (3) Ker LT (SN) 124 (P&H).
691.  Ademma, (1886) 9 Mad 369.
692.  Meeru Bhatia Prasad v State, 2002 Cr LJ 1674 (Del).
693.  Akhil Kumar v State of MP, 1992 Cr LJ 2029 (MP). Mohamed Sharif v State of Orissa, 1996
Cr LJ 2826 (Ori) termination under medical advice, death not caused, the accused not liable.
694.  State of Maharashtra v Flora Santuno Kutino, 2007 Cr LJ 2233 (Bom).
woman was acquitted on a charge of causing herself to miscarry, on the ground that
she had only been pregnant for one month and that there was nothing which could be
called foetus or child, it was held that the acquittal was bad in law.691.
A woman quick with a child simply means a particular stage of pregnancy at which
quickening takes place. It is a perception of the woman of the movement of foetus.
Section 312 can even apply to a pregnant woman herself who causes her own
miscarriage. Good faith by itself is not enough. It has to be good faith for the purpose

of saving the life of the mother or the child and not otherwise. This observation of the
High Court of Delhi occurs in a case692. in which the doctor was found to be negligent
and careless in injecting needles twice for performing abdominocentesis. The result
was that the patient had to undergo forced abortion because septic developed. There
was consent only for one insertion and that was not at all applicable to second
insertion.
2. 'Miscarriage' is the premature expulsion of the child or foetus from the mother's
womb at any period of pregnancy before the term of gestation is completed.
[s 312.1] Death in attempt to terminate pregnancy.—
A woman had pregnancy of 24 weeks out of illicit relations and a doctor administered
an injection for termination of the pregnancy but the woman died the next day without

miscarriage. It was held that the act of the doctor amounted to 'voluntarily causing
miscarriage' within the meaning of section 312 read with section 511, as the doctor
was presumed to know the possible effects of the medicine.693. Deceased, an
unmarried girl was pregnant from accused, she died while causing miscarriage due to
perforation of uterus following abortion. It is a clear case that accused was
instrumental in causing the woman to miscarry and obviously it was not done in good
faith for purpose of saving life of deceased. Miscarriage was with a view to wipe out
evidence of deceased being pregnant. Accused liable to be convicted under sections
312, 315, 316 and 201 of IPC, 1860.694.
3. 'Quick with child'.—Quickening is the name applied to peculiar sensations
experienced by a woman about the fourth or ﬁfth month of pregnancy.

[s 313] Causing miscarriage without woman's consent.
Whoever commits the offence deﬁned in the last preceding section without the
consent of the woman, whether the woman is quick with child or not, shall be
punished with 695.[imprisonment for life], or with imprisonment of either description
695.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-1956).
696.  Tulsi Devi v State of UP, 1996 Cr LJ 940 (All).
697.  Shantaram Krishna Karkhandis v State of Maharashtra, 2007 Cr LJ 149 (Bom). See also
Pranab Kanti Sen v State of WB, 2010 Cr LJ 162 (Cal).
COMMENT.—
Under this section the act should have been done without the consent of the woman.

COMMENT.—
Under it the person procuring the abortion is alone punished; under section 312 such
person as well as the woman who causes herself to miscarry are both punished. Where
the accused woman kicked a pregnant woman in her abdomen resulting in miscarriage,
her conviction under section 313 was sustained.696.
[s 313.1] CASES.—
Section 313 would be attracted only if it is established that the pregnancy is terminated
without the consent of the prosecutrix.697.

[s 314] Death caused by act done with intent to cause miscarriage—.
Whoever, with intent to cause the miscarriage of a woman with child, does any act
which causes the death of such woman, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be liable to
ﬁne,
if act done without woman's consent.
And if the act is done without the consent of the woman, shall be punished either
with 698.[imprisonment for life], or with the punishment above mentioned.
E x p l a n a t i o n . —  It is not essential to this offence that the offender should know that
the act is likely to cause death.
COMMENT.—
This section provides for the case where death occurs in causing miscarriage. The act

COMMENT.—
of the accused must have been done with intent to cause the miscarriage of a woman
with child.
[s 314.1] CASES.—
The son-in-law of a pregnant woman left her at the house of the accused doctor. Her
dead body was recovered from the place where it was buried in the accused's house. It
was in a decomposed state. The accused made extra-judicial confessions to three
different persons to the effect that the death took place during abortion. Circumstantial
evidence also proved this fact beyond reasonable doubt. His conviction under the
section was conﬁrmed as also the ﬁve-year RI sentence, but ﬁne was set aside.699. A
homeopath operated upon a pregnant woman to cause abortion but she died a few
hours after operation because her uterus got perforated. His conviction under section
314 was upheld.700. A nurse attempted to cause miscarriage of a pregnant girl but was

unsuccessful. On the third day another person, the accused, an attendant, made an
attempt and succeeded but the condition of the girl became serious after ﬁve days.
She was hospitalised and died of septicaemia which had developed from ruptures and
tears in the internal parts of vagina. There was no evidence to show that ruptures and
tears had occurred at the hands of the accused. It was held that his conviction under
section 314 was not proper.701.
A person, named, C, was alleged to have had illicit relations with the deceased woman.
He took her to a doctor for the purpose of aborting her pregnancy. The doctor caused

698.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-1956).
699.  Moideen Sab v State of Karnataka, 1993 Cr LJ 1430 (Kant).
700.  Jacob George v State of Kerala, 1994 Cr LJ 3851 : (1994) 3 SCC 430 [LNIND 1994 SC 417] .
701.  Vatchhalabai Maruti Kshirsagar v State of Maharashtra, 1993 Cr LJ 702 (Bom).
702.  Surendra Chauhan v State of MP, AIR 2000 SC 1436 [LNIND 2000 SC 515] : 2000 Cr LJ 1789
; Telenga Munda v State of Bihar, 2001 Cr LJ 3094 (Pat), the pregnant girl was taken to a doctor
who operated crudely causing rupture of big vessels resulting in death, abortion stick was also
found in her internal part, the doctor did not inform police, direct nexus between his act and
death, conviction of the doctor proper.
703.  Mahesh Govindbhai Barot v State of Gujarat, 2009 Cr LJ 3535 (Guj).
her death in that process. The doctor was not qualiﬁed for the purpose, nor his clinic
was approved by the Government under the Medical Termination of Pregnancy Act,

1971 and was also not having the basic facilities for abortion. There was a concurrent
ﬁnding that the act was done by the doctor in furtherance of the common intention with
C. It was held that the conviction of C under this section read with section 34 was
proper.702.
[s 314.2] Section 313 and Section 314.—
Ingredients for both these offences are contra-indicative and cannot go together. When
conviction is recorded under section 304-A, it pre-supposes a negligent act, which
would rule out any intentional act; whereas the conviction for offences under sections
313 and 314 can be founded only on intentional act of the accused and not negligence.
Presence of mens rea would be sine qua non in such a situation. The trial Court,
therefore, apparently erred in recording conviction of the appellants for offences

punishable under sections 304-A and 313 and 314 of IPC, 1860.703.

[s 315] Act done with intent to prevent child being born alive or to cause it to
die after birth.
Whoever before the birth of any child does any act with the intention of thereby
preventing that child from being born alive or causing it to die after its birth, and does
by such act prevent that child from being born alive, or causes it to die after its birth,
shall, if such act be not caused in good faith for the purpose of saving the life of the
mother, be punished with imprisonment of either description for a term which may
extend to ten years, or with ﬁne, or with both.
COMMENT.—
Any act done with the intention here mentioned which results in the destruction of the
child's life, whether before or after its birth, is made punishable. So far as offence

COMMENT.—
punishable under section 315 of the IPC, 1860 is concerned, the offence is committed
by a person who before the birth of any child does any act with the intention of thereby
by such act prevent that child from being born alive, or causes it to die after its birth, if
such act be not caused in good faith for the purpose of saving the life of the
mother.704. Cognizance taken of the offence under section 315 of IPC, 1860 and the
charge framed therein against the petitioner are also not maintainable in view of the
fact that no documentary evidence could be collected in course of investigation in
support of the allegation that the pregnancy of the prosecutrix was terminated at the

instance of the petitioner. She was even not medically examined by the Doctor or the
Board of Doctors and there is no medical report in support of the allegation that her
pregnancy was ever terminated at any earlier point of time. As the alleged offence
under section 315 of the IPC, 1860 relates to termination of pregnancy, such offence
may be supported through the medical opinion of the registered practitioner and for
want of such prima facie material charge cannot be framed in such section, accordingly
the cognizance cannot be taken for the offence under section 315 of the IPC, 1860.705.
Intention is one of the major ingredients of sections 315. Wording of section 315 of the
IPC, 1860 itself shows that whoever before the birth of any child does any act with the

intention of thereby preventing that child from being born alive or causing it to die after
its birth, and does by such act prevent that child from being born alive, or causes it to
die after its birth, shall, if such act be not caused in good faith for the purpose of saving
the life of the mother be punished with imprisonment. In this case the patient was
admitted for delivery. During course of delivery there was rupture of uterus which led to
bleeding and subsequent death of the patient and the child. So, it is not case of any
prosecution witness that the respondent deliberately committed offence punishable
under section 315 of the IPC, 1860.706.

704.  State of Maharashtra v Rajendra Ramkisan Jaiswal, 2010 Cr LJ 3603 (Bom).
705.  Girish Kumar Sharan v State of Jharkhand, AIR 2010 Cr LJ 4215 (Jhar).
706.  State of Maharashtra v Rajendra Ramkisan Jaiswal, 2010 Cr LJ 3603 (Bom)

[s 316] Causing death of quick unborn child by act amounting to culpable
homicide.
Whoever does any act under such circumstances, that if he thereby caused death he
would be guilty of culpable homicide, and does by such act cause the death of a quick
unborn child, shall be punished with imprisonment of either description for a term
A, knowing that he is likely to cause the death of a pregnant woman does an act which,
if it caused the death of the woman would amount to culpable homicide. The woman is
injured, but does not die; but the death of an unborn quick child with which she is
pregnant is thereby caused. A is guilty of the offence deﬁned in this section.
COMMENT.—

COMMENT.—
This section punishes offences against children in the womb where the pregnancy has
advanced beyond the stage of quickening and where the death is caused after the
quickening and before the birth of the child. Any act or omission of such a nature and
done under such circumstances as would amount to the offence of culpable homicide,
if the sufferer were a living person, will, if done to a quick unborn child whose death is
caused by it, constitute the offence here punished.
Unless the act is done against the mother with an intention or with a knowledge which
brings it within the purview of section 299, it cannot constitute an offence under this
section merely because the death of a quick unborn child has resulted from an act
against the mother.707. A husband striking his wife dead was held guilty of the offence

under this section. The medical evidence showed that she was carrying a male child of
20 weeks. A foetus gets life after 12 weeks of conception.708.
The principle laid down in section 301 is again applied here.
[s 316.1] Charge.—
The trial Court did not frame charge against accused no. 3 for the offence under
section 312 of the IPC, 1860 but that will not come in the way in convicting him for the
offence under section 312, IPC, 1860. Because the offences from sections 312 to 318
are of similar nature, type and category, they are all relating to miscarriage. Secondly,
the punishment prescribed under section 312 is not higher than the maximum
punishment prescribed under section 316. Because the punishment prescribed is up to

707.  Jabbar, AIR 1966 All 590 [LNIND 1980 MAD 327] .
708.  Murugan v State of TN, 1991 Cr LJ 1680 (Mad).
709.  State of Maharashtra v Flora Santuno Kutino, 2007 Cr LJ 2233 (Bom).
10 years if the act causes death of quick unborn child. The maximum punishment
prescribed under section 312 is seven years if the woman be quick with child.709.

[s 317] Exposure and abandonment of child under 12 years of age, by parent or
person having care of it.
Whoever being the father or mother of a child under the age of twelve years, or having
the care of such child, shall expose or leave such child in any place with the intention
of wholly abandoning such child, shall be punished with imprisonment of either
description for a term which may extend to seven years, or with ﬁne, or with both.
E x p l a n a t i o n . — This section is not intended to prevent the trial of the offender for
murder or culpable homicide, as the case may be, if the child dies in consequence of
the exposure.
COMMENT.—
This section is intended to prevent the abandonment or desertion by a parent of his or

COMMENT.—
her children of tender years, in such a manner that the children, not being able to take
care of themselves, may run the risk of dying or being injured. It does not apply when
children are left under the care of others.710. It applies where a child is exposed and no
death supervenes; if, however, death follows, the conviction must be under section
304.711. The offence is complete notwithstanding that no actual danger or risk of
danger arises to the child's life.
[s 317.1] Ingredients.—
The section requires three essentials—
(1) The person coming within its purview must be father or mother or must have the
care of the child.
(2) Such child must be under the age of 12 years.
(3) The child must have been exposed or left in any place with the intention of
wholly abandoning it.

710.  Felani Hariani, (1871) 16 WR (Cr) 12; Mussumat Khairo, (1872) PR No. 33 of 1872;
Mussamat Bhagan, (1878) PR No. 4 of 1879.
711.  Banni, (1879) 2 All 349 .

[s 318] Concealment of birth by secret disposal of dead body.
Whoever, by secretly burying or otherwise disposing of the dead body of a child
whether such child die before or after or during its birth, intentionally conceals or
endeavours to conceal the birth of such child, shall be punished with imprisonment of
COMMENT.—
This section is intended to prevent infanticide. It is directed against concealment of
birth of a child by secretly disposing of its body.
[s 318.1] Ingredients.—
(1) Secret burying or otherwise disposing of the dead body of a child.
(2) It is immaterial whether such child dies before or after or during its birth.

(3) Intention to conceal the birth of such child by such secret burying or disposal.
Simple
Hurt
Grievous
Of Hurt
Aggravated forms
1. By dangerous weapons.
2. To extort property or to constrain to do
illegal act.
3. By means of poison to commit offence.
4. To extort confession, or to compel
restoration of property.
5. To deter public servant from his duty.

[s 319] Hurt.
Whoever causes bodily pain, disease or inﬁrmity to any person is said to cause hurt.
COMMENT.—
The authors of the Code say:
Many of the offences which fall under the head of hurt will also fall under the head of
assault. A stab, a blow which fractures a limb, the ﬂinging of boiling water over a person, are
assaults, and are also acts which cause bodily hurt. But bodily hurt may be caused by many
acts which are not assaults. A person, for example, who mixes a deleterious potion, and
places it on the table of another; a person who conceals a scythe in the grass on which
another is in the habit of walking; a person who digs a pit in a public path, intending that
another may fall into it, may cause serious hurt, and may be justly punished for causing

such hurt; but they cannot, without extreme violence to language, be said to have committed
assaults. We propose to designate all pain, disease and inﬁrmity by the name of hurt.712.
The deﬁnition of hurt appears to contemplate the causing of pain, etc., by one person
to another. Pulling a woman by the hair was held to be this offence.713.
[s 319.1] Act neither intended nor likely to cause death is hurt even though
death is caused.—
Where there is no intention to cause death nor knowledge that death is likely to be
caused from the harm inﬂicted, and death is caused, the accused would be guilty of
hurt only if the injury caused was not serious. Where the accused with a view to
chastising her daughter, eight or 10 years old, for impertinence, gave her a kick on the

back and two slaps on the face, the result of which was death, it was held that she was
guilty of voluntarily causing hurt.714. Where in course of a sudden quarrel the accused
hit his friend on his head with a stick weighing only 210 grams which unfortunately
proved fatal, it was held that no knowledge of death could be ascribed to him. His
conviction was accordingly changed to one under section 323, IPC, 1860.715.
[s 319.2] Poisoned sweetmeats.—
A boy of about 16 years of age, being in love with a girl some three or four years
younger, and apparently intending to administer to her something in the nature of a love
philtre, induced another boy younger than himself to give the girl some sweetmeats.
The girl and some of the other members of her family ate the sweetmeats and all the

persons who partook of them were seized with more or less violent symptoms of

712.  Note M, p 151.
713.  (1883) Weir, 3rd Edn, p 196. It is the duty of the court to pass a judgment of its own
whether the hurt in question is of one category or the other. The medical evidence is only an
opinion to help the court to formulate its own opinion. Hadia Mia v State of Assam, 1988 Cr LJ
1459 (Gau). See Ashok v Prahlad, 1988 Cr LJ 78 (Bom), where the report of the medical oﬃcer
was ignored. The injuries caused to the victim by the constable's beating were not visible.
Sailendra Nath Hati v Aswini, 1988 Cr LJ 343 (Cal), woman slapped and kicked on waist after she
fell, accused guilty of causing hurt.
714.  Beshor Bewa, (1872) 18 WR (Cr) 29.
715.  Dhyaneshwar, 1982 Cr LJ 1870 (Bom).
716.  Anis Beg v State, (1923) 46 All 77 .
dhatura poisoning, though none of them died. It was held that the boy was guilty of
causing hurt.716.

[s 320] Grievous hurt.
The following kinds of hurt only are designated as "grievous":
First.—Emasculation.
Secondly.—Permanent privation of the sight of either eye.
Thirdly.—Permanent privation of the hearing of either ear,
Fourthly.—Privation of any member or joint.
Fifthly.—Destruction or permanent impairing of the powers of any member or joint.
Sixthly.—Permanent disﬁguration of the head or face.
Seventhly.—Fracture or dislocation of a bone or tooth.
Eighthly.—Any hurt which endangers life or which causes the sufferer to be during the
space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
COMMENT.—
Grievous hurt is hurt of a more serious kind. This section merely gives the description
of grievous hurt.

COMMENT.—
We have found it very diﬃcult to draw a line between those bodily hurts which are serious
and those which are slight. To draw such a line with perfect accuracy is, indeed, absolutely
impossible; but it is far better that such a line should be drawn, though rudely, than that
offences some of which approach in enormity to murder, while others are little more than
frolics which a good-natured man would hardly resent, would be classed together.717.
To make out the offence of voluntarily causing grievous hurt, there must be some
speciﬁc hurt, voluntarily inﬂicted, and coming within any of the eight kinds enumerated
in this section. Where the injury was caused on the abdomen with a sharp-edged
weapon and the doctor stated that the injury was penetrating into the abdominal cavity
touching the interior surface of the stomach, not involving any important structure or

organ involving danger to life, it was held that the accused had caused simple hurt and
not grievous hurt.718. A person cannot be said to have caused grievous hurt unless the
hurt caused is one of the kinds of hurt speciﬁed under section 320, IPC, 1860.
Therefore, it is the duty of the Court to give a ﬁnding on its own whether the hurt was
simple or grievous. The Court is not concerned with the classiﬁcation made by a doctor

as to whether the hurt was simple or grievous. A doctor is to describe the facts in
respect of the nature of injury and the Court is to decide whether the nature of the
injury described by the doctor comes within any of the clauses of section 320, IPC,
1860.719.
[s 320.1] Clause 1.—
'Emasculation' means depriving a male of masculine vigour.
[s 320.2] Clause 6.—Disﬁgurement of head or face.—
Disﬁguration means doing a man some external injury which detracts from his personal
appearance but does not weaken him, as the cutting of a man's nose or ears. Where a
girl's cheeks were branded with a red-hot iron which left scars of a permanent
character, it was held that the disﬁgurement contemplated by this section was
caused.720.
[s 320.3] Clause 7.—Fracture, dislocation bone, tooth.—
For the application of this clause it is not necessary that a bone should be cut through
and through or that the crack must extend from the outer to the inner surface or that

there should be displacement of any fragment of the bone. If there is a break by cutting
or splintering of the bone or there is a rupture or ﬁssure in it, it would amount to a
fracture within the meaning of this clause.721. It has been held that a mere partial cut
of the bone amounts to fracture and is, therefore, a grievous injury within the meaning
of section 320 (Seventhly).722.
[s 320.4] Clause 8.—Endangering life, severe bodily pain, etc.—
This clause speaks of two things: (1) any hurt which endangers life, and (2) any hurt
which causes the sufferer to be during the space of 20 days (a) in severe bodily pain, or
(b) unable to follow his ordinary pursuits. Some hurts which are not like those hurts
which are mentioned in the ﬁrst seven clauses, are obviously distinguished from a

slight hurt, may nevertheless be more serious. Thus, a wound may cause intense pain,
prolonged disease or lasting injury to the victim, although it does not fall within any of
the ﬁrst seven clauses. Before a conviction for the sentence of grievous hurt can be
passed, one of the injuries deﬁned in section 320 must be strictly proved, and the
eighth clause is no exception to the general rule of law that a penal statute must be
construed strictly.723.
The line between culpable homicide not amounting to murder and grievous hurt is a
very thin line. In the one case the injuries must be such as are likely to cause death; in
the other, the injuries must be such as to endanger life.724.
An injury can be said to endanger life if it is in itself that it may put the life of the injured
in danger.725.

The mere fact that a man has been in hospital for 20 days is not suﬃcient; it must be
proved that during that time he was unable to follow his ordinary pursuits.726. Where
the accused caused hurt to a woman who remained in hospital only for 17 days, out of

which she was in danger for three days, it was held that he had caused grievous
hurt.727. A disability for 20 days constitutes grievous hurt: if it continues for a smaller
period, then the offence is hurt.728. The two accused persons tied their victim to an
electric pole and assaulted him only to teach him a lesson for spreading scandalous
information about the alleged love affair of the accused. Their victim died. There was
no evidence to attribute any particular overt act to any of them, nor of the intention of
any of them to cause death or that any of them was armed with a deadly weapon. It
was held that their offence fell within this clause because they endangered the life of
their victim and not under section 300 (murder).729. Where the accused persons, after
raping a girl of 11 years, thrust a stick into her private part and she died of injuries
thereby caused, it was held that while the accused could be convicted under this

clause, in the absence of evidence that the injury was suﬃcient in the ordinary course
of nature to cause death, they could not be convicted under section 302.730.
[s 320.5] Acts neither intended nor likely to cause death may amount to
grievous hurt even though death is caused.—
Where there is no intention to cause death or no knowledge that death is likely to be
grievous hurt if the injury caused was of a serious nature, but not of culpable homicide.
Where the only intention of the accused who was convicted for the offence of murder
was to steal the jewels of the deceased and the only violence which he committed, viz.,
cutting the nostrils of the deceased, was necessary in order to facilitate the theft and

the death of the deceased was entirely unexpected, it was held that the accused was
not guilty of murder but of causing grievous hurt under section 325.731. Where the
medical evidence showed that the injury on the forehead which caused death was by a
lathi and not by an iron rod as deposed to by witnesses and the internal injury could not
be correlated to the external injury caused by the accused, it was held to be a ﬁt case
where the accused should be convicted only under section 325 IPC, 1860.732. Where
the accused acting on a sudden spur of the moment squeezed the testicles of the
deceased as a result of which he had a shock resulting in cardiac arrest and sudden
death, the Supreme Court came to the conclusion that it was a case falling under the

eighth clause of the section, i.e., causing hurt which endangers life. It was a case of
grievous hurt punishable under section 325 and not that of simple hurt punishable
under section 323.733. See also discussion and cases under sub-head "Act neither
intended nor likely to cause death is hurt even though death is caused" under section
319, ante.
[s 320.6] Spleen.—
Where the accused, pulling the deceased out of a cot, kicked him, and struck him on
the side or on the ribs with a stick, whereby the deceased, whose spleen was diseased,
died, it was held that he was guilty of voluntarily causing grievous hurt.734.
[s 320.7] Blow aimed at a person falling upon another.—
The accused struck a woman, carrying an infant in her arms, violently over her head
and shoulders. One of the blows fell on the child's head causing death. It was held that

the accused had committed hurt on the infant under circumstances of suﬃcient
aggravation to bring the offence within the deﬁnition of grievous hurt.735. In the course

717.  Note M, p 151.
718.  Jagdish Chand v State of HP, 1992 Cr LJ 3076 (HP).
719.  Hadis Mia v State of Assam, 1987 Cr LJ 1459 (Gau).
720.  Anta Dadoba, (1863) 1 BHC 101.
721.  Hori Lal, AIR 1970 SC 1969 [LNIND 1969 SC 314] : 1970 Cr LJ 1665 .
722.  Narinder Singh v Sukhbir Singh, 1992 Cr LJ 2616 (P&H).
723.  State of Karnataka v Parashram Kallappa Ghevade, 2007 Cr LJ 479 (Kar); Mathai v State of
Kerala, 2005 SCC (Cr) 695 : AIR 2005 SC 710 [LNIND 2005 SC 37] .
724.  Abdul Wahab, (1945) 47 Bom LR 998 , FB.
725.  Ramla, (1963) 1 Cr LJ 387 . See further; AG Bhagwat v UT Chandigarh, 1989 Cr LJ 214 at p
223 where holding that by causing hurt by sulphuric acid, the accused was guilty of offence
punishable under section 326, causing hurt by dangerous means, cited Queen Empress v Vasta
Chela, (1895) ILR 19 Bom 247 to the effect that staying on in hospital at public expense for 20 or
more days is not the last word. Also to the same effect Khair Din v Emperor, AIR 1931 Lah 280 :

1931–32 Cr LJ 1254 , Mathu Paily v State of Kerala, 1962 (1) Cr LJ 652 Ker; and State (Delhi
Admn) v Mewa Singh, (1969) 71 Punj LR (D) 290 , Tuna v State of Orissa, 1988 Cr LJ 524 Orissa,
mere stay in hospital for 20 days.
of an altercation between the accused and the complainant on a dark night, the former
aimed a blow with his stick at the head of the latter. To ward off the blow, the
complainant's wife, who had a child on her arm, intervened between them. The blow
missed its aim, but fell on the head of the child causing severe injuries, from the effects
of which it died. It was held that the accused was guilty of simple hurt only.736. The
accused had the intention of causing hurt to a person but not grievous hurt and the
nature of the blow, taken with reference to the person against whom it was aimed,

cannot be taken to indicate the necessary intention or knowledge as to causing
grievous hurt.
[s 320.8] Use of weapon.—
To cause "grievous hurt" it is not necessary that any weapon of offence must be used.
Even without any weapon, an injury of the nature mentioned in section 320 could be
caused. The offence under section 325 is voluntarily causing grievous hurt. It does not
speak of use of any weapon of offence.737.
[s 320.9] Supply of arrack mixed with dangerous substance.—
The arrack supplied was mixed with methyl alcohol resulting in many deaths. The Court
concluded that the person responsible for the mixing had knowledge that the
consumption of such substance was likely to cause serious adverse effects. Some of
the victims lost eyesight. The Court said that the maximum sentence under the section
was properly awarded.738.

726.  Vasta Chela, (1894) 19 Bom 247. The accused in a quarrel inﬂicted an injury on the victim
by the blade of a scissors and there was no evidence that the victim was in severe bodily pain or
was unable to follow his ordinary pursuits for 20 days, clause (8) of section 320 was not
attracted; Pritam Singh v State, 1996 Cr LJ 7 (Del), in the instant case, the injury was of simple
nature and the victim remained hospitalised for 20 days. The injured person was neither
hospitalised for 20 days nor was unable to follow his ordinary pursuit, section 320, 'Eighthly' was
not attracted, Babloo v State of MP, 1995 Cr LJ 3534 (MP).
727.  Bassoo Rannah, (1865) 2 WR (Cr) 29.
728.  Bishnooram Surma, (1864) 1 WR (Cr) 9.
729.  Formina Sebastio Azardeo v State of Goa, 1992 Cr LJ 107 SC : AIR 1992 SC 133 . See also
Dau Dayal v State of Rajasthan, 1991 Cr LJ 2321 , where injuries were not dangerous to life and
hospitalisation was also for 13 days and were given in response to an attack on the accused by

a chain and, therefore, conviction under section 320/326 was set aside.
730.  Ghuraiyaa v State of MP, 1990 Cr LJ 1129 .
731.  Guruvulu, (1945) Mad 73.
732.  Mohinder Singh, 1985 Cr LJ 1903 : AIR 1986 SC 309 . Formina Sebastio Azardeo v State of
Goa, AIR 1992 SC 133 : 1992 Cr LJ 107 tying a person to an electric pole apparently with a view
to teaching him a lesson for giving publicity to the love affair involving two of the three accused
and beating him, but he died, the three accused being related to each other husband and wife
and their nephew and the alleged love affair was between the wife and the nephew, no evidence
of the respective role played by them. The husband was acquitted and the remaining two were
convicted for causing grievous hurt.

733.  State of Karnataka v Shivlingaiah, AIR 1988 SC 115 [LNIND 2012 DEL 2078] : 1988 Cr LJ
394 : 1988 SCC (Cr) 881. See also Madhusudan Sahu v State of Orissa, 1987 Cr LR (SC) 623 :
1987 (Supp) SCC 80, injury caused in a moment of aberration due to loss of self-control.
734.  O'Brien, (1880) 2 All 766 ; Idu Beg, (1881) 3 All 776 .
735.  Sahae Rae v State, (1873) 3 Cal 623 .
736.  Chatur Natha, (1919) 21 Bom LR 1101 [LNIND 1919 BOM 89] .
737.  Sreekumar v State of Kerala, 2009 Cr LJ 3862 (Ker).
738.  EK Chandrasenan v State of Kerala, AIR 1995 SC 1066 [LNIND 1995 SC 88] : (1995) 2 Cr LJ
1445 . The fact that the prime mover was 72 years old was held to be not an attenuating
circumstance because of the magnitude of misery caused.

[s 321] Voluntarily causing hurt.
Whoever does any act with the intention of thereby causing hurt to any person, or with
the knowledge that he is likely thereby to cause hurt to any person, and does thereby
cause hurt to any person, is said "voluntarily to cause hurt".

[s 322] Voluntarily causing grievous hurt.
Whoever voluntarily causes hurt, if the hurt which he intends to cause or knows
himself to be likely to cause is grievous hurt, and if the hurt which he causes is
grievous hurt, is said "voluntarily to cause grievous hurt."
E x p l a n a t i o n .—A person is not said voluntarily to cause grievous hurt except when he
both causes grievous hurt and intends or knows himself to be likely to cause grievous
hurt. But he is said voluntarily to cause grievous hurt, if intending or knowing himself
to be likely to cause grievous hurt of one kind, he actually causes grievous hurt of
another kind.
A, intending or knowing himself to be likely permanently to disﬁgure Z's face, gives Z a

blow which does not permanently disﬁgure Z's face, but which cause Z to suffer severe
bodily pain for the space of twenty days. A has voluntarily caused grievous hurt.
739.  Devasahayam, (1962) 1 Mad LJ 161.
740.  K Swaminatha Reddy v State of AP, 1996 Cr LJ 1387 (AP). Rajendran v State of TN, 1997 Cr
LJ 171 (Mad), the accused attacked his sister-in-law with iron rod in a ﬁt of anger, statements of
the injured and of witnesses and medical evidence, conviction of accused proper.
COMMENT.—
Section 321 and the Explanation to this section make it clear that either the ingredient
of intention or of knowledge must be essentially present in order to constitute the
offence of hurt.739. Where the accused caught hold of a man, sat on his chest, gave ﬁst
blows and hit his head on the wall but the injuries caused were not so grievous as to

pointedly show that the accused had knowledge that his act was likely to cause death,
his conviction under section 304, Part II was altered to one under section 321.740.

[s 323] Punishment for voluntarily causing hurt.
Whoever, except in the case provided for by section 334, voluntarily causes hurt, shall
one year, or with ﬁne which may extend to one thousand rupees, or with both.
COMMENT.—
This is a general section for the punishment of voluntarily causing hurt. Sections 324,
327, 328, 329 and 330 deal with the same offence committed under certain
aggravating circumstances: and sections 334, 336 and 337 provide for punishment
when there are certain mitigating circumstances.
A prosecution under this section does not abate by reason of the death of the person
injured.741.
[s 323.1] CASES.—
Allegation that accused/superintendent of police arrested the younger brother of

complainant and got him mercilessly beaten by his personal guards. Injuries on
different parts of body clearly rules out the theory of sustaining it while falling down on
ground. Besides the testimony of injured, the prosecution case has further been
corroborated by medical evidence. Record and evidence proved that conspiracy was
hatched by accused to apprehend the detenu and others who were demanding his
transfer. Accused liable to be convicted under section 323 of IPC, 1860.742. First
accused picked up a wooden piece (Pacher) with both the hands and hit on the head of
the deceased. On receiving injury, he fell unconscious on the spot. Thereafter, the other
accused came running and dealt a blow on the head of PW3. Conviction of ﬁrst
accused under section 304 Part II and co-accused under section 323 IPC, 1860 was

held proper.743. Where accused having sticks in their hands entered the house of
complainant and assaulted him, the overt act attributed to accused by witnesses is
speciﬁc, medical evidence fully supports the case of prosecution and
accused/respondent is liable to be convicted under section 323 of IPC, 1860.744. The
accused, a shopkeeper, in a sudden quarrel hit his wife on the head with an iron weight
of 200 grams which resulted in her death. The medical evidence showed that the injury
was of a simple nature and there was no evidence that the deceased died of shock
caused by the injury. He was held liable only under section 323 IPC, 1860 and not under
section 304 IPC, 1860.745. So also where the wife attacked the husband with a brick
causing multiple injuries resulting in his death but according to medical evidence the

injuries were of a simple nature and were not suﬃcient in ordinary course of nature to
cause death, it was held that the accused wife could not be convicted under section

302 IPC, 1860. Her conviction was accordingly changed to one under section 323 IPC,
1860.746.
The accused pushed the victim. She fell down and sustained injuries of simple nature.
This act of the accused was held to fall under section 323.747. Where the accused gave
a push on the chest of the deceased and the victim fell on a stone resulting in death,
conviction was recorded under section 323.748. The accused husband returned home
at midnight in a drunken state. He beat his wife and threw a piece of stone on her head
and she died. The post-mortem report revealed three simple injuries on her head and
exact cause of death could not be ascertained. Relations between the accused and the
deceased were found to be cordial. Intention to cause the victim's death was not
proved. Conviction of the accused under section 300 was set aside and he was
convicted under section 323.749. Several persons attacked and caused the death of
their victim. All, including the present appellant, were holding the deceased and one of

them K dealt fatal blows. K was convicted of murder under section 302. All his fellows
were convicted under this section read with section 149 except the present appellant
who was convicted under section 302 read with section 34. The Supreme Court held
that the appellant should also have been convicted under this section read with section
149.750. Thomas v State of Kerala,751. the ﬁst blow caused by the accused resulted in
subdural haematoma which led to the death of the victim, but it could not be said that
the accused could be attributed with the knowledge that by such act he was likely to
cause death, nor could it be said that the accused intended to cause that particular
injury which he actually caused, it was held that accused could be convicted only under

section 323 and not section 300. In Mohan Singh v State of Rajasthan,752. the accused
attacked his victim and caused voluntary hurt to him by inﬂicting ﬁst blows and
causing nose injury. His guilt was established by the evidence of the witnesses. The
plea of alibi raised by the accused was not tenable. His conviction under section 323
was upheld.
Where the offence was punishable under this section and also under sections 304, Part
II/34, and was covered by the Uttar Pradesh Children Act, 1951, the Court did not
consider it proper to subject children to imprisonment but, looking at the brutal nature
of the offence, imposed a sentence of ﬁne.753.
Where the accused brothers chanced to converge, having not met before, at their
sister's place avowedly to teach her a lesson for having instituted proceedings against

them and one of them who, not known to others was carrying a knife, inﬂicted a knife
blow which, landing on a vital part, caused death, they were convicted under this
section and the knife wielding brother under section 304 Part-II.754. In a case of
attempt to murder, one of the accused gave only one blow with a 'lathi' on the shoulder
of the injured without sharing the common intention of the other accused. Injury was
simple and caused only swelling. He was convicted for his individual act under section
323 and was released on probation.755.
[s 323.2] Conviction altered to 323.—
Where the Doctor had clearly established that the injuries sustained by the deceased
were all simple in nature inﬂicted upon non-vital parts of the body. The injuries in
question were suﬃcient in the ordinary course of nature to cause death. The High

Court justiﬁed in allowing the appeal of the respondents in part and acquitting them of
the charge of murder while maintaining their conviction for the remaining offences with
which they were charged.756.

Where in a quarrel the accused kicked the deceased on his testicles but as no medical
treatment was given for two days, the injured died due to Toxaemia caused by
gangrene. The injury to the testicles was not the direct cause of his death. The
Supreme Court set aside his conviction under section 304 Part II and convicted him
under section 323 instead.757. In a dispute over land the defence of accused regarding
exercising of private defence was not accepted. Sentence of accused under section
304, Part II was maintained. Other accused were convicted under section 323 IPC,
1860.758.
The accused, a police constable, beat up a frail old man of 60 years weighing only 38
Kg. His ribs were broken and that resulted in his death. The Court said that the accused
must have intended the consequences of his act. His conviction was altered from
under section 323 to section 304, Part II. The incident had become 15 years old. He
had already served some portion of his punishment. He was allowed to surrender to

serve the remaining portion.759.
[s 323.3] Acquittal.—
Allegation that accused/respondents gave beatings to complainant and one of them
caused incised wound on her right forearm with sickle. Prosecution did not explain as
to how the respondents had sustained injuries in said incident. Acquittal of
respondents was held proper.760. Where there is no corroborative evidence that injuries
found on person of informant was caused none other than by the appellant, the offence
under section 323 of IPC, 1860 could not be proved beyond doubt. Conviction recorded
against appellant was held improper and liable to be set aside.761.
[s 323.4] Punishment.—
Where there was no pre-planned intention to cause death and the incident was the
result of a heated moment caused by exchange of abuses, the sentence of six months

RI was modiﬁed to the period already undergone.762. In an incident of hurt and
kidnapping, both the accused persons were married and had children. Their previous
conduct was not bad. The victim girl was not physically harmed and become married
subsequently. Sentence of six years RI under section 366 for kidnapping was reduced
to two years but the sentence of six months under section 323 was not reduced.763.
[s 323.5] Probation.—
In view of the fact that incident occurred on spur of moment and was traverse in nature
and accused did not have any previous conviction, accused was allowed to release on
probation.764.

741.  Muhammad Ibrahim v Shaik Davood, (1920) 44 Mad 417.
742.  Mandira Nandi v Dilip Kumar Baruah, 2012 Cr LJ 2567 (Gau); Bandela Daveedu v State of AP,
2011 Cr LJ 4257 (AP)—Where accused caused simple injuries to victim and not grievous
injuries. Accused are guilty for offence under section 323 read with 34 IPC, 1860 and 324 read
with 34 IPC, 1860 instead of section 325 read with 34 IPC, 1860 and section 326 read with 34
IPC, 1860.
743.  Angrej Singh @ Kaka v State of HP, 2012 Cr LJ 3335 (HP). Ayoub Dedar v State of J&K, 2010
Cr LJ 2497 (JK). Allegation that appellant caught hold of victim, 10/12 years old girl in jungle,
committed an indecent assault on her and also made an attempt to commit rape on her.
Conviction of appellant under section 376/511 and 323 of IPC, 1860 was held proper.
744.  State of Maharashtra v Tatyaba Bajirao Jadhav, 2011 Cr LJ 2717 (Bom).
745.  PP v NS Murthy, 1973 Cr LJ 1238 (AP). Sri Prakash v State, 1990 Cr LJ 486 : 1989 All LJ

117, beating child with no injuries, death followed because of enlarged spleen, conviction under
sections 323 and 326 and not section 304. The accused caused two injuries on the victim, one
by sharp-edged weapon and the other by blunt weapon but only the blunt weapon was
recovered from the accused. It was held that the injury caused by the sharp-edged weapon
could not be assigned to the accused. His conviction under section 326 was converted to
section 323; Jam v State of Rajasthan, 1993 Cr LJ 2572 (Raj).
746.  Sridevi, 1974 Cr LJ 126 (All). Darshan Singh v State of Punjab, AIR 1991 SC 66 : 1990 Cr LJ
2684 ; prosecution case not proved. Purandar Bhukta v State of Orissa, 1991 Cr LJ 1388 ,
allegation that the accused slapped the informant on his face causing bleeding injury but the

fact not mentioned in FIR, beneﬁt of doubt. Munshilal v State of UP, 1990 Cr LJ 984 , no
explanation of multiple injuries on accused persons, fatal to prosecution.
747.  Sellamuthu v State of TN, (1995) 2 Cr LJ 2143 (Mad). Where the wife of the accused gave
only a single blow to the head of the victim and thereafter remained a silent witness to things
happening, she was convicted only under this section and not for causing death under the
doctrine of common intention under section 34, Darshan Singh v State of Rajasthan, (1995) 2 Cr
LJ 2138 (Raj). The accused inﬂicted single lathi blow on the head of the deceased, injury simple,
but death due to haemorrhage, conviction under section 323, Dunga Ram v State of Rajasthan,
1996 Cr LJ 3672 (Raj).
748.  Pichapillai v State of TN, 1996 Cr LJ 3634 (Mad).

749.  Shyamji v State of Rajasthan, 1993 Cr LJ 2458 (Raj).
750.  Shri Jawahar v State of UP, 1991 Cr LJ 376 : AIR 1991 SC 273 . Pandu v State of MP, (1995)
1 Cr LJ 226 (MP), sentence for grievous hurt reduced to the period already undergone where the
accused belonged to backward class and had no antecedent record of crime.
751.  Thomas v State of Kerala, 1992 Cr LJ 581 (Ker).
752.  Mohan Singh v State of Rajasthan, 1994 Cr LJ 2229 (Raj).
753.  State of UP v Akhtar Khan, 1991 Cr LJ 1779 (All). Another case of punishment for three
months already undergone and a ﬁne of Rs. 1000; Raghuvir Singh v State of MP, 1991 Cr LJ 48 .
Prafulla Bora v State of Assam, 1988 Cr LJ 428 (Gau), the accused, a boy of 18–19 years old at
the time of occurrence, 11 years passed since then, imprisonment for two years considered
suﬃcient but released on probation.

754.  Om Prakash v State, 1990 Cr LJ 2373 (Del).
755.  Kuldeep Singh v State of Punjab, 1994 Cr LJ 2201 : 1994 AIR SCW 1451.
756.  State of Rajasthan v Mohan Lal, (2012) 4 SCC 564 [LNIND 2012 SC 199] : AIR 2012 SC 1595
[LNIND 2012 SC 199] ; Puran v State of MP, 2012 Cr LJ 3704 (MP); Haripada Rajak v State of
Jharkhand, 2011 Cr LJ 3636 (Jha); Gharbharan v State of Chhattisgarh, 2010 Cr LJ 471 (Chh).
757.  Pirthi v State of Haryana, AIR 1994 SC 1582 : 1994 Cr LJ 2187 : 1994 Supp (1) SCC 498 .

758.  Nasiruddin Khan v State of Bihar, AIR 2008 SC 3198 [LNIND 2008 SC 1528] : (2008) 12 SCC
129 [LNIND 2008 SC 1528] ; Abani K Debnath v State of Tripura, AIR 2006 SC 518 : (2005) 13 SCC
422 .
759.  State of Kerala v Balakrishnan, 1999 Cr LJ 5038 (Ker). Bhoora Ram v State of Rajasthan,
1998 Cr LJ 3440 (Raj), free ﬁght, two of them had not caused any fatal injury, who caused the
fatal injury, conviction of all under section 323, it being a free ﬁght the right of private defence
was not available. Raghunath Sahu v State of Orissa, 1998 Cr LJ 2760 (Ori), free ﬁght, no
recoveries, conviction improper. Upendra Singh Solanki v State of Rajasthan, 1997 Cr LJ 1850
(Raj), attack on public servant but not for the purpose of preventing him from doing his oﬃcial
duty, conviction under sections 323 and 324. Habil Mia v State of Assam, 1997 Cr LJ 1866 (Gau),
conviction for hurt and kidnapping.
760.  State of HP v Sarla Devi, 2011 Cr LJ 2505 (HP).
761.  Gunadhar Majhi v State of Jharkhand, 2011 Cr LJ 2536 (Jhar).

762.  Rati Ram v State of UP, 1997 Cr LJ 1525 (All).
763.  Habil Mia v State of Assam, 1997 Cr LJ 1866 (Gau).
764.  Chandrakant Kashinath Somware v State of Maharashtra, 2011 Cr LJ 4916 (Bom); Sitaram
Paswan v State of Bihar, AIR 2005 SC 3534 [LNIND 2005 SC 703] : (2005) 13 SCC 110 [LNIND
2005 SC 703] .

[s 324] Voluntarily causing hurt by dangerous weapons or means.
Whoever, except in the case provided for by section 334, voluntarily causes hurt by
means of any instrument for shooting, stabbing or cutting, or any instrument which,
used as weapon of offence, is likely to cause death, or by means of ﬁre or any heated
substance, or by means of any poison or any corrosive substance, or by means of any
explosive substance or by means of any substance which it is deleterious to the
human body to inhale, to swallow, or to receive into the blood, or by means of any
animal, shall be punished with imprisonment of either description for a term which
COMMENT.—
This section makes simple hurt more grave, and liable to more severe punishment

COMMENT.—
where it has the differentia of one of the modes of inﬂiction described in the
section.765.
[s 324.1] CASES.—
Where the accused gave a blow on the left side of the head of the victim with a Farsha,
a sharp-cutting weapon, causing a simple scalp-deep injury and there was the
possibility that the sharp edge of the weapon was not used, it was held that his
conviction should be changed from section 307 to one under section 324 IPC, 1860
since Farsha is a weapon which if used as a weapon of offence is likely to cause
death.766. Where a head injury was caused with a deadly weapon and the injured was
discharged from the hospital after 15 days, but six months thereafter he had to be
hospitalised again for brain operation and he did not recover, the death being not solely
due to the injury, the accused persons convicted under this section and their conviction

under section 304 was set aside.767. Tooth is an instrument of cutting and as such
biting off the tip of the nose would be an offence under this section or section 326 IPC,
1860 depending on the nature of the injury, simple or grievous.768. Where there is no
serious injury on any vital part of the body of the victim, the offender should be
convicted under section 324 and not under section 326 IPC, 1860.769. Thus, where the
accused inﬂicted an injury on the right shoulder of the deceased with a broken soda
water bottle with sharp edges without knowing that the deceased was suffering from
haemophilia (tendency of excessive bleeding), it was held that the accused was liable
only under section 324 and not under section 302 IPC, 1860.770. Where simple injuries

not likely to cause death were inﬂicted with a sword, the Supreme Court transferred the
conviction from under section 307 to one under this section and allowed the offences
to be compounded on payment to the victim a sum of Rs. 3,000.771. Where in a case of
a dowry death, the evidence showed that the accused, mother-in-law caused injuries on

the person of the daughter-in-law. She committed suicide. The accused was punished
under section 324 but on consideration of circumstances and facts that she was 80,
only a sentence of ﬁne of Rs. 3,000 was imposed. Offence under section 306 was not
made out.772. Where the accused, a boy of 18 years of age at the time of incident
having no criminal history, in a sudden scuﬄe gave a blow on the chest of the
deceased with an ordinary knife resulting in his death and thereafter, mutely allowed to
take the knife from his hand and went to the hospital along with the deceased, it was
held that he had no intention to cause death or grievous hurt to the deceased, and was
guilty under section 324 and not under section 304, Part II.773. Where the accused
assaulted his victim by 'Katti' blow causing grievous hurt and the co-accused assaulted
the victim only by lathis and hands causing minor injuries and no pre-concert between
the accused and the co-accused regarding the assault by the 'Katti' was established, it

was held that the co-accused could not be vicariously held liable for the acts of the
accused and be convicted under section 324.774. Where a blow was inﬂicted with the
blunt side of the axe on the thigh of the victim, the Supreme Court reduced the
sentence to four months' RI and increased the ﬁne to Rs. 3,000.775. Where the accused
deliberately attacked and killed a person with a deadly weapon and was held to be
rightly convicted for murder under section 300, he was convicted under this section
and sentenced to pay a ﬁne for causing hurt on the hand of the intervening wife of the
deceased with a rice pounder.776.
In a free ﬁght between two groups resulting in death of one person and injuries to
several others, fatal injury could not be attributed to any one of the accused who also

received a number of injuries. It was held that the accused were properly convicted
under sections 324 and 325.777. Where one of the accused caused two gunshot
injuries to a man which proved fatal, the other accused caused him only an incised
injury. The accused causing fatal injuries was sentenced under section 302 and the
other accused only under section 324.778. In an altercation the accused dealt a blow
with spade lying on the spot on the head of a 70-year-old man who became
unconscious, was hospitalised and died after three weeks. The blow caused only linear
fracture of left frontal bone. It was found that essential element of voluntarily causing
grievous hurt was wanting. It was held that his offence fell under section 324 and not
under section 326.779. Allegation that accused resorted to repeated ﬁrings at two

persons on two occasions at two different times and place. On ﬁrst occasion accused
ﬁred in air and pellets after being ricocheted from ceiling caused simple injuries to
three persons. On second occasion also appellant had not caused any injury to
anybody. In view of dearth of convincing evidence on record, it cannot be concluded
with any degree of certainty that appellant had an intention to commit murder of
anybody. Only conclusion could be drawn is that appellant wanted to cause hurt for
dispersing crowd. Appellant can only be convicted under section 324 of IPC, 1860 and
not under section 307 IPC, 1860.780. Medical evidence that injuries, however, serious in
nature but not grievous in nature. Skin grafting has been done and victim is ﬁt for
discharge — Accused is guilty of offence under section 324 IPC, 1860 and not under

section 307 IPC, 1860.781. The accused struck his wife once only on the neck causing
simple injury. She fell down and was further injured and died. The instrument (wooden
reaper) was dangerous. The conviction was altered from under section 304, Part II to
section 324.782.
[s 324.2] Sections 324/149.—
Prosecution failed to prove that appellants had made unlawful assembly and caused
incised wound to complainant in furtherance of common object. Accused who

assaulted the complainant liable to be convicted under section 324 IPC, 1860 and other
accused persons liable to be convicted under section 323 of IPC, 1860.783.
[s 324.3] Acquittal.—
The essential ingredients to make out an offence under section 324 IPC, 1860 should
be that there must be voluntarily causing hurt and also the required intention. In other
words, to constitute an offence of voluntarily causing hurt, there must be complete
correspondence between the result and the intention or the knowledge of the person
who causes the said hurt.784. Where the injured witness himself attributed the injury on
him to the deceased, instead of the accused, the conviction of the accused on the
charge of section 324 cannot be sustained under law.785. Where no explanation by
prosecution as to how the injuries were caused to deceased and the role attributed to
appellants by prosecution is fully covered by their right of private defence, conviction

and sentence is liable to be set aside.786. In a case, the allegation was that the accused
petitioner inﬂicted simple and grievous injuries with sharp-edged weapon on person of
victim. The Injury Report was not proved and the doctor who signed it was not called
for examination. The Petitioner was held entitled to acquittal.787.
[s 324.4] Punishment.—
Where injuries were caused on account of quarrel over land and the incident was
already 17 years old, the accused was sentenced to two years RI and ﬁne.788. Incident
had occurred more than 35 years ago. There was no complaint against appellant during
pendency of appeal of indulging into any criminal activities. Period of imprisonment
already undergone by appellant with ﬁne of Rs. 10,000 and in default thereof to
undergo six months simple imprisonment would meet ends of justice.789.

[s 324.5] Non-Compoundable.—
Before the Code of the Criminal Procedure (Amendment Act) 2005 came into force,
offence under section 324 of IPC, 1860 was compoundable with the permission of the
Court as prescribed in the table, under sub-section (2) of section 320 of Cr PC, 1973.
The Code of Criminal Procedure (Amendment Act) 2005 (Act 25 of 2005) has taken out
section 324 of IPC, 1860 from the sphere of compounding and thereby made it non-
compoundable. Since the offence committed under section 324 of IPC, 1860 before
Amendment Act came into force, was compoundable with the permission of the Court
pursuant to the provisions prescribed under sub-section (2) of section 320 of Cr PC,
1973—as was in force before the Code of Criminal Procedure Amendment Act 2005
came into effect.790. After coming into force of the Code of Criminal Procedure

(Amendment) Act 2005 the offence under section 324, IPC is made non-
compoundable. However, in this case the offence under section 324, IPC was
committed on 23 July 1986 on which date it was compoundable with the permission of
the Court. As the Code of Criminal Procedure (Amendment Act) 2005 is not applicable
to the facts of the case, the offence under section 324, IPC, 1860 would be
compoundable with the permission of the Court.791.
[s 324.6] Probation.—

765.  See Madhab Digai v State of Orissa, (1995) 1 Cr LJ 1206 (Ori) conviction for injuries caused
by knife.
766.  Jai Narain, 1972 Cr LJ 469 : AIR 1972 SC 1764 . Anwarul Haq v State of UP, 2005 Cr LJ 2602
: AIR 2005 SC 2382 [LNIND 2005 SC 425] : (2005) 10 SCC 581 [LNIND 2005 SC 425] , assault
and injury with knife, though not recovered, conviction on the basis of evidence of eyewitnesses.
767.  State of Orissa v Rabu Naik, 1990 Cr LJ 2777 (Ori). See also State of Gujarat v Bharwad
Jakshibhai Naeq bhai, 1990 Cr LJ 2531 (Guj), where the common object of an unlawful assembly
was only to belabour the members of a particular community, and they were striking with iron-
rimmed sticks, one blow proving fatal, conviction under this section and section 326 and not for
murder.
768.  Jamil, 1974 Cr LJ 867 (All); See also Jagat Singh, 1984 Cr LJ 1551 (Del); Chaurasi Manjhi,
AIR 1970 Pat 322 .
769.  Kailash Prasad, 1980 Cr LJ 190 : AIR 1980 SC 106 .
770.  Anbumani v State, 1981 Cr LJ (NOC) 115 (Mad).

771.  Narendra Kumar v State of Rajasthan, (1987) 24 All CC 516 : 1988 SCC (Cr) 884 : 1988 Supp
SCC 536 ; Madan Lal v State of HP, 1990 Cr LJ 310 , simple injuries. Ramesh v State of UP, AIR
1992 SC 664 : 1992 Cr LJ 669 , a single injury at back of neck, conviction shifted to under this
section from under section 307.
772.  State of HP v Nikku Ram, 1995 Cr LJ 4184 : AIR 1996 SC 67 [LNIND 1995 SC 851] .
773.  Shrirang Kisan Kurade v State of Maharashtra, 1992 Cr LJ 1362 (Bom).
774.  Mohan Tripathy v State of Orissa, 1994 Cr LJ 1188 (Ori). Chand Mohammed v State of Bihar,
2013 Cr LJ 542 (Pat); Sheikh Ahmad v State, 2013 Cr LJ 267 (Pat); Deepak v State, 2013 Cr LJ
2801 (Utt); Madan Lal v State, 2013 Cr LJ 2885 (Utt); Chagalamari Subbaiah v State of AP, 2010 Cr
LJ 655 (AP)
775.  Bishna v State of Haryana, 1988 SCC (Cr) 48 : 1987 Supp SCC 184 . Another case of

LJ 655 (AP)
simultaneous assault by several persons which was held to fall under this section is Vithal
Bhimashah Koli v State of Maharashtra, AIR 1983 SC 179 [LNIND 1982 BOM 340] : 1983 Cr LJ
340 : (1983) 1 SCC 431 . See also Sheopoojan Chamar v State of Bihar, AIR 1991 SC 1462 , in
addition to the principal offender, whose sentence was not modiﬁed, that of his two associates
who caused minor injuries, reduced to the period already undergone.
776.  Re Thunicharam, 1991 Cr LJ 1318 (Mad). Pushap Raj v State of Rajasthan, (1995) 2 Cr LJ
1776 (Raj) conviction under the section of those members who caused only simple injuries as
distinguished from those who caused death. Bhola Singh v State of Punjab, (1995) 2 Cr LJ 1830
(P&H) causing injuries to eyewitness, conviction under the section.

777.  Amrik Singh v State of Punjab, 1993 AIR SCW 2482 : 1993 Cr LJ 2857 : 1994 Supp (1) SCC
320 . the court reduced the sentence to the period already undergone. Shyama Pradhan v State
of Orissa, 1996 Cr LJ 2936 (Ori), deliberate attack on the victim, probation not allowed, sentence
reduced to the period already undergone.
Accused is convicted under section 324 IPC, 1860. Taking into consideration the 20
years age of one of the appellants on date of incident, beneﬁt of Probation of Offenders
Act, 1958, is extended to him.792.

778.  State of UP v Jamshed, 1994 Supp (1) SCC 610 : 1994 Cr LJ 635 ; Para Seenaiah v State of
AP, (2012) 6 SCC 800 [LNIND 2012 SC 314] : AIR 2012 SC 2875 [LNIND 2012 SC 314] .
779.  Golak Chandra Nayak v State of Orissa, 1993 Cr LJ 274 .
780.  Kamla v State of UP, 2012 Cr LJ 2659 (All); Krishna Babu Bhoir v State of Maharashtra, 2011
Cr LJ 1813 (Bom).
781.  Smt. Shakunthalamma v State, 2012 Cr LJ 801 (Kar); Ram Nath Deepak v State NCT of Delhi,
2011 Cr LJ 14059 (Del). Plea on the part of petitioners that Sessions Court erred in framing
charge against petitioners under section 308 IPC, 1860 instead of section 324 IPC — Liable to
be rejected.
782.  Munusamy v State of TN, 1996 Cr LJ 3161 (Mad). Ram Singh v State of Haryana, AIR 1998
SC 1759 [LNIND 1998 SC 414] : 1998 Cr LJ 2279 (SC), assault on victims causing grievous hurt.
There was no explanation for the injuries suffered by the accused persons, who gave an
explanation which seemed to be more probable, acquittal. Mobin v State of UP, 2000 Cr LJ 2098

(All), in the absence of evidence regarding internal damage underneath the injury, the injury
could not be said to be grevious. Conviction under section 307 altered to one under section 324.
Ram Kumar Goutam v State of MP, 2001 Cr LJ 1604 (MP), medical evidence showed that an
incised wound over abdomen and two contusions on legs, wounds simple and not grevious,
conviction under section 324. Nabin Chandra Saikia v State of Assam, 2000 Cr LJ 3824 (Gau),
conviction for acid attack. Ramharakh v State of UP, 1999 Cr LJ 3001 (All), injuries caused were
of simple nature, death because of enlarged spleen which became ruptured, which fact not
known to assailants, offence under section 324 made out. P Johnson v State of Kerala, 1998 Cr
LJ 3651 (Ker) injured persons admitted to hospital soon after the incident, but thereafter laxity

in all respects. No case against accused persons made out. Peedikandi Abdulla v State of Kerala,
1998 Cr LJ 2758 (Ker) no offence of hurt under section 323 or of outraging modesty under
section 354 made out. Shankar Lal v State of Haryana, 1998 Cr LJ 4595 : AIR 1998 SC 3271
[LNIND 1998 SC 632] , the victim was assaulted with knife. As soon as he recovered
consciousness, he named the accused person as the assailant. Evidence of the victim alone
was held to be suﬃcient for conviction. Sheo Dularey v State of UP, 1997 Cr LJ 269 (All), injury
with axe but simple conviction under section 324. Dabhugotto Ithaiah v State of AP, 1997 Cr LJ
3651 (AP), hurt caused with dangerous weapons in a group rivalry between political parties. Oral
and documentary evidence. Conviction proper. Kothandapani v State of TN, 2003 Cr LJ 151

(Mad), the accused persons attacked with casuarina sticks and caused simple injuries on his
legs, imposition of ﬁne of Rs. 500 was considered to be enough. Muni Lal Paswan v State of
Bihar, 2003 Cr LJ 1625 (Pat), allegation that the accused person assembled together and
attempted to kill, but the evidence showed that only the main accused dealt blows with spade
on the head of the injured victim. The conviction of the main accused was altered from section
307 to section 324 and his sentence reduced to the period already undergone. Others
discharged. Karunamoy Sarmah v State of Assam, 2003 Cr LJ 1968 (Gau), simple injuries
caused, scuﬄing over stengun. Conviction under section 324 and not section 307. State of
Karnataka v Jagadisha, 2003 Cr LJ 2141 (Kant) different versions of the place of the incident

and that of recovery of weapons. It was not possible to ascertain whether the incident took
place inside or outside the house, this should not discredit the prosecution case, nor some
irregularities and omissions in the investigation. Mukati Pd Rai v State of Bihar, 2005 SCC Cr LJ
681 : AIR 2005 SC 1271 : (2004) 13 SCC 144 , accused wielding lathis trespassed into the house
of the victim, and instigated others to beat them up. They received lathi injuries. Accused
convicted under section 324/114, (offence committed in the presence of abettor).
783.  Brijesh Roopsingh Baghel v State of MP, 2011 Cr LJ 2273 (MP).
784.  Pitchavadhmtiilu v State of AP, 2011 Cr LJ 469 (AP).

785.  Kumar v State represented by Inspector of Police, AIR 2018 SC 2386 [LNIND 2018 SC 262] .
786.  Haren Das v State of Assam, 2012 Cr LJ 1467 (Gau).
787.  Suraj Mal v State, 2010 Cr LJ 1583 (Raj).
788.  Nathu v State of UP, 1998 Cr LJ 2382 (All).
789.  Kamla v State of UP, 2012 Cr LJ 2659 (All); Amruta Shankarrao Deshmukh v State of
Maharashtra, 2011 Cr LJ 1147 (Bom).
790.  Prabhat Das v State of Tripura, 2013 Cr LJ 1712 (Gau); Naresh Kumar v State of Haryana,
(2012) 9 SCC 330 [LNIND 2012 SC 478] : 2012 (3) SCC (Cr) 1137; Bineesh v State of Kerala, 2012
Cr LJ 4128 .
791.  Hirabhai Jhaverbhai v the State of Gujarat, 2010 (6) SCC 688 [LNIND 2010 SC 335] : AIR
2010 SC 2321 [LNIND 2010 SC 335] ; Code of Criminal Procedure (Amendment) Act, 2008
[came into force on 31 December 2009] replaced the list of compoundable offences under
section 320 of Cr PC, 1973 which ﬁnally resolved the confusion whether section 324 etc., are
compoundable or not. See the conﬂicting views of the Supreme Court in Manoj v State of MP,

(AIR 2009 SC 22 [LNIND 2008 SC 1920] ) and in Md Abdul Sufan Laskar v State of Assam, 2008
(9) SCC 333 .
792.  Chandrabhan v State of MP, 2011 Cr LJ 4667 (MP). Madan Lal v State, 2013 Cr LJ 2885
(Utt).

[s 325] Punishment for voluntarily causing grievous hurt.
Whoever, except in the case provided for by section 335, voluntarily causes grievous
hurt, shall be punished with imprisonment of either description for a term which may
COMMENT.—
This section prescribes the punishment for voluntarily causing grievous hurt except in
cases provided for by section 335. The facts involved in a particular case, depending
upon various factors like size, sharpness, would throw light on the question whether
the weapon was a dangerous or deadly weapon or not. That would determine whether
in the case section 325 or section 326 would be applicable. Considering the size of the

stone which was used, as revealed by material on record, it cannot be said that a
dangerous weapon was used. Therefore, the conviction was altered to section 325 IPC,
1860.793. Where a player in a friendly cricket match blew a stump against another
player which hit his head and caused death, it was held that the intention to cause
death or likelihood of it being not proved, an offence under section 325 was made out,
injury having been caused by a blunt weapon.794. Where medical evidence showed that
attack on the forehead of the deceased was by a lathi and the internal injury could not
be correlated to the external injury caused by the accused, it was held that the accused
was liable under section 325 IPC, 1860 and not under section 304, Part II, IPC, 1860.795.
Where two injuries were caused in a quarrel by the two accused persons each of whom

inﬂicted one stick blow one of which proved fatal but it could not be known who had
inﬂicted that blow and since intention to cause death was not established, conviction
was altered from under section 302 to section 325 read with section 34.796. In a ﬁght
between two groups, one person received one stick blow on the head and died a week
after treatment and operation. It could not be said that the accused had knowledge that
blow would cause death of that person. Conviction of the accused under section 304
Part II/34 was altered to one under sections 325 and 34.797. In an altercation between
father and the son, the son gave a blow on the head of his father with a heavy stick and
ran away. The victim died after one week in the hospital. It was held that the attack was

not pre-meditated and the offence fell under section 325 and not under section 302.798.
In a case the victim had sustained a grievous injury on a vital portion of the body and
the injury was life threatening, imposition of sentence of six days only, which was the
period already undergone by the accused in conﬁnement was held too lenient.
However, as the parties had forgotten their differences and were living peacefully for 25
years, the Court taking into consideration the aggravating as well as mitigating factors
under the facts of this case, imposed a sentence of six months' rigorous imprisonment
and a ﬁne of Rs. 25,000/- against the accused.799. In a clash over property dispute the
accused party caused grievous injuries to two persons and simple injuries to some

793.  Mathai v State of Kerala, AIR 2005 SC 710 [LNIND 2005 SC 37] : (2005) 3 SCC 260 [LNIND
2005 SC 37] .
794.  Shailesh v State of Maharashtra, 1995 Cr LJ 914 (Bom).
795.  Mohinder Singh, 1985 Cr LJ 1903 (SC) : AIR 1986 SC 309 . See Maiku v State of UP, 1989 Cr
LJ 860 : AIR 1989 SC 67 : 1989 Supp (1) SCC 25 , where a police party could not be convicted
under this section when a lathi blow was given to an escaping witness in the course of an
investigation and he died, it being not explained which of the party had played what role.
Bibhisan Barik v State of Orissa, (1995) 1 Cr LJ 390 (Ori) where while sentencing for grievous
hurt caused six years ago, the social status of the parties, genesis of the dispute were taken into
account for holding that custody already undergone was suﬃcient punishment. Wachittar Singh
v State of Punjab, (1995) 2 Cr LJ 1614 (P&H), grievous injuries caused by attacking the party by
reason of a land dispute, those accused who caused injuries on legs with a blunt weapon were

released on bail under the Probation of Offenders Act, 1958. The beneﬁt of probation was
extended to other accused also. State of Karnataka v Sririyappa, (1995) 2 Cr LJ 2304 (Kant), here
others. The occurrence took place 17 years before and some of the accused were more
than 76 years of age and one of them had died. Their conviction under section 325 was
aﬃrmed but the sentence was reduced to the period already undergone as the Court
did not think it ﬁt to send them back to jail. However, a ﬁne of Rs. 200 was imposed on
each one of them.800. In this connection, see also discussion and cases under sub-
heads "Death caused without requisite 'intention or knowledge' not culpable homicide"
and "single blow or lathi blow" under section 299, ante.801.
[s 325.1] Sentence.—

Once the accused is held guilty of commission of offence punishable under section
325 IPC, 1860 then imposition of jail sentence and ﬁne on the accused is mandatory.
So far as jail sentence is concerned, it may extend up to 7 years as per court's
discretion whereas so far as ﬁne amount is concerned, its quantum would also depend
upon the Court's discretion.802. Where the victim sustained a grievous injury on a vital
portion of the body, i.e., the head, which was fractured and the injury was life
threatening, imposition of the sentence of six days only which was the period already
undergone by the accused in conﬁnement was held too lenient. The Supreme Court
considering the aggravating as well as mitigating factors under the facts that the
parties have forgotten their differences and are living peacefully imposed a sentence of

6 months' RI and a ﬁne of Rs. 25,000/- against the accused.803.
[s 325.2] Compounding of offence under sections 323 and 325.—
During the pendency of proceedings under these sections, the parties effected a
compromise at the instance of their elders. Parties belonged to the same family and
there was no previous enmity. Permission to compound the offence under section 325
was granted by the High Court.804.

the offence was punishable with life imprisonment, beneﬁt of probation under section 4 of the
Probation of Offenders Act, 1958 was held to be improper.
796.  Siddapuram Siva Reddy v State of AP, (1995) 1 Cr LJ 701 (AP).
797.  Halke v State of MP, AIR 1994 SC 951 : 1994 Cr LJ 1220 . Takhaji Hiraji v Thakore Kubersing
Chammansing, AIR 2001 SC 2328 [LNIND 2001 SC 1150] : 2001 Cr LJ 2602 , in a ﬁght between
two village communities, the accused gave blows to the victim with a stick causing fracture in
his hand, conviction under the section proper. Rs. 500 was recovered as a ﬁne for compensating
the victim and a bond for keeping peace was taken from the accused with sureties. Nathu v
State of UP, 1999 Cr LJ 2382 (All), land dispute, lathi blows, unintended death of one victim,
accused persons held guilty of causing grievous hurt with common intention. Conviction of all
under section 34/326. Ajay Sharma v State of Rajasthan, 1998 Cr LJ 4590 : AIR 1998 SC 2798

[LNIND 1998 SC 879] , no ﬁnding of common intention to kill, conviction recorded under section
324. ABC Imports & Exports v Asst. Director, Enforcement, a mob of 200 came to the ﬁeld to
prevent transplantation by the prosecution party, one caused death at the spur of moment,
others inﬂicted minor injuries. One was held liable to be convicted for murder, other only for hurt
under section 325/34. State of Karnataka v Dwaraka Bhat, 1997 Cr LJ 226 : AIR 1996 SCW 4132 ,
accused pushed victim with great force, he fell down and sustained head injury and became
unconscious. Conviction. State of Karnataka v Basavegowda, 1997 Cr LJ 4386 (Kant), the
accused husband took his wife to forest, assaulted her with a stone and extorted her
ornaments. One serious injury and other simple injuries were caused. She was the sole witness

but found reliable. The fact that the divorced had remarried was not in itself an expression of
hostility towards the accused. Conviction was under section 325 and not section 307. The
accused was a young rustic villager, uneducated but no criminal background, nine years had
lapsed since the incident. Sentence of two years for grevious hurt and two years for extortion
were reduced to the period already undergone.
798.  Bellana Kannam Naidu v State of AP, 1994 Cr LJ 1146 (AP).
799.  State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 .
800.  Ayub v State of UP, AIR 1994 SC 1064 : 1994 Cr LJ 1219 .
801.  See also Rattan Singh v State of Punjab, AIR 1988 SC 2417 : 1988 BLJR 459 : 1988 SCC (Cr)
708 : 1988 Supp SCC 456 , death caused by lathi blow; Ganga Prasad v State of UP, 1987 SCC

(Cr) 345 : (1987) 2 SCC 232 , lacerated injury caused with a spade which was allowed to be
compounded.
802.  State of UP v Tribhuwan, AIR 2017 SC 5249 [LNIND 2017 SC 2876] .
803.  State of Rajasthan v Mohan Lal, AIR 2018 SC 3564 . See also Subhash Chander Bansal v
Gian Chand, AIR 2018 SC 655 [LNIND 2018 SC 19] .
804.  Mohinder Singh v State of Haryana, 1993 Cr LJ 85 (P&H). Pappu v State of Punjab, AIR 2000
SC 3633 , the accused and prosecution witnesses injured in the incident were close relatives.
They settled their dispute as between themselves. The sentence of the accused was reduced to
the period already undergone.

[s 326] Voluntarily causing grievous hurt by dangerous weapons or means.
hurt by means of any instrument for shooting, stabbing or cutting, or any instrument
which, used as a weapon of offence, is likely to cause death, or by means of ﬁre or
any heated substance, or by means of any poison or any corrosive substance, or by
means of any explosive substance, or by means of any substance which it is
deleterious to the human body to inhale, to swallow, or to receive into the blood, or by
means of any animal, shall be punished with 805.[imprisonment for life], or with
COMMENT.—

COMMENT.—
The relationship between this section and the preceding one is the same as that
between sections 324 and 323. Before a conviction for the sentence of grievous hurt
can be passed, one of the injuries deﬁned in section 320 must be strictly proved, and
the eighth clause is no exception to the general rule of law that a penal statute must be
construed strictly. The expression "any instrument which, used as a weapon of offence,
is likely to cause death" has to be gauged taking note of the heading of the section.
The essential ingredients to attract section 326 are:
(1) voluntarily causing a hurt;
(2) hurt caused must be a grievous hurt; and
(3) the grievous hurt must have been caused by dangerous weapons or means.806.
[s 326.1] Dangerous weapon.—
What would constitute a 'dangerous weapon' would depend upon the facts of each

case and no generalisation can be made. The heading of the section provides some
insight into the factors to be considered. As was noted by the Supreme Court in State
of UP v Indrajeet alias Sukhatha,807. there is no such thing as a regular or earmarked
weapon for committing murder or for that matter a hurt. Whether a particular article
can per se cause any serious wound or grievous hurt or injury has to be determined
factually. At this juncture, it would be relevant to note that in some provisions, e.g.,
sections 324 and 326 expression "dangerous weapon" is used. In some other more
serious offences the expression used is "deadly weapon" (e.g., sections 397 and 398).
The facts involved in a particular case, depending upon various factors like size,

sharpness, would throw light on the question whether the weapon was a dangerous or

deadly weapon or not. That would determine whether in the case section 325 or
section 326 would be applicable.808.
In the absence of any evidence that the stick which was used as a weapon of offence
was of lethal type and something like sharp blade or sharp point, etc., was attached to
it, the stick was held to be not an instrument within the meaning of this section.809.
Where the accused-teacher assaulted the child-student with a wooden stick that
caused injury to the eye of the child but there was no material to show that the stick
that was wielded by the accused was a dangerous weapon, the conviction of the
accused under section 326 may not be warranted; but the offence would fall under
section 325 IPC, 1860.810.
[s 326.2] Injuries not serious enough to endanger life.—
It was proved that the accused persons caused injuries which led to the victim's death.
He did not receive any medical assistance for full four hours. He lost a lot of blood

which became the cause of death. None of the injuries were on the vital parts of the
body. They were not serious enough to endanger life by themselves. The Court said
that at the highest, the accused persons could be said to be guilty under sections
326/34 for causing grievous hurt.811. In an altercation the accused persons beat the
injured with ﬁst and leg blows on stomach and waist. An attempt was made to help
him out of the injury by fomenting at home. But he had to be shifted to hospital and
operated upon. It was held that the accused was guilty of attempt to cause grievous
hurt and not attempt to murder.812. The accused persons armed with lathis and a tangi
went to the ﬁeld of the victims and picked up a ﬁght while they were ploughing their
ﬁeld. Looking at the attack they ran away. On their way back they met the uncle of their

victims who happened to ask them about the matter. They being annoyed by the
question, hit him on the head with a lathi. He died. The Court viewed the act as only one
intended to cause grievous hurt. Sentence of ﬁve years RI was awarded.813.
[s 326.3] Internal injuries.—
On account of a quarrel, the husband kicked his wife in the abdomen and chest. Liver
injuries were caused of which she died. Conviction was recorded under section 326.
There was no appeal by the State for any higher punishment. There was no evidence to
suggest any dowry demand. Hence, there could be no conviction under section
498A.814.
[s 326.4] Disﬁguration.—
The wife of the accused was being taken to a Police Station in execution of search
warrant accompanied by a police constable. The accused assaulted his wife and

498A.814.
caused injuries resulting in amputation of her limbs. The whole nose was also cut,
which itself was held to be suﬃcient to attract permanent disﬁguration. Conviction of
the accused under section 326 was not interfered with.815.
[s 326.5] Burn Injuries.—

Incident of throwing burning Kerosene Lamp by accused on complainant and the
complainant sustained 25–30 per cent burn injuries on chest, abdomen and hands.
Doctor clariﬁed that burn injuries are fatal and dangerous to life in case the injuries get
infected and develop into septicaemia. Therefore, injuries cannot be said to be fatal.
Accused was liable to be convicted only under section 326 of IPC, 1860 not under
section 307.816.
[s 326.6] Acid attack.—
The accused threw acid on the faces of their victims. Medical evidence showed that
the injuries caused on the faces and eyes were not suﬃcient to cause death, conviction
of the accused under section 307 was altered to one under section 326. The Court
observed that unless it can be shown that the intention or knowledge of the accused
was to cause such bodily injury as would come within one of the four clauses of
section 300, he cannot be held guilty of an offence under section 307.817.
[s 326.7] Attack with axe.—

Protest against cutting of trees became the cause for assault. The accused and his
companions started assaulting. The victim received a head injury with an axe. The blow
caused fracture because of its force. The accused persons were not entitled to the
beneﬁt of private defence, they being the aggressors.818.
[s 326.8] Attack with piece of stone.—
The weapon of assault was a piece of stone. As per the evidence of the doctor, the
injury caused was grievous one. But considering the size of the stone used for the
purpose, it could not be said that a dangerous weapon was used. The conviction was
altered to section 325 from section 326.819.
[s 326.9] Counter case.—
In a case the accused inﬂicted a knife blow to a man and the accused was also injured

during the same incident and ﬁled a counter case but took no steps to bring his case to
trial. It was held that ﬁling of the counter case was not fatal to the prosecution case
though both the cases should have been clubbed together. Conviction of the accused
under section 326 was upheld.820. The eye-witnesses who deny the presence of
injuries on the person of the accused are lying on the most material point, and
therefore, their evidence is unreliable.821.
[s 326.10] Feeding p r a s a d  containing poison.—
The accused distributed prasad to persons on relay fast. It contained poison. One
person died, others affected. The Court was of the view that it could not be said that
there was intention to kill a particular person, distribution being made openly. But
because the accused must have had knowledge that a poisonous substance may

cause grievous hurt or even death. In respect of the death he was convicted under
section 304, Part I and in respect of others affected under section 326.822.
[s 326.11] Protest against eve-teasing.—
The accused were friends of the victim who had objected to eve-teasing by one of
them. The victim-protestor was assaulted. It was held that they could be convicted
individually for their role in the assault under section 326 but not for the murder. There
was no common intention of going to that extent.823.
[s 326.12] Uncertainty as to cause of death.—
The ﬁrst doctor who examined the injured person in the hospital stated that none of the
injuries either individually or collectively appeared to be dangerous to life. The doctor
who last examined the patient stated that 'A' group blood having been exhausted, 'O'
group blood was given and death might have been due to blood reaction. The post-
mortem doctor stated that death was due to rupture of liver. The conviction was shifted

from under sections 302/34 to that under sections 325–326/34.824.
[s 326.13] Torture in police custody.—
Victim was arrested and kept in police station for three days and was not produced
before a Magistrate within 24 hours. Third degree methods adopted on him and his
penis was also chopped off with a barber's razor. It was a barbaric act on the part of
the accused, who deserve no leniency. Both accused persons are held guilty under
section 326 IPC, 1860.825.
[s 326.14] Section 307 v i s - a - v i s  Section 326.—
In some cases offence under section 326 IPC, 1860 may be acutely more serious than
another falling under section 307 IPC, 1860. For instance, acid thrown on the face of
young, unmarried girl would come under section 326 IPC, 1860 but it would be far more

serious than a ﬁrearm shot missing the victim that would fall under section 307 IPC,
1860.826. A bare perusal of these two provisions clearly reveals that while section 307
IPC, 1860 uses the words "under such circumstances", these words are conspicuously
missing from section 326 IPC, 1860. Therefore, while deciding whether the case falls
under section 307 IPC, 1860 or under section 326 IPC, 1860 the Court must necessarily
examine the circumstances in which the assault was made.827. Doctor categorically
stated that injury could have caused death. Radiologist also stated that chopping of the
leg was grievous act in nature. The Supreme Court held that High Court was not
justiﬁed in altering conviction from section 307 read with section 149 to 326 read with
section 149 IPC, 1860.828. Number of injures were quite grievous but accused were

careful not to give any blow on any vital part of body. Doctor did not say that injuries
were suﬃcient in the course of nature to cause death. Therefore, accused was
convicted under section 326 IPC, 1860 instead of section 307 IPC, 1860.829.

[s 326.15] Punishment.—
Imposing only ﬁne while convicting the accused under section 326 and not imposing
punishment of imprisonment, was held to be a non-compliance of the provisions of the
code.830. Accused poured acid on the head of victim with the result that face, neck,
eyes, chest, etc., were seriously burnt. High Court reduced sentence from three years to
already undergone (35 days). For such a heinous crime accused deserves no
leniency.831.
In a case,832. the Supreme Court held the imposition of three months' imprisonment to
be proper but pointed out that the Courts below should have taken notice of the
provisions of the Probation of Offenders Act, 1958 or of section 360 Cr PC, 1973. While
upholding the sentence, the Court directed the prisoner to be released on probation.
Often in Court at the sentencing stage the spotlight fell almost entirely upon the
offender and the circumstances of the offender, and there was seldom reference to the
suffering of the victim of violence.833.

[s 326.16] Offence not compoundable.—
In Suresh Babu v State of AP,834. Supreme Court allowed the compounding of an
offence under section 326 IPC, 1860 even though such compounding was not
permitted by section 320 of the Code. However, in Surendra Nath Mohanty v State of
Orissa,835. and in Ramlal v State of Jammu and Kashmir,836. it was held that an offence
which law declares to be non-compoundable cannot be compounded at all even with
the permission of the Court and held Suresh Babu,837. per incuriam. In Jalaluddin v State
of UP,838. and in Bankat v State,839. the Apex Court reiterated that as the offence under
section 326, IPC, 1860 is not compoundable, even if the parties settled the matter. In
Ramgopal v State of MP,840. Supreme Court held as follows:
There are several offences under the IPC that are currently non - compoundable. These

include offences punishable u/s. 498-A, s. 326, etc. of the IPC. Some of such offence can be
made compoundable by introducing a suitable amendment in the statute. We are of the
opinion that the Law Commission of India could examine whether a suitable proposal can
be sent to the Union Government in this regard. Any such step would not only relieve the
Courts of the burden of deciding cases in which the aggrieved parties have themselves
arrived at a settlement, but may also encourage the process of reconciliation between them.
We, accordingly, request the Law Commission and the Government of India to examine all
these aspects and take such steps as may be considered feasible.
The Law Commission of India examined the issue in view of the direction in Ramgopal's
Case and submitted its 237th Report suggesting to make section 498A and section

324 compoundable: no changes were suggested regarding section 326. In Gian Singh v
State of Punjab,841. a three-Judge Bench held that sub-section (9) of section 320
mandates that no offence shall be compounded except as provided by this section.
Obviously, in view thereof the composition of an offence has to be in accord with
section 320 and in no other manner. But the power of compounding of offences given
to a Court under section 320 is materially different from the quashing of criminal
proceedings by the High Court in exercise of its inherent jurisdiction. In compounding
of offences, power of a criminal Court is circumscribed by the provisions contained in
section 320 and the Court is guided solely and squarely thereby while, on the other
hand, the formation of opinion by the High Court for quashing a criminal offence or

criminal proceeding or criminal complaint is guided by the material on record as to
whether the ends of justice would justify such exercise of power although the ultimate
consequence may be acquittal or dismissal of indictment. The result is, though section
326 IPC, 1860 is a non-compoundable offence, the High Court can quash the

805.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1 January
1956).
806.  Prabhu v State of MP, AIR 2009 SC 745 [LNIND 2008 SC 2354] : (2008) 17 SCC 381 [LNIND
2008 SC 2354] .
807.  State of UP v Indrajeet alias Sukhatha, (2000) 7 SCC 249 [LNIND 2000 SC 1148] .
808.  Prabhu v State of MP, AIR 2009 SC 745 [LNIND 2008 SC 2354] : (2008) 17 SCC 381 [LNIND
2008 SC 2354] ; Mathai v State of Kerala, 2005 (2) JT 365 .
809.  Jagannath v State of Maharashtra, (1995) 1 Cr LJ 795 (Bom).
810.  C R Kariyappa v State of Karnataka, AIR 2018 SC 4312 .
811.  State of Karnataka v Shivaraj, 2002 Cr LJ 2493 (Kant), the accused persons were all
agriculturists and not seasoned or regular criminals, there was neither brutality nor
premeditation, they had served considerable period of time in custody during the trial. Their
imprisonment was reduced to the period already undergone and ﬁne of Rs. 2000 each.
812.  Rajesh Kumar v State of Haryana, 2002 Cr LJ 756 (P&H), the accused were less than 21

years of age, ﬁrst offenders, faced proceedings for 10 years, released on probation on furnishing
bond of Rs. 10,000 each and with surety bond of like amount for three years. State v Abdul
Rashid, 2002 Cr LJ 3118 (J&K), three accused persons assaulted the victim who died and his
brother received injuries with a sharp weapon, but injury was not suﬃcient to cause death.
Perforation of wound became the cause of death. The accused also caused grievous hurt with
dangerous weapon. Convicted under sections 326/34. GS Walia v State of Punjab, 1998 Cr LJ
2524 (SC) attack with iron rods and axe resulting in death. Medical report did not show injury as
suﬃcient to cause death. Inference that attack was only to cause injuries. Liability for conviction
only under section 325. State of Karnataka v Lokesh, 2002 Cr LJ 3795 (Kant) all the accused

convicted under the section read with section 34.
813.  Chowa Mandal v State of Bihar, AIR 2004 SC 1603 [LNIND 2004 SC 147] : 2004 Cr LJ 1405 .
814.  Arjuna Das v State of Orissa, 2000 Cr LJ 3601 (Ori).
815.  Devisingh v State of MP, 1993 Cr LJ 1301 (MP).
816.  Anant Nathu Mankar v State of Maharashtra, 2011 Cr LJ 2713 (Bom).
817.  Kulamani Sahu v State of Orissa, 1994 Cr LJ 2245 (Ori). Sangeeta Kumari v State of
Jharkhand, 2003 Cr LJ 1734 (Jha); Vishwambhar Narayan Jadhav v Mallappa Sangramappa
Mallipatil, AIR 2009 SC 854 [LNIND 2008 SC 2349] : (2007) 15 SCC 600. See section 326A and
section 326B.
818.  AC Gangadhar v State of Karnataka, AIR 1998 SC 2381 [LNIND 1998 SC 506] : 1998 Cr LJ
3602 the sentence of imprisonment for one year was not excessive in view of the injury caused.

Melampati v GM Prasad, 2000 Cr LJ 3449 : AIR 2000 SC 2195 [LNIND 2000 SC 745] accused
persons caused too many injuries with axe, knife and other sharp weapons, the victim died on
the spot. Some of them acquitted by the High Court. In reference to the remaining two, the
Supreme Court found failure of prosecution to prove anything against them.
proceedings by using its inherent power under section 482 Cr PC, 1973 in case of
settlement between the parties.

819.  Mathai v State of Kerala, 2005 Cr LJ 898 : AIR 2005 SC 710 [LNIND 2005 SC 37] : (2005) 3
SCC 260 [LNIND 2005 SC 37] , no hard and fast rule can be applied for assessing proper
sentence. Also a long passage of time cannot always be determinative factor. Major portion of
the sentence awarded was already suffered, it was reduced to the period undergone.
820.  Mohd Ibrahim v State of AP, 1993 Cr LJ 2489 (AP).
821.  Ganesh Datt v State of Uttarakhand, 2014 Cr LJ 3128 : AIR 2014 SC 2521 [LNIND 2014 SC
186] .
822.  State of Bihar v Ram Nath Pd, 1998 Cr LJ 679 : AIR 1998 SC 466 [LNIND 1997 SC 1581] .
823.  Heeralal Ramlal Parmar v State, 1998 Cr LJ 574 (Bom). The court said that ends of justice
would be served if the jail sentence was reduced to the period already undergone and accused
persons directed to pay ﬁne of Rs. 15,000 each.
824.  State of Haryana v Mange Ram, AIR 2002 SC 558 : 2003 Cr LJ 830 .
825.  Central Bureau of Investigation v Kishore Singh, (2011) 6 SCC 369 [LNIND 2010 SC 1033] :

(2011) 2 SCC (Cr) 970 : AIR 2011 SC (Supp) 584.
826.  Mangal Singh v Kishan Singh, AIR 2009 SC 1535 [LNIND 2008 SC 2280] : (2009) 17 SCC
303 [LNIND 2008 SC 2280] .
827.  Pooran Singh Seera Alias Pooran Meena v State of Rajasthan, 2011 Cr LJ 2100 (Raj); Neelam
Bahal v State of Uttarakhand, AIR 2010 SC 428 [LNIND 2009 SC 2056] : (2010) 2 SCC 229 [LNIND
2009 SC 2056] .
828.  State of MP v Kashiram, (2009) 4 SCC 26 [LNIND 2009 SC 215] : AIR 2009 SC 1642 [LNIND
2009 SC 215] .
829.  Mangal Singh v Kishan Singh, AIR 2009 SC 1535 [LNIND 2008 SC 2280] : (2009) 17 SCC
830.  Dhandapani v Dhandapani, 1995 Cr LJ 3099 (Mad), relying on State of UP v Manbodhan Lal,
AIR 1957 SC 912 [LNIND 1957 SC 93] : 1958 SCJ 150 [LNIND 1957 SC 93] and Re Rayar, 1982

Mad LW (Cr) 47 : 1982 Cr LJ (NOC) 122 . Mangal Singh v Kishan Singh, AIR 2009 SC 1535 [LNIND
2008 SC 2280] : (2009) 17 SCC 303 [LNIND 2008 SC 2280] .
831.  Vishwambhar Narayan Jadhav v Mallappa Sangramappa Mallipatil, AIR 2009 SC 854 [LNIND
2008 SC 2349] : (2007) 15 SCC 600 [LNIND 2008 SC 2349] .
832.  Jagat Pal Singh v State of Haryana, AIR 2000 SC 3622 ; Santokh Singh v State of Rajasthan,
2000 Cr LJ 1410 (Raj), the accused inﬂicted solitary sword blow on the head of the victim,
convicted under section 326, the incident took place 16 years ago, the accused had remained in
jail for two months, sentence of three years RI reduced to one year RI. Bhanwar Lal v State of
Rajasthan, 2000 Cr LJ 1472 (Raj), another case in which sentence of two years RI was reduced

to one year RI. Syed Shaﬁq Ahmed v State of Maharashtra, 2002 Cr LJ 1403 (Bom) conviction for
throwing acid on his estranged wife and her relatives and disﬁguring them. Hari Ram v State of
Rajasthan, 2000 Cr LJ 1027 (Raj), the accused caused grievous hurt with a sharp weapon on the
neck of the victim. Other accused persons were released on probation. He had remained in jail
for two months and 18 days. Sentence reduced to the period already undergone. Sat Narain v
State, 2000 Cr LJ 1018 (Del), the accused had undergone some part of the sentence. He had
faced the trauma of criminal proceedings for 23 years. His sentence was reduced to the period
already undergone. State of Maharashtra v Harishchandra Tukaram, 1997 Cr LJ 612 (Bom), each

of the four accused persons were in jail for a period of 10 months. Instead of sending them to
jail, the court directed them to pay a ﬁne of Rs. 10,000 to be paid to the victim by way of
compensation. State of Maharashtra v Hindurao Daulu, 1997 Cr LJ 1649 (Bom), accused was of
27 years. He could not be said to be a young person for showing any leniency. State of Gujarat v
Sivapan Day, 1997 Cr LJ 2032 (Gau), the accused was a young man, 17 years had elapsed since
the offence. He got married and had two kids. Taking into view the manner of killing and making

a woman husbandless, the accused was sentenced to 3½ years RI and a ﬁne of Rs. 1,000.
Tamilselvan v Union Territory of Pondicherry, 1997 Cr LJ 2094 (Mad), the complainant, a
personnel oﬃcer, had initiated disciplinary proceedings against the accused, who attacked him
and caused grevious hurt. This was viewed as a heinous crime. Punishment of ﬁne was
imposed.
833.  R v Williams, (2000) 2 Cr App R (S) 380 [CA (Crim Div)]. R v Hennessey, (2000) 2 Cr App R
(S) 480 [CA (Crim Div)], attack on wife, following arguments, causing 16 wounds, including two
stab wounds, six years' imprisonment. R v Hyles, (2001) 1 Cr App R (S) 26 [CA (Crim Div)], the
accused came to his woman friend. He believed that she had with the help of two men sold his
car. He asked for the price. He came back after some time with a kettle of hot water and poured
it on her injuring her, ﬁve years' imprisonment. R v Bishop, (2000) 2 Cr App R (S) 416 [CA (Crim

Div)], causing severe injuries to a woman in a club by thrusting a beer bottle against her face;
four years' imprisonment. R v Jones, (2001) 1 Cr App R (3) 116 [CA (Crm Div)], attack on police
man by chasing him with a vehicle. The fact that the victims were police oﬃcers increased the
gravity of the offence, sentence of ﬁve years' imprisonment.
834.  Suresh Babu v State of AP, (1987) 2 JT 361 .
835.  Surendra Nath Mohanty v State of Orissa, AIR 1999 SC 2181 [LNIND 1999 SC 482] .
836.  Ramlal v State of Jammu and Kashmir, AIR 1999 SC 895 [LNIND 1999 SC 60] .
837.  Supra.
838.  Jalaluddin v State of UP, 2001 AIR SCW 2266.
839.  Bankat v State, AIR 2005 SC 368 [LNIND 2004 SC 1183] .
840.  Ramgopal v State of MP, 2010 (7) Scale 711 [LNIND 2010 SC 690] .

841.  Gian Singh v State of Punjab, (2012) 10 SCC 303 [LNIND 2010 SC 1128] : 2012 (9) Scale
257 .

[s 326A] Voluntarily causing grievous hurt by use of acid, etc.
Whoever causes permanent or partial damage or deformity to, or burns or maims or
disﬁgures or disables, any part or parts of the body of a person or causes grievous
hurt by throwing acid on or by administering acid to that person, or by using any other
means with the intention of causing or with the knowledge that he is likely to cause
such injury or hurt, shall be punished with imprisonment of either description for a
term which shall not be less than ten years but which may extend to imprisonment for
life, and with ﬁne:
P r o v i d e d  that such ﬁne shall be just and reasonable to meet the medical expenses of
the treatment of the victim:
P r o v i d e d  further that any ﬁne imposed under this section shall be paid to the

victim.]842.
COMMENTS
The section is introduced on the basis of the recommendations of Justice JS Verma
Committee.843.
[s 326A.1] Gravity of injury not necessary.—
Merely because the title to section 326A speaks about grievous hurt by use of acid, it is
not a requirement under the section that the injuries caused should be invariably
grievous. Even if the injuries are simple, the mere act of throwing or attempt would
attract the offence under sections 326A and 326B.844.
[s 326A.2] Fine mandatory and reasonable.—
The ﬁne is mandatory and the quantum should be just and reasonable in the sense that
it should be suﬃcient to meet the medical expenses for the treatment of the victim.
Therefore, the second proviso under section 326A requires that the ﬁne imposed
should be paid to the litigant.845.

842.  Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 5 (w.e.f. 3-2-2013).
843.  Report of Justice JS Verma Committee – in Paras 4 to 9 of Chapter 5, at pp 146 to 148,
wherein references were also made to the decision of Sachin Jana v State of WB, (2008) 3 SCC
390 [LNIND 2008 SC 167] : 2008 (2) Scale 2 [LNIND 2008 SC 167] : 2008 Cr LJ 1596 and the
226th Report of Law Commission of India, July 2008 at Para 3.
844.  Maqbool v State of UP, AIR 2018 SC 5101 .
845.  Maqbool v State of UP, AIR 2018 SC 5101 .

[[s 326B] Voluntarily throwing or attempting to throw acid.
Whoever throws or attempts to throw acid on any person or attempts to administer
acid to any person, or attempts to use any other means, with the intention of causing
permanent or partial damage or deformity or burns or maiming or disﬁgurement or
disability or grievous hurt to that person, shall be punished with imprisonment of
either description for a term which shall not be less than ﬁve years but which may
Explanation I.—For the purposes of section 326A and this section, "acid" includes any
substance which has acidic or corrosive character or burning nature, that is capable
of causing bodily injury leading to scars or disﬁgurement or temporary or permanent
disability.

Explanation 2.—For the purposes of section 326A and this section, permanent or
partial damage or deformity shall not be required to be irreversible.]846.
While section 326-A focuses more on the grievous hurt resulting from the use of acid,
in section 326-B the legislative focus is more on the act of throwing or attempting to
throw acid with the intention of causing grievous hurt of the nature.
[s 326B.1] Guidelines.—
The Supreme Court in Laxmi v UOI,847. directed the state to consider (i) Enactment of
appropriate provision for effective regulation of sale of acid in the States/Union
Territories. (ii) Measures for the proper treatment, after care and rehabilitation of the
victims of acid attack and needs of acid attack victims. (iii) Compensation payable to

acid victims by the State/or creation of some separate fund for payment of
compensation to the acid attack victims. In a subsequent order in the same case the
Supreme Court issued many directions to curb the menace of acid attacks. [See the
Box with 'Supreme Court Guidelines to prevent Acid Attacks'.]
Supreme Court Guidelines to prevent Acid Attacks
7.(i) Over the counter, sale of acid is completely prohibited unless the seller maintains a
log/register recording the sale of acid which will contain the details of the person(s) to
whom acid(s) is/are sold and the quantity sold. The log/register shall contain the
address of the person to whom it is sold.
(ii) All sellers shall sell acid only after the buyer has shown:

846.  Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 5 (w.e.f. 3-2-2013).
847.  Laxmi v UOI, 2013 (9) Scale 291 .
848.  Laxmi v UOI, 2013 (9) Scale 291 .
(a) a photo ID issued by the Government which also has the address of the person.
(b) speciﬁes the reason/purpose for procuring acid.
(iii) All stocks of acid must be declared by the seller with the concerned Sub-Divisional
Magistrate (SDM) within 15 days.
(iv) No acid shall be sold to any person who is below 18 years of age.
(v) In case of undeclared stock of acid, it will be open to the concerned SDM to
conﬁscate the stock and suitably impose ﬁne on such seller up to 50,000/-
(vi) The concerned SDM may impose ﬁne up to 50,000/- on any person who commits
breach of any of the above directions.
8. The educational institutions, research laboratories, hospitals, Government
Departments and the departments of Public Sector Undertakings, who are required to
keep and store acid, shall follow the following guidelines:

(i) A register of usage of acid shall be maintained and the same shall be ﬁled with the
concerned SDM.
(ii) A person shall be made accountable for possession and safe keeping of acid in
their premises.
(iii) The acid shall be stored under the supervision of this person and there shall be
compulsory checking of the students/personnel leaving the laboratories/place of
storage where acid is used.
[Laxmi v UOI.848.]

[s 327] Voluntarily causing hurt to extort property, or to constrain to an illegal
act.
Whoever voluntarily causes hurt, for the purpose of extorting from the sufferer, or
from any person interested in the sufferer, any property or valuable security, or of
constraining the sufferer or any person interested in such sufferer to do anything
which is illegal or which may facilitate the commission of an offence, shall be
849.  Dhin Singh v State of Punjab, 1995 Cr LJ 4167 : AIR 1995 SC 2451 .
COMMENT.—
This is an aggravated form of the offence of hurt and is severely punishable, because
the object of causing it is to extort property from the sufferer. Where one of the ﬁve

COMMENT.—
persons accused of murder was armed with a sharp-edged weapon but inﬂicted only
one injury by the blunt side of his weapon, he could only be said to have shared the
common intention of causing simple injury and was liable under section 327 and not
under section 300.849.

[s 328] Causing hurt by means of poison, etc., with intent to commit an
offence.
Whoever administers to or causes to be taken by any person any poison or any
stupefying, intoxicating or unwholesome drug, or other thing with intent to cause hurt
to such person, or with intent to commit or to facilitate the commission of an offence
or knowing it to be likely that he will thereby cause hurt, shall be punished with
COMMENT.—
The offence under this section is complete even if no hurt is caused to the person to
whom the poison or any other stupefying, intoxicating, or unwholesome drug is
administered. This section is merely an extension of the provisions of section 324.

Under section 324 actual causing of hurt is essential: under this section mere
administration of poison is suﬃcient to bring the offender to justice. In order to prove
an offence under section 328 the prosecution is required to prove that the substance in
question was a poison, or any stupefying, intoxicating or unwholesome drug, etc., and
that the accused administered the substance to the complainant or caused the
complainant to take such substance and further that he did so with intent to cause hurt
or knowing it to be likely that he would thereby cause hurt, or with the intention to
commit or facilitate the commission of an offence. It is, therefore, essential for the
prosecution to prove that the accused was directly responsible for administering
poison, etc., or causing it to be taken by any person, through another. In other words,

the accused may accomplish the act by himself or by means of another. In either
situation direct, reliable and cogent evidence is necessary.850.
[s 328.1] Section 328 and section 376.—
Accused offered the complainant/prosecutrix a cold drink (Pepsi) allegedly containing
a poisonous/intoxicating substance. According to the complainant/prosecutrix she felt
inebriated after taking the cold drink. In her aforesaid state, the appellant-accused
started misbehaving with her. There were no scientiﬁc materials to prove the
allegations and hence the proceedings were held liable to be quashed.851.
[s 328.2] Causing unwholesome thing to be taken.—

850.  Joseph Kurian v State of Kerala, AIR 1995 SC 4 [LNIND 1994 SC 927] : (1995) 1 Cr LJ 502 :
(1994) 6 SCC 535 [LNIND 1994 SC 927] .
851.  Prashant Baharti v State of NCT Delhi, 2013 (1) Scale 652 [LNIND 2013 SC 78] .
852.  Dhania Daji, (1868) 5 BHC (Cr C) 59. Where a person mixed 2.64% methyl in arrack not
knowing that such a small quantity is likely to cause death, having been acquitted under section
304, was also acquitted under this section; Joseph Kurian v State of Kerala, AIR 1995 SC 4
[LNIND 1994 SC 927] : (1995) 1 Cr LJ 502 : (1994) 6 SCC 535 [LNIND 1994 SC 927] .
853.  EK Chandrasenan v State of Kerala, AIR 1995 SC 1066 [LNIND 1995 SC 88] : (1995) 2 SCC
99 [LNIND 1995 SC 88] ; Ravinder Singh v State of Gujarat, 2013 Cr LJ 1832 (SC) : AIR 2013 SC
1915 [LNIND 2013 SC 151] ; Chandran @ Manichan v State, AIR 2011 SC 1594 [LNIND 2011 SC
358] : (2011) 5 SCC 161 [LNIND 2011 SC 358] ; See Joseph Kurian v State of Kerala, AIR 1995 SC

4 [LNIND 1994 SC 927] : (1995) 1 Cr LJ 502 : (1994) 6 SCC 535 [LNIND 1994 SC 927] in which
accused are acquitted under section 328 on facts.
Where the accused mixed milk-bush juice in his toddy pots, knowing that if drunk by a
person it would cause injury, with the intention of detecting an unknown thief who was
always in the habit of stealing his toddy, and the toddy was drunk by some soldiers who
purchased it from an unknown vendor, it was held that he was guilty under this
section.852.
[s 328.3] Hooch tragedies.—
Prosecution case is that 70 persons died after having consumed liquor from the shops
and sub-shops which were catered by the ﬁrm named "Bee Vee Liquors" and 24 lost
eyesights permanently, not to speak of many others who became prey of lesser

injuries. It was the liquor supplied by the ﬁrm to the shops and sub-shops which was
consumed; and so, it has to be held that the consumers were made to take the liquor
supplied by the ﬁrm. On facts, the requirements of section 328 being present, the
conviction under section 328 was held rightful.853.
[s 328.4] Charge under section 304, Conviction under section 328.—
The charge under section 304 framed against the appellant was with deﬁnite allegation
of culpable homicide not amounting to murder by reason of administration of drug
without taking precaution for reaction there from. This is totally different from causing
hurt by means of administration of unwholesome drug. On no count a deﬁnite charge
of culpable homicide can be an error for causing hurt. Going by section 214 Cr PC,

1973 in every charge words used in describing an offence shall be deemed to have
been used in the sense attached to them by law under which such offence is
punishable. Therefore, to construe the section relating to culpable homicide as only an
error for causing hurt by unwholesome drug will lead to be misleading so far as the
accused is concerned resulting in failure of justice so far as his opportunity to defend
is concerned.854.

854.  Radha Sasidharan v State of Kerala, 2006 Cr LJ 4702 (Ker).

[s 329] Voluntarily causing grievous hurt to extort property, or to constrain to
an illegal act.
Whoever voluntarily causes grievous hurt for the purpose of extorting from the
sufferer or from any person interested in the sufferer, any property or valuable
security, or of constraining the sufferer or any person interested in such sufferer to do
anything that is illegal or which may facilitate the commission of an offence, shall be
punished with 855.[imprisonment for life], or imprisonment of either description for a
term which may extend to ten years, and shall also be liable to ﬁne.
855.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-1956).
856.  Phani Bhusban Das v State of WB, AIR 1995 SC 70 : (1995) 1 Cr LJ 551 , 21-year old

incident, injuries by lathi blows, conviction under this section maintained.
857.  Ameen v State of MP, 2001 Cr LJ 1947 (MP).
858.  Virendra Kumar v State of MP, 1998 Cr LJ 2170 (MP).
COMMENT.—
This section is similar to section 327, the only difference being that the hurt caused
under it is grievous.856. Where a grievous hurt was caused to obstruct the person from
deposing in Court, the Court said that it amounted to forcing him to commit an act
which was illegal. Framing of charge under the section was not improper.857. In this
provision the words "for the purposes of extorting" are most important to meet the
argument of learned counsel for appellant. This will include an attempt to extort also.
This provision would be attracted even if extortion is not complete. Section 329, IPC,

1860 deals with grievous hurt caused for the particular purpose that is extortion or
other purposes mentioned in the section. The offence of extortion may or may not have
been completed. Two appellants along with others attacked the complainant with
knives. Two appellants with one more, each stabbed the complainant. They were held
liable for each other's acts because they acted in concert to extort money.858.

[s 330] Voluntarily causing hurt to extort confession, or to compel restoration
of property.
Whoever voluntarily causes hurt for the purpose of extorting from the sufferer or from
any person interested in the sufferer, any confession or any information which may
lead to the detection of an offence or misconduct, or for the purpose of constraining
the sufferer or any person interested in the sufferer to restore or to cause the
restoration of any property or valuable security or to satisfy any claim or demand, or
to give information which may lead to the restoration of any property or valuable
security, shall be punished with imprisonment of either description for a term which

(a) A, a police-oﬃcer, tortures Z in order to induce Z to confess that he committed a
crime. A is guilty of an offence under this section.
(b) A, a police-oﬃcer, tortures B to induce him to point out where certain stolen
property is deposited.
A is guilty of an offence under this section.
(c) A, a revenue oﬃcer, tortures Z in order to compel him to pay certain arrears of
revenue due from Z.
(d) A, a zamindar, tortures a raiyat in order to compel him to pay his rent. A is guilty
of an offence under this section.
COMMENT.—
This section is similar to section 327 which deals with causing of hurt for the purpose
of extorting property or valuable security. It punishes the inducing of a person by
causing hurt to make a statement, or a confession, having reference to an offence or

misconduct; and whether that offence or misconduct has been committed is wholly
immaterial.859. An offence under this section is made out if it is proved that the
accused caused hurt to extort confession or any information. If the victim dies later it
is not necessary to prove that death was a result of the hurt caused.860. The offence is
complete as soon as the hurt is caused to extort confession or any information.

[s 330.1] Custodial Torture.—
Though sections 330 and 331 of the IPC, 1860 make punishable those persons who
cause hurt for the purpose of extorting the confession by making the offence
punishable with sentence up to 10 years of imprisonment, but the convictions, as
experience shows from track record have been very few compared to the considerable
increase of such onslaught because the atrocities within the precincts of the police
station are often left without much traces or any ocular or other direct evidence to
prove as to who the offenders are. Disturbed by this situation the Law Commission in
its 113th Report recommended amendments to the Indian Evidence Act, 1872 so as to
provide that in the prosecution of a police oﬃcer for an alleged offence of having
caused bodily injuries to a person while in police custody, if there is evidence that the
injury was caused during the period when the person was in the police custody, the

Court may presume that the injury was caused by the police oﬃcer having the custody
of that person during that period unless the police oﬃcer proves to the contrary. The
onus to prove the contrary must be discharged by the police oﬃcial concerned.
Keeping in view the dehumanising aspect of the crime, the ﬂagrant violation of the
fundamental rights of the victim of the crime and the growing rise in the crimes of this
type, where only a few come to light and others don't, the Government and the
legislature must give serious thought to the recommendation of the Law Commission
and bring about the appropriate changes in the law not only to curb the custodial crime
but also to see that the custodial crime does not go unpunished. The Courts are also
required to have a change in their outlook approach, appreciation and attitude,

particularly in cases involving custodial crimes and they should exhibit more sensitivity
and adopt a realistic rather than a narrow technical approach, while dealing with the
cases of custodial crime so that as far as possible within their powers, the truth is
found and guilty should not escape so that the victim of the crime has the satisfaction
that ultimately the majesty of law has prevailed.861.
Where daughter of accused and son of complainant married each other. Complainant
and his family members were brutally tortured by police oﬃcials it was held that order
framing charge against petitioner was proper.862.
Where the accused, the investigating oﬃcer and his assistant, entertained suspicion
about two persons in a case of theft and subjected the suspects to ill-treatment to

extort confession or information leading to detection of stolen properties, the accused
were held guilty of offence under section 330.863.
[s 330.2] Conviction under sections 302, 330 and 34 based on an unsigned
dying declaration.—Death caused by police oﬃcers to extract confession based on
dying declaration. Guidelines issued by the Delhi High Court that the declaration should
carry the signature of the declarant not observed. Held that the issuance of the
guidelines is for ensuring and for testing the genuineness of the dying declaration of
person, who is in the last moment of his life. Merely because there was a defect in
following the said guideline, which, as is now pointed out, is of a trivial nature and if the
dying declaration recorded is otherwise proved by ample evidence, both oral as well as

documentary, on the ground of such trivial defects, the whole of the dying declaration
cannot be thrown out by the reason of such trivial defects.864.
[s 330.3] As to the mind of the declarant.—

859.  Nim Chand Mookerjee, (1873) 20 WR (Cr) 41.
860.  State of HP v Ranjit Singh, 1979 Cr LJ (NOC) 210 (HP).
861.  Shakila Abdul Gafar Khan v Vasant Raghunath Dhoble, AIR 2003 SC 4567 [LNIND 2003 SC
653] : 2003 Cr LJ 4548 ; State of MP v Shyamsunder Trivedi, (1995) 4 SCC 262 [LNIND 1995 SC
644] : (1995) 1 SCC (Cr) 715.
862.  Ajay Kumar Singh v State (Nct of Delhi), 2007 Cr LJ 3545 (Del). Sham Kant v State, AIR 1992
SC 1879 : 1992 Cr LJ 3243 (SC).
863.  Sham Kant v State of Maharashtra, AIR 1992 SC 1879 : 1992 Cr LJ 3243 . Ashok K John v
State of UP, AIR 1997 SC 610 [LNIND 1996 SC 2177] : 1997 Cr LJ 743 , an arrestee was tortured.
This was an infringement of fundamental rights of a citizen. He was held to be entitled to
receive compensation from the State the amount of which would vary according to the proved
facts of each case. Punishment under section 330 was not an adequate remedy. Jaffar Khan v
State of Rajasthan, 1997 Cr LJ 1571 (Raj), offence not proved. Indu Jain v State of MP, (2008) 15

SCC 341 [LNINDORD 2008 SC 299] : AIR 2009 SC 976 [LNIND 2008 SC 2115] : 2009 Cr LJ 951 ,
the case of custodial death, framing of charge under the section was dropped by the trial court
and High Court but the Supreme Court allowed it.
864.  Narender Kumar v State of NCT of Delhi, AIR 2016 SC 150 [LNIND 2015 SC 711] : 2015 (13)
Scale 821 [LNIND 2015 SC 711] .
865.  Jumni v State of Haryana, 2014 Cr LJ 1936 : 2014 (4) SCJ 36 [LNIND 2014 SC 222] .
866.  Latifkhan v State, (1895) 20 Bom 394; Dinanath, (1940) Nag 232.
It is true that when a person is on his or her deathbed, there is no reason to state a
falsehood but it is equally true that it is not possible to delve into the mind of a person
who is facing death.865.
[s 330.4] Abetment.—
Where the accused stood by and acquiesced in an assault on a prisoner committed by

another policeman for the purpose of extorting a confession, it was held that he
abetted the offence under this section.866.

[s 331] Voluntarily causing grievous hurt to extort confession, or to compel
sufferer or from any person interested in the sufferer, any confession or any
information which may lead to the detection of an offence or misconduct, or for the
purpose of constraining the sufferer or any person interested in the sufferer to restore
or to cause the restoration of any property or valuable security, or to satisfy any claim
or demand or to give information which may lead to the restoration of any property or
valuable security, shall be punished with imprisonment of either description for a term

867.  Kartar Singh v State of Punjab, (1994) 3 SCC 569 : 1994 Cr LJ 3139 .
868.  Dalbir Singh v State of UP, AIR 2009 SC 1674 [LNIND 2009 SC 220] : (2009) 11 SCC 376
[LNIND 2009 SC 220] . The anguish expressed in Gauri Shanker Sharma v State of UP, AIR 1990
SC 709 [LNIND 1990 SC 8] ; Bhagwan Singh v State of Punjab, 1992 (3) SCC 249 [LNIND 1992 SC
396] ; Smt. Nilabati Behera @ Lalita Behera v State of Orissa, AIR 1993 SC 1960 [LNIND 1993 SC
1167] ; Pratul Kumar Sinha v State of Bihar, 1994 Supp (3) SCC 100 ; Kewal Pati v State of UP,
1995 (3) SCC 600 ; Inder Singh v State of Punjab, 1995 (3) SCC 702 [LNIND 1995 SC 1381] ; State
COMMENT.—
This section is similar to the preceding section except that the hurt caused under it
should be 'grievous'. Sections 330 and 331 of the IPC, 1860 provide punishment to one

COMMENT.—
who voluntarily causes hurt or grievous hurt as the case may be to extort the
confession or any information which may lead to the detection of an offence or
misconduct, thus, the Constitution as well as the statutory procedural law and law of
Evidence condemn the conduct of any oﬃcial in extorting a confession or information
under compulsion by using any third degree methods.867. The diabolic recurrence of
police torture resulting in a terrible scare in the minds of common citizens that their
lives and liberty are under a new and unwarranted peril because guardians of law
destroy the human rights by custodial violence and torture and invariably resulting in
death. The vulnerability of human rights assumes a signiﬁcance when functionaries of
the State whose paramount duty is to protect the citizens and not to commit gruesome

offences against them, in reality, such functionaries perpetrate them.868.

of MP v Shyamsunder Trivedi, 1995 (4) SCC 262 [LNIND 1995 SC 644] and by now celebrated
decision in Shri DK Basu v State of WB, JT 1997 (1) SC 1 [LNIND 1996 SC 2177] seems to have
caused not even softening of police's attitude towards the inhuman approach in dealing with
persons in custody.

[s 332] Voluntarily causing hurt to deter public servant from his duty.
Whoever voluntarily causes hurt to any person being a public servant in the discharge
of his duty as such public servant, or with intent to prevent or deter that person or any
other public servant from discharging his duty as such public servant, or in
consequence of anything done or attempted to be done by that person in the lawful
discharge of his duty as such public servant, shall be punished with imprisonment of
both.
COMMENT.—
This section resembles section 353. Under it there is causing of hurt to the public
servant, under section 353 there is assault or criminal force for the same purpose.

both.
COMMENT.—
Ingredients of an offence under section 332 of IPC, 1860 are:
(1) hurt must have been caused to a public servant and
(2) it must have been caused—
(a) while such public servant was acting in the discharge of his duty as such,
or
(b) in order to prevent or deter him from discharging his duty as a public
servant or
(c) in consequence of his having done or attempted to do anything in the
lawful discharge of his duty as such a public servant.
Evidence necessary to establish an offence under section 332 of IPC, 1860 are:
(a) the accused voluntarily caused bodily pain, disease or inﬁrmity to the victim (as
provided under section 321 of IPC, 1860),
(b) the victim of the hurt is a public servant, and
(c) at the time of causing of hurt, the public servant concerned was discharging his

duties qua public servant. An offence under section 332 of IPC, 1860 is attracted
if the accused voluntarily caused hurt to any person being a public servant in the
discharge of his duty. It is not necessary to establish further that hurt was
voluntarily caused to prevent or deter that person from discharging his duty as a
public servant. On the other hand, if hurt was voluntarily caused to a public

869.  Rajan v State, 2011 (4) Ker LJ 157 .
870.  D Chattaiah, 1978 Cr LJ 1473 : AIR 1978 SC 1441 . Jhamman v State of UP, 1991 Cr LJ 2970
, refusal to give sample to a food Inspector.
871.  Gyan Bahadur v State of MP, 2013 Cr LJ 1729 (MP).
872.  Madhudas v State of Rajasthan, 1994 Cr LJ 3595 (Raj).
873.  Rakesh Rai v State of Sikkim, 2012 Cr LJ 4033 (SIK).
servant, while not discharging his duty as a public servant, it is necessary to
prove that hurt was caused with intent to prevent or deter that person or any
other public servant from discharging his duty. Alternatively, if hurt was
voluntarily caused to a public servant, while he was discharging his oﬃcial duty
as such public servant, it is not necessary to establish further that it was so
caused with the intention to prevent or deter that person from discharging his
duty as such public servant. On the other hand, even if hurt was caused
voluntarily to a public servant, if he was not discharging his duty as a public

servant at that time, it is necessary to prove additionally that hurt was caused to
prevent or deter that person from discharging his duty as a public servant.869.
Where a public servant was assaulted due to an earlier private quarrel, the assault
having no causal connection with the duty of the public servant, the accused could not
be held liable under section 332 IPC, 1860. His conviction was, therefore, changed to
one under section 323 IPC, 1860.870.
Accused/appellant cut the hose pipe from the train and assaulted the complainant/
constable when he questioned the act. According to them, the accused/appellant and
other accused persons had gone to the extent of pulling down the complainant from
the train and when he was taken to the guardroom, they were shouting at him
threatening to throw him on the railway track. Offence was clearly made out.871.

Where the accused persons entered the premises of a government school and abused,
humiliated and voluntarily caused hurt to deter the Head Master of the school from his
duty and they abused the other teachers also, the Court did not interfere with their
conviction under section 332.872.
[s 332.1] Sentence.—
Accused, an under trial prisoner gave beatings to jail warden with a wooden plank on
head. He was a habitual offender and also involved in other cases. Injuries caused to
victim were grievous in nature. He also attacked other warden with sole object of
ﬂeeing from prison. Trial Court exercised its judicial discretion to award maximum
punishment taking into consideration all relevant factors. Sentence imposed upon
appellant was held proper by the High Court.873.

[s 333] Voluntarily causing grievous hurt to deter public servant from his duty.
Whoever voluntarily causes grievous hurt to any person being a public servant in the
discharge of his duty as such public servant, or with intent to prevent or deter that
person or any other public servant from discharging his duty as such public servant,
or in consequence of anything done or attempted to be done by that person in the
lawful discharge of his duty as such public servant, shall be punished with
COMMENT.—
This section provides for the aggravated form of the offence dealt with in the last
section. The hurt caused under it must be grievous. Where the accused gave ﬁst blow

COMMENT.—
on the face of the victim which caused loosening of one tooth, but the victim was
discharged from the hospital on the same day, moved about throughout the day and
attended his duties the next day, it was held that the injury could not be regarded as
grave and serious. It was a case of simple hurt.874. The basic differences between
sections 333 and 325 IPC, 1860 are that section 325 gets attracted where grievous hurt
is caused, whereas section 333 gets attracted if such hurt is caused to a public
servant.875.
Complainant had sustained grievous hurt while he was on patrolling duty. He was
questioning the unauthorised parking of a pickup van. He was taken inside the van then
kicked and punched. Witnesses corroborated each other on material particulars.
Conviction was upheld.876. Where a police constable was assaulted by unknown

persons and no identiﬁcation parade was conducted, it was held that accused cannot
be convicted unless it is proved that the injury was inﬂicted by the accused.877.
The accused was working as a watchman in an oﬃce of FCI and misbehaved twice
with members of the staff in respect of which complaints were made to the District
Manager who procured suspension order of the accused from the higher oﬃcial and
served it on him. The accused attacked and beat the Manager. It was held that it
amounted to preventing and deterring a public servant, from acting in lawful discharge
of his duty and the accused was liable to be convicted under section 333.878.
[s 333.1] Irrationality in sentence.—
It is to be noted that there is terrible irrationality in the sentence prescribed for
committing offences under section 333, IPC, 1860. The said offence is in combination

of offence — deﬁned under section 320 and the offence of assault on a public servant

874.  VB Murthy v State of WB, 1995 Cr LJ 1819 (Cal). The accused was required to pay a ﬁne of
Rs. 2000 and released on probation. He was an unemployed young graduate with no criminal
record or leaning. Siyasaran v State of MP, 1995 Cr LJ 2126 (SC), here a ﬁst blow was given to a
surgeon in a Government hospital, beneﬁt of probation was not given because violence against
hospital doctors was not tolerable. The sentence was reduced to the period already undergone
and a ﬁne of Rs. 50,000 was imposed in lieu of compensation. State of MP v Saleem, 2005 Cr LJ
3435 : AIR 2005 SC 3996 [LNIND 2005 SC 1070] : (2005) 5 SCC 554 [LNIND 2005 SC 1070] ,
knife injury to deter a public servant.
875.  State of MP v Imrat, AIR 2008 SC 2967 [LNIND 2008 SC 1391] : (2008) 11 SCC 523 [LNIND
2008 SC 1391] .
876.  Chand Ram v State of HP, 2013 Cr LJ 1415 (HP).
877.  State v Tidda alias Sonu, 2008 (4) Crimes 623 (MP). See also State v Mohammed Sadiq,
2006 Cr LJ 3391 (Kar).
878.  Lam Jaya Rao v State of AP, 1992 Cr LJ 2127 (AP).

879.  State of Karnataka v Mohammed Sadiq, 2006 Cr LJ 3391 (Kar).
punishable under section 333, IPC, 1860. The offence of grievous hurt is punishable
under section 326, IPC, 1860 with life imprisonment or with the imprisonment of either
description for a term, which may extend to 10 years and shall also be liable to ﬁne.
Whereas a higher form of manifested offence under section 333 is made punishable
only with imprisonment of either description for a term which may extend to 10 years
and shall also be liable to ﬁne. The different types of injuries enumerated under section
320 do not ensue same amount of harm, pain and disability. Therefore, proportionate to
the nature of grievous injuries and its consequences, the punishment should be
redeﬁned. So also the punishment for an offence under section 333 should be
redeﬁned.879.

[s 334] Voluntarily causing hurt on provocation.
Whoever voluntarily causes hurt on grave and sudden provocation, if he neither
intends nor knows himself to be likely to cause hurt to any person other than the
person who gave the provocation, shall be punished with imprisonment of either
880.  See also Bosco Lawrence Fernandes v State of Maharashtra, (1995) 2 Cr LJ 2007 (Bom),
covered under section 34.
881.  Ahmed Ali v State of Tripura, (2009) 6 SCC 704 [LNIND 2009 SC 1043] : (2009) 3 SCC (Cr)
12.
COMMENT.—
This section serves as a proviso to sections 323 and 324. See Comment on Exception
1 to section 300.880.
[s 334.1] Sentence.—

12.
COMMENT.—
High Court imposed a sentence of one year for offence under section 334 IPC, 1860
whereas the maximum sentence for offence under section 334 IPC, 1860 is one month.
The sentence reduced to one month.881.

[s 335] Voluntarily causing grievous hurt on provocation.
Whoever 882.[voluntarily] causes grievous hurt on grave and sudden provocation, if he
neither intends nor knows himself to be likely to cause grievous hurt to any person
other than the person who gave the provocation, shall be punished with imprisonment
of either description for a term which may extend to four years, or with ﬁne which may
extend to two thousand rupees, or with both.
E x p l a n a t i o n .—The last two sections are subject to the same provisos as Exception 1,
882.  Ins. by Act 8 of 1882, section 8.
883.  State of Maharashtra v BR Patil, 1978 Cr LJ 411 (Bom). Arjunan v State of TN, 1997 Cr LJ
2327 (Mad), in a dispute over cutting of tree, the accused pelted stones and caused injuries to

the victim who died and witnesses were injured. The deceased had caused the provocation.
Accused was liable to be convicted under section 335 and not section 325. State of MP v Rajesh,
1997 Cr LJ 2466 (MP), objection of accused to construction of a urinal which caused ugly sight
to the accused. This caused provocation. For injuries caused under such provocation, the
accused was held to be entitled to the beneﬁt of section 335. Another accused who was not
provoked was convicted under section 324. Ahmed Ali v State of Tripura, (2009) 6 SCC 704
[LNIND 2009 SC 1043] : (2009) 3 SCC (Cr) 12, the maximum term under the section being four
years, the accused was sentenced to two years with a ﬁne of Rs. 1,000. He being a person of
tender years, the period was reduced to three months maintaining the ﬁne amount.

884.  CBI v Kishore Singh, (2011) 6 SCC 369 [LNIND 2010 SC 1033] : (2011) 2 SCC (Cr) 970 : AIR
2011 SC (Supp) 584; Upparapalli Tirumala Rao v State of AP, 2004 Cr LJ 4514 (AP).
COMMENT.—
This section serves as a proviso to sections 325 and 326. However, in the absence of
the exact words being recorded, the abuses even involving mother and sister which are
commonly indulged in by rustic villagers like the accused, could not be regarded as
grave and sudden within the meaning of this section.883. Unless there is sudden and
grave provocation, section 335 will not be attracted.884.

[s 336] Act endangering life or personal safety of others.
Whoever does any act so rashly or negligently as to endanger human life or the
personal safety of others, shall be punished with imprisonment of either description
for a term which may extend to three months, or with ﬁne which may extend to two
hundred and ﬁfty rupees, or with both.
COMMENT.—
Rash and negligent acts which endanger human life, or the personal safety of others,
are punishable under this section even though no harm follows, and are additionally
punishable under sections 337 and 338 if they cause hurt, or grievous hurt. The word
"rashly" means something more than mere inadvertence or inattentiveness or want of
ordinary care; it implies an indifference to obvious consequences and to the rights of

others.885. An intentional act done with consideration cannot be a rash and negligent
act.886.
Many speciﬁc acts of rashness or negligence likely to endanger life or to cause hurt or
injury are made punishable by Chapter XIV.
Section 279 punishes rash driving or riding; section 280, rash navigation of a vessel;
section 284, rash or negligent conduct with respect to poisonous substance; section
285, rash or negligent conduct with respect to any ﬁre or combustible matter; section
286, rash or negligent conduct with respect to any explosive substance; section 287,
negligent conduct with respect to any machinery in the possession of the accused;
section 288, negligence with respect to pulling down or repairing buildings; section 289,
negligence with respect to animals; section 304A, rash or negligent act causing death;

section 336, any rash or negligent act endangering life or personal safety of others;
section 337, rash or negligent act causing hurt; and section 338, rash or negligent act
causing grievous hurt. Like section 304A, sections 279, 336, 337 and 338 IPC, 1860 are
attracted for only the negligent or rash act. The scheme of sections 279, 304A, 336,
337 and 338 leaves no manner of doubt that these offences are punished because of
the inherent danger of the acts speciﬁed therein irrespective of knowledge or intention
to produce the result and irrespective of the result. These sections make punishable
the acts themselves which are likely to cause death or injury to human life.

885.  Remal Dass, (1963) 2 Cr LJ 718 .
886.  Kala Bhika, (1964) 67 Bom LR 223 .

[s 337] Causing hurt by act endangering life or personal safety of others.
Whoever causes hurt to any person by doing any act so rashly or negligently as to
endanger human life, or the personal safety of others, shall be punished with
ﬁne which may extend to ﬁve hundred rupees, or with both.
COMMENT.—
Section 304A deals with those cases where death is caused by a rash or negligent act;
this section, where hurt is caused. The essential ingredients of section 337, IPC, 1860
are that whoever causes hurt to any person by doing any act so rashly or negligently as
to endanger human life, or the personal safety of others, shall be punished. So, one of

the essential ingredients of this section must be that hurt must be caused to someone
in doing an act and the person bearing to take reasonable care is said to be negligent
of his act.887. This section applies only to acts done rashly or negligently but without
any criminal intent. But such negligence or rashness must be proved as would
necessarily carry with it criminal liability.888. Where the victim suffered only simple
injuries, section 337 is to be applied.889.
[s 337.1] CASES.—
The allegation was that the accused, car driver, drove car in a rash and negligent
manner and caused injury to a child who was playing on side of road. Evidence showed
that the vehicle was going in middle of road and child was also playing in the middle.
Brake skid marks on road were duly depicted in site plan. Rash or negligent act of

driving by respondent was not proved beyond doubt. Acquittal of accused was held
proper.890. Injured was occupant of the truck along with the petitioner and had received
the injuries on account of the incident/accident where the truck after hitting the Motor
Cycle, had gone and struck against the pole. No allegation of any intention or
knowledge on the part of the petitioner can be made to attract the offence under
section 325, IPC, 1860.
[s 337.2] Section 324 v i s - a - v i s  section 337.—
Essential ingredients to make out an offence under section 324 IPC, 1860 should be
that there must be voluntarily causing hurt and also required intention. But evidence
showed that there was no intention of petitioner/ accused to attack victim and his
intention was only to attack, witness because of some altercation or dispute between

them. Petitioner/accused cannot be said to have committed the offence punishable
under section 324 IPC, 1860. At the same time evidence showed that victim received
simple injuries. Petitioner liable to be convicted under section 337 of IPC, 1860 and not
under section 324.891.
[s 337.3] Negligence with reference to gun.—
The causing of hurt by negligence in the use of a gun was held to fall within the purview
of this section rather than of section 286. But where all the evidence against the
accused was that he went out shooting when people were likely to be in ﬁelds and that
a single pellet from his gun struck a man who was sitting in a ﬁeld, it was held that this
was not suﬃcient evidence of rashness or negligence to support a conviction under
this section.892.
[s 337.4] Negligent operation.—
The accused removed intra-uterine device during the fourth month of pregnancy of the
complainant. The latter had a premature delivery. The child died after 22 days of

delivery. The Court said that the incident was not the direct result of the act of the
accused. The complaint was quashed.893.
[s 337.5] Conviction under section 279 and section 337.—
Whether a Court can convict a person under sections 279 and 337, IPC, 1860 for
commission of the same act of offence and accordingly pass sentence under both the
sections. As the offence having been outcome of the same act, the Court should
section 279, IPC, 1860 being higher it is a grave offence than the offence prescribed
under section 337, IPC, 1860 the accused could be punished under section 279, IPC,
1860 only.894.
[s 337.6] Factories Act, 1948.—

Section 92 of the Factories Act, 1948 will come into play even if nobody sustains any
injury or even if the accident does not result in death of any person. But sections 337
and 338, IPC, 1860 will apply where a negligent act results in causing injuries to any
person.895.
[s 337.7] Moral turpitude.—
Offence punishable under section 337 IPC, 1860 would not involve moral turpitude so
as to remove the petitioner—accused from service.896.

887.  Ashok Chandak v State of AP, 2011 Cr LJ 638 (AP).
888.  Arumugham v Gnanasoundar, AIR 1962 Mad 362 [LNIND 1961 MAD 133] . See also Swaran
Singh v State, 1991 Cr LJ 1867 (Del), conviction shifted from section 338 to section 337 because
the injury actually proved was of very simple nature. Annasaheb Bandu Patil v State of
Maharashtra, 1991 Cr LJ 814 , no injury was caused to anybody by bus driver's negligence in
suddenly braking the bus though it dashed against a pole, conviction set aside.
889.  Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648
890.  State of HP v Jawahar Lal Jindal, 2011 Cr LJ 3827 (HP); State of HP v Niti Raj alias Gogi,
2009 Cr LJ 1922 (HP) order of acquittal reversed; for the same effect see State of HP v Varinder
Kumar, 2008 Cr LJ 41759 (HP).
891.  Ch Pitchavadhmtiilu v State of AP, 2011 Cr LJ 469 (AP).

892.  Abdus Sattar v State, (1906) 28 All 464 . State of Karnataka v Krishna, (1987) 1 SCC 538
[LNIND 1987 SC 701] : AIR 1987 SC 861 [LNIND 1987 SC 701] : 1987 Cr LJ 776 death caused by
rash and negligent driving, the Supreme Court enhanced the sentence to six months' RI from
two months simple imprisonment, being unconscionably lenient.
893.  Shaheed K (Dr) v PK Shahida, 1998 Cr LJ 4638 (Ker).
894.  Md Hiran Mia v State of Tripura, 2010 Cr LJ 189 (Gau)]
895.  Ashok Chandak v State of AP, 2011 Cr LJ 638 (AP); Ejaj Ahmad v State of Jharkhand, 2010
Cr LJ 1953 (Jha).
896.  Ch Pitchavadhmtiilu v State of AP, 2011 Cr LJ 469 (AP).
897.  Hari Ram v State, 1995 Cr LJ 3152 (Del). Vasi v State of Gujarat, 2010 (15) SCC 247 [LNIND
2010 SC 342] .
898.  Thomas v State, 2013 Cr LJ 825 (Ker).
[s 337.8] Sentence.—

Where the accused was convicted under section 337 for an incident of accident
occurring 20 years before and he had already served a part of sentence and had
children of tender age, his sentence was reduced to the period already undergone.897.
[s 337.9] Pleading guilty.—
Pleading guilty is not a ground for the Magistrate to let off the accused with sentence
of ﬁne only.898.

[s 338] Causing grievous hurt by act endangering life or personal safety of
others.
Whoever causes grievous hurt to any person by doing any act so rashly or negligently
as to endanger human life, or the personal safety of others, shall be punished with
COMMENT.—
The last section provided for 'hurt', this section provides for 'grievous hurt' caused
under similar circumstances. Section 338, IPC, 1860 is applicable when the other
ingredients of section 337, IPC, 1860 are complied with and in addition to that, if a
grievous hurt is caused to someone.899.
[s 338.1] CASES.—Sexual intercourse causing injury.—

A husband has not the absolute right to enjoy the person of his wife without regard to
the question of safety to her. Hence, where a husband had sexual intercourse with his
wife, aged 11 years, and she died from the injuries thereof, it was held that he was
guilty of causing grievous hurt by doing a rash act under this section.900. Clause (6) of
section 375 will now make the husband guilty of rape also. Where a driver of a motor
bus, by reason of his inattention and failure to apply brakes, pressed a person against a
wall, he was held to have committed an offence under this section as well as under
section 279.901.
[s 338.2] Running over by cart.—
Where a person, by allowing his cart to proceed unattended along a road, ran over a boy
who was sleeping on the road, it was held that he had committed an offence under

section 337 or section 338.902.
[s 338.3] Section 304 Part II and section 338.—
The scheme of sections 279, 304A, 336, 337 and 338 leaves no manner of doubt that
these offences are punished because of the inherent danger of the acts speciﬁed
therein irrespective of knowledge or intention to produce the result and irrespective of

the result. These sections make punishable the acts themselves which are likely to
cause death or injury to human life. The question is whether indictment of an accused
under section 304 Part II and section 338 IPC, 1860 can co-exist in a case of single
rash or negligent act. It can, two charges are not mutually destructive. If the act is done
with the knowledge of the dangerous consequences which are likely to follow and if
death is caused then not only that the punishment is for the act but also for the
resulting homicide and a case may fall within section 299 or section 300 depending
upon the mental state of the accused viz., as to whether the act was done with one
kind of knowledge or the other or the intention. Knowledge is awareness on the part of
the person concerned of the consequences of his act of omission or commission
indicating his state of mind. There may be knowledge of likely consequences without
any intention. Criminal culpability is determined by referring to what a person with

reasonable prudence would have known.903.
[s 338.4] Medical negligence, criminal liability.—
The only state of mind which is deserving of punishment is that, which demonstrates
an intention to cause harm to others, or where there is a deliberate willingness to
subject others to the risk of harm. Negligent conduct does not entail an intention to
cause harm, but only involves a deliberate act subjecting another to the risk of harm,
where the actor is aware of the existence of the risk and, nonetheless, proceeds in the
face of the risk.904.
[s 338.5] Offences under Factories Act, 1948.—
The ingredients of section 337 and section 338, IPC, 1860 and the provisions of the
Andhra Pradesh Fire Services Act, 1999 and the Factories Act, 1948 cannot be said to
be one and the same. They apply to different situations for different purposes and for

different measures to be taken by the owner or occupier of the factories. Even the
steps to be taken under both the enactments are different as discussed above, and
even if no ﬁre accident had taken place, the provisions of Factories Act, 1948 and the
Fire Services Act will apply. But when there is no accident, section 337 and section 338,
IPC, 1860 do not apply. Sections 337 and 338, IPC, 1860 are applicable where the
owner or occupier, knowing very well that no preventive steps were taken and it will be
dangerous for the workers to work in such a situation and without any due regard to the
consequences which a man would think and for the safety of the workers, extract work
from them and wherein from the circumstances it appears that such an act of
extracting work from workers amount to acting in rash and negligent manner.

Therefore, to attract section 337 and section 338, IPC, 1860 something more, i.e.,
careless and negligent act is required to be proved, even after proving of violation of
provisions of Fire Services Act and the Factories Act, 1948. Thus, it is clear that section
337 and section 338, IPC, 1860 are applicable only in aggravated situations besides
violation of the provisions of the Fire Services Act and the Factories Act, 1948.905. The
expression act includes omission.906.

899.  Ashok Chandak v State of AP, 2011 Cr LJ 638 (AP).
900.  Hurree Mohun Mythee, (1890) 18 Cal 49 .
901.  State of HP v Man Singh, 1995 Cr LJ 299 (HP). SD Khetani (Dr) v State, 1998 Cr LJ 2493 .
902.  Malkaji, (1884) Unrep Cr C 198; See the Comments under sections 279 and 304A.
903.  Alister Anthony Pareira v State of Maharashtra, 2012 Cr LJ 1160 (SC) : (2012) 2 SCC 648
904.  Dr PB Desai v State of Maharashtra, 2014 Cr LJ 385 : 2013 (11 ) Scale 429 [LNIND 2013 SC
815] .
905.  Ashok Chandak v State of AP, 2011 Cr LJ 638 (AP).
906.  Dr PB Desai v State of Maharashtra, 2014 Cr LJ 385 : 2013 (11 ) Scale 429 [LNIND 2013 SC
815] .

Of Wrongful Restraint and Wrongful Conﬁnement
[s 339] Wrongful restraint.
Whoever voluntarily obstructs any person so as to prevent that person from
proceeding in any direction in which that person has a right to proceed, is said
wrongfully to restrain that person.
Exception.—The obstruction of a private way over land or water which a person in
good faith believes himself to have a lawful right to obstruct, is not an offence within
the meaning of this section.
A obstructs a path along which Z has a right to pass. A not believing in good faith that
he has a right to stop the path. Z is thereby prevented from passing. A wrongfully
restrains Z.
COMMENT.—
Wrongful restraint means the keeping a man out of a place where he wishes to be, and
has a right to be.907. The slightest unlawful obstruction to the liberty of the subject to

COMMENT.—
go, when and where he likes to go, provided he does so in a lawful manner, cannot be
justiﬁed, and is punishable under this section.908.
[s 339.1] Ingredients.—
(1) Voluntary obstruction of a person.
(2) The obstruction must be such as to prevent that person from proceeding in any
direction in which he has a right to proceed. The word 'voluntary' is signiﬁcant. It
connotes that obstruction should be direct. The obstructions must be a
restriction on the normal movement of a person. It should be a physical one.
They should have common intention to cause obstruction.909.
The following illustrations, given in the original Draft Code,910. further elucidate the
meaning of this section:—
(a) A builds a wall across a path along which Z has a right to pass. Z is thereby

prevented from passing. A wrongfully restrains Z.
(b) A illegally omits to take proper order with a furious buffalo which is in his
possession and thus voluntarily deters Z from passing along a road along which

Z has a right to pass. A wrongfully restrains Z.
(c) A threatens to set a savage dog at Z, if Z goes along a path along which Z has a
right to go. Z is thus prevented from going along that path. A wrongfully
(d) In the last illustration, if the dog is not really savage, but if A voluntarily causes Z
to think that it is savage, and thereby prevents Z from going along the path, A
wrongfully restrains Z.
From these illustrations it will appear that a person may obstruct another by causing it
to appear to that other that it is impossible, diﬃcult or dangerous to proceed, as well as
by causing it actually to be impossible, diﬃcult or dangerous for that other to proceed.
For the offence of wrongful restraint, the necessary pre-condition is that the person
concerned must have a right to proceed.911. It is an inevitable factor under section 339
of the IPC, 1860 which deﬁnes wrongful restraint that the person, who is obstructed,

has the right to proceed in a particular direction. If section 339 and section 31 are read
together, it will be clear that if the accused voluntarily obstructs any person so as to
prevent that person from proceeding in any direction in which that person has right to
proceed, he is said to have wrongfully restrained that person. Section 339 of the IPC,
1860 requires that the accused should have obstructed a person from proceeding in
any direction in which he has the right to proceed and when he obstructs any person
and restrains him from proceeding in any direction he commits the offence of wrongful
restraint punishable under section 341 of the IPC, 1860.912. Whoever obstructs a
person from proceeding to a direction to which that person has a right to proceed,

commits an offence of wrongful restraint. While dealing with the offence which is
punishable under section 341 of IPC, 1860 and which has been deﬁned by section 339
of IPC, 1860 the Court is obliged to see following ingredients:
(1) Whether the person so obstructed had a lawful right to proceed to a direction to
which he has been obstructed;
(2) Whether such obstruction was for enforcement of a legal right of the obstructer.
(3) Whether such obstructer obstructed such person in good faith. It has to be kept
in mind that nothing can be said to be done in good faith which is not done with
due care and caution. If these ingredients are indicated by the complaint, the
Magistrate is obliged to take the cognizance of the complaint so presented
before him unless there are the other grounds for acting otherwise which has to

be justiﬁed by reasons recorded in writing.913.
Where the tenant and his family members were prevented by some other tenants in
league with the landlord from using the main gate by force and abuses, the Court
observed that it was utterly wrong to have dismissed the complaint as a matter of civil
nature.914.
Obstruction contemplated by this section, though physical, may be caused not only by
physical force but also by menaces and threats, the criterion of the offence thereunder
or under section 341 being more the effect than the method.915. The fact of physical
obstruction even by mere words would fall within the ambit of this section.916.
[s 339.2] CASES.—Wrongful restraint.—
Where the accused, a boy of 15 years, caught hold of a man from the back to enable
the main accused, his brother, to attack, it was held that common intention of murder

could not be inferred. Accordingly, his conviction from under sections 302/34 was
converted to one under section 340.917. The driver of a bus purposely made his bus
stand across the road in such a manner as to prevent another bus, which was coming
from behind, to proceed further. It was held that the driver of the ﬁrst bus was guilty of
wrongful restraint.918. Where the tenants of a housing society converted an open space
within the compound into a garden and cordoned it, this offence was held to have been
committed and though the accused were companies, they could be prosecuted under
this section and section 447.919. Their conduct caused obstruction to the free
movement of other members.
[s 339.3] No wrongful restraint.—
Where a person obstructs a private pathway claimed by way of a right of easement
over his land and which right was not admitted, he does not commit the offence of
wrongful restraint.920. The obstruction under this section has to be to a person and not

to an empty car.921. Where at the behest of a constable the accused stopped some
carts in which rice was being carried by some persons in the bona ﬁde belief that the
rice was being smuggled out, they could not be held liable under section 341, IPC, 1860
even if suspicion ultimately proved to be incorrect, for they would still get the protection
of section 79, IPC, 1860 that is, mistake of fact.922. Where a tenant was partially
obstructed from entering the premises by the closure of one of the door leaves, it was
held that it did not amount to wrongful restraint as he was still free to enter the
premises.923. The wife of the complainant was working as a teacher in a school. The
complainant, a judicial oﬃcer, was staying in the quarter allotted to her in the school

compound till he was posted to some other place. Thereafter, he used to visit his family
and was permitted to park his car at a particular place but he was prevented from using
the main gates of the school. He was not restrained from using the passage leading to
the school premises where his wife was allotted residential quarter. It was held that
criminal restraint to a 'person' is punishable but not any obstruction for plying/parking
of a vehicle at a particular place.924. Where the Sarvodaya workers prevented visitors
from entering a liquor shop, it cannot be held an offence under section 339 IPC,
1860.925.
The word "voluntarily" connotes direct physical restraint. There should be restriction on
the normal movement of a person. In this case, the accused person had decided on

1860.925.
behalf of a limited company to get a road repaired and the repair, if carried out, might
have caused some inconvenience to the complainant, it was held that there was no
offence under sections 339 and 341.926.
[s 339.4] Matter of civil nature.—
The right of a co-sharer to enjoy the joint family property is a civil right. Where such
right is denied by other co-shares for one reason or another, the Court said that it
should be enforced by taking recourse to remedies available under the civil laws,
criminal proceedings cannot be resorted for such purposes.927.

907.  Note M, p 154.
908.  Saminada Pillai, (1882) 1 Weir 339.
909.  Keki Hormusji Gharda v Mehervan Rustom Irani, (2009) 6 SCC 475 [LNIND 2009 SC 1276] :
AIR 2009 SC 2594 [LNIND 2009 SC 1276] .
910.  P 59.
911.  Vijay Kumari v SM Rao, AIR 1996 SC 1058 : 1996 Cr LJ 1371 . In the instant case after
termination of the licence, the teacher had lost her right to enter the room of the hostel.
912.  Bharat Kishormal Shah v State of Maharashtra, 2010 Cr LJ 4088 (Bom).
913.  Noor Mohamed Alias Mohd v Nadirshah Ismailshah Patel, 2004 Cr LJ 985 (Bom).
914.  Paritosh Chowdhury v Sipra Banerjee, 1988 Cr LJ 1299 (Cal).
915.  Nripendra Nath Basu v Kisen Bahadur, (1952) 1 Cal 251 .
916.  Re Shanmugham, 1971 Cr LJ 182 .
917.  Har Vansh Singh v State of UP, 1993 Cr LJ 3059 (All).
918.  Abraham v Abraham, (1950) Mad 858.
919.  Sanghi Motors (Bom) Ltd v MT Shinde, 1989 Cr LJ 684 Bom. Section 447 punishes criminal
trespass.
920.  Basam Bhowmick, AIR 1963 Cal 3 [LNIND 1962 CAL 48] .
921.  Shankarlal, 1975 Cr LJ 1077 (Gau).

trespass.
922.  Keso Sahu, 1977 Cr LJ 1725 (Ori).
923.  Sankar Chandra Ghose, 1981 Cr LJ 1002 (Cal).
924.  Rita Wilson v State of HP, 1992 Cr LJ 2400 (HP).
925.  Narayanan v State, 1986 Ker LT 1265 .
926.  Keki Hormusji Gharda v Mehervan Rustom Irani, (2009) 6 SCC 475 [LNIND 2009 SC 1276] :
2009 Cr LJ 3733 .
927.  Rajinder Singh Katoch v Chandigarh Admn, (2007) 10 SCC 69 [LNIND 2007 SC 1233] : AIR
2008 SC 178 [LNIND 2007 SC 1233] .

[s 340] Wrongful conﬁnement.
Whoever wrongfully restrains any person in such a manner as to prevent that person
from proceedings1 beyond certain circumscribing limits,2 is said "wrongfully to
conﬁne" that person.
(a) A causes Z to go within a walled space, and locks Z in. A is thus prevented from
proceeding in any direction beyond the circumscribing line of wall. A wrongfully
conﬁnes Z.
(b) A places men with ﬁrearms at the outlets of a building, and tells Z that they will
ﬁre at Z if Z attempts to leave the building. A wrongfully conﬁnes Z.
COMMENT.—
Wrongful conﬁnement, which is a form of wrongful restraint, is keeping a man within
limits out of which he wishes to go, and has a right to go.928.
[s 340.1] Ingredients.—
(1) Wrongful restraint of a person.
(2) Such restraint must prevent that person from proceeding beyond certain

circumscribing limits. The offence of wrongful conﬁnement as deﬁned under
section 340 of the Code occurs when individual is wrongfully restrained in such
a manner as to prevent him/her from proceeding beyond certain circumscribing
limits.929.
[s 340.2] Wrongful conﬁnement and wrongful restraint.—
From the deﬁnition, it is evident that 'wrongful conﬁnement' is a species of 'wrongful
restraint' as deﬁned in section 339 IPC, 1860. While, in 'wrongful restraint', there is only
a partial suspension of one's liberty, 'wrongful conﬁnement' reﬂects total suspension of
liberty beyond certain prescribed limits. The period of suspension is immaterial for
constituting an offence of 'wrongful conﬁnement' or 'wrongful restraint'. When a person
is restrained and is prevented from going, where he has a right to go, the restraint

becomes wrongful if such restraint is not in exercise of any right, power or authority
under any law.930.
1. 'Prevent that person from proceedings'.—The restraining of a person in a particular
place or compelling him to go in a particular direction by force of an exterior will
overpowering or suppressing in any way his own voluntary action is an imprisonment
on the part of him who exercises that exterior will.931. There can be no wrongful
conﬁnement when a desire to proceed has never existed, nor can a conﬁnement be
wrongful if it was consented to by the person affected.932. Mere insistence by words of
mouth or mere sitting around a person would not satisfy the requirements of the
offence of wrongful conﬁnement which requires that there must be voluntary
obstruction to that person so as to prevent that person from proceeding in any
direction in which that person has a right to proceed.933. To support a charge of
wrongful conﬁnement proof of actual physical restriction is not essential. It is suﬃcient

if such evidence shows that such an impression was produced on the mind of the
victim as to create a reasonable apprehension in his or her mind that he or she was not
free to depart and that he or she would be forthwith seized or restrained if he or she
attempted to do so.934.
2. 'Certain circumscribing limits'.—
A prison may have its boundary, large or narrow, visible and tangible, or, though real still in
the conception only; it may itself be moveable or ﬁxed: but a boundary it must have; and that
boundary the party imprisoned must be prevented from passing; he must be prevented from
leaving that place, within the ambit of which the party imprisoning would conﬁne him,
except by prison-breach. Some confusion seems to me to arise from confounding
imprisonment of the body with mere loss of freedom: it is one part of the deﬁnition of

freedom to be able to go withersoever one pleases; but imprisonment is something more
than the mere loss of this power; it includes the notion of restraint within some limits
deﬁned by a will or power exterior to our own.935.
[s 340.3] Forced to walk.—
Where a person was forced to walk under duress to a particular direction, it amounted
to an offence of wrongful conﬁnement. An act by which a person is prevented from
proceeding towards a particular direction is an offence under the section.936.
[s 340.4] Moral force.—
Detention through the exercise of moral force, without the accompaniment of physical
force or actual conﬂict, is suﬃcient to constitute this offence.937.
[s 340.5] Period of conﬁnement.—
The time during which a person is kept in wrongful conﬁnement is immaterial, except
with reference to the extent of punishment.938.

[s 340.6] Remedy of compensation under writ of habeas corpus.—

Freedom from detention and compensation for wrongful detention, it has been held,
can be ordered under writ of habeas corpus; however, the Court added that the remedy
under section 340 IPC, 1860 cannot be treated as an alternative or substitute for
remedy of habeas corpus. It is only an additional remedy.939.
[s 340.7] Compensation for unauthorised detention.—
The petitioner was detained by an order passed by the Judicial Magistrate, First Class
whereas the authority for order of detention vested with the State or Central
Government. It was held that the said detention, being without authority of law,
amounted to wrongful conﬁnement. The detention was quashed and the detenu was
granted a compensation of Rs. 3,000.940.
[s 340.8] CASES.—Wrongful conﬁnement.—
Where two police-oﬃcers arrested without warrant a person who was drunk and
creating disturbance in a public street, and conﬁned him in the police-station though
one of them knew his name and address and it was not found to what extent he was a

danger to others or their property, it was held that the arrest having been made by the
police-oﬃcers without warrant, for a non-cognizable offence, their action amounted to
wrongful conﬁnement unless it was justiﬁed on the ground of right of private defence
or under section 81 as was, in fact, held by the Court.941. Though an illegal search in
violation of the provisions of section 165 Cr PC, 1973 can be resisted, there is no
justiﬁcation for bodily lifting and bringing back the Investigating Oﬃcer after he has left
the house and to conﬁne and threaten him till he gives a written statement that he has
searched the house of the appellant. It was held that by such acts the accused had
committed offences of wrongful conﬁnement and assaulting a public servant within
the meaning of sections 342 and 353, IPC, 1860.942. A police oﬃcer arrested and

detained a person in the thana lock-up despite production of a bail order from the
Court. It was held that the oﬃcer was clearly guilty of an offence under section 342
IPC, 1860.943.
[s 340.9] Custody of child.—
It is an incorrect proposition of law that a father would never be held liable for offence
of wrongful 'conﬁnement' if he detains the child by having snatched her away from the
mother, who, under some authority of law, had, at the time of snatching, the custody of
the child and is entitled to have custody of the child. When a minor is kept against the
will of the person, who has the custody of such a child and/or who is entitled to take
the custody of the child, such detention would amount to 'wrongful conﬁnement'. In
such a case, it is the will of the person, who is entitled to have custody of such a child,

which will be the will of the child, for, the child's willingness or 'consent' would be
immaterial unless the welfare of the child, in a given case, demands removal of the
child from the custody of the person, who is, otherwise, entitled to keep the custody of
the child. Guardian and custodian are not synonymous with each other. Thus, even
when a parent, who, with impunity, snatches away a child from the lawful custody of
the other parent, who held such custody and who is entitled to have the custody of the
child under the law—personal, statutory or otherwise—such snatching away of the child
and his detention against the will of the parent in whose custody the child was, would
amount to an offence of 'wrongful conﬁnement'.944.

928.  Note M, p 154.
929.  Subhash Krishnan v State of Goa, (2012) 8 SCC 365 [LNIND 2012 SC 480] : AIR 2012 SC
3003 [LNIND 2012 SC 480] .
930.  Piyush Chamaria v Hemanta Jitani, 2012 Cr LJ 2306 (Gau).
931.  Parankusam v Stuart, (1865) 2 MHC 396 ; SA Hamid v Sudhirmohan Ghosh, (1929) 57 Cal
102 .
932.  Muthammad Din, (1893) PR No. 36 of 1894.
933.  Lilabati Kanjilal, 1966 Cr LJ 838 .
934.  Bhagwat v State, 1971 Cr LJ 1222 . See further, Rabinarayan Das v State of Orissa, 1992 Cr
LJ 269 (Ori), where the court added that an essential ingredient of the offence is that the
accused should have wrongfully restrained the complainant and such restraint was to prevent
the complainant from proceeding beyond certain circumscribing limits.
935.  Per Coleridge, J, in Birid v Jones, (1845), QB 742, 744.
936.  Nania Nanuram v State of MP, 1995 Cr LJ 1870 (MP). The court also said that a person
charged with murder can be convicted under section 341 or 342.
937.  Venkatachala Mudali, (1881) 1 Weir 341.

938.  Suprosunno Ghosaul, (1866) 6 WR (Cr) 88. Taking away a girl for rape was held to be a
conﬁnement of this kind and punished as such, sentence of three years RI was held to be not
excessive, Periyasami Re, 1995 Cr LJ 1203 (Mad).
939.  Poovan v SI of Police, 1993 Cr LJ 2183 (Ker).
940.  Paothing Tangkhul v State of Nagaland, 1993 Cr LJ 2514 .
941.  Gopal Naidu, (1922) 46 Mad 605 (FB).
942.  Shyamlal, 1972 Cr LJ 638 : AIR 1972 SC 886 [LNIND 1972 SC 100] . Shamshuddeen v State
of Kerala, 1989 Cr LJ 2068 , the accused conﬁning the two police oﬃcers who rescued a person
from his conﬁnement, no leniency shown in sentencing. D Ramalinga Reddy v D Babu, 1999 Cr LJ
2918 (AP), wrongful restraint. Samir Saha v State of Assam, 1998 Cr LJ 1360 (Gau) proof of

actual physical restriction is not necessary; Sanji Ladha v State of Gujarat, 1998 Cr LJ 2746 (Guj).
943.  Dharmu, 1978 Cr LJ 864 (Ori).
944.  Piyush Chamaria v Hemanta Jitani, 2012 Cr LJ 2306 (Gau).
945.  Madhu Bala, 1982 Cr LJ 555 (SC) : AIR 1982 SC 938 .
[s 340.10] No wrongful conﬁnement.—
Where the wife who has attained the age of 21 stated before the Court that she was not
detained by her parents against her will, there was no wrongful conﬁnement and as
such the habeas corpus petition by the husband could not succeed.945.

[s 341] Punishment for wrongful restraint.
Whoever wrongfully restrains any person shall be punished with simple imprisonment
for a term which may extend to one month, or with ﬁne which may extend to ﬁve
946.  Rupan Deol Bajaj v Kanwar Pal Singh Gill, AIR 1996 SC 309 [LNIND 1995 SC 981] : (1995) 6
SCC 194 [LNIND 1995 SC 981] .
947.  Rajesh Vishwakarma v State of Jharkhand, 2011 Cr LJ 2753 (Jha); Amar Soni v State of
Jharkhand, 2010 Cr LJ 4003 (Jha)—Acid attack.
948.  Natha v State of Rajasthan, 2013 Cr LJ 1905 (Raj).
The only allegation relating to section 341 was that accused stood in front of victim in
such a manner that she had to move backward. From such act alone it cannot be said
that he "wrongfully restrained" her within the meaning of section 339, IPC, 1860 to

make him liable under section 341, IPC, 1860.946. Accused, appellant caught the victim
from behind, pushed her on ground, removed her panty and made an attempt to rape.
Evidence of victim was found consistent. She speciﬁcally stated that upon getting
opportunity she kicked in testicles of accused and escaped from place of occurrence.
Conviction under section 341 and section 511 of 376 was upheld.947. Accused with 2–
3 other persons restricted the deceased on way and an axe blow was given by ﬁrst
accused on the head of the deceased and that was resisted by patting hands ahead.
Consequent to the blow aforesaid he received an injury near his ear. A lathi blow then
was given by second accused on the head of the deceased, consequent to which he fell
down and then he was severely beaten by the accused. Deceased succumbed to the

injuries sustained. Conviction under sections 302 and 341 was upheld.948.

[s 342] Punishment for wrongful conﬁnement.
Whoever wrongfully conﬁnes any person shall be punished with imprisonment of
either description for a term which may extend to one year, or with ﬁne which may
COMMENT.—
Section 342, IPC, 1860 is not conﬁned to offences against public servants but is a
general section and makes a person who wrongfully restrains another, guilty of the
offence under that section. A wrongful conﬁnement is a wrongful restraint in such a
manner as to prevent that person from proceeding beyond a certain circumscribed
limits. This offence has nothing to do with the investigation or search.949. The essential
ingredients of the offence "wrongful conﬁnement" are that the accused should have
wrongfully conﬁned the complainant and such restraint was to prevent the complainant

from proceeding beyond certain circumscribed limits beyond which he/she has a right
to proceed. The factual scenario clearly establishes commission by the appellant as
well of the offence punishable under section 342 IPC, 1860.950. Conﬁnement need not
necessarily be a conﬁnement where the person is physically held within a certain
circumscribed limit. To support the charge of wrongful conﬁnement, proof of actual
physical obstruction is not essential. It is the condition of the mind of the person
conﬁned, having regard to the circumstances that leads him to reasonably believe that
he was not free to move and that he would be forthwith restrained if he attempted to do
so.951.
Where a man, illegally taken into police custody was beaten by the police and he
committed suicide, the accused police oﬃcials were punished under section 342. Case

so.951.
under sections 352 and 302 was not made out.952. Wife suffered a blow of hammer on
left side below ear and immediately died on spot. Accused husband convicted under
section 342 and 302 IPC, 1860.953. Victim after being arrested was kept in police
station for three days and was not produced before a Magistrate within 24 hours. SHO
cannot be absolved from the charges under section 342.954. In Vadamalai v Syed
Thastha Keer,955. the complainant was allegedly detained and beaten by
appellant/police oﬃcials in Police Station but the evidence does not show that he was
kept in police station for four days. Conviction of the appellant by High Court under
sections 323, 342 held not sustainable and liable to be set aside.
The oﬃcers who visited the house of the accused for making inquiry under Money

Lenders Act, were not allowed to go out of the house for some time. It was found that
there was no apprehension in their mind about use of force in case they tried to move
out. It was held that no offence under section 342 was made out.956.

949.  Shyam Lal Sharma v State of MP, AIR 1972 SC 886 [LNIND 1972 SC 100] : (1972) 1 SCC 764
[LNIND 1972 SC 100] .
950.  Raju Pandurang Mahale v State of Maharashtra, AIR 2004 SC 1677 [LNIND 2004 SC 194] :
(2004) 4 SCC 371 [LNIND 2004 SC 194] .
951.  Mrityunjay Kumar v State, 2010 Cr LJ 44 (Sik).
952.  State v Balkrishna, 1992 Cr LJ 1872 (Mad).
953.  Daulat Singh v State of Rajasthan, 2013 Cr LJ 1797 (Raj); Subhash Krishnan v State, (2012) 8
SCC 365 [LNIND 2012 SC 480] : AIR 2012 SC 3003 [LNIND 2012 SC 480] — Every ingredients of
section 342 and section 364 is clearly made out; Baby v State, (2012) 11 SCC 362 [LNINDU 2012
SC 11] —The sentences imposed under section 376, section 506 (ii) and 342 IPC, 1860 were
maintained; Elavarasan v State, AIR 2011 SC 2816 [LNIND 2011 SC 604] : (2011) 7 SCC 110
[LNIND 2011 SC 604] — Conviction under section 304–Part II and 342.
954.  Central Bureau of Investigation v Kishore Singh, (2011) 6 SCC 369 [LNIND 2010 SC 1033] :

955.  Vadamalai v Syed Thastha Keer, (2009) 3 SCC 454 [LNIND 2009 SC 304] : AIR 2009 SC
1956 [LNIND 2009 SC 304] .
956.  State of Gujarat v Keshavlal Maganbhai Jogani, 1993 Cr LJ 248 (Guj). Veena Rangnekar v
State of Maharashtra, 2000 Cr LJ 2443 , death by electrocution in the house let to the tenant.
Police team came in with permission to check new wiring. They were obstructed in their work of
taking photographs and not allowed to leave the house for sometime. Guilty under the section.
Suresh N Bhusare v State of Maharashtra, 1998 Cr LJ 4559 (SC) conviction set aside because the
victim girl had gone voluntarily and not lifted and conﬁned. Also see Suresh Balkrishna Nakhava
v State of Maharashtra, 1998 Cr LJ 284 (Bom); Shivraj Chandrappa Yadav v State of Maharashtra,
1998 Cr LJ 3168 (Bom). Raju Pandurang Mahale v State of Maharashtra, (2004) 4 SCC 371

[LNIND 2004 SC 194] : AIR 2004 SC 1677 [LNIND 2004 SC 194] : 2004 Cr LJ 1441 , brought into
a house under a false pretence, locked from outside, the victim could go out only next day,
offence under the section made out.

[s 343] Wrongful conﬁnement for three or more days.
Whoever wrongfully conﬁnes any person for three days, or more, shall be punished
with imprisonment of either description for a term which may extend to two years, or
957.  A Azeez v Pasam Hari Babu, 2003 Cr LJ 2462 (AP).
958.  A Azeez v Pasam Hari Babu, 2003 Cr LJ 2462 (AP).
COMMENT.—
Whoever wrongfully conﬁnes any person for three days or more shall be punished
under this section. Whoever wrongfully restrains any person in such a manner as to
prevent that person from proceeding beyond certain circumscribed limits is said to
'wrongfully conﬁne' that person, as deﬁned under section 340, IPC, 1860. Use of
physical force is not necessary for the offence of wrongful conﬁnement. A mere
detention of a person against law would attract section 343, IPC, 1860.957.
[s 343.1] Sanction.—

Since illegal detention and the assault made against the ﬁrst respondent by the
petitioner did not form part of the oﬃcial duty of the petitioner and, therefore, there was
no necessity to obtain prior sanction under section 197, Cr PC, 1973.958.

[s 344] Wrongful conﬁnement for ten or more days.
Whoever wrongfully conﬁnes any person for ten days, or more, shall be punished with

[s 345] Wrongful conﬁnement of person for whose liberation writ has been
issued.
Whoever keeps any person in wrongful conﬁnement, knowing that a writ for the
liberation of that person has been duly issued, shall be punished with imprisonment of
either description for a term which may extend to two years in addition to any term of
imprisonment to which he may be liable under any other section of this Chapter.

[s 346] Wrongful conﬁnement in secret.
Whoever wrongfully conﬁnes any person in such manner as to indicate an intention
that the conﬁnement of such person may not be known to any person interested in the
person so conﬁned, or to any public servant, or that the place of such conﬁnement
may not be known to or discovered by any such person or public servant as
hereinbefore mentioned, shall be punished with imprisonment of either description
for a term which may extend to two years, in addition to any other punishment to
which he may be liable for such wrongful conﬁnement.

[s 347] Wrongful conﬁnement to extort property or constrain to illegal act.
Whoever wrongfully conﬁnes any person for the purpose of extorting from the person
conﬁned, or from any person interested in the person conﬁned, any property or
valuable security or of constraining the person conﬁned or any person interested in
such person to do anything illegal or to give any information which may facilitate the
commission of an offence, shall be punished with imprisonment of either description
COMMENT.—
This and the next section may be compared with sections 329 and 330, as the
aggravating circumstances mentioned in the former are the same as those in the latter.

[s 348] Wrongful conﬁnement to extort confession, or compel restoration of
property.
conﬁned or any person interested in the person conﬁned any confession or any
purpose of constraining the person conﬁned or any person interested in the person
conﬁned to restore or to cause the restoration of any property or valuable security or
to satisfy any claim or demand, or to give information which may lead to the
restoration of any property or valuable security, shall be punished with imprisonment
of either description for a term which may extend to three years, and shall also be
959.  State of HP v Ranjit Singh, 1979 Cr LJ (NOC) 210 (HP).

960.  State of AP v G Veereshalinga, 2011 Cr LJ 1991 (AP); Anup Singh v State of HP, AIR 1995 SC
1941 : 1995 Cr LJ 3223 ; Ajay Kumar Singh v State (NCT of Delhi), 2007 Cr LJ 3545 (Del). Order
framing charge against the accused was held proper.
COMMENT.—
This section may be compared with section 330. In the former case confession is
extorted by wrongful conﬁnement; in the latter, by causing hurt. To prove an offence
under this section it is not necessary to show that a formal arrest was made. It is
enough if it is shown that the person was prevented from proceeding beyond certain
circumscribed limits.959. Evidence showed that deceased died of multiple injuries and
such injuries were caused when deceased was in illegal custody of accused. Accused
was held liable to be convicted under sections 348 and 304 Part II of IPC, 1860.960.

Of Criminal Force and Assault
[s 349] Force.
A person is said to use force to another if he causes motion, change of motion, or
cessation of motion to that other, or if he causes to any substance such motion, or
change of motion, or cessation of motion as brings that substance into contact with
any part of that other's body, or with anything which that other is wearing or carrying,
or with anything so situated that such contact affects that other's sense of feeling:
Provided that the person causing the motion, or change of motion, or cessation of
motion, causes that motion, change of motion, or cessation of motion in one of the
three ways hereinafter described.
First.—By his own bodily power.
Secondly.—By disposing any substance in such a manner that the motion or change or
cessation of motion takes place without any further act on his part, or on the part of
any other person.

Thirdly.—By inducing any animal to move, to change its motion, or to cease to move.
961.  Bihari Lal, (1934) 15 Lah 786, 789.
COMMENT.—
'Force' as deﬁned in clause (1) contemplates the presence of the person to whom it is
used, that is to say, it contemplates the presence of the person using the force and of
the person to whom the force is used.961.

[s 350] Criminal force.
Whoever intentionally uses force to any person, without that person's consent, in
order to the committing of any offence, or intending by the use of such force to cause,
or knowing it to be likely that by the use of such force he will cause injury, fear or
annoyance to the person to whom the force is used, is said to use criminal force to
that other.
(a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus
intentionally causes the boat to drift down the stream. Here A intentionally
causes motion to Z, and he does this by disposing substances in such a manner
that the motion is produced without any other act on on any person's part. A has
therefore intentionally used force to Z; and if he has done so without Z's
consent, in order to the committing of any offence, or intending or knowing it to

be likely that this use of force will cause injury, fear or annoyance to Z, A has
used criminal force to Z.
(b) Z is riding in a chariot. A lashes Z's horses, and thereby causes them to quicken
their pace. Here Z has caused change of motion to Z by inducing the animals to
change their motion. A has therefore used force to Z; and if A has done this
without Z's consent, intending or knowing it to be likely that he may thereby
injure, frighten or annoy Z, A has used criminal force to Z.
(c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the
palanquin. Here A has caused cessation of motion to Z, and he has done this by
his own bodily power. A has therefore used force to Z; and as A has acted thus
intentionally, without Z's consent, in order to the commission of an offence. A
has used criminal force to Z.

(d) A intentionally pushes against Z in the street. Here A has by his own bodily
power moved his own person so as to bring it into contact with Z. He has
consent, intending or knowing it to be likely that he may thereby injure, frighten
or annoy Z, he has used criminal force to Z.
(e) A throws a stone, intending or knowing it to be likely that the stone will be thus
brought into contact with Z, or with Z's clothes, or with something carried by Z,
or that it will strike water, and dash up the water against Z's clothes or
something carried by Z. Here, if the throwing of the stone produce the effect of
causing any substance to come into contact with Z, or Z's clothes. A has used

force to Z; and if he did so without Z's consent, intending thereby to injure,
frighten or annoy Z, he has used criminal force to Z.

(f) A intentionally pulls up a woman's veil. Here, A intentionally uses force to her,
and if he does so without her consent, intending or knowing it to be likely that he
may thereby injure, frighten or annoy her, he has used criminal force to her.
(g) Z is bathing, A pours into the bath water which he knows to be boiling. Here A
intentionally by his own bodily power causes such motion in the boiling water as
brings that water into contact with Z, or with other water so situated that such
contact must affect Z's sense of feeling; A has therefore intentionally used force
to Z; and if he has done this without Z's consent, intending or knowing it to be
likely that he may thereby cause injury, fear, or annoyance to Z, A has used
criminal force.
(h) A incites a dog to spring upon Z, without Z's consent. Here, if A intends to cause
injury, fear or annoyance to Z, he uses criminal force to Z.
COMMENT.—
The preceding section deﬁnes 'force'. This section says that 'force' becomes criminal

COMMENT.—
(1) when it is used without consent and in order to the committing of an offence, or (2)
when it is intentionally used to cause injury, fear or annoyance to another to whom the
force is used. To attract the deﬁnition of 'criminal force' under section 350 IPC, 1860,
there must be intentional use of force on any person, without that person's consent.
Such force must have been used for committing an offence, or intending to cause, or
knowing it to be likely that by the use of such force he will cause injury, fear or
annoyance to the person on whom the force is used. In other words, the criminal force
contemplated under this section is intended to mean criminal force as applied to a
person and not as applied to an inanimate object or substance.962. A person is said to
use force when he causes motion or change of motion or cessation of motion to

another person or the above in substance, which brings it into contact with any part of
the other person's body or with anything that the other is wearing or carrying, or with
anything so situated that such contact affects other's sense of feeling. This should be
done by his own bodily power or by use of some substance or by inducing any animal
to change this motion. The use of force will become criminal when it is done against
the consent of any person with the intention of committing an offence or to cause
injury, fear or annoyance to any person. In this case admittedly no assault was resorted
to.963.
The term 'criminal force' includes what in English law is called 'battery'. It will, however,
be remembered that 'criminal force' may be so slight as not to amount to an offence

to.963.
(section 95), and it will be observed that 'criminal force' does not include anything that
the doer does by means of another person. The deﬁnition of 'criminal force' is so wide
as to include force of almost every description of which a person is the ultimate object.
[s 350.1] Ingredients.—
(1) The intentional use of force to any person.
(2) Such force must have been used without the person's consent.
(3) The force must have been used—

962.  Devaki Amma v State, 1981 Ker LT 475 .
963.  S P Mallik v State of Orissa, 1982 Cr LJ 19 (Pat)
964.  Bhupinder Singh v State of Punjab, 1997 Cr LJ 3416 (PH).
(a) in order to the committing of an offence; or
(b) with the intention to cause, or knowing it to be likely that he will cause,
injury, fear or annoyance to the person to whom it is used.
[s 350.2] Illustrations.—
The various illustrations exemplify the different ingredients of the deﬁnition of 'force'
given in section 349. Illustration (a) exempliﬁes 'motion'; ill. (b), 'change of motion'; ill.
(c), 'cessation of motion'; ills. (d), (e), (g) and (h), 'bring that substance into contact with
any part of that other's body'; ills. (j) and (g) 'other's sense of feeling'. Clause 1 of
section 349 is illustrated by ills. (c), (d), (e), (f) and (g); clause 2 by ill, (a); and clause 3,
by ills. (b) and (h).
The petitioners had picked up or snatched the ballot papers from the custody and

possession of the public servants. They had even torn the same in this process. It was
held that they used criminal force.964.

[s 351] Assault.
Whoever makes any gesture, or any preparation1 intending or knowing it2 to be likely
that such gesture or preparation will cause any person present to apprehend that he
who makes that gesture or preparation is about to use criminal force to that person, is
said to commit an assault.
E x p l a n a t i o n .—Mere words do not amount to an assault. But the words which a person
uses may give to his gestures or preparation such a meaning as may make those
gestures or preparations amount to an assault.
(a) A shakes his ﬁst at Z, intending or knowing it to be likely that he may thereby
cause Z to believe that
A is about to strike Z, A has committed an assault.
(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be
likely that he may thereby cause Z to believe that he is about to cause the dog to

attack Z. A has committed an assault upon Z.
(c) A takes up a stick, saying to Z, "I will give you a beating". Here, though the words
used by A could in no case amount to an assault, and though the mere gesture,
unaccompanied by any other circumstances, might not amount to an assault,
the gesture explained by the words may amount to an assault.
COMMENT.—
It is not every threat, when there is no actual personal violence that constitutes an
assault; there must, in all cases, be the means of carrying the threat into effect. If a
person is advancing in a threatening attitude, with an intention to strike another so that
his blow will almost immediately reach the other, if he is not stopped, then this is an
assault in point of law, though at the particular moment when he is stopped, he is not

near enough for his blow to take effect.965. In order to constitute assault it is not
necessary that there should be some actual hurt caused. A threat constitutes
assault.966. Pointing a loaded pistol at another is undoubtedly an assault within the
meaning of this section and as such punishable under section 352 IPC, 1860 though
not under section 307 IPC, 1860.967. In this connection see also sub-para entitled,
"attempt to discharge loaded ﬁrearm" under section 307 ante.
[s 351.1] Ingredients.—

(1) Making of any gesture or preparation by a person in the presence of another.
(2) Intention or knowledge of likelihood that such gesture or preparation will cause
the person present to apprehend that the person making it is about to use
criminal force to him.
1. 'Makes any gesture, or any preparation'.—Illustration (a) illustrates that gestures
which cause a person to apprehend that the person making them is about to use
criminal force amount to an assault. As seen from the deﬁnition of "assault", a gesture
or even a preparation on the part of accused would be suﬃcient to constitute "assault"
and accused need not have even attacked the deceased.
The apprehension of the use of criminal force must be from the person making the
gesture or preparation, and if that apprehension arises not from that person but from
somebody else, it does not amount to assault on the part of that person. Further,

criminal force cannot be said to be used by one person to another by causing change in
the position of another human being. Where, therefore, the accused himself did nothing
which could come under the deﬁnition of assault but simply made a gesture at which
his followers advanced a little forward towards the complainant in a threatening
manner, it was held that he was not guilty of the offence of assault under section
353.968. Where the accused, armed with a sharp-edged weapon, went to the shop of a
man and hurled a challenge to him from some distance asking him to come out and
threatening him that he would not go back without killing him, it was held that the
manner in which the accused hurled the challenge, he committed an assault within the
meaning of section 351 and the retaliation by that man was in self-defence.969.

Though mere preparation to commit a crime is not punishable (see section 511), yet
preparation with the intention speciﬁed in this section amounts to an assault: see ill.
(b).
2. 'Intending or knowing it to be likely'.—Intention or knowledge is the gist of the
offence. Inadvertent recklessness, i.e., a failure to give thought to the possibility of risk
involved in pursuing a course of action, is insuﬃcient to amount to mens rea requisite
for a conviction for assault.970.
[s 351.2] Explanation.—
Mere words do not amount to an assault, but the words which the party threatening
uses at the time either give his gestures such a meaning as may make them amount to
an assault, or, on the other hand, may prevent them from being held to amount to an
assault. In the latter case, the effect of the words must be such as clearly to show the

party threatened that the party threatening has no present intention to use immediate
criminal force.971. A preparation taken with words which would cause a person to
apprehend that criminal force would be used to him, if he persisted in a particular
course of conduct, does not amount to an assault, if there is no evidence to show that
the accused was about to use criminal force to him then and there.972.
[s 351.3] Blood transfusion without consent.—
A person, aged 57, and a Jehovah's witness was seriously injured. He carried a card
stating that no blood was to be administered under any circumstances. The doctor

965.  Stephens v Myers, (1830) 4 C&P 349.
966.  Rupabati v Shyama, (1958) Cut 710.
967.  Swadesh Mahato, 1979 Cr LJ 1275 (Pat); See also James, (1844) 1 C&K 530; Vijaidutta Jha,
(1947) Nag 237.
968.  Muneshwar Bux Singh, (1938) 14 Luck 409 .
969.  Mathew v State of Kerala, 1993 Cr LJ 213 (Ker). R v Chan-Fook, (1994) 2 All ER 552 , the
complainant suffered no physical injury as a result of the assault, he felt abused, humiliated and
frightened.
970.  R v Nash, (1991) Cr LR 768 (CA), Offences Against the Person Act, 1861, section 47
(English).
971.  AC Cama v HF Morgan, (1864) 1 BHC 205.
972.  Birbal Khalifa, (1902) 30 Cal 97 .
973.  Macette v Shulman, (1991) 2 Mad LR 162 (CA).
administered blood transfusions which he considered necessary to preserve the
victim's life. The doctor was held liable in battery for treating the adult patient in a
manner to which he did not consent.973.

[s 352] Punishment for assault or criminal force otherwise than on grave
provocation.
Whoever assaults or uses criminal force to any person otherwise than on grave and
sudden provocation given by that person, shall be punished with imprisonment of
either description for a term which may extend to three months, or with ﬁne which
may extend to ﬁve hundred rupees, or with both.
E x p l a n a t i o n .—Grave and sudden provocation will not mitigate the punishment for an
offence under this section, if the provocation is sought or voluntarily provoked by the
offender as an excuse for the offence, or
if the provocation is given by anything done in obedience to the law, or by a public
servant, in the lawful exercise of the powers of such public servant, or
if the provocation is given by anything done in the lawful exercise of the right of

Whether the provocation was grave and sudden enough to mitigate the offence, is a
question of fact.
COMMENT.—
This section provides punishment for assault or use of criminal force when there are no
aggravating circumstances.974. Section 352 constitutes a minor offence in relation to
section 354 IPC, 1860. The offence under section 354 IPC, 1860 includes the
ingredients of the former.975. See section 300, Exception 1, which is identical with the
explanation to this section.
[s 352.1] CASE.—
Where the accused persons formed an unlawful assembly with a common object, act
of unlawful assembly cannot be attributable with the subsequent change in the
common object of some of the other members of the assembly, it was held that
members who did not share common intention and stood outside were liable to be

convicted under section 352 read with149 and not under section 326 r/w. 149.976.

974.  Nagar Prasad v State of UP, 1998 Cr LJ 1580 (All); R v Onabanjo, (2001) 2 Cr App R (S) 7 [CA
(Crim Div)], The accused appealed against a total sentence of 15 months' imprisonment, having
been convicted of common assault against his former girlfriend and of putting her in fear of
violence contrary to the Protection from Harassment Act, 1997 section 4 after she had ended
their relationship. The accused contended that the offences had been committed whilst he was
under the inﬂuence of alcohol and in response to his inability to cope with the breakdown of the
relationship.
It was held that repeated threats by the accused to kill justiﬁed the sentence imposed,
notwithstanding the presence of several mitigating factors including his attempts to seek help
for his alcohol addiction and depression. R v Tucknott, (2001) 1 Cr App R (S) 93 [CA (Crim Div)],
the accused was convicted for threatening to kill his ex-girlfriend and her new partner. The

threats were issued in prison to prison oﬃcers, stating intentions on release. The sentence was
imposed as it was deemed necessary in order to protect the public from a man who the court
held and shown himself to be capable of extreme violence against previous partners and who,
the medical experts and probation service agreed, was likely to re-offend.
It was held that given his early guilty plea and the fact that he could not realistically have carried
out the threats as he had been in prison at the time, the sentence was reduced to ﬁve years to
bring it in the sentencing in comparable cases.
975.  RD Bajaj v KPS Gill, AIR 1996 SC 309 [LNIND 1995 SC 981] : (1995) 6 SCC 194 [LNIND 1995
SC 981] .
976.  Bhimrao v State of Maharashtra, AIR 2003 SC 1493 [LNIND 2003 SC 167] : (2003) 3 SCC 37

SC 981] .
[LNIND 2003 SC 167] . See also Ashok Chintawar v State of Maharashtra, 2006 Cr LJ 2234 (Bom);
Hanuman v State of Haryana, AIR 1977 SC 1614 : (1977) 4 SCC 599 .

[s 353] Assault or criminal force to deter public servant from discharge of his
duty.
Whoever assaults or uses criminal force to any person being a public servant in the
execution of his duty as such public servant, or with intent to prevent or deter that
person from discharging his duty as such public servant, or in consequence of
anything done or attempted to be done by such person in the lawful discharge of his
duty as such public servant, shall be punished with imprisonment of either description
for a term which may extend to two years or with ﬁne, or with both.
COMMENT.—
The public servant must be acting in the discharge of a duty imposed by law on him in
the particular case, and the section will not protect him for an act done in good faith
under colour of his oﬃce.977. If hurt is caused under the circumstances mentioned in

the section then either section 332 or section 333 will apply.
[s 353.1] CASES.—Defect in warrant.—
It is made clear in the illustrations that the words alone will not amount to assault. So
also, the mere gesture of picking up a stick alone will not constitute assault unless
accompanied by other circumstances. The gesture explained by the words alone
amounts to assault. Therefore, mere preparation of carrying a weapon and standing
before the victim without making any gesture which will disclose the intention or
knowledge will not constitute assault. As seen from Illustration (c), mere carrying a
stick without being accompanied by a statement which will disclose the intention or
knowledge will not constitute assault. But there is nothing in evidence to reveal

commission of any of the overt acts to constitute offence under section 353 IPC, 1860.
The prosecution has failed to prove any of the offences alleged against appellants.978.
Resistance to an illegal order of attachment is not an offence under section 353, IPC,
1860.979. Where the accused allegedly assaulted the District Revenue Oﬃcer who
distributing ﬂood relief in village and made an attempt to snatch the cash and evidence
of witnesses was found cogent, convincing and credit worthy, conviction was
upheld.980. Accused allegedly snatched the service revolver of complainant police
oﬃcer and ﬁred at him. All the witnesses who were independent witnesses, turned
hostile. Offence under sections 307 and 353 was held not proved.981.
[s 353.2] Search without proper order or warrant.—

Where the accused resisted a public oﬃcer who attempted to search a house, in the
absence of a proper written order authorizing him to do so, he was held to have

committed no offence under this section.982. But the Madras High Court has held that
a search without a search warrant does not justify an obstruction or resistance to an
oﬃcer, if he was acting in good faith and without malice.983. Even though an illegal
search under section 165, Cr PC, 1973 can be resisted, yet there is no justiﬁcation to
assault an oﬃcer after he has ﬁnished the search and left the house. Such an act
amounts to an offence under section 353 IPC, 1860.984. In this connection see also
sub-head "Cases" under section 340 ante.
[s 353.3] Public servant must be acting in execution of duty.—
Where the accused created hindrance in the discharge of duties of police in order to
avoid arrest, it was held that conviction under section 353 was justiﬁed.985. Where a
cart owner refused to give his cart for the use of a Forest Settlement Oﬃcer who
required it as per executive orders of Government, and assaulted the peon in preventing

him from seizing his cart, it was held that he could not be convicted of an offence
under this section, because the rules aforesaid had not the force of law, and a public
servant acting under them was not acting in the execution of his duty.986. Similarly,
where a forest oﬃcer who was authorised to arrest a person only when the offence
was committed within ﬁve miles of the border arrested the accused when there was no
evidence that the offence was committed within the ﬁve mile belt, it was held that the
arrest not being justiﬁed, the accused did not commit any offence under this section by
inﬂicting some injuries on the oﬃcer during a scuﬄe.987. Legality of the execution of
duty is the sine qua non for the application of section 353 IPC, 1860.988. Where a
Headmaster of a school was assaulted with a ruler by a fellow teacher out of previous

personal grudge and not due to any performance of public duty, it was held that the
accused could not be convicted under section 353 though his conviction under section
325, IPC, 1860 was legal as the Headmaster suffered a dislocation of the right shoulder
joint.989. In this connection see also comments under section 332 ante. Where the
Assistant Superintendent of Commercial Taxes paid a surprise visit to the shop of the
accused and took up some books of account maintained by the shop for inspection, as
he was empowered to do under the State's Sales Tax Law, and the accused snatched
away the books from him, it was held by the Supreme Court that the act of the accused
amounted to use of criminal force and he could be convicted under this section. It was
observed that to feel annoyed at this action of the accused would be the natural

reaction of the Assistant Superintendent.990. Where the driver of the Transport
Department prevented a Deputy Sarpanch from entering the bus through driver's cabin
and was kicked by the latter and thus suffered a grievous injury, it was held while
driving or standing by the bus the driver was on public duty and by stopping a trespass
into driver's cabin he was undoubtedly acting in the discharge of his duty as public
servant. The Deputy Sarpanch was, therefore, clearly liable under section 353, IPC,
1860.991.
Petitioner used vulgar and ﬁtting language against complainant when he went to
petitioner's oﬃce to ask reason for not permitting him to mark his presence in
Attendance Register. It was held that act of petitioner cannot be deﬁned to be an act in
discharge of oﬃcial duty. There was no need of previous sanction to prosecute him.992.

[s 353.4] Posting adverse comments of social media site.—
The appellant posted adverse comments against the police oﬃcer on Facebook. The
threat must be with intention to cause alarm to the complainant to cause that person to

do or omit to do any work. Mere expression of any words without any intention to
cause alarm would not be suﬃcient to bring in the application of this section. But
material has to be placed on record to show that the intention is to cause alarm to the
complainant. Offence not made out.993.
[s 353.5] To deter public servant from discharging duty.—
Where the accused was asked by a sub-inspector to stop his car and he while
pretending to stop sped away and in this process hit the mudguard of the motor-cycle
on which the Sub-Inspector was sitting, it was held that the facts of the case did not
make out an offence of assault on a public servant or using criminal force so as to
deter him from discharging his duties as public servant.994. The accused suspected
that the complainant public servant was instrumental in his transfer. The complainant
was proceeding to his oﬃce to resume his duty. On the way he was assaulted by the
accused. It was held that no offence was committed under section 353 because the

public servant was not assaulted to deter him from discharge of his duty.995. The wife
of the accused was being taken to Police Station in execution of search warrant
accompanied by a police constable. The accused attacked his wife and also the police
constable. Conviction of the accused under section 353 was held to be proper, though
no injury as such was caused to the constable. The Court observed that actual causing
of injury is not necessary for conviction under section 353.996. In a complaint under
sections 323 and 329 the investigating Head Constable demanded bribe for arresting
some persons and was caught red-handed in a trap but on his call the villagers
attacked the raiding party and snatched away their belongings and currency notes used
in the trap, thus deterring the public servants from discharging their duties and

rescuing the accused from the lawful custody of the Inspector of the raiding party.
Conviction of the Head Constable under section 395 read with section 109, sections
353/109 and 224, the constable whom the head constable handed over the money
under section 395 and the villagers under sections 353, 149, 226 and 147 was
upheld.997. Four persons brought a woman to a room of a circuit house for the purpose
of prostitution. When one of them was busy in sexual intercourse and others were busy
in drinking, the police reached there and as they were about to arrest the accused, one
of the accused obstructed the police oﬃcers in discharge of their duties. The
conviction of that accused under section 353 was upheld.998.
[s 353.6] Section 353 vis-a-vis Section 186 IPC, 1860.—

There is an essential distinction between the offences punishable under sections 353
and 186 IPC, 1860. The ingredients of the two offences are distinct and different. While
the former is a cognizable offence, the latter is not. A mere obstruction or resistance
unaccompanied by criminal force or assault will not constitute an offence under
section 353 IPC, 1860. Where an accused voluntarily obstructs a public servant in the
discharge of his duties, section 186 IPC, 1860 is attracted. But under section 353, there
must be in addition to the obstruction use of criminal force or assault to the public
servant while he was discharging his duty. It may also be noted that the quality of the
two offences is also different. While section 186 occurs in Chapter X dealing with

contempt of the lawful authority of public servants, section 353 appears in Chapter XVI
which deals with offences affecting the human body. This is also a clear indication that
use of criminal force contemplated under section 353 IPC, 1860 is against a person
and not against any inanimate object.999.

977.  Dalip, (1896) 18 All 246 ; Raman Singh v State, (1900) 28 Cal 411 , 414; Bolai De, (1907) 35
Cal 361 ; Provincial Government, Central Provinces and Berar v Nonelal, (1946) Nag 395. See,
however, Yamanappa Limbaji, (1955) 58 Bom LR 551 .
978.  Prasad v State, 2013 (1) KLD 714; State of HP v Dinesh Chander Sharma, 2011 Cr LJ 2418
(HP).
979.  State of HP v Durga, 1980 Cr LJ (NOC) 10 (HP).
980.  Raj Singh v State of Haryana, 2008 Cr LJ 3205 (PH).
981.  Sumersinbh Umedsinh Rajput v State of Gujarat, AIR 2008 SC 904 [LNIND 2007 SC 1450] :
(2007) 13 SCC 83 [LNIND 2007 SC 1450] .
982.  Narain, (1875) 7 NWP 209.
983.  Pukot Kotu, (1896) 19 Mad 349.
984.  Shyam Lal, 1972 Cr LJ 638 : AIR 1972 SC 886 [LNIND 1972 SC 100] ; See also State of UP v
Sant Prakash, 1976 Cr LJ 274 (All—FB).
985.  Bhairon Singh v State of Rajasthan, 2010 Cr LJ 1177 (Raj).
986.  Rakhmaji, (1885) 9 Bom 558. A teacher, against whom an inquiry had been conducted by a

constable, abused a constable who was waiting for a bus to the police station, thinking that he
was the same constable, was let off with admonition. State of Karnataka v M Chandrappa, 1987
Cr LJ 950 (Kant).
987.  State of Tripura v Sashimohan, 1977 Cr LJ 1663 (Gau).
988.  Poulose, 1985 Cr LJ 222 (Ker).
989.  SN Roy, 1978 Cr LJ 1514 (Gau). See also Sagwan Passi, 1978 Cr LJ 1062 (Pat).
990.  Chandrika Sao, AIR 1967 SC 170 [LNIND 1962 SC 316] : 1967 Cr LJ 261 .
991.  Manumiya, 1979 Cr LJ 1384 : AIR 1979 SC 1706 [LNIND 1979 SC 93] .
992.  Prakash Chandra Bafna v Oba Ram, 2011 Cr LJ 416 (Raj).
993.  Manik Taneja v State of Karnataka, 2015 Cr LJ 1483 .
994.  P Rama Rao, 1984 Cr LJ 27 (AP). See BS Narayanan v State of AP, 1987 SCC (Cr) 791 : 1987

Supp SCC 172 , where the offender was released under the Probation of Offenders Act, 1958.
There was a long lapse of time and also the chance of the offender losing his job. Shaik Ayyub v
State of Maharashtra, (1995) 1 Cr LJ 420 : (1994) Supp 2 SCC 269. Killing police oﬃcers to resist
arrest, punished under the section.
995.  Rajendra Datt v State of Haryana, 1993 Cr LJ 1025 (P&H).
996.  Devisingh v State of MP, 1993 Cr LJ 1301 (MP).
997.  Ami Lal v State of Rajasthan, 1996 Cr LJ 1585 (Raj).
998.  Kalyanasundaram v State of TN, 1994 Cr LJ 2487 (Mad).
999.  Devaki Amma v State, 1981 Ker LT 475 .

[s 354] Assault or criminal force to woman with intent to outrage her modesty.
Whoever assaults or uses criminal force to any woman, intending to outrage or
knowing it to be likely that he will thereby outrage her modesty, 1000.[shall be
than one year but which may extend to ﬁve years, and shall also be liable to ﬁne.]
Andhra Pradesh.—The following amendments were made by Act No. 6 of 1991.
In its application to the State of Andhra Pradesh, for section 354 of the Indian Penal
Code, 1860, the following section shall be substituted namely—
354. Assault or criminal force to woman with intent to outrage her modesty.—Whoever
assaults or uses criminal force to any woman, intending to outrage or knowing it to be

likely that he will thereby outrage her modesty, shall be punished with imprisonment of
extend to seven years and shall also be liable to ﬁne:
Provided that the court may, for adequate and special reasons to be mentioned in the
judgment, impose a sentence of imprisonment of either description for a term which
may be less than ﬁve years, but which shall not be less than two years.
[Vide Andhra Pradesh Act 6 of 1991].
Chattisgarh—In section 354, insert the following proviso, namely:
"Provided that where offence is committed, under this section by a relative, guardian or
teacher or a person in a position of trust or authority towards the person assaulted, he
shall be punishable with imprisonment of either description for a term which shall not

be less than two years but which may extend to seven years and shall also be liable to
ﬁne."
[Vide Chattisgarh Act 25 of 2015, sec. 3 (w.e.f. 21-7-2015).]
Madhya Pradesh.—The following amendments were made by Act No. 14 of 2004.
In its application to the State of Madhya Pradesh, after section 354 of the Indian Penal
Code, 1860, the following section shall be inserted namely—
"354A. Assault or use of Criminal force to woman with intent to disrobe her.—Whoever
assaults or uses criminal force to any woman or abets or conspires to assault or uses
such criminal force to any woman intending to outrage or knowing it to be likely that by
such assault, he will thereby outrage or causes to be outraged the modestly of the
woman by disrobing or compel her to be naked on any public place, shall be punished

with imprisonment of either description for a term which shall not be less than one year
but which may extent to ten years and shall also be liable to ﬁne."

[Vide Madhya Pradesh Act 14 of 2004, sec. 3 (w.e.f. 2-12-2004)].
Orissa.—In the First Schedule to the Code of Criminal Procedure, 1973 in the entry
under column 5 relating to section 354 of the Indian Penal Code (45 of 1860) for the
word 'Bailable', the word 'non-bailable' shall be substituted (vide Orissa Act 6 of 1995,
section 3, w.e.f. 10-3-1995).
COMMENT.—
The provisions of section 354 IPC, 1860 has been enacted to safeguard public morality
and decent behaviour. Therefore, if any person uses criminal force upon any woman
with the intention or knowledge that the woman's modesty will be outraged, he is to be
punished. In Vishaka v State of Rajasthan,1001. and Apparel Export Promotion Council v
AK Chopra,1002. the Supreme Court held that the offence relating to modesty of woman
cannot be treated as trivial. In order to constitute the offence under section 354, IPC,
1860 mere knowledge that the modesty of a woman is likely to be outraged is suﬃcient

without any deliberate intention of such outrage alone for its object. There is no
abstract conception of modesty that can apply to all cases. A careful approach has to
be adopted by the Court while dealing with a case alleging outrage of modesty.
The essential ingredients of the offence under section 354, IPC, 1860 are as under:
(1) That the person assaulted must be a woman.
(2) Accused must have used criminal force on her intending thereby to outrage her
modesty.
(3) What constitutes an outrage to female modesty is nowhere deﬁned—The
essence of a woman's modesty is her sex.
(4) Act of pulling a woman, removing her dress coupled with a request for sexual
intercourse, as such would be an outrage to the modesty of a woman.
(5) Knowledge, that modesty is likely to be outraged, is suﬃcient to constitute the

offence without any deliberate intention of having such outrage alone for its
object.1003.
Intention is not the sole criterion of the offence punishable under section 354, IPC,
1860 and it can be committed by a person assaulting or using criminal force to any
woman, if he knows that by such act the modesty of the woman is likely to be affected.
Knowledge and intention are essentially things of the mind and cannot be
demonstrated like physical objects. The existence of intention or knowledge has to be
culled out from various circumstances in which and upon whom the alleged offence is
alleged to have been committed.1004. Even though it is true that assault or criminal
force to woman is one of the essential pre-conditions for applicability of section 354
IPC, 1860 but the same has to be with an intent to outrage her modesty or knowing it to

be likely that he will thereby outrage her modesty. Neither the use of criminal force
alone nor act of outraging the modesty alone is suﬃcient to attract an offence under
section 354 IPC, 1860.1005.
[s 354.1] Modesty.—Meaning.—
The essence of a woman's modesty is her sex. The culpable intention of the accused is
the crux of the matter. The reaction of the woman is very relevant, but its absence is
not always decisive. Modesty is an attribute associated with female human beings as a

class. It is virtue which attaches to a family owing to her sex. The ultimate test for
ascertaining whether the modesty of a woman has been outraged, assaulted or
insulted is that the action of the offender should be such that it may be perceived as
one which is capable of shocking the sense of decency of a woman. A person slapping
on the posterior of a woman in full public glare would amount to outraging her modesty
for it was not only an affront to the normal sense of feminine decency but also an
affront to the dignity of the lady. The word "modesty" is not to be interpreted with
reference to the particular victim of the act, but as an attribute associated with female
human beings as a class. It is a virtue which attaches to a female on account of her
sex.1006. In State of Punjab v Major Singh,1007., a three-Judge Bench of the Supreme
Court considered the question — Whether modesty of a female child of seven and half
months can also be outraged. The majority view was in the aﬃrmative. Bachawat, J, on

behalf of majority, opined as:
The offence punishable u/s. 354 is an assault on or use of criminal force to a woman with
the intention of outraging her modesty or with the knowledge of the likelihood of doing so.
The Code does not deﬁne 'modesty'. What then is a woman's modesty? … The essence of a
woman's modesty is her sex. The modesty of an adult female is written large on her body.
Young or old, intelligent or imbecile, awake or sleeping, the woman possesses a modesty
capable of being outraged. Whoever uses criminal force to her with intent to outrage her
modesty commits an offence punishable u/s. 354. The culpable intention of the accused is
the crux of the matter. The reaction of the woman is very relevant, but its absence is not
always decisive, as, for example, when the accused with a corrupt mind stealthily touches

the ﬂesh of a sleeping woman. She may be an idiot, she may be under the spell of
anaesthesia, she may be sleeping, she may be unable to appreciate the signiﬁcance of the
act; nevertheless, the offender is punishable under the section.1008.
An indecent assault upon a woman is punished under this section. Rape is punished
under section 376; but the offence under this section is of less gravity than rape.1009.
Knowledge that modesty is likely to be outraged has been held to be suﬃcient to
constitute the offence without any deliberate intention to outrage modesty. In this case
the victim woman was brought into a room under false pretexts, the room was locked
from outside, inside she was forced to drink, photographs taken in naked state and
raped. All the participants were held to be guilty of outraging her modesty.1010. A

person who is guilty of attempting rape cannot be allowed to escape with the lesser
penalty of this section. Where the accused walked into the room where a female child
of seven and a half months was sleeping and committed an indecent assault on the
child, he was held to have committed an offence under this section as he had outraged
and intended to outrage whatever modesty the little victim was capable of.1011. Their
Lordships of the House of Lords have pointed out that a person is guilty of indecent
assault if he intentionally assaults the victim and intends to commit not just an assault
but an indecent assault, i.e., an assault which right-minded persons would think is
indecent. Accordingly, any evidence explaining the defendant's conduct, whether an
admission by him or otherwise, is admissible to establish whether he intended to

commit an indecent assault. In this case,1012. a 26-year-old shop assistant pulled a 12-
year-old girl visitor to the shop across his knees and smacked her with his hand 12
times on her bottom outside her shorts for no apparent reason. On being asked he
explained his weakness as "buttock fetish". But for this admission there was nothing to
convert the assault (to which he confessed) into an indecent one. His explanation to
his secret motive was held to be relevant to hold him guilty of indecent assault.
Moreover, according to section 10, IPC, 1860 a woman denotes a female human being
of any age. Where the woman is a consenting party there cannot be any outraging of
modesty.1013. Unless culpable intention is proved mere touching the belly of a female
in a public bus cannot be called a deliberate act of outraging the modesty of a female

within the meaning of this section. In the circumstances of the case the act of the
accused was held to be accidental and not intentional.1014. Where the accused caught
hold of a married woman and tried to open the string of her salwar with a view to
committing rape on her but being hit by the woman with a kulhari ﬂed away, it was held
that he could not be convicted under section 376 read with section 511 IPC, 1860 as

his action did not show a determination to have sexual intercourse at all events and in
spite of resistance. The conviction of the accused was accordingly changed to one
under section 354, IPC, 1860.1015.
Where the allegation was, while the victim was returning from home, the accused came
from behind and pressed her breast, the Court convicted him under section 354 IPC,
1860.1016. The accused came from behind her and caught hold of her and laid her
down on the cot and sat on her chest. She shouted and after that the accused left her
house. After hearing her shouts, her cousin mother-in-law came there. High Court
rejected the defence of false implication and convicted the accused under section 354,
IPC, 1860.1017. Where a married woman alleged that the two accused persons had
dragged her in her own home and raped her one after the other and the medical
evidence showed that though there were traces of semen on her clothes, there were

none on the clothes of the accused persons, the Court opined that the case was not
made out; the presence of semen on the clothes of a married woman is not unusual
and therefore, the accused could have been prosecuted only for outraging the modesty
of a woman.1018.
Some labourers, including a woman, were taken to a police station for some work.
When they demanded wages, they were beaten up. The woman was stripped bare and
thrashed. The matter came before the Supreme Court in a writ petition under Article 32
of the Constitution. The Supreme Court held that the offence under section 354, IPC,
1860 was established in reference to the woman and awarded compensation to be
recovered from the salary of the guilty oﬃcers.1019. The offence was held to have been
made out where a senior police oﬃcer slapped the posterior of the prosecutrix in the

midst of guests in a party. The accused must have been fully aware that such an act
would embarrass her and outrage her modesty. She made hue and cry immediately.
Her conduct did not suggest that she was stage-managing things to malign the
accused. The Court observed such behaviour was not expected from a high-ranked
police oﬃcer. His conviction for the offence under the section was maintained by the
Supreme Court.1020.
[s 354.2] Parading a naked tribal woman.—
In a case of parading of a naked tribal woman after disrobing her on the village road in
broad daylight by appellants, the Supreme Court held that the dishonour of the victim
called for harsher punishment.1021.
[s 354.3] Outraging modesty or Rape.—
Dividing line between attempt to commit rape and indecent assault is not only thin but

also is practically invisible. Evidence of informant that when she went to the house of
accused, she found that the victim was sleeping on the ﬂoor and accused was lying on
her. Accused removed her nicker with a view to commit sexual intercourse. Medical
evidence does not indicate as to whether accused has tried to force his penis inside
the private part of girl but could not succeed. Offence committed by accused did not
amount to attempt to commit rape punishable under section 376 read with section 511
of IPC, 1860 but was one under section 354.1022. Though there was ample evidence
that the victim was disrobed by the accused and thus the accused, outraged her
modesty there was no evidence of rape. Conviction under section 376 was altered to
section 354.1023. But in State of UP v Rajit Ram1024. the Supreme Court set aside a

judgment by which a conviction under section 376 was altered to section 354 and

remitted the case back to trial court. The accused in another case had forcibly laid the
prosecutrix on the bed and broken her pyjama's string but made no attempt to undress
himself and when the prosecutrix pushed him away, he did not make efforts to grab her
again. It was held that it was not an attempt to rape but only outraging of the modesty
of a woman and conviction under section 354 was proper.1025. But in Ram Mehar v
State of Haryana,1026. the accused caught hold of the prosecutrix, lifted her and then
took her to a bajra ﬁeld where, he pinned her down and tried to open her salwar but
could not do so as the prosecutrix had injured him by giving a sickle blow. The accused
failed to give his blood sample with the result it could be presumed that his innocence
was doubtful. Ocular evidence of the prosecutrix was also corroborated by other
evidence. It was held that conviction of the accused under sections 354, 376/511 was
proper. The accused caught the victim from behind, pushed her on ground, removed her

panty and attempted rape. Upon getting opportunity she kicked him in testicles and
escaped from place of occurrence. The accused was convicted under section 511 read
with section 376.1027.
[s 354.4] Punishment enhanced by Criminal Law (Amendment) Act, 2013 (Act
13 of 2013).—
By the Criminal Law (Amendment) Act, 2013 while no change has been made in the
deﬁnition of the offence, the punishment for the offence prescribed in this section has
been changed by providing a minimum sentence of one year and a maximum sentence
of ﬁve years.
[s 354.5] CASES.—
Where the allegation was that the Principal of a school misbehaved with the girl
student, the High Court declined to quash the FIR, though he was exonerated in
Departmental proceedings.1028. Where the prosecutrix did not state speciﬁcally about

the act, but has loosely described as "fondling", the Supreme Court altered the
conviction from section 376 to section 354.1029. Victim, a deaf and dumb girl aged 13
years was lured by the accused from her house to a distant place. When family of
victim reached place, the accused ﬂed away leaving victim who was weeping. Her
clothes were soiled with mud and accused concealed it. Accused was liable to be
convicted under section 354.1030. Where the accused touched the hand of the blind
prosecutrix, removed the quilt with which she was covering herself and put his hand in
her 'midi', conviction of the accused for attempt to commit rape was set aside but
conviction under sections 354, 457 and 506 was conﬁrmed.1031.
Where the accused forcibly laid the prosecutrix on bed and cut the string of her pyjama

and tore her underwear but did not undress himself, the offence fell under section 354
and the offence of attempt to commit rape was not made out.1032.
Where the accused persons caught hold of a woman and removed the 'saree' from her
person but ran away on seeing someone approaching, their act attracted section 354
and not sections 375/511. Their conviction under sections 376/511 read with section
34 was altered to one under sections 354/34.1033.
Sexual harassment and punishment for sexual harassment.

1000.  Subs. by Act 13 of 2013, section 6, for "shall be punished with imprisonment of either
description for a term which may extend to two years, or with ﬁne, or with both" (w.r.e.f. 3-2-
2013).
1001.  Vishaka v State of Rajasthan, AIR 1997 SC 3011 [LNIND 1997 SC 1081] .
1002.  Apparel Export Promotion Council v AK Chopra, AIR 1999 SC 625 [LNIND 1999 SC 33] .
1003.  Aman Kumar v State of Haryana, AIR 2004 SC 1497 [LNIND 2004 SC 184] : (2004) 4 SCC
379 [LNIND 2004 SC 184] .
1004.  Namdeo Dnyanaba Agarkar v State of Maharashtra, 2013 Cr LJ 3946 (Bom); Vidyadharan v
State of Kerala, AIR 2004 SC 536 [LNIND 2003 SC 985] : (2004) 1 SCC 215 [LNIND 2003 SC 985] ;
State of Punjab v Major Singh, AIR 1967 SC 63 [LNIND 1966 SC 130] .
1005.  Gigi v State, 2013 Cr LJ (NOC) 228 .
[s 354.6] Compounding.—
Where the accused and respondent No. 2 had entered into a compromise and,
accordingly, she had ﬁled an aﬃdavit before the Supreme Court during the pendency of

appeal. Supreme Court allowed to compound the offences under sections 354 and 506
IPC, 1860.1034.
[s 354.7] Jurisdiction.—
The petitioners were charged with the offence of kidnapping and outraging the
modesty of the victim girl. She was taken to different places by train. In the course of
the journeys she was subjected to outraging. It was held that the Courts of the other
place would have jurisdiction to try the offender for both the offences.1035. The
accused held the arms of the prosecutrix with one hand and put the other hand on her
breasts. This was held to be an offence under section 354.1036.
[s 354.8] Sentencing.—
The Court must not only keep in view the rights of the victim of the crime but also the
society at large while considering the imposition of an appropriate punishment.1037.
[s 354.9] Beneﬁt of Probation.—

As the appellant has committed a heinous crime and with the social condition
prevailing in the society, the modesty of a woman has to be strongly guarded and as
the appellant behaved like a roadside romeo, the Supreme Court held that it is not a ﬁt
case where the beneﬁt of the Probation of Offenders Act, 1958 should be given to the
appellant.1038.

1006.  Tarkeshwar Sahu v State of Bihar, (2006) 8 SCC 560 [LNIND 2006 SC 795] : 2006 (3) SCC
(Cr) 556; Aman Kumar v State of Haryana, AIR 2004 SC 1497 [LNIND 2004 SC 184] ; Raju
Pandurang Mahale v State of Maharashtra, AIR 2004 SC 1677 [LNIND 2004 SC 194] .
1007.  State of Punjab v Major Singh, AIR 1967 SC 63 [LNIND 1966 SC 130] : 1967 Cr LJ 1 .
1008.  Also see Sanjay Das v The State of MP, 2011 Cr LJ 2095 (Chh).
1009.  Madan Lal v State of Rajasthan, 1987 Cr LJ 257 (Raj). Man Singh v State of Rajasthan,
(1995) 2 Cr LJ 2050 (Raj), no proof of either alleged rape or of outraging modesty. State of TN v
P Balan, 1996 Cr LJ 3705 (Mad), girl forcibly laid up, seminal stains were absent from the body
or clothes, held offence not proved, punishment under sections 341/354.
1010.  Raju Pandurang Mohale v State of Maharashtra, (2004) 4 SCC 371 [LNIND 2004 SC 194] :
AIR 2004 SC 1677 [LNIND 2004 SC 194] .
1011.  Major Singh, AIR 1967 SC 63 [LNIND 1966 SC 130] : 1967 Cr LJ 6 .
1012.  R v Court, (1988) 2 All ER 221 (HL).

1013.  Sadananda, 1972 Cr LJ 658 (Assam).
1014.  SP Mallik, 1982 Cr LJ 19 (Pat). Divender Singh v Hari Ram, 1990 Cr LJ 1845 HP, pushing
and beating a girl, intention to outrage modesty not established. Citing, Ram Das v State of WB,
AIR 1954 SC 711 : 1954 Cr LJ 793 . Assault by one public servant upon another public servant
would be covered by section 355 and not by this section. Santanu Kumar Sadangi v State of
Orissa, 1989 Cr LJ 2353 (Ori).
1015.  Rameshwar, 1984 Cr LJ 786 (P&H). Ram Asrey v State of UP, 1990 Cr LJ 405 : 1989 All LJ
165, High Court can allow compounding of this offence.
1016.  Asharaf Khan v State of MP, 2013 Cr LJ 1286 (MP)
1017.  Namdeo Dnyanaba Agarkar v State of Maharashtra, 2013 Cr LJ 3946 (Bom). Pritam Singh v
State of HP, 2012 Cr LJ 468 (HP); Dhannula Govindaraju v State of AP, 2011 Cr LJ 395 (AP).

1018.  State of Orissa v Musa, 1991 Cr LJ 2168 (Ori). For another case of dragging a woman and
making her forcibly naked and committing some acts, but no proof of rape and therefore, the
court opining conviction under this section, see Basudev Naik v State of Orissa, 1991 Cr LJ 1594
(Ori). The accused loosening the cord of the petticoat of the prosecutrix and about to sit on her
waist when she cried out for help. Conviction under this section and not for rape. It was not
even attempt to rape, but only a preparation for it. Ankariya v State of MP, 1991 Cr LJ 751 .
1019.  Peoples' Union for Democratic Rights v Police Commissioner, Delhi Police Headquarter,
(1989) 4 SCC 730 : 1990 SCC (Cr) 75. See also Chander Kala v Ram Kishan, AIR 1985 SC 1268

[LNIND 1985 SC 166] : 1985 Cr LJ 1490 : (1985) 4 SCC 212 [LNIND 1985 SC 166] , charge under
the section was fully established; Raﬁ Uddin Khan v State of Orissa, 1992 Cr LJ 874 (Ori),
essentials of rape not made, but those of outraging modesty established.
1020.  Kanwar Pal S Gill v State (Admn. of UT, Chandigarh), 2005 Cr LJ 3443 : AIR 2005 SC 3104
[LNIND 2005 SC 558] : (2005) 6 SCC 161 [LNIND 2005 SC 558] , delay in ﬁling complaint was
due to the fact that she ﬁrst struggled for administrative action and having failed, ﬁled a
complaint.
1021.  Kailas v State of Maharashtra, (2011) 1 SCC 793 [LNIND 2011 SC 22] : AIR 2011 SC 598
[LNIND 2011 SC 22] .
1022.  Tukaram Govind Yadav v State of Maharashtra, 2011 Cr LJ 1501 (Bom).
1023.  Jeet Singh v State, 2013 Cr LJ (NOC) 365 ; Aman Kumar v State of Haryana, AIR 2004 SC

1497 [LNIND 2004 SC 184] : (2004) 4 SCC 379 [LNIND 2004 SC 184] .
1024.  State of UP v Rajit Ram, 2011 (6) Scale 477 : (2011) 14 SCC 463 .
1025.  Jai Chand v State, 1996 Cr LJ 2039 (Del); Bisheshwar Murmu v State of Bihar, 2004 Cr LJ
326 (Jhar).

1026.  Ram Mehar v State of Haryana, 1998 Cr LJ 1999 (P&H).
1027.  Rajesh Vishwakarma v State of Jharkhand, 2011 Cr LJ 2753 (Jha).
1028.  KP Sharma v State, 2013 Cr LJ (NOC) 367 (Raj); Amit Kumar Alias Mittal v State of UP, 2011
Cr LJ 3710 (All).
1029.  Premiya v State of Rajasthan, AIR 2009 SC 351 [LNIND 2008 SC 1889] : (2008) 10 SCC 81
[LNIND 2008 SC 1889] .
1030.  State v Sangay Sherpa, 2013 Cr LJ 2266 (Sik).
1031.  Keshav Baliram Naik v State of Maharashtra, 1996 Cr LJ 1111 (Bom). Sanjay Das v The
State of MP, 2011 Cr LJ 2095 (Chh)—Allegation was that accused/appellants caught hold of
prosecutrix's hand and tried to pull her to do bad work with her. There is no cogent evidence in
respect of section 506 Part II of IPC, 1860. However, act done by accused is liable to be
punished under section 354 of IPC, 1860.
1032.  Jai Chand v State, 1996 Cr LJ 2039 (Del).
1033.  Damodar Behera v State of Orissa, 1996 Cr LJ 346 (Ori). Another similar case is State of

Karnataka v Shivaputrappa, 2002 Cr LJ 1686 (Kant), it was a murder taking place in the process
of attempted rape. The accused was seen running away from the place of the incident. Medical
evidence was not able to establish the precise cause of death. Medical evidence also showed
that there was no sexual assault, but there were minor injuries on the lower part of the body
from which the offence of outraging her body was made out. Conviction under section 376/511
was altered to one under section 354. Shiv Shankar v State of UP, 2002 Cr LJ 2673 (All), the
accused caught hold of the victim and then made her fall to the ground. This was held to be not
an attempt to rape but an outrage to the modesty of a woman. Shoukat v State of Rajasthan,
2002 Cr LJ 364 (Raj), taking away a nursing woman from her home under false pretences and

then molesting and beating her on the way, held, outraging the modesty of a woman made out.
Bali v State of Rajasthan, 2001 Cr LJ 909 (Raj), allegation of forcible rape not proved but
application of force to outrage the modesty of women proved, punishment under section 354.
Tarachand v State of Rajasthan, 2001 Cr LJ (Raj), victims primary school students of tender age,
the sexual assailant was their head master, conviction. Madan Lal v State of J&K, 1998 Cr LJ 667
(SC), evidence showed that the accused had gone beyond the stage of preparation, mere non-
penetration was not suﬃcient to absolve him of the offence of attempt to commit rape. It was
not a case of mere assault under section 354. Kuthu v State of MP, 1998 Cr LJ 960 (MP), the
accused took the prosecutrix by deception to a lonely place and cruelly pushed a bunch of

leaves into her mouth. They untied her undergarments to satisfy their lust. Conviction proper,
four months RI not interfered with. Shivraj Chandrappa Yadav v State, 1998 Cr LJ 3168 , the
accused attempted to commit rape on a 10 year old girl. Sentence of two years RI and ﬁne of
Rs. 500 under section 354 and six months imprisonment and ﬁne of Rs. 100 under section 342
was not interfered with. See also Raja v State of Rajasthan, 1998 Cr LJ 1608 (Raj); Ram Mehar v
State, 1998 Cr LJ 1999 (P&H); Peedikandi Abdulla v State of Kerala, 1998 Cr LJ 2758 (Ker);
Shakuntala Devi v Suneet Kumar, 1997 Cr LJ 335 (Del), accused entered house of complainant,
dragged her out, tore her clothes and improperly behaved with her, prima facie, the offence made
out. Refusal by court to frame charge was improper. Raja Giri v State of Bihar, 2003 Cr LJ 2347

(Pat), the victim woman intercepted and laid down on the ground with the intent of raping her,
witnesses reached on her cries and they could not go further, guilty of outraging modesty.
1034.  Surat Singh v State, (2012) 12 SCC 772 [LNIND 2012 SC 837] : 2013 (1) Scale 1 [LNIND
2012 SC 837] .
1035.  Devalla Venkateswarlu v State of AP, 2000 Cr LJ 798 (AP).
1036.  State of HP v Ram Das, 1999 Cr LJ 2802 (HP), her public image and position in family was
damaged, even the accused was directed to pay a ﬁne of Rs. 1000 only because of the fact that

the incident was fairly old.
1037.  State of MP v Bablu, 2014 Cr LJ 4565 : 2014 (9) Scale 678 [LNIND 2014 SC 948] .
1038.  Ajahar Ali v State of WB, 2013 (12) Scale 410 [LNIND 2013 SC 924] ; Pritam Singh v State
of HP, 2012 Cr LJ 468 (HP)– Petitioner, aged about 28 years, agriculturist by profession,
belonged to a respectable and peace-loving family — He would be stigmatised and in case he
was sentenced his life would be ruined— Beneﬁts of section 4 of Act was granted to petitioner.

1039.[[s 354-A] Sexual harassment and punishment for sexual harassment.
(1) A man committing any of the following acts—
( i ) physical contact and advances involving unwelcome and explicit sexual
overtures; or
( i i ) a demand or request for sexual favours; or
( i i i ) showing pornography against the will of a woman; or (i v ) making sexually
coloured remarks;
shall be guilty of the offence of sexual harassment.
(2) Any man who commits the offence speciﬁed in clause (i ) or clause (i i ) or
clause (i i i ) of sub-section (1) shall be punished with rigorous imprisonment for
a term which may extend to three years, or with ﬁne, or with both.
(3) Any man who commits the offence speciﬁed in clause (i v ) of sub-section (1)
may extend to one year, or with ﬁne, or with both.]

1039.  Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 7 (w.e.f. 3-2-2013).
1040.  Vishakha v State of Rajasthan, AIR 1997 SC 3011 [LNIND 1997 SC 1081] : (1997) 6 SCC
241 [LNIND 1997 SC 1081] .
1041.  Act 14 of 2013 (w.e.f 9 December 2013).
This new provision has its origin in the judgment of Supreme Court1040. dealing with
the issue of sexual harassment in workplaces. The suggestions given by Supreme
Court got statutory recognition by the enactment of Sexual Harassment of Women at
Workplace (Prevention, Prohibition and Redressal) Act, 2013.1041.

1042.[s 354-B] Assault or use of criminal force to woman with intent to disrobe.
Any man who assaults or uses criminal force to any woman or abets such act with the
intention of disrobing or compelling her to be naked, shall be punished with
imprisonment of either description for a term which shall not be less than three years
but which may extend to seven years, and shall also be liable to ﬁne.]
1042.  Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 7 (w.e.f. 3-2-2013).
This new provision has not been based on any recommendation, but is an incorporation
of the State Amendment made by Madhya Pradesh into the original section 354 which
was numbered as a separate section 354A.

1043.[s 354-C] Voyeurism.
Any man who watches, or captures the image of a woman engaging in a private act in
circumstances where she would usually have the expectation of not being observed
either by the perpetrator or by any other person at the behest of the perpetrator or
disseminates such image shall be punished on ﬁrst conviction with imprisonment of
either description for a term which shall not be less than one year, but which may
extend to three years, and shall also be liable to ﬁne, and be punished on a second or
subsequent conviction, with imprisonment of either description for a term which shall
not be less than three years, but which may extend to seven years, and shall also be
Explanation 1.—For the purposes of this section, "private act" includes an act of
watching carried out in a place which, in the circumstances, would reasonably be

expected to provide privacy and where the victim's genitals, posterior or breasts are
exposed or covered only in underwear; or the victim is using a lavatory; or the victim
is doing a sexual act that is not of a kind ordinarily done in public.
Explanation 2.—Where the victim consents to the capture of the images or any act, but
not to their dissemination to third persons and where such image or act is
disseminated, such dissemination shall be considered an offence under this section.]
This is a new provision prescribing an offence based on the suggestions of the Justice
JS Verma Committee, constituted in the aftermath of the December 2012 Nirbhaya
rape incident. During the deliberations, the Committee was surprised to ﬁnd out that
offences such as stalking, voyeurism, 'eve-teasing', etc., are perceived as 'minor'

offences, even though they are capable of depriving not only a girl child but frail
children of their right to education and their freedom of expression and movement. The
Committee was of the view that it is not suﬃcient for the State to legislate and
establish machinery of prosecution, but conscious and well-thought-out attempts are
required to be made to ensure the culture of mutual respect is fostered in India's
children. Preventive measures for the initial minor aberrations were deemed necessary
to check their escalation into major sexual aberrations.
The deﬁnition of this offence has the following ingredients:
(I) If a person—
(i) either watches,
(ii) or captures the image.

1043.  Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section. 7 (w.e.f. 3-2-
2013).
(II) of, a woman engaging in a private act.
(III) in circumstances where she would usually have the expectation of—
(i) either not being observed by the perpetrator
(ii) or not being observed by any other person at the behest of the perpetrator.

1044.[s 354-D] Stalking.
(1) Any man who—
(i) follows a woman and contacts, or attempts to contact such woman to
foster personal interaction repeatedly despite a clear indication of
disinterest by such woman; or
(ii) monitors the use by a woman of the internet, email or any other form of
electronic communication, commits the offence of stalking:
P r o v i d e d  that such conduct shall not amount to stalking if the man who
pursued it proves that—
(i) it was pursued for the purpose of preventing or detecting crime and the
man accused of stalking had been entrusted with the responsibility of
prevention and detection of crime by the State; or
(ii) it was pursued under any law or to comply with any condition or
requirement imposed by any person under any law; or
(iii) in the particular circumstances such conduct was reasonable and
justiﬁed.

justiﬁed.
(2) Whoever commits the offence of stalking shall be punished on ﬁrst conviction
with imprisonment of either description for a term which may extend to three
years, and shall also be liable to ﬁne; and be punished on a second or
which may extend to ﬁve years, and shall also be liable to ﬁne.]
(I) If a man—
(i) follows a woman and contacts or attempts to contact such woman,
(ii) monitors the use by a woman of the internet, e-mail or any other form of
electronic communication,
(iii) or watches or spies on a person
(II) to foster personal interaction repeatedly

(III) despite a clear indication of disinterest by such woman
So, when despite a clear indication of disinterest by woman, if she is followed by a man
either in person or through the electronic medium then he is guilty of the offence of
stalking as deﬁned in this section
[s 354-D.1]Eve-teasing.—
The Indian Journal of Criminology and Criminalistics (January–June 1995 Edn) has
categorised eve-teasing into ﬁve heads, viz., (1) verbal eve-teasing; (2) physical eve-
teasing; (3) psychological harassment; (4) sexual harassment; and (5) harassment
through some objects. In Vishaka v State of Rajasthan,1045. the Supreme Court has laid
down certain guidelines on sexual harassments. In Rupan Deol Bajaj v KPS Gill,1046. the
Supreme Court has explained the meaning of 'modesty' in relation to women.1047.
Supreme Court Guidelines on Eve-teasing
Before undertaking suitable legislation to curb eve-teasing, it is necessary to take at
least some urgent measures so that it can be curtailed to some extent. In public

interest, we are therefore inclined to give the following directions:
1. All the State Governments and Union Territories are directed to depute plain
clothed female police oﬃcers in the precincts of bus-stands and stops, railway
stations, metro stations, cinema theatres, shopping malls, parks, beaches, public
service vehicles, places of worship, etc., so as to monitor and supervise incidents
of eve-teasing.
2. There will be a further direction to the State Government and Union Territories to
install CCTV in strategic positions which itself would be a deterrent and if
detected, the offender could be caught.
3. Persons in-charge of the educational institutions, places of worship, cinema
theatres, railway stations, bus-stands have to take steps as they deem ﬁt to
prevent eve-teasing, within their precincts and, on a complaint being made, they

must pass on the information to the nearest police station or the Women's Help
Centre.
4. Where any incident of eve-teasing is committed in a public service vehicle either
by the passengers or the persons in charge of the vehicle, the crew of such
vehicle shall, on a complaint made by the aggrieved person, take such vehicle to
the nearest police station and give information to the police. Failure to do so
should lead to cancellation of the permit to ply.
5. State Governments and Union Territories are directed to establish Women'
Helpline in various cities and towns, so as to curb eve-teasing within three
months.
6. Suitable boards cautioning such act of eve-teasing be exhibited in all public
places including precincts of educational institutions, bus stands, railway
stations, cinema theatres, parties, beaches, public service vehicles, places of

worship, etc.
7. Responsibility is also on the passers-by and on noticing such incident, they
should also report the same to the nearest police station or to Women Helpline to
save the victims from such crimes.
8. The State Governments and Union Territories of India would take adequate and
effective measures by issuing suitable instructions to the concerned authorities

1044.  Ins. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 7 (w.e.f. 3 February
2013)
1045.  Vishaka v State of Rajasthan, (1977) 6 SCC 241 .
1046.  Rupan Deol Bajaj v KPS Gill, (1995) 6 SCC 194 [LNIND 1995 SC 981] .
1047.  Deputy Inspector General of Police v S Samuthiram, (2013) 1 SCC 598 [LNIND 2012 SC
755] : AIR 2013 SC 14 [LNIND 2012 SC 755] . See the Box with 'Supreme Court Guidelines on Eve-
teasing'.
1048.  Deputy Inspector General of Police v S Samuthiram, (2013) 1 SCC 598 [LNIND 2012 SC
755] : AIR 2013 SC 14 [LNIND 2012 SC 755]
including the District Collectors and the District Superintendent of Police so as to
take effective and proper measures to curb such incidents of eve-teasing.
[Deputy Inspector General of Police v S Samuthiram.1048.]

[s 355] Assault or criminal force with intent to dishonour person, otherwise
than on grave provocation.
Whoever assaults or uses criminal force to any person, intending thereby to dishonour
that person, otherwise than on grave and sudden provocation given by that person,
Andhra Pradesh.—The offence under section 55 is non-cognizable, bailable and triable by
any Magistrate vide A.P. Act No. 3 of 1992 section 2 (w.e.f. 15-2-1992).
1049.  Altaf Mian, (1907) 27 AWN 186.
COMMENT.—
The intention to dishonour may be supposed to exist when the assault or criminal force
is by means of gross insults. An accused person while under trial struck a Sub-
Inspector of Police who was in the witness-box giving evidence against him. It was held

that he was guilty of this offence.1049.

[s 356] Assault or criminal force in attempt to commit theft of property carried
by a person.
Whoever assaults or uses criminal force to any person, in attempting to commit theft
on any property which that person is then wearing or carrying, shall be punished with

[s 357] Assault or criminal force in attempt wrongfully to conﬁne a person.
Whoever assaults or uses criminal force to any person, in attempting wrongfully to
conﬁne that person, shall be punished with imprisonment of either description for a
term which may extend to one year, or with ﬁne which may extend to one thousand

[s 358] Assault or criminal force on grave provocation.
Whoever assaults or uses criminal force to any person on grave and sudden
provocation given by that person, shall be punished with simple imprisonment for a
term which may extend to one month, or with ﬁne which may extend to two hundred
E x p l a n a t i o n .—The last section is subject to the same Explanation as section 352.
COMMENT.—
This section provides for mild punishment if the assault or criminal force is the result
of grave and sudden provocation.
The word "last" in the Explanation is inaccurate. Instead of the words "the last" the word
"this" only should have been used.

Of Kidnapping, Abduction, Slavery and Forced Labour
[s 359] Kidnapping.
Kidnapping is of two kinds: kidnapping from 1050.[India], and kidnapping from lawful
guardianship.
1050.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950
1051.  Taru Das v State of Tripura, 2008 Cr LJ 3143 (Gau).
COMMENT.—
The literal meaning of 'kidnapping' is child stealing.
Kidnapping is of two kinds. But there may be cases in which the two kinds overlap each
other. For instance, a minor may be kidnapped from India as well as lawful
guardianship. A bare perusal of the provisions clearly shows that the legislature did not
conﬁne to constitute the offence only if a minor girl is taken away from the place where
she used to reside but the emphasis is upon taking away the girl from the "lawful

guardianship". Sections 359 and 361, IPC, 1860 do not spell-out any territorial
jurisdiction for committing the offence. In my view the rigour of the law travels with the
ward/subject and any person involving himself or herself in the offence of kidnapping
or procuring a minor girl at any point of time would also come within the purview of
sections 359 and 361, IPC, 1860.1051.

[s 360] Kidnapping from India.
Whoever conveys any person beyond the limits of 1052.[India] without the consent of
that person, or of some person legally authorised to consent on behalf of that person,
is said to kidnap that person from 1053.[India].
1052.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950
and Act 3 of 1951, sec. 3 and Sch. (w.e.f. 1 April 1951), to read as above.
1053.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950
1054.  Haribhai v State, (1918) 20 Bom LR 372 : 42 Bom 391.
COMMENT.—
The offence under this section may be committed on a grown-up person or a minor by
conveying him or her beyond the limits of India. If the person kidnapped is above 12

COMMENT.—
years of age and has given consent to his or her being conveyed beyond the limits of
India, no offence is committed.1054. Now, the age limit for boys is 16 and for girls 18
under Act XLII of 1949.
[s 360.1] Ingredients.—
This section requires two things:—
(1) Conveying of any person beyond the limits of India.
(2) Such conveying must be without the consent of that person.

[s 361] Kidnapping from lawful guardianship.
Whoever takes or entices any minor under 1055.[sixteen] years of age if a male, or
under 1056.[eighteen] years of age if a female, or any person of unsound mind, out of
the keeping of the lawful guardian of such minor or person of unsound mind, without
the consent of such guardian, is said to kidnap such minor or person from lawful
E x p l a n a t i o n .—The words "lawful guardian" in this section include any person lawfully
entrusted with the care or custody of such minor or other person.
Exception.—This section does not extend to the act of any person who in good faith
believes himself to be the father of an illegitimate child, or who in good faith believes
himself to be entitled to the lawful custody of such child, unless such act is
committed for an immoral or unlawful purpose.

Manipur.—The following amendments were made by Act No. 80 of 1950, s. 3(2) (w.e.f.
16-4-1950) read with Act 81 of 1971, s. 3 (w.e.f. 25-1-1972).
In its application to the State of Manipur, in Section 361 for the word "eighteen"
substituted the word "ﬁfteen".
COMMENT.—
The offence under this section may be committed in respect of either a minor or a
person of unsound mind. To kidnap a grown-up person of sound mind, therefore, would
not amount to an offence under it.
[s 361.1] Object.—
The object of this section is at least as much to protect children of tender age from
being abducted or seduced for improper purposes, as for the protection of the rights of
parents and guardians having the lawful charge or custody of minors or insane
persons.
[s 361.2] Ingredients.—
This section has four essentials1057..—

(1) Taking or enticing away a minor or a person of unsound mind.
(2) Such minor must be under 16 years of age, if a male, or under 18 years of age, if
a female.
(3) The taking or enticing must be out of the keeping of the lawful guardian of such
minor or person of unsound mind.
(4) Such taking or enticing must be without the consent of such guardian.
[s 361.3] 'Takes or entices any minor'.—
The Supreme Court considered the interpretation of expression 'takes or entices' in S
Varadarajan v State of Madras,1058. and State of Haryana v Rajaram.1059. The purpose
and object of section 361 IPC, 1860 appears to be in dispute. In Varadarajan, the
Supreme Court had occasion to consider this. In section 498 IPC, 1860 we ﬁnd
identical expression 'takes or entices' employed by the legislature. That was of course
for a totally different offence. While considering the object of section 361 IPC, 1860,
the Supreme Court in Varadarajan, took the view that the interpretation of the

expression 'takes or entices' in section 498 IPC, 1860 cannot be blindly and
mechanically imported while considering the interpretation of the same expression in
section 361 IPC, 1860. It took the view that section 498 IPC, 1860 is meant essentially
for protection of the rights of the husband, whereas section 361 IPC, 1860 and other
cognate sections of the IPC, 1860 are intended more for the protection of minors and
persons of unsound mind than the rights of the guardians of such persons. But in
Rajaram, the Supreme Court held that:
The object of this section seems as much to protect the minor children from being seduced
for improper purposes as to protect the rights and privileges of guardians having the lawful
charge or custody of their minor wards. The gravamen of this offence lies in the taking or

enticing of a minor under the ages speciﬁed in this section, out of the keeping of the lawful
guardian without the consent of such guardian. The words 'takes or entices any minor … out
of the keeping of the lawful guardian of such minor' in S. 361, are signiﬁcant. The use of the
word 'keeping' in the context connotes the idea of charge, protection, maintenance and
control: further the guardian's charge and control appears to be compatible with the
independence of action and movement in the minor, the guardian's protection and control of
the minor being available, whenever necessity arises. On plain reading of this section the
consent of the minor who is taken or enticed is wholly immaterial: it is only the guardian's
consent which takes the case out of its purview. Nor is it necessary that the taking or

enticing must be shown to have been by means of force or fraud. Persuasion by the
accused person which creates willingness on the part of the minor to be taken out of the
keeping of the lawful guardian would be suﬃcient to attract the section.
A person who allows such a minor who is already out of the keeping of the guardian to
accompany him commits no offence under section 361 IPC, 1860. That alone is the
dictum in Varadarajan. It is no authority on the question whether consent of a minor
(even a knowledgeable minor close to 18 years) is relevant or crucial in a prosecution
under section 361 IPC, 1860. Later a two-Judge Bench in T D Vadgama v State of
Gujarat,1060. ascertained the precise distinction in the dictum between the three-Judge
Benches in Varadarajan and Rajaram. The dictum in Varadarajan turned on its own

peculiar facts. It was held:
it would, however, be suﬃcient if the prosecution establishes that though immediately prior
to the minor leaving the father's protection no active part was played by the accused, he had
at some earlier stage solicited or persuaded the minor to do so. In our opinion, if evidence to
establish one of those things is lacking, it would not be legitimate to infer that the accused
is guilty of taking the minor out of the keeping of the lawful guardian merely because after
she has actually left her guardian's house or a house where her guardian had kept her, joined
the accused and the accused helped her in her design not to return to her guardian's house
by taking her along with him from place to place. No doubt, the part played by the accused

could be regarded as facilitating the fulﬁlment of the intention of the girl. That part, in our

opinion, falls short of an inducement to the minor to slip out of the keeping of her lawful
guardian and is, therefore, not tantamount to 'taking'.
The intention with which kidnapping is effected can be ascertained from the
circumstances of the offence at the time of occurrence or prior or subsequent to it. A
kidnapping does not per se lead to any inference of intent or purpose of
kidnapping.1061. Persuasion by the accused which created willingness on the part of
the minor to be taken out of the keeping of the lawful guardian was held by the
Supreme Court to be enough to attract section 361. The Supreme Court also restated
the ingredients.1062.
Promise of marriage made to the minor girl for leaving the house of the lawful guardian
was held to be an enticement.1063.
The word 'take' means 'to cause to go' to escort or to get into possession. It implies
want of wish and absence of desire of the person taken. There is a distinction between
taking and allowing a minor to accompany a person.1064.

[s 361.4] When 'taking' is complete.—
The offence of kidnapping from lawful guardianship is complete when the minor is
actually taken from lawful guardianship; it is not an offence continuing so long as the
minor is kept out of such guardianship. In determining whether a person takes a minor
out of the lawful keeping of its guardian, the distance to which the minor is taken away
is immaterial.1065.
[s 361.5] 'Enticing'
is an act of the accused by which the person kidnapped is induced of his own accord to
go to the kidnapper. The word 'entice' involves an idea of inducement or allurement by
exciting hope or desire in the other. It may take many forms diﬃcult to visualise. It is
not necessary that 'taking' or 'enticing' should be by means of force or fraud. The word
'entice' involves the idea of inducement or allurement.1066.

[s 361.6] 'Under sixteen years of age if a male, or under eighteen years of age,
if a female'.—
In the case of a boy the age limit is ﬁxed at 16 years; in the case of a girl at 18 by Act
XLII of 1949. Before this amendment the age limit was 14 and 16 respectively. Where a
girl under that age is kidnapped, it is no defence that the accused did not know the girl
to be under that age, or that from her appearance he might have thought that she was
of a greater age.1067. Anyone dealing with such a girl does so at his peril, and if she
turns out to be under 18 he must take the consequences,1068. even though he bona ﬁde
believed and had reasonable ground for believing that she was over eighteen.1069.
[s 361.7] 'Any person of unsound mind'.—
If the person kidnapped is normally of sound mind but is made unconscious from

poisoning, such a person cannot be said to be of unsound mind. For example, a person

1055.  Subs. by Act 42 of 1949, sec. 2, for "fourteen".
1056.  Subs. by Act 42 of 1949, sec. 2, for "sixteen".
1057.  Restated in Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416 (Ori).
1058.  S Varadarajan v State of Madras, AIR 1965 SC 942 [LNIND 1964 SC 223] : 1965 (2) Cr LJ
33 .
under an anaesthetic for an operation can hardly be said to be of unsound mind. Where
a girl aged 20 years had been made unconscious from dhatura poisoning when she
was taken away, it was held that she could not be said to be a person of unsound mind,
and the person taking her away could not be guilty of kidnapping.1070.
[s 361.8] 'Out of the keeping of the lawful guardian'.—
The Legislature has advisedly preferred the expression 'the keeping of the lawful
guardian' to the word 'possession'. The word 'keeping' is compatible with the
independence of action and movement in the object kept.1071.
Persuasion by the accused is suﬃcient to constitute 'taking' within the meaning of this

section. Consent of the minor is wholly immaterial. It is only the guardian's consent that
takes the case out of the purview of this section.1072.
In Vipin Menon v State of Karnataka,1073. it was held that the father, in the absence of
divestment of right of guardianship, cannot be guilty of kidnapping his minor child.
[s 361.9] Explanation.—'Lawful guardian'.—
The Explanation is intended to extend the protection given to parents to any person
lawfully entrusted with the care or custody of the minor.1074.
Where the order in favour of the mother was passed by the lower Court but it was
stayed by the High Court, it was held that the father who had custody of the minor child
would continue to be in lawful custody until further orders. The Supreme Court clariﬁed
that the law in India is to be governed by the provisions of IPC, 1860 and not the US

International Parental Kidnapping Crime Act, 1993.1075.
[s 361.10] 'Entrustment'.—
Entrustment, which this section requires, may be inferred from a well-deﬁned and
consistent course of conduct governing the relations of the minor and the person
alleged to be the lawful guardian.1076.

1059.  State of Haryana v Rajaram, AIR 1973 SC 819 [LNIND 1972 SC 508] : 1973 (1) SCC 544
[LNIND 1972 SC 508] : 1973 Cr LJ 651 .
1060.  T D Vadgama v State of Gujarat, AIR 1973 SC 2313 [LNIND 1973 SC 187] : 1973 (2) SCC
413 [LNIND 1973 SC 187] .
1061.  Badshah v State of UP, (2008) 3 SCC 681 [LNIND 2008 SC 310] : 2008 Cr LJ 1950 : (2008)
3 All LJ 524.
1062.  Prakash v State of Haryana, (2004) 1 SCC 339 [LNIND 2003 SC 1045] : AIR 2004 SC 227
[LNIND 2003 SC 1045] : 2004 Cr LJ 595 .
1063.  Moniram Hazarika v State of Assam, (2004) 5 SCC 120 [LNIND 2004 SC 476] : AIR 2004
SC 2472 [LNIND 2004 SC 476] : 2004 Cr LJ 2553 .
1064.  Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416 (Ori).
1065.  Chhajju Ram, AIR 1968 P&H 439 .
1066.  Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416 (Ori).
1067.  Robins, (1844) 1 C&K 456; Krishna Maharana, (1929) 9 Pat 647. Biswanath Mallick v State
of Orissa, 1995 Cr LJ 1416 (Ori).
1068.  Christian Oliﬁer, (1866) 10 Cox 402.

1069.  Prince, (1875) LR 2 CC R 154; Krishna Maharana, sup. Where the prosecution produced the
school leaving certiﬁcate for proof of age and not the horoscope though available and two
doctors testiﬁed on behalf of the accused that the girl was major, the accused acquitted under
beneﬁt of doubt, Pravakar v Ajaya Kumar Das, 1996 Cr LJ 2626 (Ori). Vishnu v State of
Maharashtra, 1997 Cr LJ 1724 (Bom), evidence of mother of prosecutrix and that of her school
head master showed her to be below 16. This was also corroborated by medical evidence. This
fact was not challenged by the defence. Finding as to her age as below 16 was held to be
proper. Mohan v State of Rajasthan, 2003 Cr LJ 1891 (Raj), failure of the prosecution to prove
that the prosecutrix was under 18 years of age at the relevant time, offence under the section
not made out.

1070.  Din Mohammad, 1939 20 Lah 517.
1071.  Lakshmidhar Misra, (1956) Cut 546. Biswanath Mallick v State of Orissa, (1995) 2 Cr LJ
1416 (Ori), kidnapping from custody of guardian without the intention of forced marriage,
offence under section 361, not under section 366.
1072.  State of Haryana v Raja Ram, 1973 Cr LJ 651 (SC); See also Rasool v State, 1976 Cr LJ 363
(All).
1073.  Vipin Menon v State of Karnataka, 1992 Cr LJ 3737 (Kant).
1074.  Jagannadha Rao v Kamaraju, (1900) 24 Mad 284, 291; Baz v State, (1922) 3 Lah 213. A girl
living in a rented room for the purpose of an examination where her father visited her once is in
the custody of the guardian. Bhagban Panigrahi v State of Orissa, 1989 Cr LJ (NOC) 103 (Ori).
1075.  Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 [LNIND 2009 SC 1646]
.
1076.  Nageshwar, AIR 1962 Pat 121 .

[s 362] Abduction.
Whoever by force compels, or by any deceitful means induces, any person to go from
any place, is said to abduct that person.
COMMENT.—
This section merely gives a deﬁnition of the word "abduction" which occurs in some of
the penal provisions which follow. There is no such offence as abduction under the
Code, but abduction with certain intent is an offence. Force or fraud is essential.
[s 362.1] Ingredients.—
The section requires two things:—
(1) Forceful compulsion or inducement by deceitful means.1077.
(2) The object of such compulsion or inducement must be the going of a person
from any place.
"The expression "deceitful means" includes a misleading statement. It is, really
speaking, a matter of intention. The intention of the accused is the basis and gravamen

of the charge. The volition, the intention and conduct of the woman do not determine
the offence.1078. The offence of abduction under section 362 of the Code involves use
of force or deceit to compel or induce any person to go from any place.1079.
[s 362.2] Abduction and kidnapping.—
(1) 'Kidnapping' is committed only in respect of a minor under 16 years of age if a male,
and under 18 years if a female or a person of unsound mind; 'abduction', in respect of a
person of any age.
(2) In 'kidnapping', the person kidnapped is removed out of lawful guardianship. A child
without a guardian cannot be kidnapped. 'Abduction' has reference exclusively to the
person abducted.
(3) In 'kidnapping', the minor is simply taken away. The means used may be innocent. In
'abduction', force, compulsion, or deceitful means are used.

(4) In kidnapping, consent of the person taken or enticed is immaterial; in abduction,
consent of the person moved, if freely and voluntarily given, condones abduction.

1077.  Suresh Babu v State of Kerala, 2001 Cr LJ 1483 (Ker), where a girl of about 16 years old
was in love with the accused and the evidence showed that she left her home on her own
accord and joined the accused for getting their marriage registered and lived as husband and
wife thereafter. Conviction of the accused was set aside because it could not be said that he
kidnapped her. Ram Chandra Singh v Nabrang Rai Burma, 1998 Cr LJ 2156 (Ori), on the same
point.
1078.  A Pasayat, J in Rabinarayan Das v State of Orissa, 1992 Cr LJ 269 , 273 (Ori), citing Re
Khalandar Sahab, AIR 1955 SC 39 , Edn (Sic) "or AIR 1955 59 (AP)".
1079.  Subhash Krishnan v State of Goa, (2012) 8 SCC 365 [LNIND 2012 SC 480] : AIR 2012 SC
1080.  Restated in Biswanath Mallick v State of Orissa, 1995 Cr LJ 1416 (Ori).
(5) In kidnapping, the intent of the offender is a wholly irrelevant consideration: in
abduction, it is the all-important factor.

(6) Kidnapping from guardianship is a substantive offence under the Code; but
abduction is an auxiliary act, not punishable by itself, but made criminal only when it is
done with one or other of the intents speciﬁed in section 364, et seq.1080.

[s 363] Punishment for kidnapping.
Whoever kidnaps any person from 1081.[India] or from lawful guardianship, shall be
seven years, and shall also be liable to ﬁne.
Uttar Pradesh.—The offence u/s. 363 IPC is non-bailable, vide U.P. Act, No. 1 of 1984.
COMMENT.—
This section must be read with section 361. The offence of kidnapping from lawful
guardianship penalised by this section is the offence which is deﬁned by section 361.
The person against whom the offence is committed must be under the age of sixteen,
if a male, and under the age of eighteen, if a female.1082.
[s 363.1] Tribal Custom.—
Where a married girl of 17 years of age was forcibly carried away by the accused and
his companions from a jungle where she had gone with others to collet mohua ﬂowers

with a view to marrying her according to their tribal custom, it was held that such a
custom, if any, could apply only to the cases of young unmarried men and women and
had no application to legalise the kidnapping of a married minor girl out of the keeping
of her lawful guardian.1083.
[s 363.2] Section 363 IPC is not a minor offence of Section 376 IPC, 1860.—
Offence of kidnapping under section 363 IPC, 1860 and of rape under section 376 IPC,
1860 cannot be held to be cognate offences. Therefore, accused cannot be convicted
for offence of kidnapping in absence of charge framed against him for the said
offence.1084.
[s 363.3] Extradition offence.—
Offence under section 363 of the IPC, 1860 is an extraditable offence, provided it is not
a pure matrimonial dispute.1085.

1081.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950
1082.  Ismail Sayadsaheb, (1933) 35 Bom LR 886 : 57 Bom 537 FB. Anandham v State of TN,
(1995) 1 Cr LJ 632 (Mad), here the accused was acquitted under section 376 (rape) and section
366 (kidnapping for marriage), he was convicted under this section for simple kidnapping. Omi v
State of UP, 1994 Cr LJ 155 (All), acquittal from charges of kidnapping and rape, story of the
victim not reliable, medical evidence also not proving rape. Kuldeep K Mahato v State of Bihar,
AIR 1998 SC 2694 [LNIND 1998 SC 714] : 1998 Cr LJ 1597 (Raj), the prosecutrix was below 18
years of age. She was taken away by the accused person to a particular place by means of a
tempo. The court said that the offence of kidnapping from lawful guardianship was made out.
But ingredients of the offence of rape not proved. Hence, no conviction for rape. Bagula Naik v

State of Orissa, 1999 Cr LJ 2077 (Ori), a girl left home of her own, met by chance a person on the
road who took her to his home and detained her for several days. The version given by the girl
was truthful. The fact that there was no mens rea and he appeared before the police along with
the girl was not suﬃcient to prove his innocence. His conviction was maintained. Sumitra Bai v
State of MP, 1999 Cr LJ 2541 (MP), taken away by one person and deposited in the house of
another, both liable. Mahesh Kumar v State of Rajasthan, 1998 Cr LJ 597 (Raj), gang rape after
kidnapping, both accused helped each other in the satisfaction of their lust, either liable for act
of the other. Akeel v State of MP, 1998 Cr LJ 4530 (MP) consenting party to sex, accused not

liable for rape, but she being below 18 years, he was guilty of kidnapping. Jitmohan Lohar v State
of Orissa, 1997 Cr LJ 2842 (Ori), the girl of consenting age going away voluntarily, conviction for
kidnapping not proper.
1083.  Dutta Pradhan, 1985 Cr LJ 1842 (Ori). See also Tannu Lal v State of UP, 1981 SCC (Cr) 675
: 1981 Supp SCC 47 , conviction of the main accused along with his two companions who either
stood by or helped him. Prem Chand v State, 1987 Cr LJ 910 (Del) no proof of allegations.
1084.  F Nataraja v State, 2010 Cr LJ 2180 (Kar).
1085.  Bhavesh Jayanti Lakhani v State of Maharashtra, (2009) 9 SCC 551 [LNIND 2009 SC 1646]
: (2010) 1 SCC (Cr) 47.

[s 1086.[363A] Kidnapping or maiming a minor for purposes of begging.
(1) Whoever kidnaps any minor or, not being the lawful guardian of a minor,
obtains the custody of the minor, in order that such minor may be employed or
used for the purpose of begging shall be punishable with imprisonment of
either description for a term which may extend to ten years, and shall also be
(2) Whoever maims any minor in order that such minor may be employed or used
for the purposes of begging shall be punishable with imprisonment for life, and
(3) Where any person, not being the lawful guardian of a minor, employs or uses
such minor for the purposes of begging, it shall be presumed, unless the
contrary is proved, that he kidnapped or otherwise obtained the custody of that

minor in order that the minor might be employed or used for the purpose of
begging.
(4) In this section,—
(a) 'begging' means—
(i) soliciting or receiving alms in a public place, whether under the
pretence of singing, dancing, fortune-telling, performing tricks or
selling articles or otherwise;
(ii) entering on any private premises for the purpose of soliciting or
receiving alms;
(iii) exposing or exhibiting, with the object of obtaining or extorting
alms, any sore, wound, injury, deformity or disease, whether of
himself or of any other person or of an animal;
(iv) using a minor as an exhibit for the purpose of soliciting or
(b) "minor" means—
(i) in the case of a male, a person under sixteen years of age; and
(ii) in the case of a female, a person under eighteen years of age.]
COMMENT.—

1086.  Ins. by Act 52 of 1959, section 2 (w.e.f. 15 January 1960).
This section was inserted by Act LII of 1959. In the Statement of Objects and Reasons
it is stated:
To put down effectively the evil of kidnapping of children for exploiting them for begging, the
provisions existing in the Indian Penal Code are not quite adequate. There is also no special
provision for deterrent punishment for the greater evil of maiming of children so as to make
them objects of pity.
This section makes kidnapping or obtaining custody of a minor, and the maiming of a
minor for employing him for begging, speciﬁc offences and provides for deterrent
punishment.

[s 364] Kidnapping or abducting in order to murder.
Whoever kidnaps or abducts any person in order that such person may be murdered
or may be so disposed of as to be put in danger of being murdered, shall be punished
with 1087.[imprisonment for life] or rigorous imprisonment for a term which may
(a) A kidnaps Z from 1088.[India], intending or knowing it to be likely that Z may be
sacriﬁced to an idol. A has committed the offence deﬁned in this section.
(b) A forcibly carries or entices B away from his home in order that B may be
murdered. A has committed the offence deﬁned in this section.
COMMENT.—
To establish an offence under this section it must be proved that the person charged
with the offence had the intention at the time of the kidnapping or abduction that the

COMMENT.—
person kidnapped or abducted will be murdered or so disposed of as to be put in
danger of being murdered.1089. The Supreme Court stated the ingredients to be: (1)
kidnapping by the accused must be proved; (2) it must also be proved that the person
in question was kidnapped in order, (a) that he may be murdered, or (b) that he might
be disposed of in such manner as to be put in danger of being murdered.1090.
When it was not proved that kidnapping was with intention to commit murder of victim
boy, it was held that conviction of appellant under section 363 of IPC, 1860 is proper
though charge against accused was framed under section 364 IPC, 1860.1091.
[s 364.1] Presumption of killing by abductors.—
An abducted victim was murdered later on. It was held that the Court can, depending

on the factual situation, draw the presumption that the abductors are responsible for
the murder. It is their responsibility to explain to the Court what they had done with the
victim.1092. The facts of the case showed that the parties were inimically disposed
against each other. The presence of the accused at the place of occurrence was also
established. They picked up the person and bodily lifted him away. They ﬁred in the air
to ward off resistance. The abducted person was not seen or heard of since 27 years.
Section 108 of the Indian Evidence Act, 1872 applied to create presumption of death. In
the face of such death, whether actual or presumptive, the inference of murder by
abductors arises. The Court said that it would not be necessary to prove corpus delicit.

1087.  Subs. by Act 26 of 1955, sec. 117 and Sch., for "transportation for life" (w.e.f. 1-1-1956).
1088.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950
and Act 3 of 1951, section 3 and Sch. (w.e.f. 1 April 1951), to read as above.
1089.  Tondi v State, 1975 Cr LJ 950 (All) : AIR 1940 Cal 561 followed; Sardar Hussain v State of
UP, 1988 Cr LJ 1807 : AIR 1988 SC 1766 [LNIND 1988 SC 366] : 1988 Supp SCC 623 . State of
MP v Mahesh Mohan Lal Mali, 1990 Cr LJ 2483 , of the two accused, evidence that child
kidnapped and killed was last seen with one of them and this fact along with his extra-judicial
confession, was suﬃcient for conviction, but the bare confession of the other accused not
suﬃcient. State of MP v Amar Singh, AIR 1994 SC 650 : 1994 Cr LJ 619 , witnesses not
implicating the accused of abduction or murder, evidence not suﬃcient to prove the guilt of the
accused, acquittal aﬃrmed. Pankaj Naik v State of Orissa, 1994 Cr LJ 829 (Ori), kidnapped child

deposing the story, admits tutoring, his evidence not trustworthy, medical evidence
contradictory, conviction not sustainable. Arumugham v State of TN, 1994 Cr LJ 520 (Mad),
where the accused was prosecuted for abducting a girl and killing her and the extra-judicial
confession of the accused and the alleged cause of death by throttling were not proved by the
oral and medical evidence, it was held that accused was entitled to acquittal.
1090.  Badshah v State of UP, (2008) 3 SCC 681 [LNIND 2008 SC 310] : 2008 Cr LJ 1950 : (2008)
1091.  Vinod Hembrum v State of Jharkhand, 2011 Cr LJ 2763 (Jha).
1092.  Sucha Singh v State of Punjab, 2001 Cr LJ 1734 (SC). Kalpana Mazumdar v State of Orissa,
2002 Cr LJ 3756 (SC), accused was seen throwing the dead body of the abducted person into

water; he was not able to explain how the dead body came into his possession. Presumption
against the abductor of the child of killing him. Murlidhar v State of Rajasthan, 2005 Cr LJ 2608 :
AIR 2005 SC 2345 [LNIND 2005 SC 486] : (2005) 11 SCC 133 [LNIND 2005 SC 486] , prosecution
proceeded on footing that there eyewitnesses to the fact of murder, hence section 106, Indian
Evidence Act, 1872 (burden on the abductor to show what happened to the abducted person)
did not apply. Conviction under section 364 maintained but that under sections 302/34 set
aside.
1093.  Badshah v State of UP, (2008) 3 SCC 681 [LNIND 2008 SC 310] : (2008) 2 SCC (Cr) 712 :
2008 Cr LJ 1950 : (2008) 3 All LJ 524. Rangnath Sharma v Satendra Sharma, (2008) 12 SCC 259
[LNIND 2008 SC 1659] , another well-proved case of kidnapping and murder.

1094.  State of MP v Lattora, (2003) 11 SCC 761 : 2004 SCC (Cr) 1195.
The offence under the section was made out.1093. Where abduction of the victim was
proved and the victim was found murdered soon after abduction, the Supreme Court
said that it was for the accused to satisfy the Court as to how the abducted victim was
dealt with. In the absence of any such explanation, the Court may draw the
presumption that the abductor was murderer also.1094.

1095.[s 364-A] Kidnapping for ransom, etc.
Whoever kidnaps or abducts any person or keeps a person in detention after such
kidnapping or abduction and threatens to cause death or hurt to such person, or by his
conduct gives rise to a reasonable apprehension that such person may be put to death
or hurt, or causes hurt or death to such person in order to compel the Government or
1096.[any foreign State or international inter-governmental organisation or any other
person] to do or abstain from doing any act or to pay a ransom, shall be punishable
with death, or imprisonment for life, and shall also be liable to ﬁne.]
COMMENT.—
It is relevant to point out that section 364A had been introduced in the IPC, 1860 by
virtue of Amendment Act 42 of 1993. The statement of objects and reasons are as
follows:

COMMENT.—
follows:
Statement of Objects and Reasons. - Kidnappings by terrorists for ransom, for creating panic
amongst the people and for securing release of arrested associates and cadres have assumed
serious dimensions. The existing provisions of law have proved to be inadequate as
deterrence. The Law Commission in its 42nd Report has also recommended a speciﬁc
provision to deal with this menace. It [was] necessary to amend the Indian Penal Code to
provide for deterrent punishment to persons committing such acts and to make consequential
amendments to the Code of Criminal Procedure, 1973.
It is clear from the above the concern of Parliament in dealing with cases relating to
kidnapping for ransom, a crime which called for a deterrent punishment, irrespective of
the fact that kidnapping had not resulted in death of the victim. Considering the

alarming rise in kidnapping young children for ransom, the legislature in its wisdom
provided for stringent sentence.1097.
[s 364-A.1]Ingredients.—
Before section 364-A is attracted and a person is convicted, the prosecution must
prove the following ingredients:
(1) the accused must have kidnapped, abducted or detained any person;
(2) he must have kept such person under custody or detention; and
(3) kidnapping, abduction or detention must have been for ransom. To pay a
ransom, in the ordinary sense means to pay the price or demand for ransom.
This would show that the demand has to be communicated.1098.
The term "ransom" has not been deﬁned in the Code. Stated simply, "ransom" is a sum
of money to be demanded to be paid for releasing a captive, prisoner or detenu.

Kidnapping for ransom is an offence of unlawfully seizing a person and then conﬁning
the person usually in a secret place, while attempting to extort ransom. This grave
crime is sometimes made a capital offence. In addition to the abductor a person who
acts as a go-between to collect the ransom is generally considered guilty of the
crime.1099.
In a case, where a male child was kidnapped for ransom and murdered, the Supreme
Court refused to interfere with the death penalty awarded by the Courts below. The
Supreme Court held that the offence of kidnapping for ransom accompanied by a
threat to cause death contemplates punishment with death. Therefore, even without an
accused actually having murdered the individual kidnapped for ransom, the provision
contemplates the death penalty. Section 302 of the IPC, 1860 also contemplates the
punishment of death for the offence of murder. It is, therefore apparent, that the
accused was guilty of two heinous offences, which independently of one another,

provide for the death penalty.1100.
[s 364-A.2]Letters of demanding ransom.—
Letter demanding ransom written by the accused. Plea of the accused that the letters
were written under the pressure of the police was rejected as there was no cross-
examination on this point.1101.
[s 364-A.3]Provision not unconstitutional.—
Given the background in which the law was enacted and the concern shown by the
Parliament for the safety and security of the citizens and the unity, sovereignty and
integrity of the country, the punishment prescribed for those committing any act
contrary to section 364A cannot be dubbed as so outrageously disproportionate to the
nature of the offence as to call for the same being declared unconstitutional.1102.
[s 364-A.4]Sentencing.—
The Supreme Court observed that keeping in mind the alarming rise in kidnapping of

young children for ransom, the legislature has in its wisdom provided stringent
sentence. The Supreme Court said that the High Court rightly refused to interfere. The
judgment of the High Court did not suffer from any inﬁrmity to warrant interference.
The sentence of life imprisonment was awarded and a ﬁne of Rs. 1000 with default
stipulation.1103.
Section 364A IPC, 1860 was not on the statute book at the time of commission of the
offence. Unfortunately, a charge under section 363 was also not framed by the Trial
Court. It would not be appropriate to remand the case for framing fresh charge against
the appellants after a lapse of more than 20 years. His conviction and sentence for the
offence punishable under section 384 read with section 34 IPC, 1860 was
maintained.1104.
[s 364-A.5]Continuing offence.—

If section 364A IPC, 1860 and section 472 Cr PC, 1973 are to be read together, it has to
be held that even after the death of the victim every time a ransom call was made a
fresh period of limitation commenced.1105.
[s 364-A.6]Distinction between offences under section 364 and section 364-A.—
The ingredients for the offence under sections 364 and 364-A are different. Whereas
the intention to kidnap a person in order that he may be murdered or may be so
disposed of as to be put in danger of being murdered satisﬁes the requirements of
section 364; for obtaining conviction for the offence under section 364-A it is

1095.  Ins. by Act 42 of 1993, section 2, (w.e.f. 22 May 1993).
1096.  Subs. by Act 24 of 1995, for "any othr person" (w.e.f. 26-5-1995).
1097.  Akram Khan v State of WB, AIR 2012 SC 308 [LNIND 2011 SC 1205] : (2012) 1 SCC 406
[LNIND 2011 SC 1205] .
1098.  Malleshi v State of Karnataka, 2004 (8) SCC 95 [LNIND 2004 SC 934] : AIR 2004 SC 4865
[LNIND 2004 SC 934] ; Vinod v State of Haryana, AIR 2008 SC 1142 [LNIND 2008 SC 155] : 2008
(2) SCC 246 [LNIND 2008 SC 155] .
1099.  Suman Sood v State of Rajasthan, (2007) 5 SCC 634 [LNIND 2007 SC 647] : AIR 2007 SC
2774 [LNIND 2007 SC 647] : (2007) Cr LJ 4080 , it was proved in this case that one accused
kidnapped a person for getting an arrested person released. His wife (second accused)
remained at the secret place where the victim was kept, and provided him food and medicine.
This was held to be not suﬃcient to convict her under section 364-A, though found to be enough
to sustain conviction under sections 365/120-B.

1100.  Sunder @ Sundararajan v State, (2013) 3 SCC 215 [LNIND 2013 SC 91] : AIR 2013 SC 777
[LNIND 2013 SC 91] ; Vikram Singh v State of Punjab, 2010 (3) SCC 56 [LNIND 2010 SC 106] : AIR
2010 SC 1007 [LNIND 2010 SC 106] .
1101.  Vinod Kumar v State of Haryana, 2015 Cr LJ 1250 .
1102.  Vikram Singh v UOI, 2015 Cr LJ 4500 .
1103.  Vinod v State of Haryana, (2008) 2 SCC 246 [LNIND 2008 SC 155] : AIR 2008 SC 1142
[LNIND 2008 SC 155] : 2008 Cr LJ 1811 : (2008) 105 Cut LT 559.
1104.  Jaipal v State, 2011 Cr LJ 4444 (Del).
1105.  Vikas Chaudhary v State of NCT of Delhi, AIR 2010 SC 3380 [LNIND 2010 SC 743] : (2010)
3 SCC (Cr) 936.
1106.  Anil v Admn of Daman & Diu, Daman, (2006) 13 SCC 36 [LNIND 2006 SC 1035] : (2008) 1
SCC (Cr) 72.
necessary to prove that not only such kidnapping or abetment has taken place but

thereafter the accused threatened to cause death or hurt to such person or by his
or hurt or causes hurt or death to such person in order to compel the Government or
any foreign State or international intergovernmental organisation or any other person to
do or abstain from doing any act or to pay a ransom. Thus, it was obligatory on the part
of the trial court to frame a charge which would answer the description of the offence
envisaged under section 364-A. It may be true that the kidnapping was done with a
view to getting ransom but the same should have been put to the appellant while
framing a charge. The prejudice to the appellant is apparent as the ingredients of a

higher offence had not been put to him while framing the charge. Hence, the appellant
could not have been convicted under section 364-A. The appellant was held to be guilty
of an offence under section 364. He deserved the highest punishment prescribed
therein, i.e., rigorous imprisonment for life.1106.

[s 365] Kidnapping or abducting with intent secretly and wrongfully to conﬁne
person.
Whoever kidnaps or abducts any person with intent to cause that person to be
secretly and wrongfully conﬁned, shall be punished with imprisonment of either
ﬁne.
1107.  Fiyaz Ahmed v State of Bihar, 1990 Cr LJ 2241 SC : AIR 1990 SC 2147 .
1108.  Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : 2013 (7) Scale
1109.  Suman Sood v State of Rajasthan, AIR 2007 SC 2774 [LNIND 2007 SC 647] : (2007) 5 SCC
634 [LNIND 2007 SC 647] .
COMMENT.—
Where there was suﬃcient evidence to show that the victim woman was abducted
from her house and then taken to different places which included conﬁnement to one

COMMENT.—
place till she was recovered by the police, it was held that the accused could be
convicted under this section and section 368 but not section 366.1107.
The prosecutrix had left her home voluntarily, of her own free will to get married to the
appellant. She was 19 years of age at the relevant time and was, hence, capable of
understanding the complications and issues surrounding her marriage to the appellant.
According to the version of events provided by her, the prosecutrix had called the
appellant on a number given to her by him, to ask him why he had not met her at the
place that had been pre-decided by them. Offence not made out.1108.
In the order of extradition section 364A mentioned and not section 365 IPC, 1860.
Offence under section 365 IPC, 1860 is lesser offence than the offence punishable

under section 364A IPC, 1860. Hence, protection of accused and trial for lesser offence
under section 365 IPC, 1860 cannot be held to be without authority of law.1109.

[s 366] Kidnapping, abducting or inducing woman to compel her marriage, etc.
Whoever kidnaps or abducts any woman1 with intent that she may be compelled, or
knowing it to be likely that she will be compelled, to marry any person against her
will,2 or in order that she may be forced or seduced to illicit intercourse, or knowing it
to be likely that she will be forced or seduced to illicit intercourse, shall be punished
shall also be liable to ﬁne; 1110.[and whoever, by means of criminal intimidation as
deﬁned in this Code or of abuse of authority or any other method of compulsion,
induces any woman to go from any place with intent that she may be, or knowing that
it is likely that she will be, forced or seduced to illicit intercourse with another person

shall be punishable as aforesaid].
COMMENT.—
Where a woman has no intention of marriage or lawful intercourse when kidnapped,
this section applies.
[s 366.1] Ingredients.—
The section requires.—
1. Kidnapping or abducting of any woman.
2. Such kidnapping or abducting must be—
(i) with intent that she may be compelled or knowing it to be likely that she
will be compelled to marry any person against her will; or
(ii) in order that she may be forced or seduced to illicit intercourse, or
knowing it to be likely that she will be forced or seduced to illicit
intercourse; or
(iii) by means of criminal intimidation or otherwise by inducing any woman to
go from any place with intent that she may be, or knowing that she will be,
forced or seduced to illicit intercourse.
It is immaterial whether the woman kidnapped is a married woman or not. To

constitute an offence under section 366, IPC, 1860, it is necessary for the prosecution
to prove that the accused induced the complainant-woman or compelled by force to go
from any place, that such inducement was by deceitful means, that such abduction
took place with the intent that the complainant may be seduced to illicit intercourse
and/or that the accused knew it to be likely that the complainant may be seduced to
illicit intercourse as a result of her abduction. Mere abduction does not bring an

accused under the ambit of this penal section. So far as a charge under section 366,
IPC, 1860 is concerned, mere ﬁnding that a woman was abducted is not enough, it
must further be proved that the accused abducted the woman with intent that she may
be compelled, or knowing it to be likely that she will be compelled to marry any person
or in order that she may be forced or seduced to illicit intercourse or knowing it to be
likely that she will be forced or seduced to illicit intercourse. Unless the prosecution
proves that the abduction is for the purposes mentioned in section 366, IPC, 1860 the
Court cannot hold the accused guilty and punish him under section 366, IPC, 1860.1111.
1. 'Kidnaps or abducts any woman'.—If the girl was 18 years old or over, she could only
be abducted and not kidnapped, but if she was under eighteen she could be kidnapped
as well as abducted if the taking was by force or the taking or enticing was by deceitful

means.1112. Doubts about age, if not resolved satisfactorily, would go in favour of the
accused.1113.
2. 'With intent that she may be compelled … to marry any person against her will'.—The
intention of the accused is the basis and the gravamen of the offence under this
section. The volition, the intention and the conduct of the woman do not determine the
offence; they can only bear upon the intent with which the accused kidnapped or
abducted the woman, and the intent of the accused is the vital question for
determination in each case. Where only conﬁnement was established, the Supreme
Court held that conviction was possible under sections 365 and 368 and not 366.1114.
Once the necessary intent of the accused is established the offence is complete,
whether or not the accused succeeded in effecting his purpose, and whether or not in

the event the woman consented to the marriage or the illicit intercourse.1115.
In order to establish an offence under section 366 IPC, 1860 it must ﬁrst be established
that the offence of kidnapping under section 361 IPC, 1860 has been proved. It must
then be shown that such kidnapping was with the contumacious intent referred to
under section 366 IPC, 1860.1116. If the girl kidnapped is below 18 years, consent is
immaterial for the offence to be made out.1117.
3. 'Forced or seduced to illicit intercourse'.—The word 'forced' is used in its ordinary
dictionary sense and includes force by stress of circumstances. The expression
'seduced', used in this section and section 366A, means inducing a woman to submit to
illicit intercourse at any time.1118. The Supreme Court in this case disapproved of the

view taken by the Allahabad and Lahore High Courts that the word 'seduced' used in
this section is properly applicable only to the ﬁrst act of illicit intercourse unless there
be a proof of return to chastity on the part of the girl. The Calcutta, the Patna, the
Madras and the Bombay High Courts had held that 'seduction' is not used in the narrow
sense of inducing a girl to part with her virtue for the ﬁrst time, but includes subsequent
seduction for further acts of illicit intercourse.1119. Mere abduction does not make out
an offence under section 366, IPC, 1860. It must further be proved that the accused
abducted the woman for any of the purposes mentioned in section 366.1120.
[s 366.2] Consent.—
Merely because a person did not give passive resistance it does not mean his helpless

resignation on face of inevitable compulsion cannot be deemed as consent. Only
conclusion relevant is that she was kidnapped and kept under barrier and was raped
against her will.1121. Where the evidence showed that victim herself had called the
accused to meet her at a place outside the village, it was held that accused was
entitled to acquittal.1122. Prosecutrix aged 19 years accompanied her elder sister went
with appellant voluntarily and did not make any annoyance and performed intercourse

with him. Only after tracing her out by Police, in connection with report of missing
person, she stated to Police some ingredients of offence of rape. It is apparent that in
spite of having opportunity at various stages and various places, she did not complain
to any one or did not make any annoyance saying that she is being taken by appellant
without her will. Offence was not made out.1123. Where the girl supposed to have been
taken away under threats was taken from one place to another and they stayed at
different hotels, the girl making no protest anywhere, her consent was presumed.1124.
Where the prosecutrix, a teenaged girl, did not put up struggle or jump down from the
cycle of the accused or not even raised an alarm while being taken away, the offence
under section 366 was not made out. The conviction was set aside.1125.
Mere submission without resistance cannot tantamount to consent.1126.
[s 366.3] Tribal custom of forced marriage.—

The existence of a tribal custom under which a girl can be forced to marry her abductor
or kidnapper by taking her away and subjecting her to intercourse cannot be accepted
as a good defence, it being contrary to law. But a lenient sentence of only six months
was imposed in view of the application for compounding submitted by the victim girl
and her father. The token punishment was necessary because the offence was not
compoundable.1127.
[s 366.4] Section 366 is not a minor offence of section 376.—
It is true that section 222 of the Cr PC, 1973 entitles a Court to convict a person of an
offence which is minor in comparison to the one for which he is being tried but section
366 of the IPC, 1860 cannot be said to be a minor offence in relation to an offence

under section 376 of the IPC, 1860 as both the offences are of distinct and different
categories having different ingredients.1128.
[s 366.5] Punishment.—
In State of MP v Rameshwar,1129. where the victim was approximately 16 years of age
and was seduced and kidnapped by the respondent by promising to marry her. The
Supreme Court, restored the sentence awarded by the trial Court, but reduced it to one
year.1130.
[s 366.6] When sentence shall run consecutively.—
In Muthuramalingam v State,1131. the Constitution Bench of the Supreme Court
examined the various issues relating to the sentencing of the accused, where multiple
murders were committed by them, and held that while multiple sentences for
imprisonment for life can be awarded for multiple murders or other offences

punishable with imprisonment for life, the life sentences so awarded cannot be
directed to run consecutively. Such sentences would, however, be super imposed over
each other, so that any remission or commutation granted by a competent authority in
one does not ipso facto result in remission of the sentence awarded to the prisoner for
the other.

1110.  Added by Act 20 of 1923, section 2.
1111.  Gabbu v State of MP, AIR 2006 SC 2461 [LNIND 2006 SC 410] : (2006) 5 SCC 740 [LNIND
2006 SC 410] .
1112.  Prafullakumar Basu, (1929) 57 Cal 1074 , 1079. For an example of kidnaping by deceitful
means, see Nawabkhan v State of MP, 1990 Cr LJ 1179 (MP). The Supreme Court did not
approve the conviction on the evidence of a prosecutrix who was for several days taken openly
from place to place and she never protested even when she had opportunities to do so. Hari
Ram v State of Rajasthan, 1991 Supp (2) SCC 475 : 1991 SCC (Cr) 1071.
1113.  Satish Kumar v State, 1988 Cr LJ 565 (Del).
1114.  Fiyaz Ahmad v State of Bihar, 1990 Cr LJ 2241 : AIR 1990 SC 2147 . There was nothing to
show that the conﬁnement was either to compel her to marry or to submit to sexual intercourse
against her wish.
1115.  Khalil-Ur-Rahman, (1933) 11 Ran 213 (FB). Moniram Hazarika v State of Assam, (2004) 5

SCC 120 [LNIND 2004 SC 476] : 2004 Cr LJ 2553 : AIR 2005 SC 2472 , accused regular visited to
the house of the girl's brother, developed intimacy and persuaded her to abandon the lawful
guardianship under promise of marriage. Conviction under section 366 was upheld.
1116.  Shajahan v State, 2011 Cr LJ 573 .
1117.  Brij Lal Sud v State of Punjab, (1970) 3 SC 808 ; Parshotam Lal v State of Punjab, (2010) 1
SCC 65 [LNIND 2009 SC 1870] : (2010) 1 SCC (Cr) 449 — prosecutrix below 16 years;
compounding not allowed. Sachindra Nath, 1978 Cr LJ 1494 (Cal). A girl of 18 years old left
home, in the absence of her father, of her own choice with cash and gold and joined the accused
who took her to various places and subjected her to sex, no offence made out against the
accused. Om Prakash v State of Haryana, 1988 Cr LJ 1606 (P&H). Keshav v State, 2001 Cr LJ

1201 (Del), the victim aged about 18 years, evidence showed that she had voluntarily gone with
the accused and of her own free will, acquittal because the offence not made out. Varda v State
of Rajasthan, 2001 Cr LJ 1283 (Raj), allegation of kidnapping of daughter-in-law not proved, she
accompanied the accused to many places. Mehmood v State, 1998 Cr LJ 2408 (Del), the girl had
voluntarily gone with the accused. Hence the acquittal. P Ashriya v State of Orissa, 1998 Cr LJ
3162 (Ori), the girl in question was minor, there was no adjudication as to valid marriage, the
accused being a kidnapper, his application for custody of the girl was rejected.
1118.  Ramesh, (1962) 64 Bom LR 780 (SC).
1119.  Prafullakumar Basu, (1929) 57 Cal 1074 ; Krishna Maharana, (1929) 9 Pat 647; Lakshman

Bala, (1934) 37 Bom LR 176 , 59 Bom 652; Kartara v State, (1957) Pun 2003; Gopichand Fattumal,
(1960) 63 Bom LR 408 .
1120.  Chote Lal, 1979 Cr LJ 1126 : AIR 1979 SC 1494 . Goverdhan v State of MP, (1995) 1 Cr LJ
633 (MP), the conduct of the abducted girl showed her willingness to marriage because she
accompanied the accused to court premises for swearing an aﬃdavit for marriage and
thereafter stayed at a rest house, the charge under the section not made out.
1121.  Dipak Kumar v The State of Bihar, 2012 Cr LJ 480 (Pat).
1122.  Amarshibhai v State of Gujarat, 2013 Cr LJ 2768 (Guj); Shyam v State, AIR 1995 SC 2169 .
1123.  Mahesh v State of MP, 2012 Cr LJ 910 (MP).

1124.  State of Haryana v Naresh, 1996 Cr LJ 3614 (P&H), girl was below 18 years old. In such
cases the courts of both places would have jurisdiction namely, the place from where the girl
was taken away and the place to which she was carried.
1125.  Shyam v State of Maharashtra, AIR 1994 SC 2169 : 1995 Cr LJ 3974 . Baldeo v State of UP,
1993 Cr LJ 1915 (All), the girl attained the age of discretion, voluntarily accompanied the
accused, the latter only fulﬁlling her desire to go away, acquittal.
1126.  Satish Kumar v State of Rajasthan, 2001 Cr LJ 4860 (Raj). Sentence was reduced to the
period already undergone. Similar beneﬁt of reduction was ordered to be given to the accused
who had not appealed. Gurnam Singh v State of Punjab, 1998 Cr LJ 4024 (SC), kidnapping and
murder of three persons, death sentence reduced to life imprisonment under sections 302/34.
Kuldeep K Mahato v State of Bihar, 1998 Cr LJ 4033 : AIR 1998 SC 2694 [LNIND 1998 SC 714] ,

for details see under section 363. See also Shivnath v State of MP, 1998 Cr LJ 2691 (MP); State
of Maharashtra v Surendra Kumar Mevalal Mahesh, 1998 Cr LJ 3768 (Bom); Dewan Singh v State,
1998 Cr LJ 3905 (Del).
1127.  Nattu v State of MP, 1990 Cr LJ 1567 (MP). See also Kunwarsingh v State of MP, 2013 Cr
LJ 901 (MP); Panna v State of Rajasthan, 1987 Cr LJ 997 (Raj), where a tribal custom for sale of
girls was not accepted but light punishment was inﬂicted because of the custom and senior age
of the accused.
1128.  Surendra Rai v State of Bihar, 2013 Cr LJ 1847 (Pat).
1129.  State of MP v Rameshwar, AIR 2005 SC 687 [LNIND 2005 SC 77] : (2005) 2 SCC 373
[LNIND 2005 SC 77] .
1130.  Rajesh v State of Maharashtra, AIR 1998 SC 2724 [LNIND 1998 SC 752] : 1998 Cr LJ 4042
(SC).

(SC).
1131.  Muthuramalingam v State, 2016 Cr LJ 4165 : (2016) 8 SCC 313 [LNIND 2016 SC 308] .

1132.[s 366A] Procuration of minor girl.
Whoever, by any means whatsoever, induces any minor girl under the age of eighteen
years to go from any place or to do any act with intent that such girl may be, or
knowing that it is likely that she will be, forced or seduced to illicit intercourse with
another person shall be punishable with imprisonment which may extend to ten years,
and shall also be liable to ﬁne.]
COMMENT.—
Section 366A was enacted by Act XX of 1923 to give effect to certain Articles of the
International Convention for the Suppression of Traﬃc in Women and Children signed
by various nations at Paris on 4 May 1910. While section 366A deals with procuration
of minor girls from one part of India to another section 366B makes it an offence to
import into India from any country outside India girls below the age of 21 years for the

purpose of prostitution.
[s 366A.1] Ingredients.—
This section requires two things: (1) inducing a girl under eighteen years to go from any
place or to do an act,1133. and (2) intention or knowledge that such girl will be forced or
seduced to illicit intercourse with a person.
The applicability of section 366-A of the IPC, 1860 requires, ﬁrst, that the accused must
induce a girl; second, that the person induced was a girl under the age of 18 years;
third, that the accused has induced the victim knowing that it is likely that she will be
forced or seduced to an illicit sexual intercourse; fourth, that such intercourse must be
with that person other than the accused; ﬁfth, that the inducement caused the girl to go
there in the place or to do any act.1134. An offence under this section is one of

inducement with a particular object, and when after the inducement the offender offers
the girl to several persons a fresh offence is not committed at every fresh offer for
sale.1135. Where a woman, even if she has not attained the age of 18 years, follows the
profession of a prostitute, and in following that profession she is encouraged or
assisted by someone, no offence under this section is committed by such person, for it
cannot be said that the person who assists a girl accustomed to indulge in
promiscuous intercourse for money in carrying on her profession acts with intent or
knowledge that she will be forced or seduced to illicit intercourse.1136.
1. 'Seduced'.—The verb 'seduce' is used in two senses. It is used in its ordinary and
narrow sense as inducing a woman to stray from the path of virtue for the ﬁrst time: it

is also used in the wider sense of inducing a woman to submit to illicit intercourse at
any time or on any occasion. It is in the latter sense that the expression has been used
in sections 366 and 366A of the IPC, 1860 which sections partially overlap. The word

1132.  Ins. by Act 20 of 1923, section 3.
1133.  Where there was no threat or inducement or persuasion in taking away a minor girl,
provisions of section 361 or 366A were not attracted. State of Kerala v Rajayyan, 1996 Cr LJ 145
(Ker). Sannaia Subba Rao v State of AP, (2008) 17 SCC 225 [LNIND 2008 SC 1502] , the evidence
on record did not reveal the requisite intention. The accusation of forced came to be stated at
the trial only for the purpose of attracting major punishment. There was no reliable evidence of
"seduced" is used in the ordinary sense of enticing or tempting irrespective of whether
the minor girl has been previously compelled or has submitted to illicit intercourse.1137.
A person who merely accompanies a woman going out to ply her profession of a
prostitute, even if she has not attained the age of 18 years, could not be said thereby to
induce her to go from any place or to do any act with the intent or knowledge that she

will be forced or seduced to illicit intercourse within the meaning of section 366A.1138.
[s 366A.2] Age.—
In a case before the Supreme Court, the father of the girl stated that her age on the
date of the incident was around 19 years. The doctor also certiﬁed the age to be above
18 years. The girl told the Court that she was of only 14 years. The Supreme Court said
that the High Court did not consider the age factor fully. The charge failed on the
ground of the failure of prosecution to establish that the girl was less than 18 years of
age.1139.
[s 366A.3] CASES.—
Where statement and conduct of the victim showed that there was neither threat nor
force used by the accused, it cannot be said that victim was forcibly kidnapped and
kept in custody. Accused was held entitled to acquittal.1140.

[s 366A.4] Non-framing of charge under section 366-A.—
Offence under section 366-A is not a minor offence to section 366 IPC, 1860 so as to
invoke section 222(2) of Cr PC, 1973. Conviction of appellants under section 366 IPC,
1860 without there being a charge is illegal and liable to be set aside.1141.
[s 366A.5] Difference between sections 366 and 366A.—
A bare perusal of this section would indicate that the kidnapping or abduction of any
woman with a view to compel her for marriage, etc. is covered by this section. Now, a
perusal of the section would indicate that if the minor girl is induced to go from any
place or to do any act with an intent that such girl may be, or knowing that it is likely
that she will be, forced or seduced to illicit intercourse with another person shall be

punishable with imprisonment which may extend to ten years, and shall also be liable
to ﬁne. The title to the section is procuration of minor girl. The essential ingredient is
inducement of a minor girl to go from any place or to do any act with intent that such
girl may be or knowing that it is likely that she will be forced or seduced to illicit
intercourse with another. The minor must be proved to have been induced to go or to
do something. If the charge is under section 366A then "Kidnapping" is not the
essential ingredient. While kidnapping, abduction is a part of the offence under section
366, its latter part, viz., "inducement" is the only common ingredient in section 366 and
section 366A IPC, 1860.1142.

kidnapping. Zakir v State of MP, (2009) 6 SCC 646 [LNIND 2009 SC 2977] : AIR 2009 SC 2437
[LNIND 2009 SC 2977] , the prosecutrix in her examine-in-chief could not recognise the accused
as she had not seen him before. The trial court and High Court ignored this statement. The
conviction was set aside.
1134.  Ganesh Mallik v State of Jharkhand, 2011 Cr LJ 562 (Jha).
1135.  Sis Ram, (1929) 51 All 1888 .
1136.  Ramesh, (1962) 64 Bom LR 780 (SC). Y Srinivasa Rao v State of AP, (1995) 2 Cr LJ 1997
(AP), here the fact of age below 18 years was not made out and, therefore, no offence under the
section. Ganga Dayal Singh v State of Bihar, AIR 1994 SC 859 : 1994 Cr LJ 951 , the accused,
aged 55 years, abducted a minor girl and his guilt was conclusively proved. His only plea that in
that old age he could not have developed fancy for a minor girl, not tenable. His conviction was
not interfered with.
1137.  Gopichand Fattumal, (1960) 63 Bom LR 408 ; Ramesh, (1962) 64 Bom LR 780 (SC).

Mojuddin v State of Rajasthan, 2001 Cr LJ 2000 (Raj) girl above 18 years old, she had been going
away and staying with the accused earlier also. Conviction set aside. Rajan v State of Rajasthan,
2002 Cr LJ 3152 (Raj), the prosecutrix, a minor girl, and the accused had love affair. She herself
went with the accused to different places. Hence, no offence made out under section 366A.
Mahesh v State of Rajasthan, 1999 Cr LJ 4625 (Raj), conviction for kidnapping a minor girl and
subjecting her to rape and also forcing her to surrender before others. Rakesh v State of
Rajasthan, 1998 Cr LJ 1434 (Raj), age of the prosecutrix could not be proved to be below 18
years. Offence under the section not made out. Sushanta v State of Tripura, 2002 Cr LJ 195
(Gau), fact of abduction established by unimpeachable testimony of prosecutrix, offence of

abduction was made out. Krishna Mohan Thakur v State of Bihar, 2000 Cr LJ 1898 (Pat),
kidnapping away a girl from a hotel room and subjecting her to rape, conviction under the
section.
1138.  Ramesh v State of Maharashtra, AIR 1962 SC 1908 [LNIND 1962 SC 239] : 1963 Cr LJ 16 .
1139.  Jinish Lal Sha v State of Bihar, AIR 2002 SC 2081 , on appeal from 2002 Cr LJ 274 (Pat).
1140.  Ramji Prasad v State of Bihar, 2013 Cr LJ 446 (Pat); Ashok Mahto v State of Jharkhand,
2011 Cr LJ 1601 (Jha); State of Bihar v Rakesh Kumar, 2013 Cr LJ 1990 (Pat) — Accused
acquitted for non-existing of ingredients for constituting offences under section 366A of the
IPC, 1860.
1141.  Suramani v State, 2011 Cr LJ 2871 (Mad)
1142.  Kailash Laxman Khamkar v State of Maharashtra, 2010 Cr LJ 3255 (Bom).

1143.[s 366B] Importation of girl from foreign country.
Whoever imports into 1144.[India] from any country outside India 1145.[or from the
State of Jammu and Kashmir] any girl under the age of twenty-one years with intent
that she may be, or knowing it to be likely that she will be, forced or seduced to illicit
intercourse with another person,
1146.[***] shall be punishable with imprisonment which may extend to ten years, and
shall also be liable to ﬁne.]
1143.  Ins. by Act 20 of 1923, section 3.
1144.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950
and Act 3 of 1951 sec. 3 and Sch. (w.e.f. 1-4-1951), to read as above.
1145.  Ins. by Act 3 of 1951, sec. 3 and Sch. (w.e.f. 1-4-1951).
1146.  Certain words omitted by Act 3 of 1951, sec. 3 and Sch. (w.e.f. 1-4-1951).

1147.  Gazette of India, dated 10 February 1923, Part V, p 79.
COMMENT.—
This section makes it an offence (1) to import into India from any country outside India
a girl under the age of twenty-one years with the intent or knowledge speciﬁed in the
section, or (2) to import into India from the State of Jammu and Kashmir a girl under
the age of twenty-one years with intent that she may be, or knowing it to be likely that
she will be, forced or seduced to illicit intercourse with any person. The Select
Committee in their Report observed:
The case of girls imported from a foreign country we propose to deal with by the insertion
of a new section 366B in the Code. We are unanimously of opinion that the requirements of
the Convention will be substantially met by penalising the importation of girls from a foreign

country. At the same time we have so worded the clause as to prevent its being made a
dead letter by the adoption of the course of importing the girl ﬁrst into an Indian State.1147.
After the coming into force of the Constitution of India this section was amended to
bring it in accord with the changed circumstances.

[s 367] Kidnapping or abducting in order to subject person to grievous hurt,
slavery, etc.
Whoever kidnaps or abducts any person in order that such person may be subjected,
or may be so disposed of as to be put in danger of being subject to grievous hurt, or
slavery, or to the unnatural lust of any person, or knowing it to be likely that such
person will be so subjected or disposed of, shall be punished with imprisonment of
ﬁne.

[s 368] Wrongfully concealing or keeping in conﬁnement, kidnapped or
abducted person.
Whoever, knowing that any person has been kidnapped or has been abducted,
wrongfully conceals or conﬁnes such person, shall be punished in the same manner
as if he had kidnapped or abducted such person with the same intention or
knowledge, or for the same purpose as that with or for which he conceals or detains
such person in conﬁnement.
COMMENT.—
This section does not apply to the principal offender but to those persons who assist
him in concealing a kidnapped or abducted person. It refers to some other party who
assists in concealing any person who has been kidnapped. A kidnapper cannot be
convicted under this section.1148. The other party who wrongfully conceals or conﬁnes
a kidnapped person knowing that he has been kidnapped suffers the same

consequences at par with the person who had kidnapped or abducted the person with
the same intention or knowledge or for the same purpose.1149. This is one of those
sections in which subsequent abetment is punished as a substantive offence.
[s 368.1] Ingredients.—
To constitute an offence under this section it is necessary to establish the following
(1) The person in question has been kidnapped.
(2) The accused knew that the said person had been kidnapped.
(3) The accused having such knowledge wrongfully conceals or conﬁnes the
person concerned.
Apart from direct evidence these ingredients can be proved by facts and circumstances
of a particular case.1150. Where the complicity of the accused in selling the wife of the
co-accused was established and the buyer raped and killed her, a conviction under this

section was upheld by the Supreme Court.1151. Three accused persons were charged
of the offence of kidnapping a child but the child was recovered from the custody of
another person who was a relative of the three accused persons. They were acquitted.
It was held that the other person could not be convicted under section 368 unless it
was proved that the person from whose custody the child was recovered had
knowledge of the fact that the child was a kidnapped child.1152.

1148.  Bannu Mal, (1926) 2 Luck 249 . Fiyaz Ahmed v State of Bihar, 1990 Cr LJ 2241 : AIR 1990
SC 2147 , a conviction for conﬁnement of the abducted person.
1149.  Birbal Choudhary v State of Bihar, AIR 2017 SC 4866 [LNIND 2017 SC 2898] .
1150.  Saroj Kumari, 1973 Cr LJ 267 : AIR 1973 SC 201 [LNIND 1972 SC 554] .
1151.  Pyare Lal v State of UP, AIR 1987 SC 852 [LNIND 1987 SC 99] : 1987 Cr LJ 769 : 1987 All
CC 77 (2) : 1987 1 SCC 526 .
1152.  Tikam v State of UP, 1992 Cr LJ 1381 (All). Dharam Pal v State, 2000 Cr LJ 5060 (Del), guilt
under the section established. The accused had undergone some part of the sentence and had
faced the trauma of prosecution for 25 years. The sentence was reduced to the period already
undergone.

[s 369] Kidnapping or abducting child under ten years with intent to steal from
its person.
Whoever kidnaps or abducts any child under the age of ten years with the intention of
taking dishonestly any moveble property from the person of such child, shall be
punished with imprisonment of either description for a term which may extend to seven

1153.[s 370] Traﬃcking of person
(1) Whoever, for the purpose of exploitation, (a) recruits, (b) transports, (c)
harbours, (d) transfers, or (e) receives, a person or persons, by—
First.—using threats, or
Secondly.—using force, or any other form of coercion, or Thirdly.—by abduction,
or
Fourthly.—by practising fraud, or deception, or
Fifthly.—by abuse of power, or
Sixthly.—by inducement, including the giving or receiving of payments or
beneﬁts, in order to achieve the consent of any person having control over the
person recruited, transported, harboured, transferred or received,
commits the offence of traﬃcking.
Explanation 1.—The expression "exploitation" shall include any act of physical
exploitation or other form of sexual exploitation, slavery or practices similar to
slavery, servitude, or the forced removal of organs.

Explanation 2.—The consent of the victim is immaterial in determination of the
offence of traﬃcking.
(2) Whoever commits the offence of traﬃcking shall be punished with rigorous
imprisonment for a term which shall not be less than seven years, but which
(3) Where the offence involves the traﬃcking of more than one person, it shall be
punishable with rigorous imprisonment for a term which shall not be less than
ten years but which may extend to imprisonment for life, and shall also be
(4) Where the offence involves the traﬃcking of a minor, it shall be punishable
with rigorous imprisonment for a term which shall not be less than ten years,
but which may extend to imprisonment for life, and shall also be liable to ﬁne.
(5) Where the offence involves the traﬃcking of more than one minor, it shall be

fourteen years, but which may extend to imprisonment for life, and shall also
be liable to ﬁne.

(6) If a person is convicted of the offence of traﬃcking of minor on more than one
occasion, then such person shall be punished with imprisonment for life, which
shall mean imprisonment for the remainder of that person's natural life, and
(7) When a public servant or a police oﬃcer is involved in the traﬃcking of any
person, then such public servant or police oﬃcer shall be punished with
imprisonment for life, which shall mean imprisonment for the remainder of that
person's natural life and shall also be liable to ﬁne.]
1153.  Sections 370 and 370A subs. for section 370 by the Criminal Law (Amendment) Act,
2013 (13 of 2013), section 8 (w.e.f. 3 February 2013). Prior to substitution by section 8 of the
Criminal Law (Amendment) Act, 2013 (w.e.f. 3 February 2013), section 370 stood as under:
COMMENTS
1. Amendment of 2013.—Vide the Criminal Law (Amendment) Act 2013 (Act 13 of
2013), the entire section has been changed so as to enlarge the scope of the offence

COMMENTS
and include within its purview not just the mischief of slavery, but traﬃcking in general
—of minors and also adults, and also forced or bonded labour, prostitution, organ
transplantation and to some extent child-marriages.1154.
For the purposes of this new offence, an offender has been classiﬁed into ﬁve
categories, thus covering every aspect of the commission of such offences. A person
can be held liable within the mischief of this offence if he either (i) recruits, or (ii)
transports, (iii) harbours, (iv) transfers, or (v) receives, a person or persons.
COMMENT.—
The sections of the Code relating to slavery were enacted for the suppression of
slavery, not only in its strict and proper sense, namely, that condition whereby an
absolute and unlimited power is given to the master over the life, fortune and liberty of

another, but in any modiﬁed form where an absolute power is asserted over the liberty
of another.1155.
[s 370.1] Ingredients.—
This section makes penal—
(1) the importation, exportation, removal, buying, selling of a person as a slave;
(2) the disposal of a person as a slave; and
(3) the acceptation, reception, or detention, of any person against his will as a slave.

[s 370] Whoever imports, exports, removes, buys, sells or disposes of any person as a slave, or
accepts, receives or detains against his will any person as a slave, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also
1154.  Chapter 6 of Justice JS Verma Committee's Report is on Traﬃcking of Woman and
Children, wherein the entire issue of traﬃcking has been discussed at length.
1155.  Ram Kuar v State, (1880) 2 All 723 , 731 (FB).

1156.[s 370-A] Exploitation of a traﬃcked person.
(1) Whoever, knowingly or having reason to believe that a minor has been
traﬃcked, engages such minor for sexual exploitation in any manner, shall be
punished with rigorous imprisonment for a term which shall not be less than
ﬁve years, but which may extend to seven years, and shall also be liable to ﬁne.
(2) Whoever, knowingly by or having reason to believe that a person has been
traﬃcked, engages such person for sexual exploitation in any manner, shall be
three years, but which may extend to ﬁve years, and shall also be liable to ﬁne.]
1156.  Sections 370 and 370A subs. for section 370 by the Criminal Law (Amendment) Act,
2013 (13 of 2013), section 8 (w.e.f. 3 February 2013).

[s 371] Habitual dealing in slaves.
Whoever habitually imports, exports, removes, buys, sells, traﬃcs or deals in slaves,
shall be punished with 1157.[imprisonment for life], or with imprisonment of either
description for a term not exceeding ten years, and shall also be liable to ﬁne.
1157.  Subs. by Act 26 of 1955, section 117 and Sch., for "transportation for life" (w.e.f. 1
January 1956).
COMMENT.—
This section provides for the punishment of the slave-trader who is habitually engaged
in the traﬃc of buying and selling human beings. The preceding section dealt with the
casual offender.

[s 372] Selling minor for purposes of prostitution, etc.
Whoever sells, lets to hire, or otherwise disposes of1 any 1158.[person under the age
of eighteen years2 with intent that such person shall at any age be employed or used
for the purpose of prostitution or illicit intercourse with any person or for any unlawful
and immoral purpose,3 or knowing it to be likely that such person will at any age be]
employed or used for any such purpose, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall be liable to ﬁne.
1159.[Explanation I.—When a female under the age of eighteen years is sold, let for
hire, or otherwise disposed of to a prostitute or to any person who keeps or manages
a brothel, the person so disposing of such female shall, until the contrary is proved, be

presumed to have disposed of her with the intent that she shall be used for the
Explanation II.—For the purposes of this section "illicit intercourse" means sexual
intercourse between persons not united by marriage or by any union or tie which,
though not amounting to a marriage, is recognised by the personal law or custom of
the community to which they belong or, where they belong to different communities,
of both such communities, as constituting between them a quasi-marital relation.]
COMMENT.—
This section requires:—
(1) Selling, or letting to hire, or other disposal of a person.
(2) Such person should be under the age of eighteen years.
(3) The selling, letting to hire, or other disposal must be with intent or knowledge of
likelihood that the person shall at any age be employed or used for

(i) prostitution, or
(ii) illicit intercourse with any person, or
(iii) any unlawful and immoral purpose.
[s 372.1] Scope.—
This section applies to males or females under the age of 18 years.1160. It applies to a
married or an unmarried female even where such female, prior to sale or purchase, was
leading an immoral life.1161. It also applies where the girl is a member of the dancing
girl caste.1162.

This section deals with one who sells a person under 18 years; the next section
punishes one who buys such person.
1. 'Sells, lets to hire, or otherwise disposes of'.—These words are the counterpart of
the words "buys, hires or otherwise obtains possession", occurring in section 373. The
performance of gejee (initiation ceremony) on a minor girl does not amount to her
disposal.1163. The ceremony of tying a talimani to a minor girl, worshipping a basin of
water by her and distributing food is merely a preliminary step before the selling, letting
out, or disposing of the girl for the purpose of prostitution, and is no offence under this
section.1164.
2. 'Person under the age of eighteen years'.—The section applies to all persons under
18 years, whether males or females.
3. 'With intent that such persons shall at any age be employed or used for the purpose
of prostitution or illicit intercourse with any person or for any unlawful and immoral

purpose'.—It is necessary to show that the accused intended that the person shall be
employed for an immoral purpose. The introduction of the words 'at any age' takes
away the defence that though a girl was made over to a prostitute it was not intended
that she should actually be used for the purpose of prostitution until she had passed
the age of eighteen years.1165.
The word 'prostitution' is not conﬁned to acts of natural sexual intercourse, but includes
any act of lewdness. It means surrender of a girl's chastity for money.
The words 'illicit intercourse with any person' are explained in Explanation 2. The
accused cannot now rely on the plea that the girl was not destined for a life of
prostitution, but merely for a single act of sexual intercourse. Cases which laid down

that no offence was committed if employment for prostitution was not habitual are no
longer of any authority.
[s 372.2] Adoption of daughter by dancing girl.—
Such adoption would be an offence if it was done with the intention or knowledge
speciﬁed in the section. The burden of proof that the possession of the girl is not given
to or obtained by a prostitute for leading an immoral life is on the person who gives the
possession of such girl and the person who receives the girl under Explanation 1 to this
section and section 373.
[s 372.3] Dev dasi.—
The dedication of minors to the service of a temple as dasis (servants) amounts to a
disposal of such minors, knowing it to be likely that they will be used for the purpose of
prostitution within the meaning of this section.1166.

1158.  Subs. by Act 18 of 1924, sec. 2, for certain words.
1159.  Ins. by Act 18 of 1924, sec. 3.
1160.  Kammu, (1878) PR No. 12 of 1879.
1161.  Ismail Rustomkhan, (1906) 8 Bom LR 236 [LNIND 1906 BOM 10] .
1162.  Ramanna v State, (1889) 12 Mad 273.
1163.  Parmeshwari Subbi, (1920) 22 Bom LR 894 [LNIND 1920 BOM 54] .
1164.  Sahebava Birappa, (1925) 27 Bom LR 1022 .
1165.  Ramanna, (1889) 12 Mad 273; and Karuna Baistobi, (1894) 22 Cal 164 , are therefore
overruled.
1166.  (1881) 1 Weir 359, FB; Basava v State, (1891) 15 Mad 75; Jaili Bhavin, (1869) 6 BHC (Cr C)
60; Tippa, (1892) 16 Bom 737.

[s 373] Buying minor for purposes of prostitution, etc.
Whoever buys, hires or otherwise obtains possession of any 1167.[person under the
age of eighteen years with intent that such person shall at any age be employed or
used for the purpose of prostitution or illicit intercourse with any person or for any
unlawful and immoral purpose, or knowing it to be likely that such person will at any
age be] employed or used for any purpose, shall be punished with imprisonment of
ﬁne.
1168.[Explanation I.—Any prostitute or any person keeping or managing a brothel, who
buys, hires or otherwise obtains possession of a female under the age of eighteen
years shall, until the contrary is proved, be presumed to have obtained possession of

such female with the intent that she shall be used for the purpose of prostitution.
Explanation II.—"Illicit intercourse" has the same meaning as in section 372.
COMMENT.—
This section and section 372 conjointly punish both the giver as well as the receiver of
a person under the age of eighteen years for an immoral purpose. Both the sections
relate to the same subject-matter. The former contemplates an offence committed by
the person who sells, or lets to hire, or otherwise disposes of any person under the age
of eighteen years, with the requisite intent or knowledge. The latter relates to the case
of the person who buys, hires, or otherwise obtains possession of any person under the
age of eighteen. The ﬁrst section strikes at any bargain of the nature contemplated by

it, whoever may be the party who sells or lets the person, even though it should be the
father or mother or lawful guardian. The second strikes at the bawds, keepers of
brothels and all others who fatten on the proﬁts arising from the general prostitution of
girls.
[s 373.1] Ingredients.—
This section requires—
1. Buying, hiring or otherwise obtaining possession of a person.
2. The person should be under the age of eighteen years.
3. The buying, hiring, or otherwise obtaining possession must be with intent or
knowledge of likelihood that the person shall at any age be employed or used for

1167.  Subs. by Act 18 of 1924, sec. 2, for certain words.
1168.  Ins. by Act 18 of 1924, sec. 4.
1169.  Banubai Irani, (1942) 45 Bom LR 281 (FB).
(ii) illicit intercourse, or
[s 373.2] Explanation I.—
In order that the presumption under this Explanation should take effect, it is necessary
that the accused should be a prostitute or should be keeping or managing a brothel at
the time he or she obtains possession of a girl.1169.
[s 373.3] 'Person under the age of eighteen years with intent that such person
shall at any age be employed or used for the purpose of prostitution or illicit
intercourse with any person, etc.'—
The age-limit was raised to 18 years by Act V of 1924.
The introduction of the words 'at any age' indicates that the offence is committed even
if the employment of the person for immoral purpose is to take place after the
completion of eighteen years, that is, at any time.
The words 'illicit intercourse' are explained in Explanation 2 to section 372. See

comment on section 372.

[s 374] Unlawful compulsory labour.
Whoever unlawfully compels any person to labour against the will of that person, shall
1170.  Madan Mohan Biswas, (1892) 19 Cal 572 .
1171.  State of Gujarat v Hon'ble High Court of Gujarat, 1998 Cr LJ 4561 : AIR 1998 SC 3164
[LNIND 1998 SC 920] .
COMMENT.—
This section is intended to put a stop to the practice of forced labour. It requires—
(1) Unlawful compulsion of any person.
(2) The unlawful compulsion must be to labour against the will of that person.
This section is aimed at the abuses arising from forced labour which ryots were in
former times compelled to render to great landholders.
Where the accused induced the complainants who, he alleged, were indebted to him in

various sums of money, to consent to live on his premises and to work off their debts
and the complainants were to, and did in fact, receive no pay, but were fed by the
accused as his servants, and he insisted on their working for him, and punished them
by beating them if they did not do so, it was held that he was not guilty under this
section though his act came within section 352.1170.
Imposition of hard labour on persons undergoing imprisonment is legal. They can be
compelled to do hard labour.1171.

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1173. Subs. by the Criminal Law (Amendment) Act, 2013 (13
of 2013), section 9 (w.e.f. 3 February 2013). Prior to substitution by section 9 of the Criminal Law
(Amendment) Act, 2013 (w.e.f. 3 February 2013), section 375 stood as: [s 375] Rape.—A man is said to
commit “rape” who, except in the case hereinafter excepted, has sexual intercourse with a woman under
circumstances falling under any of the six following descriptions:— First.—Against her will. Secondly.—
Without her consent. Thirdly.—With her consent, when her consent has been obtained by putting her or any
person in whom she is interested in fear of death or of hurt. Fourthly.—With her consent, when the man
knows that he is not her husband, and that her consent is given because she believes that he is another
man to whom she is or believes herself to be lawfully married. Fifthly.—With her consent, when, at the time

of giving such consent, by reason of unsoundness of mind or intoxication or the administration by him
personally or through another of any stupefying or unwholesome substance, she is unable to understand
the nature and consequences of that to which she gives consent. Sixthly.—With or without her consent,
when she is under sixteen years of age. Explanation.—Penetration is suﬃcient to constitute the sexual
intercourse necessary to the offence of rape. Exception.—Sexual intercourse by a man with his own wife,
the wife not being under ﬁfteen years of age, is not rape. State Amendments Manipur.—The following
amendments were made by Act 30 of 1950 (prior to Act 43 of 1983). (a) in clause ﬁfthly for the word

“sixteen” substitute the word “fourteen” and (b) in the Exception, for the word “ﬁfteen” substitute the word
“thirteen”. [s 375] Rape.
 
1172.[Sexual Offences]
1173.[s 375] Rape.
A man is said to commit "rape" if he —
(a) penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a
woman or makes her to do so with him or any other person; or
(b) inserts, to any extent, any object or a part of the body, not being the penis, into
the vagina, the urethra or anus of a woman or makes her to do so with him or
any other person; or
(c) manipulates any part of the body of a woman so as to cause penetration into
the vagina, urethra, anus or any part of body of such woman or makes her do
so with him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do
so with him or any other person;
under the circumstances falling under any of the following seven descriptions:
—
First.—Against her will.
Secondly.—Without her consent.

—
Thirdly.—With her consent, when her consent has been obtained by putting her
or any person in whom she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband
and that her consent is given because she believes that he is another man to
whom she is or believes herself to be lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, by reason
of unsoundness of mind or intoxication or the administration by him personally
or through another of any stupefying or unwholesome substance, she is unable
to understand the nature and consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.

Explanation 1.—For the purposes of this section, "vagina" shall also include
labia majora.

Explanation 2.—Consent means an unequivocal voluntary agreement when the
woman by words, gestures or any form of verbal or non-verbal communication,
communicates willingness to participate in the speciﬁc sexual act:
Provided that a woman who does not physically resist to the act of penetration
shall not by the reason only of that fact, be regarded as consenting to the
sexual activity.
Exception 1.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the
wife not being under ﬁfteen years of age, is not rape.]
The chapter sub-heading itself was changed from 'Of rape' to 'Sexual Offences' by Act
43 of 1983. The deﬁnition of rape has undergone a major change in admitting non-
penile penetration also but it continues to be gender-speciﬁc as committed against a
female. Earlier, a public interest litigation in Sakshi v UOI,1174. seeking for a declaration

to treat non-penile penetration also to be treated as rape failed when the Supreme
Court declined the relief but the Court's exhortation to alter the deﬁnition paved way for
the change of law.
[s 375.1] The Criminal Law (Amendment) Act, 2013
Based on the recommendations made by the Justice Verma Committee, the Criminal
Law (Amendment) Act, 2013, came into force with effect from 3 February 2013. The
Criminal Law (Amendment) Act, 2013 made amendments to the Cr PC, 1973, Indian
Evidence Act, 1872 and the IPC, 1860. The Criminal Law (Amendment) Act, 2013
expanded the deﬁnition of rape and substituted new sections for old sections such as
sections 370, 375, 376, 376A, 376B, 376C and 376D. The Criminal Law (Amendment)
Act, 2013 also amended existing sections as well as created new offences in the IPC,
1860, such as:

• Public servant disobeying direction under law (section 166A)
• Punishment for non-treatment of victim (section 166B)
• Voluntarily causing grievous hurt by use of acid, etc. (section 326A)
• Voluntarily throwing or attempting to throw acid (section 326B)
• Sexual harassment and punishment for sexual harassment (section 354A)
• Assault or use of criminal force to woman with intent to disrobe (section 354B)
• Voyeurism (section 354C)
• Stalking (section 354D)
• Punishment for repeat offenders (section 376E)
The altered deﬁnition increasing the age of consent to 18 is also signiﬁcant for it
makes any form of penetration as set out under the section with any girl less than 18
years of age to constitute rape. In a matrimonial setting, it would not have resulted in

rape if the woman was still less than 18 and above 15 so long as there was consent by
virtue of Exception 2 contained in the section. But the decision of the Supreme Court in

Independent Thought v UOI,1175. has held the provision to be unconstitutional in so far it
relates to girl between ages 15 to 18. Now the Exception 2 has to be read as 'Sexual
intercourse or sexual acts by a man with his own wife, the wife not being under
eighteen years of age is not rape'.
Rape is violative of victim's fundamental right under Article 21 of the Constitution. It is
the most morally and physically reprehensible crime in a society, as it is an assault on
the body, mind and privacy of the victim. While a murderer destroys the physical frame
of the victim, a rapist degrades and deﬁles the soul of a helpless female. Rape reduces
a woman to an animal, as it shakes the very core of her life. By no means can a rape
victim be called an accomplice. Rape leaves a permanent scar on the life of the victim,
and therefore a rape victim is placed on a higher pedestal than an injured witness. Rape
is a crime against the entire society and violates the human rights of the victim. Being

the most hated crime, rape tantamounts to a serious blow to the supreme honour of a
woman, and offends both, her esteem and dignity. It causes psychological and physical
harm to the victim, leaving upon her indelible marks.1176.
[s 375.2] First clause—Against her will.—In a case decided prior to the enactment of
the Criminal Law (Amendment) Act, 2013,
the prosecutrix stated that ﬁrst offending act was done despite her resistance but
subsequently she became a consenting party because of repeated promises of
marriage. In the FIR she stated that she surrendered before him even at the time of the
ﬁrst act because of the promises of marriage. The Court held that her version was not
reliable and found that the charge against the accused did not stand established.1177.
[s 375.3] Second clause—Without consent.—

It must be said that now in a custodial rape if the girl says that she did not give
consent, the Court shall presume that she did not consent1178. (vide section 114A
Indian Evidence Act, 1872).
[s 375.4] Consent on promise of marriage.—
Consent may be express or implied, coerced or misguided, obtained willingly or through
deceit. Consent is an act of reason, accompanied by deliberation, the mind weighing,
as in a balance, the good and evil on each side. There is a clear distinction between
rape and consensual sex and the Court must very carefully examine whether the
accused had actually wanted to marry the victim, or had mala ﬁde motive, and had

the consent involved was given after wholly understanding the nature and

that he had clandestine motives.1179. Where a man and woman were living together,
sometimes at her house and sometimes at the residence of the man and when the
evidence suggested that it was not a case of a passive submission in the face of any
psychological pressure exerted and there was a tacit consent not borne out of any
misconception created in her mind, complaint under this section will be untenable.1180.
In the event that the accused's promise is not false and has not been made with the

sole intention to seduce the prosecutrix to indulge in sexual acts, such an act(s) would
not amount to rape. Thus, the same would only hold that the prosecutrix, under a
misconception of fact to the extent that the accused is likely to marry her, submits to
the lust of the accused, such a fraudulent act cannot be said to be consensual, so far
as the offence of the accused is concerned.1181.
[s 375.5] Consent.—Meaning.—
IPC, 1860 does not deﬁne consent in positive terms. But what cannot be regarded as
consent is explained by section 90 which reads as 'consent given ﬁrst under fear of
injury and second under a misconception of fact is not consent at all'. There are two
grounds speciﬁed in section 90 which are analogous to coercion and mistake of fact.
The factors set out in ﬁrst part of section 90 are from the point of view of the victim
and second part of section 90 enacts the corresponding provision from the point of
view of the accused. It envisages that the accused has knowledge or has reason to

believe that the consent was given by the victim in consequence of fear of injury or
misconception of fact. Thus, the second part lays emphasis on the knowledge or
reasonable belief of the person who obtains the tainted consent. The requirements of
both the parts should be cumulatively satisﬁed. In other words, the Court has to see
whether the person giving the consent has given it under fear or misconception of fact
and the Court should also be satisﬁed that the person doing the act, i.e., the alleged
offender is conscious of the fact or should have reason to think that but for the fear or
misconception, the consent would not have been given. This is the scheme of section
90 which is couched in negative terminology. As observed in Deelip Singh @ Dilip Kumar
v State of Bihar,1182. section 90 cannot be considered as an exhaustive deﬁnition of

consent for the purposes of IPC, 1860. The normal connotation and concept of consent
is not intended to be excluded.1183. Submission of the body under the fear or terror
cannot be construed as a consented sexual act. Consent for the purpose of section
375 requires voluntary participation not only after the exercise of intelligence based on
the knowledge of the signiﬁcance and moral quality of the act but after having fully
exercised the choice between resistance and assent. Whether there was consent or
not, is to be ascertained only on a careful study of all relevant circumstances.1184. The
consent does not merely mean hesitation or reluctance or a 'No' to any sexual
advances but has to be an aﬃrmative one in clear terms. Consent has to be
categorical, unequivocal, voluntary and could be given by words, gestures or any form

of verbal or non-verbal communication signifying willingness to participate in speciﬁc
sexual act. Woman who does not physically resist act of rape shall not by that reason
only be regarded as having consented to such sexual activity. In normal parlance,
consent would mean voluntary agreement of complainant to engage in sexual activity
without being abused or exploited by coercion or threats. Normal rule is that consent
has to be given and it cannot be assumed.1185.
[s 375.6] Section 114A of Indian Evidence Act, 1872.—
India Evidence Act, 1872 was amended by the Criminal Law Amendment Act, 1983 and
section 114A was incorporated which imposed the burden of proving "consent" upon
the accused in the cases of aggravated rape. This was an exception of the general rule
of presumption of innocence of the accused. By the Criminal Law Amendment Act,

2013 the old section was substituted on the recommendation of Justice Verma
Commission which reads as a follows;—
[114A] Presumption as to absence of consent in certain prosecution for rape
In a prosecution for rape under clause(a), clause(b), clause(c), clause(d), clause(e), clause(f),
clause(g), clause(g), clause(h), clause(i), clause(j), clause(k), clause(l), clause(m), clause(n), of
sub-section (2) of section 376, where sexual intercourse by the accused is proved and the
question is whether it was without the consent of the woman alleged to have been raped and
such woman states in her evidence before the Court that she did not consent, the Court shall
presume that she or he did not consent.

Explanation.—In this section "sexual intercourse" shall mean any of the acts mentioned in
clauses (a) to (c) of section 375 of the Indian Penal Code
[s 375.7] Will and Consent.—
In Dileep Singh v State of Bihar,1186. the Supreme Court observed that:
though will and consent often interlace and an act done against the will of the person can
be said to be an act done without consent, the Indian Penal Code categorizes these two
expressions under separate heads in order to be as comprehensive as possible.
In the facts of the case what is crucial to be considered is whether ﬁrst clause or
second clause of section 375 IPC, 1860 is attracted. The expressions 'against her will'
and 'without her consent' may overlap sometimes but surely the two expressions in
ﬁrst and second clause have different connotation and dimension. The expression
'against her will' would ordinarily mean that the intercourse was done by a man with a
woman despite her resistance and opposition. On the other hand, the expression

'without her consent' would comprehend an act of reason accompanied by
deliberation.1187.
Supreme Court Guidelines to Prevent Child Sexual Abuse
(1) The persons in charge of the schools/educational institutions, special homes,
children homes, shelter homes, hostels, remand homes, jails, etc., or wherever children
are housed, if they come across instances of sexual abuse or assault on a minor child
which they believe to have committed or come to know that they are being sexually
molested or assaulted are directed to report those facts keeping upmost secrecy to the
nearest SJPU or local police, and they, depending upon the gravity of the complaint and
its genuineness, take appropriate follow up action casting no stigma to the child or to
the family members.
(2) Media personals, persons in charge of Hotel, lodge, hospital, clubs, studios,

photograph facilities have to duly comply with the provision of section 20 of the Act 32
of 2012 and provide information to the SJPU, or local police. Media has to strictly
comply with section 23 of the Act as well.
(3) Children with intellectual disability are more vulnerable to physical, sexual and
emotional abuse. Institutions which house them or persons in care and protection,
come across any act of sexual abuse, have a duty to bring to the notice of the Juvenile
Justice Board/SJPU or local police and they in turn be in touch with the competent
authority and take appropriate action.
(4) Further, it is made clear that if the perpetrator of the crime is a family member
himself, then utmost care be taken and further action be taken in consultation with the

mother or other female members of the family of the child, bearing in mind the fact that
best interest of the child is of paramount consideration.
(5) Hospitals, whether Government or privately-owned or medical institutions where
children are being treated come to know that children admitted are subjected to sexual
abuse, the same will immediately be reported to the nearest JJ Board/SJPU and the JJ
Board, in consultation with SJPU, should take appropriate steps in accordance with the
law safeguarding the interest of child.
(6) The non-reporting of the crime by anybody, after having come to know that a minor
child below the age of 18 years was subjected to any sexual assault, is a serious crime
and by not reporting they are screening offenders from legal punishment and hence be

held liable under the ordinary criminal law and prompt action be taken against them, in
accordance with law.

(7) Complaints, if any, received by NCPCR, SCPCR, Child Welfare Committee (CWC) and
Child Helpline, NGO's or Women's Organizations, etc., they may take further follow up
action in consultation with the nearest JJ Board, SJPU or local police in accordance
with law.
(8) The Central Government and the State Governments are directed to constitute
SJPUs in all the Districts, if not already constituted and they have to take prompt and
effective action in consultation with JJ Board to take care of child and protect the child
and also take appropriate steps against the perpetrator of the crime.
(9) The Central Government and every State Government should take all measures as
provided under section 43 of the The Protection of Children from Sexual Offences Act,
2012 (Act 32/2012) to give wide publicity of the provisions of the Act through media
including television, radio and print media, at regular intervals, to make the general
public, children as well as their parents and guardians, aware of the provisions of the

Act.
[Shankar Kisanrao Khade v State of Maharashtra.1188.]
[s 375.8] Consent of woman of Scheduled Caste or Tribe.—
In Re Director General of Prosecution,1189. it was held that the consent given by a
woman of Scheduled Castes or Scheduled Tribe community for sexual intercourse to
one who was in a position to dominate her was no defence to a charge under section
375.
The Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989
speciﬁed the sessions Court as a special Court under the Act. It was held that the trial
of the offence of rape by such a Court was not without jurisdiction. The sessions Court
remained the same Court even after its speciﬁcation as a special Court. Setting aside
of conviction on the technical ground of want of jurisdiction which was raised after the
trial was over was not proper.1190.

[s 375.9] No consent.—
Where physical contact with the accused in the nature of a kiss or a hug was being
accepted by the prosecutrix without any protest, such past conduct will deﬁnitely not
amount to consent as for every sexual act, every time, consent is a must.1191. Where
the accused took away the prosecutrix to offer prayers to a deity, stayed in a
'dharamshala' for the night and had sex with her threatening her that the police were
nearby, it was held that the prosecutrix could not be described as an accomplice merely
because she did not raise alarm and the accused was liable to be convicted under
section 376.1192.
Where a blind helpless young girl was raped by the accused, it was held that expression
"consent" cannot be equated to inability to resist out of helplessness and absence of
injuries on the victim also does not by itself amount to consent by her.1193. Section

375, as amended by the Criminal Law (Amendment) Act, 2013, lays down a woman
who does not physically resist to the act of penetration shall not by the reason only of
that fact, be regarded as consenting to the sexual activity.
[s 375.10] Third and Fourth clauses—Passive non-resistance or consent obtained by
fraud.—
If a girl does not resist intercourse in consequence of misapprehension this does not
amount to a consent on her part. Where a medical man, to whom a girl of fourteen
years of age was sent for professional advice, had criminal connection with her, she
making no resistance from a bona ﬁde belief that he was treating her medically, it was

held that he was guilty of rape.1194. The submission of her body by the prosecutrix
under fear or terror, cannot be construed as a consented sexual act. The Supreme
Court said in this case that the fact of consent is to be ascertained only on careful
study of all the relevant circumstances.1195.
[s 375.11] Husband and wife.—
Clause 4 deals with a rapist who knows that he is not his victim's husband and also
knows that her consent is given because she believes that he is another man to whom
she is or believes herself to be lawfully married. In a case because of matrimonial
diﬃculties the wife left the matrimonial home and returned to live with her parents
informing the husband of her intention to petition for divorce. While the wife was so
staying at her parents' house, the husband forced his way in and attempted to have
sexual intercourse with her in the course of which he assaulted her. His conviction for
attempted rape and assault occasioning actual bodily harm was upheld.1196.
[s 375.12] Void marriage.—

Where the marriage with the complainant was void because the accused was already
married and had a living spouse, of which fact was known to the complainant, he was
held to be guilty of rape.1197.
[s 375.13] Pregnant woman.—
Stringent punishment has been provided for commission of rape on a woman known to
the culprit to be pregnant. It is, therefore, necessary knowledge of the accused should
be established by evidence.1198.
[s 375.14] Fifth clause—Sexual intercourse with idiot or drunken person.—
Where a man had carnal knowledge of a girl of imbecile mind, and the jury found that it
was without her consent, she being incapable of giving consent from defect of
understanding, it was held that this amounted to rape. Where the accused made a

woman quite drunk, and whilst she was insensible violated her person, it was held that
this offence was committed.1199. These cases will now fall within the mischief of the
ﬁfth clause to section 375, IPC, 1860.
[s 375.15] Exception 2.—
The age limit was raised to 15 years by an amendment of the Act in 1949.
There may be cases in which the check of the law may be necessary to restrain men
from taking advantage of their marital rights prematurely. Instances of abuse by the
husband in such cases will fall under this clause.
[s 375.16] Section 375, Exception 2—Constitutional validity
In Independent Thought v UOI,1200. the Supreme Court held that sexual intercourse with
girl below 18 years of age is rape regardless of whether she is married or not. The
Court held that Exception 2 creates unnecessary and artiﬁcial distinction between

married girl child and unmarried girl child and has no rational nexus with any unclear
objective sought to be achieved. This artiﬁcial distinction is contrary to philosophy and
ethos of Article 15(3) of Constitution as well as contrary to Article 21 of Constitution. It
is also contrary to philosophy behind some statutes, bodily integrity of girl child and her
reproductive choice. It is inconsistent with provisions of POCSO, which must prevail.
The Supreme Court held that Exception 2 to section 375, IPC, 1860 insofar as it relates
to girl child below 18 years is liable to be struck down and is to read down as, "Sexual

1172.  Subs. by Act 43 of 1983, section 3, for the heading "Of rape" (w.e.f. 25 December 1983).
1173.  Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 9 (w.e.f. 3
February 2013). Prior to substitution by section 9 of the Criminal Law (Amendment) Act, 2013
(w.e.f. 3 February 2013), section 375 stood as:
[s 375] Rape.—A man is said to commit "rape" who, except in the case hereinafter excepted, has
sexual intercourse with a woman under circumstances falling under any of the six following
descriptions:—
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in
whom she is interested in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband, and that her
consent is given because she believes that he is another man to whom she is or believes herself
to be lawfully married.

Fifthly.—With her consent, when, at the time of giving such consent, by reason of unsoundness
of mind or intoxication or the administration by him personally or through another of any
stupefying or unwholesome substance, she is unable to understand the nature and
consequences of that to which she gives consent.
Sixthly.—With or without her consent, when she is under sixteen years of age.
Explanation.—Penetration is suﬃcient to constitute the sexual intercourse necessary to the
offence of rape.
intercourse or sexual acts by man with his own wife, wife not being 18 years, is not
rape".
[s 375.17] Attempt.—
Where the accused dragged the prosecutrix from a canal to the thrashing ground,
disrobed her and made her to lie down and attempted to rape her, it was held that it
was not a mere preparation but an attempt to commit rape.1201. It has been held that

intention or expression or even an indecent assault upon a woman does not amount to
attempt to rape unless the determination of the accused to gratify his passion at all
events and in spite of resistance is established.1202.
[s 375.18] Indecent assault is not attempt to commit rape.—
Indecent assault upon a woman does not amount to an attempt to commit rape, unless
the Court is satisﬁed that there was a determination in the accused to gratify his
passion at all events, and in spite of all resistance.1203.

Exception.—Sexual intercourse by a man with his own wife, the wife not being under ﬁfteen
years of age, is not rape.
Manipur.—The following amendments were made by Act 30 of 1950 (prior to Act 43 of 1983).
(a) in clause ﬁfthly for the word "sixteen" substitute the word "fourteen" and
(b) in the Exception, for the word "ﬁfteen" substitute the word "thirteen".
1174.  Sakshi v UOI, AIR 2004 SC 3566 [LNIND 2004 SC 657] .
1175.  Independent Thought v UOI, AIR 2017 SC 4904 .
1176.  Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : (2013) 7 SCC
675 [LNIND 2013 SC 533] .
1177.  Deelip Singh v State of Bihar, (2005) 1 SCC 88 [LNIND 2004 SC 1123] : AIR 2005 SC 203
1178.  Fletcher, (1859) 8 Cox 131. Sohan Singh v State of Rajasthan, 1998 Cr LJ 2618 (Raj), the
prosecutrix fell prey to persons dealing in ﬂesh trade. Passing through several hands she was
ultimately purchased by the accused. The fact that she had given consent at the starting point

of the chain did not ensure for the beneﬁt of the accused. She ran away from the hands of the
accused. Her testimony was considered to be fully reliable for the purpose of convicting the
accused. Shiv Nath v State of MP, 1998 Cr LJ 2691 (MP), statements and letters to the accused
of the prosecutrix showed her consent. No conviction.
1179.  Deepak Gulati v State of Haryana, AIR 2013 SC 2071 [LNIND 2013 SC 533] : (2013) 7 SCC
1180.  Dhruvaram Murlidhar Sonar v State of Maharashtra, 2019 (1) Scale 64 .
1181.  Uday v State of Karnataka, AIR 2003 SC 1639 [LNIND 2003 SC 228] ; Yedla Srinivasa Rao v
State of AP, 2006 (11) SCC 615 [LNIND 2006 SC 785] ; Pradeep Kumar Verma v State of Bihar, AIR
2007 SC 3059 [LNIND 2007 SC 965] .

1182.  Deelip Singh @ Dilip Kumar v State of Bihar, 2005 (1) SCC 88 [LNIND 2004 SC 1123] .
1183.  Pradeep Kumar Verma v State of Bihar, AIR 2007 SC 3059 [LNIND 2007 SC 965] .
1184.  State of HP v Mange Ram, AIR 2000 SC 2798 [LNIND 2000 SC 1144] ; Uday v State of
Karnataka, AIR 2003 SC 1639 [LNIND 2003 SC 228] .
1185.  Mahmood Farooqui v State, 2018 Cr LJ 3457 (Del).
1186.  Dileep Singh v State of Bihar, (2005) 1 SCC 88 [LNIND 2004 SC 1123] .
1187.  State of UP v Chhteyal, AIR 2011 SC 697 [LNIND 2011 SC 73] : (2011) 2 SCC 550 [LNIND
2011 SC 73] .
1188.  Shankar Kisanrao Khade v State of Maharashtra, (2013)5 SCC 546 [LNIND 2013 SC 429] :
2013 (6) Scale 277 [LNIND 2013 SC 429] : 2013 Cr LJ 2595 .
1189.  Re Director General of Prosecution, 1993 Cr LJ 760 (Ker).
1190.  State of HP v Gita Ram, AIR 2000 SC 2940 [LNIND 2000 SC 1209] : 2000 Cr LJ 4039 .

1191.  Mahmood Farooqui v State, 2018 Cr LJ 3457 (Del).
1192.  State of Orissa v Gangadhar Behuria, 1992 Cr LJ 3814 (Ori). Dayaram v State of MP, 1992
Cr LJ 3154 (MP), the accused took away a minor girl pretending that he would marry her and
instead subjected her to sex without consent, conviction under section 376 (1) and not under
section 376 as such.
1193.  Rabinarayan Das v State of Orissa, 1992 Cr LJ 269 (Ori).
1194.  William's Case, (1850) 4 Cox 220.

1195.  State of HP v Mange Ram, AIR 2000 SC 2798 [LNIND 2000 SC 1144] : 2000 Cr LJ 4027 .
1196.  Reg v R, 3 WLR 767 (HL).
1197.  Bhupinder Singh v UT of Chandigarh, (2008) 8 SCC 531 [LNIND 2008 SC 1375] : 2008 Cr LJ
3546 , the Supreme Court refused to interfere.
1198.  Om Prakash v State of UP, 2006 Cr LJ 2913 : AIR 2006 SC 2214 [LNIND 2006 SC 382] :
(2006) 9 SCC 787 [LNIND 2006 SC 382] , the suggestion of false accusation was not accepted
because there was no apparent for the married woman to do so. The sentence was reduced
from 10 to seven years.
1199.  Camplin, (1845) 1 Cox 220.
1200.  Writ Petition (Civil) No. 382 of 2013 decided by Supreme Court on 11 October 2017.
1201.  Fagnu Bhoi v State of Orissa, 1992 Cr LJ 1808 (Ori).
1202.  Kandarpa Thakuria v State of Assam, 1992 Cr LJ 3084 (Gau).
1203.  Shankar, (1881) 5 Bom 403; Rameswar, 1984 Cr LJ 786 (Raj). State of MP v Udhe Lal, 1996
Cr LJ 3202 (MP), attempt proved by the statements of the prosecutrix and corroboration,

acquittal only on the ground that there were minor variations in her statements was held to be
not proper, sixteen years had passed, sentence of two years RI and ﬁne of Rs. 5000 was held to
be suﬃcient. R v C, 1992 Cr LR 642 (CA), self-induced intoxication was held to be no defence to
the charge of indecent assault on a child by inserting his ﬁngers into her vagina.

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1204. Subs. by the Criminal Law (Amendment) Act, 2013 (13
of 2013), section 9 (w.e.f. 3 February 2013). Earlier section 376 was substituted by Act 43 of 1983, section
3 (w.e.f. 25 December 1983). Section 376, before substitution by Act 13 of 2013, stood as under: [s 376]
Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2), commits rape shall
be punished with imprisonment of either description for a term which shall not be less than seven years but
which may be for life or for a term which may extend to ten years and shall also be liable to ﬁne unless the
women raped is his own wife and is not under twelve years of age, in which cases, he shall be punished
with imprisonment of either description for a term which may extend to two years or with ﬁne or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment, impose a

sentence of imprisonment for a term of less than seven years. (2) Whoever,— (a) being a police oﬃcer
commits rape— (i) within the limits of the police station to which he is appointed; or (ii) in the premises of
any station house whether or not situated in the police station to which he is appointed; or (iii) on a woman
in his custody or in the custody of a police oﬃcer subordinate to him; or (b) being a public servant, takes
advantage of his oﬃcial position and commits rape on a woman in his custody as such public servant or in
the custody of a public servant subordinate to him; or (c) being on the management or on the staff of a jail,
remand home or other place of custody established by or under any law for the time being in force or of a
woman’s or children’s institution takes advantage of his oﬃcial position and commits rape on any inmate

of such jail, remand home, place or institution; or (d) being on the management or on the staff of a hospital,
takes advantage of his oﬃcial position and commits rape on a woman in that hospital; or (e) commits rape
on a woman knowing her to be pregnant; or (f) commits rape on a woman when she is under twelve years
of age; or (g) commits gang rape, shall be punished with rigorous imprisonment for a term which shall not
be less than ten years but which may be for life and shall also be liable to ﬁne: Provided that the Court may,
for adequate and special reasons to be mentioned in the judgment, impose a sentence of imprisonment of
either description for a term of less than ten years. Explanation 1.—Where a woman is raped by one or
more in a group of persons acting in furtherance of their common intention, each of the persons shall be
deemed to have committed gang rape within the meaning of this sub-section. Explanation 2.—“Women’s or

children’s institution” means an institution, whether called an orphanage or a home for neglected women or
children or a widows’ home or by any other name, which is established and maintained for the reception
and care of woman or children. Explanation 3.—“Hospital” means the precincts of the hospital and includes
the precincts of any institution for the reception and treatment of persons during convalescence or of
persons requiring medical attention or rehabilitation. [s 376] Punishment for rape.—
 
1204.[s 376] Punishment for rape.—
(1) Whoever, except in the cases provided for in sub-section (2), commits rape, shall
be punished with rigorous imprisonment of either description for a term which
1205.[shall not be less than ten years, but which may extend to imprisonment for
life, and shall also be liable to ﬁne].
(2) Whoever,—
(a) being a police oﬃcer, commits rape—
(i) within the limits of the police station to which such police oﬃcer is
appointed; or
(ii) in the premises of any station house; or
(iii) on a woman in such police oﬃcer's custody or in the custody of a
police
oﬃcer subordinate to such police oﬃcer; or
(b) being a public servant, commits rape on a woman in such public
servant's custody or in the custody of a public servant subordinate to
such public servant; or
(c) being a member of the armed forces deployed in area by the Central or a

State Government commits rape in such area; or
(d) being on the management or on the staff of a jail, remand home or other
place of custody established by or under any law for the time being in
force or of a women's or children's institution, commits rape on any
inmate of such jail, remand home, place or institution; or
(e) being on the management or on the staff of a hospital, commits rape on
a woman in that hospital; or
(f) being a relative, guardian or teacher of, or a person in a position of trust
or authority towards the woman, commits rape on such woman; or
(g) commits rape during communal or sectarian violence; or
(h) commits rape on a woman knowing her to be pregnant; or 1206.[* * *]
(j) commits rape, on a woman incapable of giving consent; or
(k) being in a position of control or dominance over a woman, commits rape

on such woman; or
(l) commits rape on a woman suffering from mental or physical disability; or

(m) while committing rape causes grievous bodily harm or maims or
disﬁgures or endangers the life of a woman; or
(n) commits rape repeatedly on the same woman,
shall be punished with rigorous imprisonment for a term which shall not
be less than ten years, but which may extend to imprisonment for life,
which shall mean imprisonment for the remainder of that person's natural
life, and shall also be liable to ﬁne.
Explanation.—For the purposes of this sub-section,—
(a) "armed forces" means the naval, military and air forces and includes any
member of the Armed Forces constituted under any law for the time
being in force, including the paramilitary forces and any auxiliary forces
that are under the control of the Central Government or the State
Government;
(b) "hospital" means the precincts of the hospital and includes the precincts
of any institution for the reception and treatment of persons during
convalescence or of persons requiring medical attention or rehabilitation;

(c) "police oﬃcer" shall have the same meaning as assigned to the
expression "police" under the Police Act, 1861 (5 of 1861);
(d) "women's or children's institution" means an institution, whether called an
orphanage or a home for neglected women or children or a widow's
home or an institution called by any other name, which is established and
maintained for the reception and care of women or children.]
1207.[(3) Whoever, commits rape on a woman under sixteen years of age shall be
punished with rigorous imprisonment for a term which shall not be less
than twenty years, but which may extend to imprisonment for life, which
shall also be liable to ﬁne:
Provided that such ﬁne shall be just and reasonable to meet the medical
expenses and rehabilitation of the victim:

Provided further that any ﬁne imposed under this sub-section shall be paid
to the victim.
COMMENT.—
Criminal Law (Amendment) Act, 1983 (Mathura Act).—Acquittal of policemen in the
infamous Mathura Rape Case1208. and the nationwide protest against the verdict led to
the 1983 Amendments to the Rape Laws in India. Sections 375 and 376, IPC, 1860 had
been substantially changed by the Criminal Law (Amendment) Act, 1983 (Act 43 of
1983). The same Act also introduced several new sections, viz., sections 376A, 376B,
376C and 376D, IPC, 1860. Of these, section 376A punished sexual intercourse with
wife without her consent by a judicially separated husband, section 376B punished
sexual intercourse by a public servant with woman in his custody, section 376C
punished sexual intercourse by Superintendent of Jail, Remand Home, etc., with

inmates in such institutions and section 376D punished sexual intercourse by any
member of the management or staff of a hospital with any woman in that hospital.
These new sections were introduced with a view to stop sexual abuses of women in

custody, care and control by various categories of persons which though not
amounting to rape were nevertheless considered highly reprehensible. The amended
section 376 IPC, 1860 prescribed a minimum punishment of seven years'
imprisonment for the offence of rape. For combating the vice of custodial rape, rape on
pregnant woman, rape on girls under 12 years of age and gang rape a minimum
punishment of 10 years' imprisonment had been made obligatory. However, for special
reasons to be recorded in the judgment the Court in either case could impose a
sentence lesser than seven or 10 years, as the case may be.
A further improvement in the law relating to sexual offences could be found in the
provisions of section 228A IPC, 1860, section 327(2) Cr PC, 1973 and section 114A
Indian Evidence Act, 1872 which were introduced by the Criminal Law (Amendment)
Act, 1983. New provisions for trial in camera (section 327(2) Cr PC, 1973) and against

disclosure as to identity of the victims of sexual offences as in sections 376, 376A,
376B, 376C and 376D, IPC, 1860 (section 228, IPC, 1860) were not only to protect the
honour of sexually-victimised women but also made it possible for them to depose in
Court without any fear of social ostracism. And section 114A Indian Evidence Act, 1872
by raising a presumption as to absence of consent in cases of custodial rape, rape on
pregnant women and gang rape as in clauses (a), (b), (c), (d), (e) and (g) of sub-section
(2) of section 376, IPC, 1860 merely on the evidence of the ravished women had, at
least partially, removed the inﬁrmity from the evidence of a victim of rape that was
hitherto unjustly attached to her testimony without taking note of the fact that in India,

a disclosure of this nature was likely to ruin the prospect of the girl's rehabilitation in
society for all times to come and unless her story was painfully true she would not
have taken such a grave risk merely to malign the accused.1209. Moreover, in cases of
rape, particularly custodial rape it was almost impossible to get any other independent
evidence to corroborate the testimony of the prosecutrix.
It has been held that the result of the Amendment of 1983 is that the offences listed in
section 376(2) are graver in nature and therefore, it is necessary that the charge under
the sub-section should be distinctly recorded and also reasons for conviction should be
recorded.1210.
[s 376.1]Criminal Law (Amendment) Act, 13 of 2013 (w.e.f. 2 March 2013) (post
Nirbhaya):

After a violent incident of a gang rape of a woman in the capital city of Delhi in 2012,
bowing to public outrage, Verma Committee had been set up whose recommendations
gave place to important changes in law relating to rape. Some recommendations, viz.,
not to increase the age of consent to 18 from 16, as it stood before; introduction of
matrimonial rape; non-requirement of sanction for prosecution of armed personnel
were not accepted but the law changed as regards against consent by introducing
section 114A of the Indian Evidence Act, 1872 barring questions in cross-examination
of the victim about the previous sexual experience or immoral character and also
making the issue of previous sexual experience as irrelevant, and certain other

procedural aspects in Cr PC, 1973 inter alia, relating to investigation by woman police
oﬃcers, video recording of statements before magistrates, time limit for completing of
enquiry, requirement of trial proceedings in camera, etc.
[s 376.1.1] No death for rape.—
Respecting the demand from many quarters, the Verma committee reacted as:
In our considered view, taking into account the views expressed on the subject by an
overwhelming majority of scholars, leaders of women's organisations, and other
stakeholders, there is a strong submission that the seeking of death penalty would be a
regressive step in the ﬁeld of sentencing and reformation. We, having bestowed
considerable thought on the subject, and having provided for enhanced sentences (short of
death) in respect of the above-noted aggravated forms of sexual assault, in the larger

interests of society, and having regard to the current thinking in favour of abolition of the
death penalty, and also to avoid the argument of any sentencing arbitrariness, we are not
inclined to recommend the death penalty.
[s 376.1.2] Chemical Castration.—
Rejecting the proposal of Chemical Castration as a punishment for rape Committee
observed:
We note that it would be unconstitutional and inconsistent with basic human rights treaties
for the state to expose any citizen without their consent to potentially dangerous medical
side-effects. For this reason, we do not recommend mandatory chemical castration of any
type as a punishment for sex offenders.
[s 376.2] Criminal Law (Amendment) Act, 2018 (w.e.f. 21 April 2018).
After public outrage against a suspected gang rape and murder of a girl aged eight in
Rasana village near Kathua in the State of Jammu and Kashmir, the Criminal Law
(Amendment) Act, 2018 amended Chapter XVI of the IPC, 1860 to provide for stringent

punishment for perpetrators of rape particularly of girls below 12 and 16 years. Rape
on a woman under 12 years of age is now made punishable with rigorous
imprisonment for a term which shall not be less than 20 years, but which may extend to
imprisonment for life, and with ﬁne or with death. Gang rape on a woman under 12
years of age is now made punishable with imprisonment for life, and with ﬁne, or with
death. Rape of girls below the age of 16 years is punishable with imprisonment of 20
years or life imprisonment. The imprisonment for life shall mean imprisonment for the
remainder of that person's natural life. The minimum punishment for rape of girl above
the age of 16 is 10 years.
Section 376 is not gender neutral and sexual abuse of minor boys does not come
within its purview. The punishment under Protection of Children from Sexual Offences

(POCSO) Act, 2012 continues to be 10 years to life imprisonment for offences against
boys below 12 and seven years to life imprisonment for offences against boys above
12 to 18.
The law amends the Cr PC, 1973 mandating the completing of investigation from the
existing provision of three months to two months. The Act also bars anticipatory bail in
cases of rape of minor girls below 16 years of age. Any appeal against sentence of
rape shall be disposed of within six months.
[s 376.3] Medical Examination of accused and victim.—
In cases of rape or attempted rape medical examination of the victim and the accused
soon after the incident often yields a wealth of corroborative evidence. Such an
opportunity should not, therefore, be lost on any account. Though the prosecutrix can

be examined only with her consent, the accused can be subjected to such an
examination by virtue of section 53 of the Cr PC, 1973. It has also to be remembered
that the accused too can demand such an examination under section 54 Cr PC, 1860
especially when he feels that such an examination will disprove the charge brought
against him. Thus, presence of smegma on corona glandis (glans penis) of the accused
soon after the incident is proof against complete penetration since it is rubbed off
during intercourse.1211. But to be of any value examination of smegma must be done
within 24 hours.1212.
Where proof of sexual intercourse with the woman is itself not an issue, such as when
it is an admitted fact and the case rests upon issues of consent and where medical
examination revealed semen stains on the vaginal swabs and salwar of the victim, the

Court said that at best it is an evidence of commission of sexual intercourse but not
necessarily of rape.1213.

[s 376.4] Two ﬁnger Test.—
The two ﬁnger test and its interpretation violate the right of rape survivors to privacy,
physical and mental integrity and dignity. Thus, this test, even if the report is
aﬃrmative, cannot ipso facto, be given rise to presumption of consent. In view of
International Covenant on Economic, Social, and Cultural Rights, 1966; United Nations
Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power,
1985, rape survivors are entitled to legal recourse that does not re-traumatise them or
violate their physical or mental integrity and dignity. They are also entitled to medical
procedures conducted in a manner that respects their right to consent. Medical
procedures should not be carried out in a manner that constitutes cruel, inhuman, or
degrading treatment and health should be of paramount consideration while dealing
with gender-based violence. The State is under an obligation to make such services

available to survivors of sexual violence. Proper measures should be taken to ensure
their safety and there should be no arbitrary or unlawful interference with his
privacy.1214.
[s 376.5] Prosecutrix not an accomplice.—
A prosecutrix complaining of having been a victim of an offence of rape is not an
accomplice after the crime. There is no rule of law that her testimony cannot be acted
upon without corroboration in material particulars, for the reason, that she stands on a
much higher pedestal than an injured witness.1215. A woman, who is the victim of
sexual assault, is not an accomplice to the crime but is a victim of another person's lust
and, therefore, her evidence need not be tested with the same amount of suspicion as
that of an accomplice. The Indian Evidence Act, 1872 nowhere says that her evidence

cannot be accepted unless it is corroborated in material particulars. She is undoubtedly
a competent witness under section 118 and her evidence must receive the same
weight as is attached to an injured in cases of physical violence.1216.
[s 376.6] Defence that the girl was of easy virtue.—
Whether the victim of rape was previously accustomed to sexual intercourse or not,
cannot be the determinative question. On the contrary, the question still remains as to
whether the accused committed rape on the victim on the occasion complained of.
Even if the victim had lost her virginity earlier, it can certainly not give a licence to any
person to rape her. It is the accused who was on trial and not the victim. So as to
whether the victim is of a promiscuous character is totally irrelevant in a case of rape.

Even a woman of easy virtue has a right to refuse to submit herself to sexual
intercourse to anyone and everyone, because she is not a vulnerable object or prey for
being sexually assaulted by anyone and everyone. A prosecutrix stands on a higher
pedestal than an injured witness for the reason that an injured witness gets the injury
on the physical form, while the prosecutrix suffers psychologically and
emotionally.1217. In Narender Kumar v State (NCT of Delhi),1218. the Supreme Court
dealt with a case where the allegation was that the victim of rape herself was an
unchaste woman, and a woman of easy virtue. The Court discussed Rajoo v State of
MP,1219. and held that so far as the prosecutrix is concerned, mere statement of
prosecutrix herself is enough to record a conviction, when her evidence is read in its

totality and found to be worthy of reliance. The incident in itself causes a great distress
and humiliation to the victim though, undoubtedly a false allegation of rape can cause
equal distress, humiliation and damage to the accused as well. The Court further held
that some facts exist proving that victim was habituated to sexual intercourse, cannot
be a reason to draw an inference that she was of 'loose moral character'. This cannot
be a reason for her to be raped; she also has a right to protect her dignity and refuse to
submit to sexual intercourse by anyone. Merely because a woman is of easy virtue, her
evidence cannot be discarded on that ground alone rather it is to be cautiously
appreciated.1220.

[s 376.7] Past Sexual conduct of Victim.—Legislative changes.— [s 376.8] Section
155(4) of Indian Evidence Act, 1872 removed.—
Under section 155(4) of Indian Evidence Act, 1872 the credit of a witness may be
impeached when a man is prosecuted for rape or an attempt to ravish, it may be shown
that the prosecutrix was of generally immoral character. This clause was omitted by Act
4 of 2003, section 3 (w.e.f. 11 December 2002) whereby the defence is prohibited from
impeaching prosecutrix's testimony on the basis of her past sexual history.
[s 376.9] Insertion of new section 53A in Indian Evidence Act, 1872.—
By the Criminal Law (Amendment) Act 2013 a new section (53A) was inserted in the
Indian Evidence Act, 1872 in which it is clearly stated that where the question of
consent is in issue, evidence of the character of the victim or of such person's previous
sexual experience with any person shall not be relevant on the issue of such consent or

the quality of consent. Section 53A of Evidence Act; Evidence of character or previous
sexual experience not relevant in certain cases.—In a prosecution for an offence u/ss.
354, 354A, 354B, 354C, section 354D, 376, 376A, 376B, 376C, 376D or 376E of the Indian
Penal Code (45 of 1860) or for attempt to commit any such offence, where the question
of consent is in issue, evidence of the character of the victim or of such person's previous
the quality of consent.
[s 376.10] Amendment to section 146 of Indian Evidence Act, 1872.—
By the Criminal Law (Amendment) Act, 2013 the proviso to section 146 of the Indian
Evidence Act, 1872 was substituted by a new proviso which prohibits to adduce

evidence or to put questions in the cross-examination of the victim as to the general
immoral character, or previous sexual experience, of such victim with any person for
proving such consent or the quality of consent.1221.:—
[s 376.11] Suicide by victim.—
Where in a rape case, the victim committed suicide before the trial and was not
available for examination but the other evidence proved the guilt of the accused, it was
held that non-availability of the victim was no ground for acquittal. The accused was
convicted under sections 375/511 as at least attempt to rape, if not rape, was
established from the evidence.1222.
[s 376.12] Absence of injury.—
It is true that injury is not a sine qua non for deciding whether rape has been
committed. But it has to be decided on the factual matrix of each case. It was observed

in Pratap Misra v State of Orissa,1223. where allegation was of rape by many persons
and several times, but no injury was noticed. Presence of injury in this case, certainly is
an important factor if the prosecutrix's version is credible, and then no corroboration
would be necessary. But if the prosecutrix's version is not credible then there would be
need for corroboration.1224.
[s 376.13] Corroboration of testimony.—
The trend of judicial opinion is that in rape cases corroboration is not a matter of law,
but a guide of prudence, as the testimony of the victim is vital unless there are
compelling reasons for corroboration.1225. The Supreme Court has held that a woman
who has been raped is not an accomplice. If she was ravished she is the victim of an

outrage and if she consented there is no rape. In the case of a girl below the age of
consent, her consent will not matter so far as the offence of rape is concerned, but if
she consented her evidence will be suspect as that of an accomplice. The true rule of

prudence requires that in every case of this type the advisability of corroboration
should be present in the mind of the Judge and that must be indicated in the judgment.
But corroboration can be dispensed with by the Judge if in the particular
circumstances of the case before him he himself is satisﬁed that it is safe to do
so.1226. Indeed no rule of thumb can be laid down in this matter for every case must
depend a good deal on its own peculiar facts and circumstances. Thus, in Raﬁq's
case1227. Krishna Iyer, J, observed:
when no woman of honour will accuse another of rape since she sacriﬁces thereby what is
dearest to her, he cannot cling to a fossil formula and insist on corroborative evidence, even
if taken as a whole, the case spoken to by the victim strikes a judicial mind as probable …
When a woman is ravished what is inﬂicted is not merely physical injury but the deep sense
of some deathless shame … Judicial response to human rights cannot be blunted by legal
bigotry.

bigotry.
Similarly, in Bhoginbhai's case1228. Thakkar, J, observed with some anguish:
In the Indian setting refusal to act on the testimony of the victim of sexual assault in the
absence of corroboration as a rule is adding insult to injury … A girl or a woman in the
tradition bound non-permissive society of India would be extremely reluctant even to admit
that any incident which is likely to reﬂect on her chastity had ever occurred. She would be
conscious of the danger of being ostracised by the society … And when in the face of these
factors the crime is brought to light, there is built-in assurance that the charge is genuine
rather than fabricated … Just as a witness who has sustained an injury (which is not shown
or believed to be self-inﬂicted) is the best witness in the sense that he is least likely to

exculpate the real offender, the evidence of a victim of sex offence is entitled to great
weight absence of corroboration notwithstanding.
Refusal by the accused person to subject himself to blood test for the purpose of
determining his fatherhood of the child who was born as a result of the alleged rape
was considered to be an evidence of corroboration.1229.
[s 376.14] Conviction on sole testimony of prosecutrix.—
A conviction on the sole testimony of the prosecutrix is sustainable where the Court is
convicted of the truthfulness of the prosecutrix and there exist no circumstances which
cast a shadow of doubt over her veracity.1230. To insist on corroboration, except in the
rarest of rare cases, is to equate one who is a victim of the lust of another, with an
accomplice to a crime and thereby insult womanhood.1231.

[s 376.15] CASES.— Rape by police constable.—
The victim was allegedly raped in a hotel room by a police constable. She could not
identify him. No test identiﬁcation parade was held. The Supreme Court said that the
identity was established by the fact that the accused was arrested from the hotel. The
room was booked by him. He was not able to explain his whereabouts at the time of
the offence. The Court further observed that the Courts have to adopt a different
approach in such case. The Court should not get swayed by minor contradictions or
discrepancies and defective investigation.1232.
[s 376.16] Rape and conspiracy for rape.—
The four accused persons used their aﬄuence and pretensions for friendship and
thereby lured innocent schoolgirls and then sexually exploited them and subjected

them to rape. Two of them actually committed acts of rape, the third made overtures to
one of the victims and the fourth, being a driver, conveyed them to the farmhouse
where they were exploited. Their acts were proved by witnesses. Two of them were
convicted under section 376. The third and the forth, though committed no act of rape,
were convicted under section 376 read with section 120-B (conspiracy), it being not
necessary that all co-conspirators should act in a similar manner. Their life sentence
was reduced to 10 years of RI.1233.

[s 376.17] CASES.—Charge not proved.—
Where the evidence of prosecutrix contradicts as to time and offence, and when the
medical and FSL reports did not support the prosecution case, Supreme Court held that
the acquittal is proper.1234. Where the age of the victim was doubtful and she stated
that without her consent the accused did something to her which he ought not to have
done but not disclosing what he actually did, it was held that it could not be inferred
that the accused had committed rape on her. It was held that conviction of the accused
under section 376 was rightly set aside.1235.
The prosecutrix was an educated woman and employed. She went in the jeep of the
accused at night for a long distance intending to meet her senior oﬃcer. She alleged
that she was raped by the accused in his house when they halted there. This was
wholly unusual conduct. There was no explanation of any compelling reason for
meeting the oﬃcer at night. There were no stains of semen or blood on her clothes.

She asserted virginity but medical evidence showed that she was habituated to sex.
The accused was held to be entitled to beneﬁt of doubt.1236.
Two persons were charged and prosecuted under section 376(2)(g) for gang raping a
girl. The victim was desirous of marrying one of them and, therefore, did not report the
matter willingly. There were various inﬁrmities in the prosecution evidence. The
conviction of the accused for the aforesaid offence was set aside.1237.
[s 376.18] Unchaste woman.—
The Supreme Court has laid down that the unchastity of a woman does not make her
"open to any and every person to violate her person as and when he wishes. Merely
because she is a woman of easy virtue, her evidence cannot be thrown overboard. At
the most the oﬃcer called upon to evaluate her evidence would be required to

administer caution unto himself before accepting her evidence.1238. Where in a
prosecution for gang rape, the prosecutrix did not make any complaint to anybody for
ﬁve days giving false explanation for delay, the doctor found no injury on any part of her
body and she was found to be a lady of immoral character or of lax morals, it was held
that it was unsafe to rely on her evidence.1239. The Supreme Court has held that the
mere fact that the prosecutrix was of loose moral character and was used to sexual
intercourse and might have gone to the accused herself, were not grounds to disbelieve
her statement. Such facts could demolish the case of abduction. But the prosecutrix,
being of 10–11 years of age, was not capable of giving consent for abusing her
sexually. The conviction of the accused was restored.1240.

According to the Supreme Court, it is not a ground for acquittal of the accused that the
prosecutrix was not having a good character and was a girl of easy virtues.1241.
[s 376.19] The proviso removed by Criminal Law (Amendment) Act, 2013.—
The proviso to section 376(2) IPC, 1860 laid down that the Court may, for adequate and
special reasons to be mentioned in the judgment, impose sentence of imprisonment of
either description for a term of less than 10 years. This proviso is now removed by
Criminal Law (Amendment) Act, 2013 in the wake of increasing crimes against women.
It is, therefore, no longer possible to plead for any mitigating circumstances for
reducing the quantum of punishment.
Where a person took away his niece under the promise of providing her a job, and
completely believing his trust, raped her in a beastly manner, the Court said that no

further leniency could be shown to him and, therefore, the sentence of seven years' RI
and a ﬁne of Rs. 2000 was to be maintained.1242.

A defenceless married woman was tricked out of her house taking advantage of the
drunken state of her husband. She was ravished in a most dastardly manner by three
out of six members of the gang. All the three were awarded the maximum penalty of
life-term by the Courts below. Only one came up in appeal before the Supreme Court.
The Court said that no leniency could be shown to any one of them. The single
appellant could not be treated differently from others who were serving their life
sentence.1243.
[s 376.19.1] Incest.—
The accused had lost contact with his daughter when she was very young. They met
again when she was 23 and they were both alcoholics. The incest started when the
daughter was 24 and continued for three years, during which time she gave birth to
their child. It was held that the offence as aggravated by the duration of the
relationship, the fact that a child was born and that the incest continued before, during

and after the pregnancy. The sentencing judge had given due weight to the accused's
depression, alcoholism and contrition, The sentence of 2½ years was considered to be
alright. However, there was no justiﬁcation for the extended licence period it was not
possible to conclude that the normal licence period would be inadequate to prevent
recommission, having regard to other ways in which contact with the daughter could be
prevented.1244..
[s 376.20] Rape and grievous hurt.—
The victim girl aged seven years was in the care and custody of the accused and the
natural and unnatural sexual acts were committed by him over a period of time. The
injuries which were caused by the accused on the day of the incident were either on the
skull or the hand or the thumb and therefore could not have been the reason for which

death had occurred. In such a situation the liability of the accused for the commission
of the offence under section 302, IPC, 1860 would remain in serious doubt. The
accused should be held liable for the offence under section 325, IPC, 1860. Thus, the
Court while maintaining the conviction and sentences awarded under sections 376 (2)
(f) and 377, IPC, 1860 altered the conviction under section 302, IPC, 1860 to one under
section 325, IPC, 1860. Accordingly, the death penalty was set aside and punishment of
RI for seven years was imposed.1245.
[s 376.21] Jurisdiction.—
The offence was completed at the place of kidnapping. The girl was carried to some
other place where the ultimate purpose of raping her by several persons was
accomplished. The Court said that the offences in question were a series of acts so

connected together as to form part of the same transaction within the meaning of
section 223(d), Cr PC, 1973. All of them could be tried at the place of kidnapping.1246.
The offence is not compoundable. It has been held that a compromise cannot be a
factor in reduction of quantum of punishment.1247.
[s 376.22] Trial-in-camera.—
An application for trial-in-camera without disclosing the name of the applicant was
allowed and her father was not allowed to seek quashing of the complaint in the
interest of family honour.1248.
[s 376.23] Offences comparable to rape and indecent assault.—
The accused appealed against a sentence of nine years' imprisonment imposed
following his guilty plea to causing a nuisance to the public by making threatening,
obscene and malicious telephone calls. He had made about 1000 telephone calls over

a two weeks' period to 15 complainants. The calls had been made for his sexual
gratiﬁcation and had involved him ordering his victims to perform sexual acts against
themselves, under threat of rape or serious physical injury. He had a record of previous
convictions for using the telephone system to send offensive and indecent matter.
It was held that the sentencing judge was entitled to conclude that the offences
committed by the accused had been comparable to rape and indecent assault. His
previous convictions, together with the pre-sentence report and a psychiatric report,
also demonstrated that he presented a continuing and escalating danger to women.
Accordingly, the sentence imposed was not excessive.1249.
[s 376.24] Probation.—
The refusal to grant probation to the person found guilty of rape has been held to be
proper.1250.?
Assistance to Rape Victims : Supreme Court Guidelines
In Delhi Domestic Working Women's Forum v UOI,1251. the Supreme Court found that in

the cases of rape, the investigating agency as well as the Subordinate Courts
sometimes adopt totally an indifferent attitude towards the prosecutrix and therefore,
the Supreme Court issued following directions in order to render assistance to the
victims of rape:
(1) The complainants of sexual assault cases should be provided with legal representation.
It is important to have someone who is well-acquainted with the criminal justice system.
The role of the victim's advocate would not only be to explain to the victim the nature of the
proceedings, to prepare her for the case and to assist her in the police station and in Court
but to provide her with guidance as to how she might obtain help of a different nature from
other agencies, for example, mind counselling or medical assistance. It is important to

secure continuity of assistance by ensuring that the same person who looked after the
complainant's interests in the police station represents her till the end of the case.
(2) Legal assistance will have to be provided at the police station since the victim of sexual
assault might very well be in a distressed state upon arrival at the police station, the
guidance and support of a lawyer at this stage and whilst she was being questioned would
be of great assistance to her.
(3) The police should be under a duty to inform the victim of her right to representation
before any questions were asked of her and that the police report should state that the
victim was so informed.
(4) A list of advocates willing to act in these cases should be kept at the police station for

victims who did not have a particular lawyer in mind or whose own lawyer was unavailable.
(5) The advocate shall be appointed by the Court, upon application by the police at the
earliest convenient moment, but in order to ensure that victims were questioned without
undue delay, advocates would be authorised to act at the police station before leave of the
Court was sought or obtained.
(6) In all rape trials anonymity of the victim must be maintained, as far as necessary.
(7) It is necessary, having regard to the Directive Principles contained under Article 38(1) of
the Constitution of India to set up Criminal Injuries Compensation Board. Rape victims
frequently incur substantial ﬁnancial loss. Some, for example, are too traumatised to
continue in employment.
(8) Compensation for victims shall be awarded by the Court on conviction of the offender

and by the Criminal Injuries Compensation Board whether or not a conviction has taken
place. The Board will take into account pain, suffering and shock as well as loss of earnings
due to pregnancy and the expenses of child birth if this occurred as a result of the rape.
In addition thereto, it is an obligation on the part of the State authorities and
particularly, the Director General of Police and Home Ministry of the State to issue
proper guidelines and instructions to the other authorities as how to deal with such
cases and what kind of treatment is to be given to the prosecutrix, as a victim of sexual
assault requires a totally different kind of treatment not only from the society but also

1204.  Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 9 (w.e.f. 3
February 2013). Earlier section 376 was substituted by Act 43 of 1983, section 3 (w.e.f. 25
December 1983). Section 376, before substitution by Act 13 of 2013, stood as under:
[s 376] Punishment for rape.—(1) Whoever, except in the cases provided for by sub-section (2),
commits rape shall be punished with imprisonment of either description for a term which shall
not be less than seven years but which may be for life or for a term which may extend to ten
years and shall also be liable to ﬁne unless the women raped is his own wife and is not under
twelve years of age, in which cases, he shall be punished with imprisonment of either
description for a term which may extend to two years or with ﬁne or with both:
Provided that the court may, for adequate and special reasons to be mentioned in the judgment,

impose a sentence of imprisonment for a term of less than seven years.
(a) being a police oﬃcer commits rape—
(i) within the limits of the police station to which he is appointed; or
(ii) in the premises of any station house whether or not situated in the police station
to which he is appointed; or
(iii) on a woman in his custody or in the custody of a police oﬃcer subordinate to
him; or
(b) being a public servant, takes advantage of his oﬃcial position and commits rape on a
woman in his custody as such public servant or in the custody of a public servant
subordinate to him; or
(c) being on the management or on the staff of a jail, remand home or other place of
custody established by or under any law for the time being in force or of a woman's or

from the State authorities. Certain care has to be taken by the Doctor who medically
examines the victim of rape. The victim of rape should generally be examined by a
female doctor. Simultaneously, she should be provided the help of some psychiatric.
The medical report should be prepared expeditiously and the Doctor should examine
the victim of rape thoroughly and give his/her opinion with all possible angle, e.g.,
opinion regarding the age taking into consideration the number of teeth, secondary sex
characters, and radiological test, etc. The Investigating Oﬃcer must ensure that the
victim of rape should be handled carefully by lady police oﬃcial/oﬃcer, depending
upon the availability of such oﬃcial/oﬃcer. The victim should be sent for medical

examination at the earliest and her statement should be recorded by the IO in the
presence of her family members making the victim comfortable except in incest cases.
Investigation should be completed at the earliest to avoid the bail to the accused on
technicalities as provided under section 167 Cr PC, 1973 and ﬁnal report should be
submitted under section 173 Cr PC, 1973 at the earliest.
[Dilip v State of MP. 1252.]

children's institution takes advantage of his oﬃcial position and commits rape on any
(d) being on the management or on the staff of a hospital, takes advantage of his oﬃcial
position and commits rape on a woman in that hospital; or
(e) commits rape on a woman knowing her to be pregnant; or
(f) commits rape on a woman when she is under twelve years of age; or
(g) commits gang rape,
shall be punished with rigorous imprisonment for a term which shall not be less than ten years
but which may be for life and shall also be liable to ﬁne:
Provided that the Court may, for adequate and special reasons to be mentioned in the judgment,
impose a sentence of imprisonment of either description for a term of less than ten years.
Explanation 1.—Where a woman is raped by one or more in a group of persons acting in
furtherance of their common intention, each of the persons shall be deemed to have committed
gang rape within the meaning of this sub-section.

Explanation 2.—"Women's or children's institution" means an institution, whether called an
orphanage or a home for neglected women or children or a widows' home or by any other name,
which is established and maintained for the reception and care of woman or children.
Explanation 3.—"Hospital" means the precincts of the hospital and includes the precincts of any
institution for the reception and treatment of persons during convalescence or of persons
requiring medical attention or rehabilitation.
1205.  Subs. by Act 22 of 2018, section 4(a), for "shall not be less than seven years, but which
may extend to imprisonment for life, and shall also be liable to ﬁne" (w.r.e.f. 21-4-2018).
1206.  Clause (i) omitted by Act 22 of 2018, section 4(b) (w.r.e.f. 21-4-2018). Clause (i), before
omission, stood as under:

"(i) commits rape on a woman when she is under sixteen years of age; or".
1207.  Ins. by Act 22 of 2018, section 4(c) (w.r.e.f. 21-4-2018).
1208.  Tukaram, 1978 Cr LJ 1864 : AIR 1979 SC 185 [LNIND 1978 SC 254] .
1209.  Bharwada Bhoginbhai Hirjibhai, 1983 Cr LJ 1096 (SC) : AIR 1983 SC 753 [LNIND 1983 SC
161] : (1983) 3 SCC 753 : 1983 SCC (Cr) 728.
1210.  Ram Charan v State of MP, 1993 Cr LJ 1825 (MP); Saifuddin v UOI, 2002 Cr LJ 3159 (J&K)
dismissal of army man from service on account of rape which was proved. No interference.
1211.  Ram Kala, 47 Cr LJ 611 (All).
1212.  SP Kohil, 1978 Cr LJ 1804 : AIR 1978 SC 1753 [LNIND 1978 SC 235] . Followed in
Panibhusan Behera v State of Orissa, (1995) 2 Cr LJ 1561 (Ori). Where there was no other
evidence of either enticement or rape, the mere presence of semen stains on the frock of the

alleged victim was held to be not suﬃcient for conviction; Mahesh Kumar Bherulal v State of MP,
(1995) 2 Cr LJ 2021 (MP). Y Srinivasa Rao v State of AP, (1995) 2 Cr LJ 1597 (AP), no medical
evidence that any forced act was committed on the prosecutrix. Rahim Beg v State of UP, AIR
1973 SC 343 : 1972 Cr LJ 1260 , held that semen stain on the 'langot' of a young man can exist
because of a variety of reasons and would not necessarily connect him with the offence of rape.

1213.  Tameezuddin v State (NCT) of Delhi, (2009) 15 SCC 566 [LNINDORD 2009 SC 430] . Raju v
State of MP, AIR 2009 SC 858 [LNIND 2008 SC 2358] , recovery of stained underwear of the
accused, could not by itself support the allegation of rape. Pawan v State of Uttaranchal, (2009)
15 SCC 259 [LNIND 2009 SC 464] : (2009) 3 All LJ 637 : 2009 Cr LJ 2257 , semen stains found
on the underwear of the accused labourers as supported by other circumstances were held
suﬃcient to lead to conviction.
1214.  Lillu @ Rajesh v State of Haryana, AIR 2013 SC 1784 [LNIND 2013 SC 435] : 2013 (6) Scale
17 [LNIND 2013 SC 435] .
1215.  State of UP v Pappu @ Yunus, AIR 2005 SC 1248 : 2005 (3) SCC 594 ; Aman Kumar v State
of Haryana, AIR 2004 SC 1497 [LNIND 2004 SC 184] : 2004 (4) SCC 379 [LNIND 2004 SC 184] .
1216.  Vijay alias Chinee v State of MP, 2010 (8) SCC 191 [LNIND 2010 SC 659] : 2010 AIR SCW
5510, State of Maharashtra v Chandraprakash Kewal Chand Jain, 1990 (1) SCC 550 [LNIND 1990
SC 26] : 1990 Cr LJ 889 .

1217.  State of UP v Munshi, AIR 2009 SC 370 [LNIND 2008 SC 1717] : 2008 (9) SCC 390 [LNIND
2008 SC 1717] .
1218.  Narender Kumar v State (NCT of Delhi), AIR 2012 SC 2281 [LNIND 2012 SC 347] : 2012 (5)
Scale 657 [LNIND 2012 SC 347] .
1219.  Rajoo v State of MP, AIR 2009 SC 858 [LNIND 2008 SC 2358] .
1220.  State of Maharashtra v Madhukar Narayan Mardikar, AIR 1991 SC 207 [LNIND 1990 SC
610] ; State of Punjab v Gurmit Singh, AIR 1996 SC 1393 [LNIND 1996 SC 2903] ; and State of UP
v Pappu @ Yunus, AIR 2005 SC 1248 .
1221.  Section 146 of the Indian Evidence Act, 1872 has been further amended vide the Criminal
Law (Amendment) Act, 2018. In section 146 of the Evidence Act, in the proviso, for the words,
ﬁgures and letters "section 376A, section 376B, section 376C, section 376D", the words, ﬁgures
and letters "section 376A, section 376AB, section 376B, section 376C, section 376D, section

376DA, section 376DB" have been substituted
1222.  State of Karnataka v Mahabaleshwar Gourya Naik, AIR 1992 SC 2043 : 1992 Cr LJ 3786 .
1223.  Pratap Misra v State of Orissa, 1977 (3) SCC 41 .
1224.  Lalliram v State of MP, 2008 (10) SCC 69 [LNIND 2008 SC 1833] : 2008 (12) Scale 491
[LNIND 2008 SC 1833] ; Aman Kumar v State of Haryana, 2004 (4) SCC 379 [LNIND 2004 SC 184]
.
1225.  Gurcharan Singh v State of Haryana, AIR 1972 SC 2661 [LNIND 1972 SC 433] : 1972 (2)
SCC 749 [LNIND 1972 SC 433] ; Shri Bodhisattwa Gautam v Miss Subhra Chakraborty, AIR 1996
SC 922 [LNIND 1995 SC 1314] : 1996 (1) SCC 490 [LNIND 1995 SC 1314] .
1226.  Rameshwar, (1952) SCR 377 [LNIND 1951 SC 76] : AIR 1952 SC 54 [LNIND 1951 SC 76] ;
Sidheswar Ganguly, AIR 1958 SC 143 [LNIND 1957 SC 108] . Karnel Singh v State of MP, AIR 1995

SC 2472 [LNIND 1995 SC 776] : 1995 Cr LJ 4173 , the sole testimony of the prosecutrix
corroborated by medical evidence found reliable, conviction of the accused under section 375
upheld; Dharma v Nirmal Singh Bittu, AIR 1996 SC 1136 [LNIND 1996 SC 272] : 1996 Cr LJ 1631 ,
where the accused was found guilty of attempt to rape and committing murder of his victim, the
Supreme Court set aside the acquittal of the accused and sentenced him to life imprisonment.
Sri Narayan Saha v State of Tripura, (2004) 7 SCC 775 [LNIND 2004 SC 906] : AIR 2005 SC 1452
[LNIND 2004 SC 906] , conviction without corroboration permissible.
1227.  Raﬁq, 1980 Cr LJ 1344 : AIR 1981 SC 96 [LNIND 1980 SC 331] . State of Karnataka v Raju,
(2007) 11 SCC 490 [LNIND 2007 SC 1074] : AIR 2007 SC 3225 [LNIND 2007 SC 1074] : 2007 Cr

LJ 4700 , evidence of the victim appearing to be probable. The court exposed the
impermissibility of insistence by the accused on corroboration of the testimony. No accused
can cling to a fossil formula and insist on corroboration even if the case taken as a whole

strikes to the judicial mind as probable. Judicial response to human rights cannot be allowed to
be blunted by legal jugglery. Shrawan v State of Maharashtra, (2006) 13 SCC 191 , the allegation
of rape of the woman and assault on her husband when the latter went to the house of the
accused to protest, police antipathy, alleged facts seemed to be true, conviction and sentence
upheld.
1228.  Bharwada Bhoginbhai Hirjibhai, 1983 Cr LJ 1096 : AIR 1983 SC 753 [LNIND 1983 SC 161] :
(1983) 3 SCC 217 [LNIND 1983 SC 161] . Satpal v State of Rajasthan, 2001 Cr LJ 564 (Raj),
corroboration is not required as a rule. The fact of a litigation between the complainant and
accused families was not material because a father would not involve his daughter into such a
bad role. Laxman Dass v State of Rajasthan, 2001 Cr LJ 4501 , corroboration not considered
necessary, injuries on person though not on private part, conviction. Gurmit Singh case was

followed in State of Karnataka v Manjanna, AIR 2000 SC 2231 [LNIND 2000 SC 812] : 2000 Cr LJ
3471 here also acquittal was set aside, the court saying that the conclusion of the court below
regarding reaction of the victim and her mother and delay in lodging the FIR was contrary to
evidence. Visweswaran v State of TN, 2003 Cr LJ 2548 (SC), rape by accused constable in hotel
room, no identiﬁcation by the victim, but the room was booked by him, he was arrested at the
hotel premises and he was not able to explain his whereabouts at about the time of offence.
The court said that these circumstances suﬃciently made him out.
1229.  Swati Lodha v State of Rajasthan, 1991 Cr LJ 939 (Raj).
1230.  Ramdas v State of Maharashtra, (2007) 2 SCC 170 [LNIND 2006 SC 928] : AIR 2007 SC

155 [LNIND 2006 SC 928] . Narayan v State of Rajasthan, (2007) 6 SCC 465 [LNIND 2007 SC 456]
: 2007 Cr LJ 2733 , testimony of the prosecutrix found to be not believable, no conviction on that
basis. State of Punjab v Ramdev Singh, AIR 2004 SC 1290 [LNIND 2003 SC 1106] ; State of
Chhattisgarh v Derha, (2004) 9 SCC 699 [LNIND 2004 SC 535] ; State of HP v Shree Kant Shekari,
AIR 2004 SC 4404 [LNIND 2004 SC 921] . Medical evidence that the victim showed signs of
previous sexual intercourse, the court said it would not have any adverse effect on her
testimony. It could not be a ground for acquitting the rapist. Wahid Khan v State of MP, (2010) 1
SCC Cr 1208 : (2010) 2 SCC 9 [LNIND 2009 SC 2041] : AIR 2010 SC 1 [LNIND 2009 SC 2041] ,
evidence of prosecutrix stands on equal footing with that of an injured witness and if it inspires

conﬁdence, corroboration is not necessary. The court noted the adverse things like social
repercussions, backward society, dangers of being ostracized, diﬃculties of rehabilitation and
survival, psychology not to admit adverse unless it was a fact. A 12-year-old girl was the victim
in this case, being taken away by the accused in auto-rickshaw.
1231.  State of HP v Sanjay Kumar, 2016 (4) Crimes 424 (SC) : 2016 (12) Scale 831 .
1232.  Visveswaran v State of TN, AIR 2003 SC 2471 [LNIND 2003 SC 481] , imprisonment for a
period of seven years and ﬁne of Rs. 10,000 was aﬃrmed.
1233.  Moijullah v State of Rajasthan, (2004) 2 SCC 90 [LNIND 2003 SC 1143] : AIR 2004 SC 3186
[LNIND 2003 SC 1143] .
1234.  State v Babu Meena, AIR 2013 SC 2207 [LNIND 2013 SC 114] : (2013) 4 SCC 206 [LNIND

2013 SC 114] ; Rajesh Patil v State of Jharkhand, 2013 Cr LJ 2062 (SC); delay coupled with non-
examination of doctor and IO created reasonable doubt in the prosecution story.
1235.  State of Karnataka v Sureshbabu Puk Raj Porral, 1994 Cr LJ 1216 .
1236.  Sudhansif Sekhar Sahoo v State of Orissa, AIR 2003 SC 2136 [LNIND 2002 SC 832] . The
Supreme Court expressed the opinion that sole testimony is not to be relied upon unless it is
safe, reliable and worthy of acceptance. State of Punjab v Chatinder Pal Singh, (2008) 17 SCC 90
[LNINDORD 2008 SC 308] : AIR 2009 SC 974 [LNINDORD 2008 SC 308] , prosecution witnesses
going back upon their statements, two inconsistent dying declaration, when two courts on
analysis of evidence found the accused not guilty, no scope for interference.

1237.  Shatrughan v State of MP, 1993 Cr LJ 120 (MP). Thomas v State of Kerala, 1999 Cr LJ 1297
(Ker), accused committed forced sex from behind, medical opinion that such act was possible
by use of force. Offence proved and conviction upheld. State of Rajasthan v Om Prakash, AIR
2002 SC 2235 [LNIND 2002 SC 370] (Supp), charge proved, non-examination of witnesses other
than family members was immaterial. Fota v State of Rajasthan, 1999 Cr LJ 1677 (Raj), charge
of rape found to be false, one of the reasons for the ﬁnding being that the father of the girl had
compromised with the alleged rapist, this could not be probable. State of Punjab v Gurdeep
Singh, 1999 Cr LJ 4597 : (2000) 8 SCC 547 [LNIND 2000 SC 1292] , the only evidence was that
the accused was seen by a relative of the girl chasing her in a drunken state, but he did nothing,
not enough to connect that man with rape and murder. Suresh N Bhusane v State of Maharashtra,

1998 Cr LJ 4559 : AIR 1998 SC 3131 [LNIND 1998 SC 733] , voluntary conduct rather than
forcible lifting, charge of rape not proved. Prahlad Singh v State of MP, 1997 Cr LJ 4078 : AIR
1997 SC 3442 [LNIND 1997 SC 1080] , fact of rape established, but the accused could not be
identiﬁed by the victim girl. Acquittal. Prakash Sakharam Mandale v State of Maharashtra, 1997
Cr LJ 4199 (Bom), the victim's age could not be established beyond doubt. She remained silent
about her age. This fact spoke of her connivance. Acquittal.
1238.  State of Maharashtra v Madhukar N Mardikar, (1991) 1 SCC 57 [LNIND 1990 SC 610] : AIR
1991 SC 207 [LNIND 1990 SC 610] . For a review of case—law on the need for corroboration see
State of Maharashtra v Kalgya Kale, 1989 Cr LJ 1389 (Bom). See also Daler Singh v State of

Haryana, (1995) 1 Cr LJ 614 (P&H), no implicit reliance can be placed upon the testimony of a
prosecutrix who is a woman of easy virtue and seems to be consenting. There were other
inﬁrmities also in the evidence tendered, hence acquittal.
1239.  Banti v State of MP, 1992 Cr LJ 715 (MP). Mohan v State of MP, 2001 Cr LJ 3046 (MP), it is
no defence that the girl was used for sex. The spontaneity in disclosure of the incident by the
prosecurtix has a greater value as res gestae. It is substantive evidence.
1240.  State of UP v Om, 1999 Cr LJ 5030 : 1998 SCC (Cr) 1343. Milind Ambadas Mhaske v State,
1998 Cr LJ 357 (Bom), bad character of the prosecutrix does not enable the accused to escape
from his culpability. Grown-up married woman having two children, consent could not be

inferred from the absence of injuries on private part. Sanju Gupta v State of Orissa, 1998 Cr LJ
1684 (Ori), a woman may be of immoral character, persons forcing her to sex against her will
would be guilty of rape.
1241.  State of UP v Pappu, 2005 Cr LJ 331 : AIR 2005 SC 1248 : (2005) 3 SCC 594 .
1242.  Maguni Ranjan Jyoti v State of Orissa, 2003 Cr LJ 530 (Ori).
1243.  Ramesh Kumar v State of Haryana, (2008) 5 SCC 139 [LNIND 2008 SC 508] . Viswanathan
v State, (2008) 5 SCC 354 [LNIND 2008 SC 999] : AIR 2008 SC 2222 [LNIND 2008 SC 999] ,
version of the victim and her brother was corroborated by material objects medical evidence
and dispositions, accused persons carried away the victim to an isolated place and subjected
her to rape, clearly showed their common intention of gang rape.

1244.  R v DM (Incest : Sentencing), (2002) EWCA Crim 1702 : (2003) 1 Cr App R (S) 59 [CA (Crim
Div)]; Ram Kumar v State of MP, 2003 Cr LJ (NOC) 18 (MP) : (2002) 3 MPH7 111, rape on the
accused's own minor daughter. She stood cross-examination, she could not cry out because she
was in helpless situation, conviction was based solely on her testimony. Neel Kumar v State of
Haryana, (2012) 5 SCC 766 [LNIND 2012 SC 298] : 2012 (5) Scale 185 [LNIND 2012 SC 298];
Rape and murder of his own four-year daughter by the appellant; Death sentence liable to be set
aside and life imprisonment awarded. The appellant must serve a minimum of 30 years in jail
without remissions.
1245.  Rajesh v State of MP, AIR 2017 SC 532 [LNINDORD 2016 SC 11435] .
1246.  Praveen v State of Maharashtra, 2001 Cr LJ 3417 (Bom).

1247.  Mangilal v State of MP, 1998 Cr LJ 2304 (MP).
1248.  Trilochan Singh Johar v State, 2002 Cr LJ 528 (Del).
1249.  R v Eskdale (Stuart Anthony), (2002) 1 Cr App R (S) 28, [CA (Crim Div)].
1250.  State of MP v Babulal, (2008) 1 SCC 234 [LNIND 2007 SC 1400] : AIR 2008 SC 582 [LNIND
2007 SC 1400] : 2008 Cr LJ 714 .
1251.  Delhi Domestic Working Women's Forum v UOI, (1995) 1 SCC 14 [LNIND 1994 SC 1582] .
1252.  Dilip v State of MP, 2013 Cr LJ 2446 (SC).

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1253. Subs. by the Criminal Law (Amendment) Act, 2013 (13
of 2013), section 9 (w.e.f. 3 February 2013). Earlier section 376A was substituted by Act 43 of 1983,
section 3 (w.e.f. 25-12-1983). Section 376A, before substitution by Act 13 of 2013, stood as under: [s 376A]
Intercourse by a man with his wife during separation.—Whoever has sexual intercourse with his own wife,
who is living separately from him under a decree of separation or under any custom or usage without her
consent shall be punished with imprisonment of either description for a term which may extend to two
years and shall also be liable to ﬁne. [s 376A] Punishment for causing death or resulting in persistent
vegetative state of victim.
 
1253.[s 376A] Punishment for causing death or resulting in persistent
Whoever, commits an offence punishable under sub-section (1) or sub-section (2) of
section 376 and in the course of such commission inﬂicts an injury which causes the
death of the woman or causes the woman to be in a persistent vegetative state, shall
be punished with rigorous imprisonment for a term which shall not be less than
twenty years, but which may extend to imprisonment for life, which shall mean
imprisonment for the remainder of that person's natural life, or with death.]
1253.  Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 9 (w.e.f. 3
February 2013). Earlier section 376A was substituted by Act 43 of 1983, section 3 (w.e.f. 25-12-

1983). Section 376A, before substitution by Act 13 of 2013, stood as under:
[s 376A] Intercourse by a man with his wife during separation.—Whoever has sexual intercourse
with his own wife, who is living separately from him under a decree of separation or under any
custom or usage without her consent shall be punished with imprisonment of either description
for a term which may extend to two years and shall also be liable to ﬁne.

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1254. Ins. by Act 22 of 2018, section 5 (w.r.e.f. 21-4-2018). [s
376AB] Punishment for rape on woman under twelve years of age.
 
1254.[s 376AB] Punishment for rape on woman under twelve years of age.
Whoever, commits rape on a woman under twelve years of age shall be punished with
rigorous imprisonment for a term which shall not be less than twenty years, but which
may extend to imprisonment for life, which shall mean imprisonment for the
remainder of that person's natural life, and with ﬁne or with death:
Provided that such ﬁne shall be just and reasonable to meet the medical expenses and
rehabilitation of the victim:
Provided further that any ﬁne imposed under this section shall be paid to the victim.
1254.  Ins. by Act 22 of 2018, section 5 (w.r.e.f. 21-4-2018).

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1255. Subs. by the Criminal Law (Amendment) Act, 2013 (13
of 2013), section 376B (w.e.f. 3-2-2013). Earlier section 376B was substituted by Act 43 of 1983, section 3
(w.e.f. 25-12-1983). Section 376B, before substitution by Act 13 of 2013, stood as under: “[s 376B]
Intercourse by public servant with woman in his custody.—Whoever, being a public servant, takes
advantage of his oﬃcial position and induces or seduces, any woman, who is in his custody as such public
servant or in the custody of a public servant subordinate to him, to have sexual intercourse with him, such
sexual intercourse not amounting to the offence of rape, shall be punished with imprisonment of either
description for a term which may extend to ﬁve years and shall also be liable to ﬁne”. [[s 376-B] Sexual
intercourse by husband upon his wife during separation.
 
1255.[[s 376-B] Sexual intercourse by husband upon his wife during separation.
Whoever has sexual intercourse with his own wife, who is living separately, whether
under a decree of separation or otherwise, without her consent, shall be punished with
imprisonment of either description, for a term which shall not be less than two years
but which may extend to seven years, and shall also be liable to ﬁne.
E x p l a n a t i o n . — In this section, "sexual intercourse" shall mean any of the acts
mentioned in clauses (a ) to (d ) of section 375].
1255.  Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 376B (w.e.f. 3-2-
2013). Earlier section 376B was substituted by Act 43 of 1983, section 3 (w.e.f. 25-12-1983).
Section 376B, before substitution by Act 13 of 2013, stood as under:

"[s 376B] Intercourse by public servant with woman in his custody.—Whoever, being a public
servant, takes advantage of his oﬃcial position and induces or seduces, any woman, who is in
his custody as such public servant or in the custody of a public servant subordinate to him, to
have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape,
shall be punished with imprisonment of either description for a term which may extend to ﬁve
years and shall also be liable to ﬁne".
COMMENT.—
At a trial for rape, the accused asked the judge to give his ruling on the point whether a
husband could be convicted of raping his wife where the parties are living apart at the
time. The judge held that the common law rule of marital exemption that a man cannot

be guilty of raping his own wife applied to the facts. The report did not show the cause
of their living apart.1256. This decision should be taken in the light of the declaration by
the House of Lords that a husband can be guilty of raping his wife.1257. [Edited under
the preceding section under the heading "Exception: Rape by Husband".] The legislative
intent in changes introduced in sections 375 and 376 and introduction of sections 376-
A to 376-D in 1983 has been restated by the Supreme Court in Mohan Anna Chavan v
State of Maharashtra.1258.

1256.  R v J (Rape : Marital Exemption), (1991) 1 All ER 759 .
1257.  R v R (Rape : Marital Exemption), (1991) 4 All ER 481 .
1258.  Mohan Anna Chavan v State of Maharashtra, (2008) 7 SCC 561 [LNIND 2008 SC 1265] .
The Supreme Court also restated the meaning, consequences and egregiousness of the matters
dealt with in the amendment.

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1259. Subs. by Act 13 of 2013, section 9, for section 376C
(w.r.e.f. 3-2-2013). Earlier section 376C was substituted by Act 43 of 1983, section 3 (w.e.f. 25-12-1983).
Section 376C, before substitution by Act 13 of 2013, stood as under:: “[s 376C] Intercourse by
superintendent of jail, remand home, etc.—Whoever, being the superintendent or manager of a jail, remand
home or other place of custody established by or under any law for the time being in force or of a woman’s
or children’s institution takes advantage of his oﬃcial position and induces or seduces any female inmate
of such jail, remand home, place or institution to have sexual intercourse with him, such sexual intercourse
not amounting to the offence of rape, shall be punished with imprisonment of either description for a term
which may extend to ﬁve years and shall also be liable to ﬁne. Explanation 1.—“Superintendent” in relation

to jail, remand home or other place of custody or a women’s or children’s institution includes a person
holding any other oﬃce in such jail, remand home, place or institution by virtue of which he can exercise
any authority or control over its inmates. Explanation 2.—The expression “women’s or children’s institution”
shall have the same meaning as in Explanation 2 to sub-section (2) of section 376.” [s 376C] Sexual
intercourse by a person in authority.
 
1259.[s 376C] Sexual intercourse by a person in authority.
Whoever, being—
(a) in a position of authority or in a ﬁduciary relationship; or
(b) a public servant; or
(c) superintendent or manager of a jail, remand home or other place of custody
established by or under any law for the time being in force, or a women's or
children's institution; or
(d) on the management of a hospital or being on the staff of a hospital,
abuses such position or ﬁduciary relationship to induce or seduce any woman
either in his custody or under his charge or present in the premises to have
sexual intercourse with him, such sexual intercourse not amounting to the
offence of rape, shall be punished with rigorous imprisonment of either
description for a term which shall not be less than ﬁve years, but which may

Explanation 1.—In this section, "sexual intercourse" shall mean any of the acts
mentioned in clauses (a) to (d) of section 375.
Explanation 2.—For the purposes of this section, Explanation 1 to section 375
shall also be applicable.
Explanation 3.—"Superintendent", in relation to a jail, remand home or other
place of custody or a women's or children's institution, includes a person
holding any other oﬃce in such jail, remand home, place or institution by virtue
of which such person can exercise any authority or control over its inmates.
Explanation 4.—The expressions "hospital" and "women's or children's
institution" shall respectively have the same meaning as in Explanation to
subsection (2) of section 376].

1259.  Subs. by Act 13 of 2013, section 9, for section 376C (w.r.e.f. 3-2-2013). Earlier section
376C was substituted by Act 43 of 1983, section 3 (w.e.f. 25-12-1983). Section 376C, before
substitution by Act 13 of 2013, stood as under::

"[s 376C] Intercourse by superintendent of jail, remand home, etc.—Whoever, being the
superintendent or manager of a jail, remand home or other place of custody established by or
under any law for the time being in force or of a woman's or children's institution takes
advantage of his oﬃcial position and induces or seduces any female inmate of such jail,
remand home, place or institution to have sexual intercourse with him, such sexual intercourse
not amounting to the offence of rape, shall be punished with imprisonment of either description
for a term which may extend to ﬁve years and shall also be liable to ﬁne.
Explanation 1.—"Superintendent" in relation to jail, remand home or other place of custody or a
women's or children's institution includes a person holding any other oﬃce in such jail, remand
home, place or institution by virtue of which he can exercise any authority or control over its
inmates.
Explanation 2.—The expression "women's or children's institution" shall have the same meaning

inmates.
as in Explanation 2 to sub-section (2) of section 376."

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1260. Subs. by Act 13 of 2013, section 9, for section 376D
(w.r.e.f. 3 February 2013). Earlier section 376D was substituted by Act 43 of 1983, section 3 (w.e.f. 25
December 1983). Section 376D, before substitution by Act 13 of 2013, stood as under: “[s 376D]
Intercourse by any member of the management or staff of a hospital with any woman in that hospital.—
Whoever, being on the management of a hospital or being on the staff of a hospital takes advantage of his
position and has sexual intercourse with any woman in that hospital, such sexual intercourse not
amounting to the offence of rape, shall be punished with imprisonment of either description for a term
which may extend to ﬁve years and shall also be liable to ﬁne. Explanation.—The expression “hospital” shall
have the same meaning as in Explanation 3 to sub-section (2) of section 376”. [s 376-D] Gang rape.
 
1260.[s 376-D] Gang rape.
Where a woman is raped by one or more persons constituting a group or acting in
furtherance of a common intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with rigorous imprisonment for a
term which shall not be less than twenty years, but which may extend to life which
shall mean imprisonment for the remainder of that person's natural life, and with ﬁne:
Provided further that any ﬁne imposed under this section shall be paid to the victim.]
1260.  Subs. by Act 13 of 2013, section 9, for section 376D (w.r.e.f. 3 February 2013). Earlier

section 376D was substituted by Act 43 of 1983, section 3 (w.e.f. 25 December 1983). Section
376D, before substitution by Act 13 of 2013, stood as under:
"[s 376D] Intercourse by any member of the management or staff of a hospital with any woman in
that hospital.—Whoever, being on the management of a hospital or being on the staff of a
hospital takes advantage of his position and has sexual intercourse with any woman in that
hospital, such sexual intercourse not amounting to the offence of rape, shall be punished with
imprisonment of either description for a term which may extend to ﬁve years and shall also be
Explanation.—The expression "hospital" shall have the same meaning as in Explanation 3 to sub-
section (2) of section 376".
COMMENT.—

COMMENT.—
Sections 376-A–376-D inserted by the Act 43 of 1983 were sought to deal with such
cases which were not covered by section 376. They have thus, been inserted to meet a
situation which was otherwise not provided for under section 376. These sections now
stand substituted by the Criminal Law (Amendment) Act, 2013.

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1261. Ins. by Act 22 of 2018, section 6 (w.r.e.f. 21 April 2018).
[[s 376DA] Punishment for gang rape on woman under sixteen years of age.
 
1261.[[s 376DA] Punishment for gang rape on woman under sixteen years of
age.
Where a woman under sixteen years of age is raped by one or more persons
constituting a group or acting in furtherance of a common intention, each of those
persons shall be deemed to have committed the offence of rape and shall be punished
with imprisonment for life, which shall mean imprisonment for the remainder of that
person's natural life, and with ﬁne:
1261.  Ins. by Act 22 of 2018, section 6 (w.r.e.f. 21 April 2018).

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1262. Ins. by Act 22 of 2018, section 6 (w.r.e.f. 21-4-2018). [[s
376DB] Punishment for gang rape on woman under twelve years of age.
 
1262.[[s 376DB] Punishment for gang rape on woman under twelve years of
age.
Where a woman under twelve years of age is raped by one or more persons
with imprisonment for life, which shall mean imprisonment for
the remainder of that person's natural life, and with ﬁne, or with death:
1262.  Ins. by Act 22 of 2018, section 6 (w.r.e.f. 21-4-2018).

Ratanlal & Dhirajlal: Indian Penal Code (PB) / 1263. Ins. by Act 13 of 2013, section 9 (w.r.e.f. 3-2-2013). [s
376E] Punishment for repeat offenders.
 
1263.[s 376E] Punishment for repeat offenders.
Whoever has been previously convicted of an offence punishable under section 376
or section 376A or 1264.[section 376AB or section 376D or section 376DA or section
376DB,] and is subsequently convicted of an offence punishable under any of the said
sections shall be punished with imprisonment for life which shall mean imprisonment
for the remainder of that person's natural life, or with death.]
1263.  Ins. by Act 13 of 2013, section 9 (w.r.e.f. 3-2-2013).
1264.  Subs. by Act 22 of 2018, section 7, for "section 376D" (w.r.e.f. 21-4-2018).

Ratanlal & Dhirajlal: Indian Penal Code (PB) / [s 377] Unnatural offences.
 
Of Unnatural Offences
[s 377] Unnatural offences.
Whoever voluntarily has carnal intercourse against the order of nature with any man,
woman or animal, shall be punished with 1265.[imprisonment for life], or with
E x p l a n a t i o n . — Penetration is suﬃcient to constitute the carnal intercourse necessary
to the offence described in this section.
COMMENT.—
This section was intended to punish the offence of sodomy, buggery and bestiality. The
offence purported to consist in a carnal knowledge committed against the order of
nature by a person with a man, or in the same unnatural manner with a woman, or by a
man or woman in any manner with an animal. To attract the above offence, the
following ingredients were required: 1) Carnal intercourse and 2) against the order of
nature.

nature.
[s 377.1] Constitutionality of section 377.—N a z  Judgment.—
The Delhi High Court in a landmark judgment declared section 377 IPC, 1860
unconstitutional, insofar it criminalised consensual sexual acts of adults in private as
violative of Articles 21, 14 and 15 of the Constitution.1266. But in Suresh Kumar Koushal
v NAZ Foundation,1267. the Supreme Court overruled the Delhi High Court judgment
holding that those who indulge in carnal intercourse in the ordinary course and those
who indulge in carnal intercourse against the order of nature constitute different
classes and the people falling in the latter category cannot claim that section 377
suffers from the vice of arbitrariness and irrational classiﬁcation. What section 377
does is merely to deﬁne the particular offence and prescribe punishment for the same

which can be awarded if in the trial conducted in accordance with the provisions of the
Cr PC, 1973 and other statutes of the same family the person is found guilty. Therefore,
section 377 IPC, 1860 was held to be not ultra vires Articles 14 and 15 of the
Constitution. It was also observed by the Supreme Court that the Court merely
pronounced on the correctness of the view taken by the Delhi High Court on the
constitutionality of section 377 IPC, 1860 and found that the said section did not suffer
from any constitutional inﬁrmity. Notwithstanding this verdict, the competent
legislature shall be free to consider the desirability and propriety of deleting section
377 IPC, 1860 from the statute book or amend the same.
A constitution bench of the Supreme Court in Navtej Singh Johar v UOI,1268. overruled

Suresh Kumar Koushal and held that consensual carnal intercourse among adults in
private space, does not in any way harm public decency or morality. Therefore, section

377 in its present form violates Article 19(1)(a). The court held that so far as section
377 penalises any consensual sexual relationship between two adults, be it
homosexuals (man and man), heterosexuals (man and woman) or lesbians (woman
and woman), cannot be regarded as constitutional. However, if anyone engages in any
kind of sexual activity with animal, said aspect of section 377 is constitutional and it
shall remain a penal offence. The court held that any act of description covered under
section 377 done between two individuals without consent of any one of them would
invite penal liability. Further, non-consensual acts which have been criminalised by
virtue of section 377 have already been designated as penal offences under section
375 and under POCSO Act, 2012.
[s 377.2] Section 375 not subject to section 377.—
In Navtej Singh Johar v UOI,1269. the Supreme Court further held that section 375 gives
due recognition to absence of 'wilful and informed consent' for act to be termed as

rape, per contra, section 377 which does not contain any such qualiﬁcation. Section
375, as substituted by the Criminal Law (Amendment) Act, 2013, does not use words
'subject to any other provision of IPC' which indicates that section 375 is not subject to
section 377. Criminalisation of carnal intercourse between two adults was held legally
unsustainable.
[s 377.3] Penetration.—
The explanation states that penetration is suﬃcient to constitute the sexual intercourse
necessary to the offence of rape. Section 377 of IPC, 1860 presupposes carnal
intercourse against the order of nature.1270. As in rape so also in an unnatural offence
even the slightest degree of penetration is enough and it is not necessary to prove the
completion of the intercourse by the emission of seed.1271.

In a case arising out of unnatural offence, it was held that the acts alleged against the
accused falling into two categories (1) sexual intercourse per OS (mouth) and (2)
manipulation and movement of penis of the accused whilst being held by the victims in
such a way as to create oriﬁce like thing for making manipulated movement of
insertion and withdrawal till ejaculation of semen, fell within the sweep of unnatural
carnal offences and quashing of proceedings was not warranted.1272.
offences were committed by him over a period of time. Medical evidence and DNA
proﬁle conclusively established commission of natural and unnatural sexual acts on
the deceased by the accused. Imposition of the maximum punishment awardable for

the said offences, i.e., life imprisonment was held perfectly justiﬁed.1273.
[s 377.4] Anal intercourse—Sodomy, medical evidence.—
When an expert categorically ruled out the commission of an unnatural offence having
regard to his expertise, it was obligatory on the part of the prosecution to draw his
attention so as to enable him to furnish an explanation. It was contended that
lacerations are likely to disappear if the examination is made after two to three days
and nature of injuries would also depend upon several factors. The doctor in his
evidence stated that the tissues around the anus are hard and rough. At the time of
answering the calls of nature, the extra skin will be expanded. Immediately after it will

1265.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1-1-
1956).
1266.  Naz Foundation v Government of NCT of Delhi, 2010 Cr LJ 94 (Del).
1267.  Suresh Kumar Koushal v NAZ Foundation, AIR 2014 SC 563 [LNIND 2013 SC 1059] : 2014
Cr LJ 784 .
1268.  Navtej Singh Johar v UOI, AIR 2018 SC 4321 .
1269.  Navtej Singh Johar v UOI, AIR 2018 SC 4321 .
1270.  Kailash Laxman Khamkar v State of Maharashtra, 2010 Cr LJ 3255 (Bom).
1271.  Hughes, (1841) 9 C & P 752; See also GD Ghadge, 1980 Cr LJ 1380 (Bom).
1272.  Brother John Antony v State of TN, 1992 Cr LJ 1352 (Mad). The court explained the
meaning and scope of the unnatural offence and referred to various authorities on this subject.
1273.  Rajesh v State of MP, AIR 2017 SC 532 [LNINDORD 2016 SC 11435] .
1274.  Gowrishankara Swamigalu v State of Karnataka, (2008) 14 SCC 411 [LNIND 2008 SC 598] :
AIR 2008 SC 2349 [LNIND 2008 SC 598] : 2008 Cr LJ 3042 . The offence was supposed to have

been committed for seven consecutive days at 8 a.m. in the oﬃce room a part of which was
converted into a bed room. The whole thing sounded like unnatural.
1275.  State of Maharashtra v Shankar Krisanrao Khade, 2009 Cr LJ 73 (Bom).
come to original status. By examination it was found that the boy was not habitually
used for anal intercourse. If there is continuous act of intercourse for about a week or
even two, three days it can be found out as to whether he had any intercourse or not. It
may be true that absence of medical evidence by itself is not a crucial factor in all
cases, but, the same has to be taken into consideration as a relevant factor when other
evidence points towards the innocence of the appellant. It was not a case where only
one view was possible. It is a well-settled principle of law that where two views are

possible, the High Court would not ordinarily interfere with the judgment of
acquittal.1274.
[s 377.5] Conviction without charge.—
Though medical evidence shows that victim was subjected to rape and carnal
intercourse on more than one occasion before she was murdered, there was no charge
of sodomy under section 377 IPC, 1860 framed by trial Court. It was held that accused
cannot be convicted under section 377.1275.

CHAPTER XVII OF OFFENCES AGAINST PROPERTY
Of Theft
[s 378] Theft.
Whoever, intending to take dishonestly1. any movable property2. out of the possession
of any person3. without that person's consent,4. moves that property5. in order to such
taking, is said to commit theft.
Explanation 1.—A thing so long as it is attached to the earth, not being movable
property, is not the subject of theft; but it becomes capable of being the subject of
theft as soon as it is severed from the earth.
Explanation 2.—A moving effected by the same act which affects the severance may
be a theft.
Explanation 3.—A person is said to cause a thing to move by removing an obstacle
which prevented it from moving or by separating it from any other thing, as well as by
actually moving it.
Explanation 4.—A person, who by any means causes an animal to move, is said to
move that animal, and to move everything which, in consequence of the motion so
caused, is moved by that animal.

Explanation 5.—The consent mentioned in the deﬁnition may be express or implied,
and may be given either by the person in possession, or by any person having for that
purpose authority either express or implied.
(a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the
tree out of Z's possession without Z's consent. Here, as soon as A has severed
the tree in order to such taking, he has committed theft.
(b) A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it. Here, if
A's intention be dishonestly to take the dog out of Z's possession without Z's
consent. A has committed theft as soon as Z's dog has begun to follow A.
(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certain

direction, in order that he may dishonestly take the treasure. As soon as the
bullock begins to move, A has committed theft of the treasure.
(d) A, being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly
runs away with the plate, without Z's consent. A has committed theft.
(e) Z, going on a journey, entrusts his plate to A, the keeper of the warehouse, till Z
shall return. A carries the plate to a goldsmith and sells it. Here the plate was
not in Z's possession. It could not therefore be taken out of Z's possession, and

A has not committed theft, though he may have committed criminal breach of
trust.
(f) A ﬁnds a ring belonging to Z on a table in the house which Z occupies. Here the
ring is in Z's possession, and if A dishonestly removes it, A commits theft.
(g) A ﬁnds a ring lying on the highroad, not in the possession of any person. A by
taking it, commits no theft, though he may commit criminal misappropriation of
property.
(h) A sees a ring belonging to Z lying on a table in Z's house. Not venturing to
misappropriate the ring immediately for fear of search and detection, A hides
the ring in a place where it is highly improbable that it will ever be found by Z,
with the intention of taking the ring from the hiding place and selling it when the
loss is forgotten. Here A, at the time of ﬁrst moving the ring, commits theft.
(i) A delivers his watch to Z, a jeweller, to be regulated. Z carries it to his shop. A,
not owing to the jeweller any debt for which the jeweller might lawfully detain the

watch as a security, enters the shop openly, takes his watch by force out of Z's
hand, and carries it away. Here A, though he may have committed criminal
trespass and assault, has not committed theft, inasmuch as what he did was not
done dishonestly.
(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfully
as a security for the debt, and A takes the watch out of Z's possession, with the
intention of depriving Z of the property as a security for his debt, he commits
theft, inasmuch as he takes it dishonestly.
(k) Again, if A, having pawned his watch to Z, takes it out of Z's possession without
Z's consent, not having paid what he borrowed on the watch, he commits theft,
though the watch is his own property inasmuch as he takes it dishonestly.

(l) A takes an article belonging to Z out of Z's possession, without Z's consent, with
the intention of keeping it until he obtains money from Z as a reward for its
restoration. Here A takes dishonestly; A has therefore committed theft.
(m) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes
away a book without Z's express consent for the purpose merely of reading it,
and with the intention of returning it. Here, it is probable that A may have
conceived that he had Z's implied consent to use Z's book. If this was A's
impression, A has not committed theft.
(n) A asks charity from Z's wife. She gives A money, food and clothes, which A
knows to belong to Z her husband. Here it is probable that A may conceive that
Z's wife is authorised to give away alms. If this was A's impression, A has not
committed theft.

(o) A is the paramour of Z's wife. She gives A valuable property, which A knows to
belong to her husband Z, and to be such property as she has no authority from Z
to give. If A takes the property dishonestly, he commits theft.
(p) A, in good faith, believing property belonging to Z to be A's own property, takes

that property out of B's possession. Here, as A does not take dishonestly, he
does not commit theft.
1.  Prafula Saikia v State of Assam, 2012 Cr LJ 3889 (Gau).
2.  P T Rajan Babu v Anitha Chandra Babu, 2011 Cr LJ 4541 (Ker).
3.  Nobin Chunder Holder, (1866) 6 WR (Cr) 79.
4.  Ramratan, AIR 1965 SC 926 [LNIND 1964 SC 365] : (1965) 2 Cr LJ 18 .
5.  Rameshwar Singh, (1936) 12 Luck 92 .
COMMENT—
Section 378 of the Indian Penal Code, 1860 (IPC, 1860) deﬁnes 'theft' as the dishonest
removal of movable property 'out of the possession of any person' without the consent
of that person. 'Theft', has the following ingredients, namely, (i) dishonest intention to
take property; (ii) the property must be movable; (ii) it should be taken out of the
possession of another person; (iv) it should be taken without the consent of that
person; and (v) there must be some moving of the property in order to accomplish the
taking of it.
To bring home an offence under section 378 IPC, 1860, the prosecution is to prove (a)

that there was a movable property; (b) that the said movable property was in the
possession of person other than the accused; (c) that the accused took it out or moved
it out of the possession of the said person; (d) that the accused did it dishonestly, i.e.,
with intention to cause wrongful gain to himself or wrongful loss to another; (e) that the
accused took the movable property or moved it without the consent of the possessor
of the movable property.1
The Criminal Court is not required to adjudicate on rival claims of title claimed by the
parties. All that the Criminal Court has to decide is whether at the time of the alleged
incident the property which is the subject-matter of theft was in the 'possession' of the
complainant and whether it was taken out of the possession of the complainant with a
dishonest intention.2

Of Theft
[s 379] Punishment for theft.
Whoever commits theft shall be punished with imprisonment of either description for
COMMENT—
In order to constitute theft ﬁve factors are essential:—
(1) Dishonest intention to take property;
(2) The property must be movable;
(3) The property should be taken out of the possession of another person;
(4) The property should be taken without the consent of that person; and
(5) There must be some moving of the property in order to accomplish the taking of
it.
1. 'Intending to take dishonestly'.—Intention is the gist of the offence. The intention to
take dishonestly exists when the taker intends to cause wrongful gain to one person or
wrongful loss to another person. Where, therefore, the accused acting bona ﬁde in the
interests of his employers ﬁnding a party of ﬁshermen poaching on his master's

ﬁsheries, took charge of the nets and retained possession of them, pending the orders
of his employers, it was held that he was not guilty of theft.3 When a person seizes
cattle on the ground that they were trespassing on his land and causing damage to his
crop or produce and gives out that he is taking them to the cattle pound, he commits
no offence of theft, and however mistaken he may be about his right to that land or
crop. He has no dishonest intention.4 Where a respectable person just pinches the
cycle of another person, as his own cycle at the time was missing, and brings it back
and the important element of criminal intention is completely absent and he did not
intend by his act to cause wrongful gain to himself, it does not amount to theft.5
The intention to take dishonestly must exist at the time of the moving of the property

[vide ill. (h)]. The taking must be dishonest. It is not necessary that the taking must
cause wrongful gain to the talker; it will suﬃce if it causes wrongful loss to the owner.6.
Thus, where the accused took the complainant's three cows against her will and
distributed them among her creditors, he was found guilty of stealing.7. It makes no
difference in the accused's guilt that the act was not intended to procure any personal
beneﬁt to him. Could it be said that a servant would not be guilty of theft if he were to
deliver over his master's plate to a pressing tailor, and tell him to pay himself? If the act
done was not done animo furtandi, it will not amount to theft. It is no more stealing than
it will be to take a stick out of a man's hand to beat him with it.8.
[s 379.1] Taking need not be with intent to retain property permanently.—

It is not necessary that the taking should be permanent or with an intention to
appropriate the thing taken9. [vide ill. (1)]. There may be theft without an intention to
deprive the owner of the property permanently. Where the accused took out an Indian
Air Force plane for an unauthorised ﬂight, even temporarily, it was held that he was
guilty of theft.10. It would satisfy the deﬁnition of theft if the accused takes away any
movable property out of the possession of another person though he intended to return
it later on. The accused, who was working in a Government oﬃce, removed a ﬁle to his
house, made it available to an outsider and then returned it to the oﬃce after two days.
It was held by the Supreme Court that the accused was guilty of theft.11.
[s 379.2] Bona ﬁde dispute.—
Where property is removed in the assertion of a contested claim of right, however ill-
founded that claim may be, the removal thereof does not constitute theft.12. Where the

question in dispute between two parties was whether the sale of a mahal (village)
carried within its ambit the sale of certain trees and the servant of one of the parties
cut and removed the trees under his master's orders under the bona ﬁde belief that they
belonged to his master, it was held that the servant was not guilty of theft.13. The
dispute as to ownership must be bona ﬁde. A mere colourable pretence to obtain or
keep possession of property does not avail as a defence.14. It is not theft if a person,
acting under a mistaken notion of law, and believing that certain property is his, and
that he has the right to take the same, until payment of the balance of some money due
to him from the vendor, removes such property from the possession of the vendee.15.

Where a bona ﬁde claim of right exists, it can be a good defence to a prosecution for
theft. Thus where the question of possession was in a ﬂuid state and the accused bona
ﬁde believed that the crop was his as he had cultivated the land, no offence either of
criminal trespass or theft could be made out against him. Such a matter is better
decided in a Civil Court.16. However, it was held in a case of dacoity that the question
of bona ﬁde claim of right arises only where the accused show to the Court's
satisfaction that their belief is reasonable and is based on some documents and title,
however weak it may be.17. An act does not amount to theft under such circumstances
unless there be not only no legal right but no appearance or colour of a legal right.18.
[s 379.3] Mistake.—

When a person takes another man's property believing under a mistake of fact and in
ignorance of law, that he has a right to take it, he is not guilty of theft because there is
no dishonest intention, even though he may cause wrongful loss.19.
[s 379.4] Taking back property lent on hire.—
There was a hire-purchase agreement in respect of a vehicle. The custody of the
vehicle was handed over to the hirer. The ﬁnancier was to continue as the owner till the
last instalment. The ﬁnancier took back the vehicle for default in payments in
accordance with the agreement. It was held that this did not amount to theft by the
owner of his vehicle as the vital element of dishonest intention was lacking.20.

[s 379.5] Hire Purchase.—
When hirer himself committed default by not paying the instalments and under the
agreement, the appellants have repossessed the vehicle, the respondent-hirer cannot
have any grievance as the vital element of 'dishonest intention' is lacking. The element
of 'dishonest intention' which is an essential element to constitute the offence of theft
cannot be attributed to a person exercising his right under an agreement entered into
between the parties as he may not have an intention of causing wrongful gain or to
cause wrongful loss to the hirer.21. Because of the fact that status of complainant
relating to the vehicle in question having purchased under Hire Purchase Agreement till
saturation of the loan amount remains merely a trustee or bailee on behalf of ﬁnancer
and further in the aforesaid background the ﬁnancer happens to be the real owner of
the vehicle till saturation of the loan amount, no prosecution would lie on that score.22.

The hire-purchase agreement in law is an executory contract of sale and confers no
right in rem on hire until the conditions for transfer of the property to him have been
fulﬁlled.23.
2. 'Movable property'.—Explanations 1 and 2 state that things attached to the land may
become movable property by severance from the earth, and that the act of severance
may of itself be theft [vide ill (a)]. Thus, the thief who severs and carries away is put in
exactly the same position as if he carried away what had previously been severed. A
sale of trees belonging to others and not cut down at the time of sale does not
constitute theft.24. But removal of a man's trees that had been blown down by a storm
amounts to theft.25.
It is not necessary that the thing stolen must have some appreciable value.
[s 379.6] CASES.— Earth and stones.—

Cart-loads of earth26. or stones27. quarried and carried away from the land of another
are subject of theft.
[s 379.6.1] Timber.—
Extraction of teak timber without licence amounts to theft of Government timber.28. In
Bhaiyalal v State of MP,29. it was held that the act of cutting of trees standing on
Government land amounts to theft under section 378.
[s 379.6.2] Salt.—
Salt spontaneously formed on the surface of a swamp appropriated by Government,30.
or in a creek under the supervision of Government,31. is subject of theft; but not that
which is formed on a swamp not guarded by Government.32.
[s 379.6.3] Human body.—
Human body whether living or dead (except bodies, or portions thereof, or mummies,
preserved in museums or scientiﬁc institutions) is not movable property.33.

[s 379.6.4] Idol.—
Idol is movable property and can be the subject matter of theft. It's being a juridical
person for certain purposes is no bar to its also being a movable property.34.
[s 379.6.5] Gas.—
A, having contracted with a gas company to consume gas and pay according to meter,
in order to avoid paying for the full quantity of gas consumed, introduced into the
entrance pipe another pipe for the purpose of conveying the gas to the exit pipe of the
meter and so to the burners, for consumption without passing through the meter itself.
The entrance pipe was the property of A, but he had not by his contract any interest in
the gas until it passed through the meter. It was held that A was guilty of larceny.35.
[s 379.6.6] Electricity.—
Theft of electricity is governed by section 135 of the Electricity Act, 2003. Though the
electricity is not movable property within the meaning of section 378, IPC, 1860, and as
such its dishonest abstraction cannot be regarded as theft under section 378, yet by a

legal ﬁction created by section 39 of the Indian Electricity Act, 1910 (now repealed),
such an act should be deemed to be an offence of theft and punished under section
379, IPC, 1860, and section 39 of the Electricity Act, 1910. In the case of Mahalakshmi
Spinners Ltd v State of Haryana,36. it was held that when there is a speciﬁc/ special law
covering the question of theft of electricity, i.e. section 135 of the Electricity Act, (Act 9
of 1910), the general law contained in section 379, IPC, 1860 will not be applicable. Any
attempt by the notice to add offence under section 379 IPC, 1860 will be a crude devise
by the prosecution to overcome the likely objection from the accused about the ﬁling of
the complaint instead of registration of FIR. Law is well settled that special law will
prevail over the general law.
[s 379.6.7] Water.—

Water supplied by a water company to a consumer, and standing in his pipes, may be
the subject of larceny.37. Water when conveyed in pipes and so reduced into
possession can be the subject of theft;38. but not water running freely from a river
through an open channel made and maintained by a person.39.
[s 379.6.8] Animals.—Bull.—
A bull dedicated to an idol and allowed to roam at large is not res nullius (thing
belonging to no one) but remains the property of the trustees of the temple, and can
become the subject of theft;40. but not a bull set at large in accordance with a religious
usage.41.
[s 379.6.9] Peacock.—

A peacock tamed but not kept in conﬁnement is the subject of theft.42. So is the case
with pigeons kept in a dovecote and partridges.
[s 379.6.10] Fish.—
Fish in an ordinary open irrigation tank,43. or in a tank not enclosed on all sides but
dependent on the overﬂow of a neighbouring channel,44. are ferae naturae and not
subject to theft. If the water in an irrigation tank has gone so low as not to permit the
ﬁsh leaving the tank then they may be subject of theft.45. Similarly, ﬁsh in an enclosed
tank are restrained of their natural liberty and liable to be taken at any time according to
the pleasure of the owner, and are, therefore, subject of theft.46. Thus ﬁsh in an
enclosed Government tank is the property in possession of Government and it is theft
to catch ﬁsh therein without a licence apart from being an offence under the Fisheries
Act, 1897.47. Fish are said to be in the possession of a person who has possession of
any expanse of water such as a tank where they live but from where they cannot

escape. They are also regarded as being in the possession of a person who owns an
exclusive right to catch them in a particular spot known as a ﬁshery but only within that
spot.48. Where plots belonging to different owners in a low-lying area, demarcated by
ridges of small height, are sub-merged during certain months in the year by one sheet
of water and ﬁsh escape from one plot to another, it cannot be said in such a case that
ﬁsh is the subject matter of theft.49.
[s 379.6.11] Crop.—
Removal of paddy crop has been held to be theft. Persons who helped removal under
directions as labourers were not guilty. The fact that the land was in the possession of
the complainant and it was he who had grown the crop was held to be suﬃcient to
negative the accused's suggestion that he removed the crop under a bona ﬁde belief
that he was entitled to it.50.

[s 379.6.12] Standing Timber.—
Standing timber being embedded in the earth is immovable property but the moment it
is severed from the earth it becomes capable of being the object of theft.51.
[s 379.6.13] Ballot Paper.—
Accused was allegedly found in possession of a bundle of 84 stolen postal ballot
papers at gate of printing press. High Court rejected the plea of petitioner that since he
was found in possession of ballot papers, he ought not to have been tried for an
offence under section 380 IPC, 1860,rather he could have been tried under section
127(p)(iv) of Assam Panchayat Act, 1994.52.
[s 379.6.14] Motor vehicles.—

The allegation was that the accused changed engine, colour, etc. of stolen vehicles and
got them registered in new owners' names. But no particular instance was shown. The
incident was more than ten years old. There was no explanation for delay in presenting
charge-sheet. Hence, acquittal was held proper.53.
3. 'Out of the possession of any person'.—The property must be in the possession of
the prosecutor.54. Thus, there can be no theft of wild animals, birds, or ﬁsh, while at
large, but there can be a theft of tamed animals. It is suﬃcient if property is removed
against his wish from the custody of a person who has an apparent title, or even colour
of right to such property.55. Transfer of possession of movable property without
consent of the person in possession need not, however, be permanent or for a
considerable length of time nor is it necessary that the property should be found in
possession of the accused. Even a transient transfer of possession is suﬃcient to
meet the requirement of this section.56.

The authors of the Code remark: "We believe it to be impossible to mark with precision,
by any words, the circumstances which constitute possession. It is easy to put cases
about which no doubt whatever exists, and about which the language of lawyers and of
the multitude would be the same. It will hardly be doubted, for example, that a
gentleman's watch lying on a table in his room is in his possession, though it is not in
his hand, and though he may not know whether it is on his writing-table or on his
dressing-table. As little will it be doubted that a watch which a gentleman lost a year
ago on a journey, and which he has never heard of since, is not in his possession. It will
not be doubted that when a person gives a dinner, his silver forks, while in the hands of
his guests, are still in his possession; and it will be as little doubted that his silver forks

are not in his possession when he has deposited them with a pawnbroker as a pledge.
But between these extreme cases lie many cases in which it is diﬃcult to pronounce,
with conﬁdence, either that property is or that it is not in a person's possession."57.
A movable thing is said to be in the possession of a person when he is so situated with
respect to it that he has the power to deal with it as owner to the exclusion of all other
persons, and when the circumstances are such that he may be presumed to intend to
do so in case of need.58.
[s 379.7] 'Any person'.—
The person from whose possession the property is taken may or may not be the owner
of it and may have his possession either rightful or wrongful. Mere physical control of
the person over the thing is quite enough [vide ills. (j) and (k)].
[s 379.8] Attachment.—

Theft can be committed by the owner of property under attachment by removing it.59.
The removal of crops, standing on land attached and taken possession of by the Court
under section 145, Code of Criminal Procedure, 1973(Cr PC, 1973), amounts to theft.60.
Where a judgment-debtor, whose standing crops were attached, harvested them while
the attachment was in force, it was held by the Madras High Court that he could not be
convicted of theft but of offences under sections 424 and 403.61.

[s 379.9] Joint possession.—
Where there are several joint owners in joint possession, and any one of them,
dishonestly takes exclusive possession, he would be guilty of theft.62. A co-owner of
movable property with another, even if his share is deﬁned, can be guilty of theft, if he is
found to remove the joint property without even an implied consent of the co-owner,
with a view to cause wrongful loss to the co-owner and consequently wrongful gain to
himself or anybody else.63. Similarly, if a coparcener dishonestly takes the separate
property of another coparcener, it amounts to theft.64.
[s 379.10] Seizure of things delivered under hire-purchase.—
In Shriram Transport Finance Co Ltd v R Khaishiulla Khan,65. it was held that in case of a
hire-purchase transaction, when the ﬁnancier seizes the vehicle for default in payment
of instalments by the hirer, the ﬁnancier cannot be charged for an offence of theft
under section 378 because of absence of mens rea. The right of the owner to get back

the vehicle is not affected by the ﬁction of 'deemed owner' under the Motor Vehicles
Act, 1988. The act of taking back the vehicle did not amount to theft.66.
[s 379.11] Animals ferae naturae.—
Animals found in reserve forests are ferae naturae and incapable of possession. Till
they are tamed and domesticated and brought to the custody of a person, whether it is
Government or any other individual, such animals cannot be said to be in the
possession of the Government and persons who remove them cannot be convicted of
theft.67.
[s 379.12] CASES.—
Where the complainant had an apparent title as tenant of the land together with long
possession, and he had on the strength of this raised the crops which the accused
removed, it was held that the accused was guilty of theft because he was not justiﬁed

in taking the law into his own hands, even if he was entitled to hold the land, as he was
not in actual possession of it.68.
Where a person takes a lorry on hire-purchase system from a company which under the
agreement had reserved the right of seizing the lorry in the event of default in payment
of instalments, and default is made, then the company is not entitled to retake
possession of the lorry by force or by removing it from the hands of the purchaser's
servants who had no authority, express or implied, to give any consent. If the company
or its agents do so they are guilty of an offence under this section. The question
whether ownership had or had not passed to the purchaser is wholly immaterial as this
section deals with possession and not ownership. The legal possession of the lorry

was vested in the purchaser and the company was not entitled to recover possession
of the lorry, even though default in payment of any instalments had taken place, without
the consent of the purchaser. Possession of the driver and the cleaner was the
possession of their master and they were not competent to give consent on behalf of
the master.69.

4. 'Consent'.—The thing stolen must have been taken without the consent of the person
in possession of it. Explanation 5 says that consent may be express or implied, and
may be given either by the person in possession, or by any person having for that
purpose authority either express or implied [vide ills. (m) and (n)]. But consent given
under improper circumstances will be of no avail [vide ill. (c)]. Consent obtained by a
false representation which leads to a misconception of facts will not be a valid
consent.70.
[s 379.13] CASES.—
A sought the aid of B with the intention of committing a theft of the property of B's
master. B, with the knowledge and consent of his master, and for the purpose of
procuring A's punishment, aided A in carrying out his object. It was held that as the
property removed was so taken with the knowledge of the owner, theft was not
committed, but A was guilty of abetment of theft.71. Really speaking, the owner did not

consent to the dishonest taking away of the property. He merely assisted the thief in
carrying out the latter's dishonest intention. Cf.ills. (m), (n) and (o). The thief had no
knowledge of the owner's act and it could not, therefore, be construed as a consent.
[s 379.14] Unauthorised consent.—
Possession of wood by a Forest Inspector, who is a servant of Government, is
possession of the Government itself and a dishonest removal of it, without payment of
the necessary fees, from his possession, albeit with his actual consent, was held to
constitute theft as consent was unauthorised and fraudulent.72.
5. 'Moves that property'.—The offence of theft is completed when there is a dishonest
moving of the property, even though the property is not detached from that to which it

is secured. The least removal of the thing taken from the place where it was before is a
suﬃcient asportation though it is not quite carried off. Upon this principle the guest,
who having taken off the sheets from his bed with an intent to steal them carried them
into the hall, and was apprehended before he could get out of the house, was adjudged
guilty of theft. So also was he, who having taken a horse in a close with intent to steal
it, was apprehended before he could get it out of the close.73.
Explanations 3 and 4 state how 'moving' could be effected in certain cases.
Illustrations (b) and (c) elucidate the meaning of Explanation 4.
In a prosecution under sections 379/411 in respect of timber seized in a raid the link
between the seized timber and the accused was not established nor was any evidence

brought to show that the seized timber was transported by the accused under the guise
of permits issued to him by the forest department. Acquittal of the accused of the
offences under the aforesaid sections was not interfered with.74.
6. Explanations 1 and 2.—The moving by the same act, which effects the severance,
may constitute theft.75. Carrying away of trees after felling them is theft76. but mere
sale is not.77. In the case of growing grass, a moving by the same act, which affects its
severance from the earth, may amount to theft.78.
Where certain land, on which there was a standing crop of paddy, was entrusted to the
accused to take care of and watch till the paddy was ripe when they were to give notice

to the factory people who would reap it, it was held that by cutting the crops
themselves and disposing of the same, the accused had committed theft.79.
[s 379.15] Husband and wife.—Hindu law.—
There is no presumption of law that husband and wife constitute one person in India
for the purpose of criminal law. If the wife removes her husband's property from his
house with dishonest intention, she is guilty of theft.80. A Hindu woman who removes
from the possession of her husband and without his consent, her stridhan (woman's
property) cannot be convicted of theft because this species of property belongs to her
absolutely.81. So also, a husband can be convicted if he steals his wife's stridhan.
Where certain articles of movable property were in the joint possession of husband and
wife, it was held that the husband who was alleged to have taken away the articles
could not be held guilty of theft.82.
[s 379.16] Mohammedan law.—
It is laid down that a Mohammedan wife may be convicted of stealing from her

husband, because under this system of law, there does not exist the same union of
interest between husband and wife as exists between an English husband and wife.83.
The same reasoning would apply in the case of a Mohammedan husband.
[s 379.16.1] Necessitas inducit privilegium quo ad jura privata.—
Where a man in extreme want of food or clothing steals either in order to relieve his
present necessities, the law allows no such excuse to be considered.
[s 379.17] Single or several thefts.—
Removal by one single act of several articles constitutes one offence of theft only
although the articles belong to different persons.84.
[s 379.18] Restoration of stolen property.—
The property stolen may be returned to the person from whom it was stolen under
section 452, Cr PC, 1973, and an innocent purchaser may be compensated for the price

paid under section 453, if any money is found in the possession of the thief. But the
property restored should be in existence at the time of theft. R's cow having been
stolen, the thief after a lapse of a year and a half was convicted. Six months after the
theft V innocently purchased the cow, which while in his possession, had a calf. The
Magistrate ordered that the cow and the calf should be delivered up by V to R. It was
held that, as the calf was not even in embryo at the date of the theft, the order to deliver
up the calf was illegal.85.
In Karuppanan v Guruswami,86. it was held by the High Court of Madras that where the
person accused of theft is acquitted and claims as his own the property seized from
him, it should be restored to him in the absence of special reasons to the contrary. The

Court observed that since it was clear that the learned Sub-Magistrate has over-looked
the fundamental principle, that when property is seized from a person who is
afterwards acquitted of stealing it, the property should ordinarily be returned to that
person. The Magistrate cannot be said to have exercised his discretion in a judicial
manner.
[s 379.19] Possession, presumption of theft.—
Where electric wires stolen from an electric sub-station were found in the possession
of the accused and there was evidence to show that the material of that kind was not
available in the market, it was held that a presumption arose that the material was a
stolen property and that the accused committed the theft. Considering that the
accused was the sole breadwinner of the family and he had no past criminal record,
one year's RI was considered to be good enough punishment to meet the ends of
justice.87.
[s 379.20] Theft and extortion.—
The offence of extortion is carried out by overpowering the will of the victim, in

committing a theft, on the other hand, the offender's intention always is to take away
without consent.88.
[s 379.21] Charge proved.—
The accused administered intoxicating substance to complainant and took away
valuable goods and cash. The complainant identiﬁed these articles in the Test
Identiﬁcation Proceedings conducted during investigation and they were also identiﬁed
by him in the Court hence, conviction was held to be proper.89.
[s 379.22] Double jeopardy.—
In a case, FIR was registered under section 379 of IPC, 1860 and section 21(1) of
Mines and Minerals (Development and Regulation) Act, 1957 for the allegation was
theft of sand belonging to Government. The plea of Double Jeopardy was rejected
holding that both offences are not same in terms of Article 20(2) of the Constitution. A
cursory comparison of these two provisions with section 378 of IPC, 1860 would go to

show that the ingredients are totally different. The contravention of the terms and
conditions of mining lease, etc. constitutes an offence punishable under section 21 of
the Mines and Minerals Act, 1957, whereas dishonestly taking any movable property
out of the possession of a person without his consent constitutes theft. Thus, it is
undoubtedly clear that the ingredients of an offence of theft as deﬁned in s 378 of IPC,
1860 are totally different from the ingredients of an offence punishable under section
21(1) r/w.s. 4 (1) and 4 (1 A) of the Mines and Minerals Act, 1957.90.

6.  Madra, (1946) Nag 326.
7.  Madaree Chowkeedar, (1865) 3 WR (Cr) 2.
8.  Bailey, (1872) LR 1 CCR 347. For a general study as to the notion of theft and obtaining by
false pretenses, see M Adekunle Owaade, THE DILEMMA OF THE CRIMINAL LAW IN PROPERTY
OFFENCES—A comparative Analysis of the basic Issues in stealing and obtaining by false
pretenses, (1989) 31 JILI 226.
9.  Sri Churn Chungo, (1895) 22 Cal 1017 (FB); Nagappa, (1890) 15 Bom 344.
10.  KN Mehra, AIR 1957 SC 369 [LNIND 1957 SC 14] : 1957 Cr LJ 550 .
11.  Pyare Lal, AIR 1963 SC 1094 [LNIND 1962 SC 341] : (1963) 2 Cr LJ 178 .
12.  Algarasawmi Tevan, (1904) 28 Mad 304.
13.  Ramzani, (1943) 19 Luck 399 .
14.  Arfan Ali, (1916) 44 Cal 66 ; Harnam Singh v State, (1923) 5 Lah 56.
15.  Hamid Ali Bepari, (1925) 52 C l 1015.
16.  Ram Ekbal v State, 1972 Cr LJ 584 : AIR 1972 SC 949 .
17.  G Raminadin, 1980 Cr LJ 1477 : AIR 1980 SC 2127 ; See also Dandi Deka, 1982 Cr LJ NOC
188 (Gau).

188 (Gau).
18.  Apparao v Lakshminarayana, AIR 1962 SC 586 [LNIND 1961 SC 324] : (1962) 1 Cr LJ 518 ;
Chandi Kumar v Abanidhar Roy, AIR 1965 SC 585 [LNIND 1963 SC 231] : (1965) 1 Cr LJ 518 .
19.  Nagappa, (1890) 15 Bom 344.
20.  Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] .
21.  Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] : (2001) 7
SCC 417 [LNIND 2001 SC 2906] .
22.  Naresh Singh v State of Bihar, (PATNA HC) : 2017 (2) PLJR 514 .
23.  Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] .
24.  Balos, (1882) 1 Weir 419.
25.  Dunyapat, (1919) 42 All 53 .
26.  Shivramm, (1891) 15 Bom 702.
27.  Suri Venkatappayya Sastri v Madula Venkanna, (1904) 27 Mad 531 (FB).
28.  Yeok Kuk, (1928) 6 Ran 386.
29.  Bhaiyalal v State of MP, 1993 Cr LJ 29 (MP).

30.  Tamma Ghantaya, (1881) 4 Mad 228.
31.  Mansang Bhavsang, (1873) 10 BHC 74.
32.  Government Pleader, (1882) 1 Weir 412.
33.  Ramadhin, (1902) 25 All 129 .
34.  Ahmed v State, AIR 1967 Raj 190 [LNIND 1966 RAJ 32] .
35.  White v White, (1853) 6 Cox 213. R v Hughes, (2000) 2 Cr App R (S) 399 [CA (Crim Div)], gas
meter by passed, three months' imprisonment.
36.  Mahalakshmi Spinners Ltd v State of Haryana, 2007 Cr LJ 429 (P&H).
37.  Ferens v O'Brien, (1883) 11 QBD 21 .
38.  Mahadeo Prasad, (1923) 45 All 680 .
39.  Sheikh Arif, (1908) 35 Cal 437 .
40.  Nalla, (1887) 11 Mad 145.
41.  Romesh Chunder Sannyal v Hiru Mondal, (1890) 17 Cal 852 ; Bandhu, (1885) 8 All 51 ; Nihal,
(1887) 9 All 348 .
42.  Nanhe Khan, (1897) 17 AWN 41.
43.  Subba Reddi v Munshoor Ali Saheb, (1900) 24 Mad 81.

44.  Maya Ram Surma v Nichala Katani, (1888) 15 Cal 402 .

45.  Subbian Servai, (1911) 36 Mad 472.
46.  Shaik Adam, (1886) 10 Bom 193; Nokolo Behara v State, (1927) 51 Mad 333.
47.  State of Rajasthan v Pooran Singh, 1977 Cr LJ 1055 (Raj).
48.  Chandi Kumar v Abanidhar Roy, AIR 1965 SC 585 [LNIND 1963 SC 231] : (1965) 1 Cr LJ 496 .
49.  Bairagi Rout v Brahmananda Das, 1970 Cr LJ 638 .
50.  Sukchand Harijan v State of Orissa, 1988 Cr LJ 1579 (Ori). Relying on Kabir v Arjun Sial,
(1959) 25 Cut LT 249. Droupadi Devi v Padmanabha Mishra, 1997 Cr LJ 2807 (Ori), the accused
removed his own cultivated crop. The fact of dispute about land which was in possession of the
accused would not make him guilty of theft. Civil case of ownership was pending.
51.  P T Rajan Babu v Anitha Chandra Babu, 2011 Cr LJ 4541 (Ker).
52.  Prafula Saikia v State of Assam, 2012 Cr LJ 3889 (Gau).
53.  Public Prosecutor v B Ramakrishna, 1997 Cr LJ 3940 (AP).
54.  Hossenee v Rajkrishna, (1873) 20 WR (Cr) 80. Rabi Kumar Agarwal v State of WB, 2003 Cr LJ

1342 (Cal), items of furniture alleged to be stolen by forcing entry into the room, no proof
available that the complainant was in possession of such items. Charge not allowed to be
framed. Sashibhusan Giri v Kalakar Moharita, 2003 Cr LJ 1065 , allegation of cutting and
removing paddy crop from the complainant's land, but neither he nor his witness were able to
identify the ﬁeld in question and when the crop was shown there. There was dispute about
possession, one claiming through succession and the other through sale deed. Thus, the
ingredient of theft was not made out. Lila Satynarayan Pd. v Shiv Nandan Singh, 2003 Cr LJ NOC
34 : (2002) 2 BLJR 864 , theft of logs, no record of purchase or of possession, false charge.
55.  Queen-Empress v Gangaram Santram, (1884) 9 Bom 135.

56.  State of Maharashtra v Vishwanath, 1979 Cr LJ 1193 : AIR 1979 SC 1825 [LNIND 1979 SC
316] .
57.  The Works of Lord Macaulay, Note N, On the Chapter of offences against property.
58.  James Fitzjames Stephen, DIGEST OF CRIMINAL LAW, 9th Edn, Article 359. Harichandran v
State of TN, 1997 Cr LJ 41 (Mad), the accused was admittedly the owner of the land from where
he removed rocks for commercial purposes. No offence. State of Rajasthan v Amit, 1997 Cr LJ
121 (Raj), theft of generator, no details as to generator given, chowkedar not produced in
evidence, delay of 15-20 days in lodging report, acquittal of accused proper.
59.  Periyannan, (1883) 1 Weir 423; Chunnu, (1911) 8 ALJR 656.
60.  Bande Ali Shaikh, (1939) 2 Cal 419 .
61.  Obayya, (1898) 22 Mad 151.
62.  Ponnurangam, (1887) 10 Mad 186.
63.  Ramsharnagat Singh, 1966 Cr LJ 856 .

64.  Sita Ram Rai, (1880) 3 All 181 .
65.  Finance Co Ltd v R Khaishiulla Khan, 1993 Cr LJ 1069 (Kant).
66.  Sundaram Finance Ltd v Mohd. Abdul Wakeel, 2001 Cr LJ 2441 (MP) Another similar case
Charanjit Singh Chadha v Sudhir Mehra, 2001 Cr LJ 4255 (SC), retaking things delivered under
hire-purchase. Sekar v Arumugham, 2000 Cr LJ 1552 (Mad) lorry ﬁnanced under hire-purchase
and hypothecation, seized by the banker on default, no theft.
67.  Perumal, (1955) Mad 795.
68.  Pandita v Rahimulla Akundo, (1900) 27 Cal 501 .
69.  HJ Ransom v Triloki Nath, (1942) 17 Luck 663 . Selvaraj v State of TN, 1998 Cr LJ 2683
(Mad), the victim stated that someone had stolen his money by cutting his bag, but he had not
seen him. The person who was caught was neither identiﬁed nor was anything recovered from

him. Acquitted. See also Shahul Hameed v State of TN, 1998 Cr LJ 885 (Mad).

70.  Parshottam, (1962) 64 Bom LR 788 .
71.  Troylukho Nath Chowdhry v State, (1878) 4 Cal 366 .
72.  Hanmanta, (1877) 1 Bom 610.
73.  2 East PC 555.
74.  State of HP v Jagat Ram, 1992 Cr LJ 1445 (HP).
75.  (1870) 5 MHC (Appx) xxxvi.
76.  Bhagu : Vishnu, (1897) Unrep Cr C 928.
77.  Balos, (1882) 1 Wier 419.
78.  Samsuddin, (1900) 2 Bom LR 752 .
79.  Durga Tewari, (1909) 36 Cal 758 .
80.  Butchi v State, (1893) 17 Mad 401.
81.  Natha Kalyan, (1871) 8 BHC (Cr C) 11.
82.  Harmanpreet Singh Ahluwalia v State of Punjab, (2009) 7 SCC 712 [LNIND 2009 SC 1121] :
2009 Cr LJ 3462 .
83.  Khatabai, (1869) 6 BHC (Cr C) 9.
84.  Krishna Shahuji, (1897) Unrep Cr C 927.
85.  Vernede, (1886) 10 Mad 25. The appellant and two others were put up for joint trial. The
charges levelled against the two were under section 448 (house trespass) and section 380,
whereas the charge against the appellant only was under section 448, which is a summons case

and section 380 is a warrant case. The charge against the appellant was held to be an abuse of
the process of the court and the proceeding against him was accordingly quashed. Bhaskar
Chattoraj v State of WB, AIR 1991 SC 317 : 1991 Cr LJ 451 .
86.  Karuppanan v Guruswami, (1933) ILR 56 Mad 654 : AIR 1933 Mad 434 [LNIND 1932 MAD
175] a.
87.  Rasananda Bindani v State of Orissa, 1992 Cr LJ 121 (Ori). See further State of Kerala v
Kuttan Mohanan, 1988 Cr LJ 453 (Ker), where the fact that the owner did not report the matter to
the police was held to be no ground for rejecting his testimony. Santu v State of MP, 2001 Cr LJ
4455 (Chhattisgarh), property recovered from the accused could not be proved to be stolen,
conviction set aside.
88.  Dhananjay v State of Bihar, (2007) 14 SCC 768 [LNIND 2007 SC 111] : 2007 Cr LJ 1440 :

(2007) 2 KLJ 294 .
89.  Manish Soni v State (Govt. of NCT) Delhi, 2013 Cr LJ 1949 (Del). See Abul Hassan v State
2009 Cr LJ 3664 (Pat), where the allegation was that appellant took away cash and wrist watch
of informant after administering intoxicant mixed in tea. But accused is given beneﬁt of doubt
on the ground that the prosecution failed to produce any medical report on the record of the
Forensic Science Laboratory that the mouth wash of the informant or his brother contained
intoxicant substance, suﬃcient to cause sedation if administered in required quantity.
90.  Sengol v State, 2012 Cr LJ 1705 (Mad).

Of Theft
[s 380] Theft in dwelling house, etc.
Whoever commits theft in any building,1 tent or vessel, which building, tent or vessel
is used as a human dwelling, or used for the custody of property, shall be punished
Tamil Nadu.—The following amendments were made by Tamil Nadu Act No. 28 of 1993,
Section 2.
Section 380 of the Indian Penal Code (Central Act XLV of 1860) (hereinafter in this Part
referred to as the principal Act), shall be renumbered as sub-section (1) of that section
and after sub-section (1) as so renumbered, the following sub-section shall be added,
namely:—
"(2) Whoever commits theft in respect of any idol or icon in any building used as a
place of worship 'shall be punished with rigorous imprisonment for a term which shall

namely:—
not be less than two years but which may extend to three years and with ﬁne which
shall not be less than two thousand rupees:
judgment impose a sentence of imprisonment for a term of less than two years."
COMMENT—
The object of the section is to give greater security to property deposited in a house,
tent or vessel. Theft from a person in a dwelling house will be simple theft under
section 379.91.
1. 'Theft in any building'.—Building means a permanent ediﬁce of some kind. Theft
should, under the section, have been committed in any such building. Theft from a
veranda,92. or the top of a house,93. or a brake-van,94. is not theft in a building. But
where the accused stole some luggage and cash from a railway carriage, when it was

at a railway station, it was held that though the railway carriage was not a building, the
railway station was, and the accused was therefore, guilty under this section.95. An
entrance hall surrounded by a wall in which there were two doorways but no doors,
which was used for custody of property, was held to be a building.96. A courtyard97. is,
but a compound98. is not, a building. Merely on basis of having possession of some
stolen articles, accused cannot be held to be guilty of offences punishable under
sections 450 and 380.99.
[s 380.1] CASES.—

The only evidence against accused is the alleged recovery of gold chain at his instance.
That cannot connect the appellant to the theft.100. The accused persons were
suspected to have committed some offences of house-breaking and on being
interrogated they voluntarily disclosed some places where they had committed house-
breaking in respect of gold ornaments and then they disclosed the shop of a goldsmith
to whom they had sold the gold and silver ornaments. It was held that their conviction,
based merely on uncorroborated evidence as to recovery of stolen property at their
instance, was highly unsafe. Accordingly, their conviction under sections 380 and 457
was set aside.101. In a case involving theft of an idol, the guilt of the accused could not
be proved by circumstantial evidence. The confession of the co-accused was not
voluntary. Acquittal of the accused was held to be justiﬁed.102.
[s 380.2] House breaking and Theft.—
Offence under section 454 also includes section 380. In view of the conviction for

section 454 of the IPC, 1860, separate conviction for the offence under section 380 of
the IPC, 1860 is not needed.103.
[s 380.3] Punishment.—
The accused was poor and rustic villager. He was the only bread winner of the family.
He was not a previous convict. He had already faced trial for seven years. The order
releasing him after due admonition was held to be proper.104.
[s 380.4] Sentences in different cases can run concurrently.—
The Supreme Court, in Benson v State of Kerala,105. examined whether an accused, who
is sentenced to undergo different periods of sentences punished in different cases
should undergo the imprisonment consecutively or can undergo concurrently, and held
that in terms of sub-section (1) of section 427 Cr PC, 1973, if a person already

undergoing a sentence of imprisonment is sentenced on a subsequent conviction to
imprisonment, such subsequent term of imprisonment would normally commence at
the expiration of the imprisonment to which he was previously sentenced, however, this
normal Rule is subject to a qualiﬁcation and it is within the powers of the Court to
direct that the subsequent sentence shall run concurrently with the previous sentence.
[s 380.5] Probation.—
Taking note of the age of accused which is put at 20 years, he could be given the
beneﬁt of the Probation of Offenders Act, 1958.106.

91.  Tandi Ram v State, (1876) PR No. 14 of 1876.
92.  (1870) 1 Weir 435; contra, Jabar, (1880) PR No. 1 of 1881.
93.  (1866) 1 Weir 435.
94.  (1880) 1 Weir 436.
95.  Sheik Saheb, (1886) Unrep Cr C 293.
96.  Dad, (1878) PR No. 10 of 1879.
97.  Ghulam Jelani, (1889) PR No. 16 of 1889.
98.  Rama, (1889) Unrep Cr C 484.
99.  Bablu Alias Mahendra v State of Madhya Pradesh, 2009 Cr LJ 1856 (MP).
100.  Azeez v State of Kerala, (2013) 2 SCC 184 [LNIND 2013 SC 54] .
101.  Meghaji Godaji Thakore v State of Gujarat, 1993 Cr LJ 730 (Guj); Kuldip Singh v State of
Delhi, (2003) 12 SCC 528 [LNIND 2003 SC 1071] : AIR 2004 AC 771 : (2004) 109 DLT 190 ,
conviction set aside because of doubtful recovery. The accused was employed in the house of
the deceased. He was removed but reemployed in the factory of the deceased. This fact had to
be excluded because it was not put to him during his examination under section 313, Cr PC,
1973. The accused being a domestic help, the presence of his ﬁngerprints in the household

articles was natural and not of any special signiﬁcance. He was not the only person employed
the deceased being in the habit of changing servants.
102.  State of HP v Raj Kumar, 1004 Cr LJ 894 (HP). Om Prakash v State of Rajasthan, 1998 Cr LJ
1636 : AIR 1998 SC 1220 [LNIND 1998 SC 87] , ﬁve accused persons robbed complainant of his
wrist watch and currency notes and ran away. The witnesses chased them out to no use and
went to police station. But two of them were acquitted. Conviction of the rest of them was
altered from section 395 to one under section 392, (punishment for robbery). Raju v State of
Rajasthan, 1997 Cr LJ 4547 (Raj), woman attacked when alone by accused persons, they
strangulated her, recovery of stolen articles on their information, evidence of sons and

daughters-in-law of deceased, conviction under sections 302, 380 and 454.
103.  K E Lokesha v State of Karnataka, 2012 Cr LJ 2120 (Kar).
104.  State of HP v Ishwar Dass, 1999 Cr LJ 3931 (HP).
105.  Benson v State of Kerala, (2016) 10 SCC 307 [LNIND 2016 SC 408] : 2016 (9) Scale 670 .
106.  E Lokesha v State of Karnataka, 2012 Cr LJ 2120 (Kar).

Of Theft
[s 381] Theft by clerk or servant of property in possession of master.
Whoever, being a clerk or servant, or being employed in the capacity of a clerk or
servant, commits theft in respect of any property in the possession of his master or
employer, shall be punished with imprisonment of either description for a term which
107.  Juggurnath Singh, (1865) 2 WR (Cr) 55; Radhey Shyam v State of UP, 2002 Cr LJ 1227 (All),
domestic servants who were prosecuted for theft and murder of their master remained on duty
even when investigation was going on, nothing was found against them, they were not allowed
to be prosecuted only on the basis of suspicion. Slim Babamiya Sutar v State of Maharashtra,
2000 Cr LJ 2696 (Bom), murder, connection of the accused with it not proved, but two gold
articles of the deceased were recovered from the accused, hence convicted under section 381,

sentence of three years RI reduced to 6 months already undergone, accused directed to be
released. N Narasimha Kumar v State of AP, 2003 Cr LJ 3188 (AP), theft by clerk of the State
Public Service Commission's question papers and stealing xerox copies. Investigating Oﬃcer
was not examined. No recovery of question paper from the accused. His conviction was set
aside. State of HP v Dev Prakash, 2003 Cr LJ 2882 (HP), alleged theft of stamp papers from the
strong room of the District Treasury Oﬃcer. Not proved.
108.  Vijay Kumar v State of Rajasthan 2012 Cr LJ 2790 (Raj).
COMMENT—
This section provides for a severe punishment when a clerk or servant has committed
theft because he has greater opportunities of committing this offence owing to the
conﬁdence reposed in him. When the possession of the stolen property is with the

master, this section applies; when it is with the servant, section 408 applies. Where
some policemen stole a sum of money shut up in a box, and placed it in the Police
Treasury building, over which they were mounting guard as sentinels, they were held to
have committed an offence under this section and not under section 409.107. Where
the property was not in possession of the master, or the money was entrusted to the
accused and he misappropriated the same, the offence under section 381 will not be
attracted.108.

Of Theft
[s 382] Theft after preparation made for causing death, hurt or restraint in
order to the committing of the theft.
Whoever commits theft, having made preparation for causing death, or hurt, or
restraint, or fear of death, or of hurt, or of restraint, to any person, in order to the
committing of such theft, or in order to the effecting of his escape after the committing
of such theft, or in order to the retaining of property taken by such theft, shall be
punished with rigorous imprisonment for a term which may extend to ten years, and
(a) A commits theft on property in Z's possession; and, while committing this theft,
he has a loaded pistol under his garment, having provided this pistol for the
purpose of hurting Z in case Z should resist. A has committed the offence
deﬁned in this section.
(b) A picks Z's pocket, having posted several of his companions near him, in order

that they may restrain Z, if Z should perceive what is passing and should resist,
or should attempt to apprehend A. A has committed the offence deﬁned in this
section.
109.  Re Diwan Singh, 1980 Cr LJ 760 (MP).
110.  Hushrut Sheikh, (1866) 6 WR (Cr) 85.
COMMENT—
Under this section it is not necessary to either to cause hurt or even to make an
attempt to cause hurt. Mere preparation to cause hurt should the occasion arise e.g., to
affect his escape is enough to bring the accused within the mischief of this section.
One who keeping a knife with him commits theft may be liable under this section even
though there was no occasion to wield the knife or to cause injury.109.
If hurt is actually caused when a theft is committed, the offence is punishable as

robbery, and not under this section.110. In robbery there is always injury. In offences
under this section the thief is full of preparation to cause hurt but he may not cause it.
Offences against Property—Extortion

Of Theft
Of Extortion
[s 383] Extortion.
Whoever intentionally puts any person in fear of any injury1 to that person, or to any
other, and thereby dishonestly induces the person so put in fear to deliver to any
person any property2 or valuable security, or anything signed or sealed which may be
converted into a valuable security, commits "extortion".
(a) A threatens to publish a defamatory libel concerning Z unless Z gives him
money. He thus induces Z to give him money. A has committed extortion.
(b) A threatens Z that he will keep Z's child in wrongful conﬁnement, unless Z will
sign and deliver to A a promissory note binding Z to pay certain moneys to A. Z
signs and delivers the note. A has committed extortion.
(c) A threatens to send club-men to plough up Z's ﬁeld unless Z will sign and deliver
to B a bond binding Z under a penalty to deliver certain produce to B, and

thereby induces Z to sign and deliver the bond. A has committed extortion.
(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or aﬃx his
seal to a blank paper and deliver it to A. Z signs and delivers the paper to A.
Here, as the paper so signed may be converted into a valuable security. A has
committed extortion.

Of Theft
[s 384] Punishment for extortion.
Whoever commits extortion shall be punished with imprisonment of either description
for a term which may extend to three years, or with ﬁne, or with both.
COMMENT—
This offence takes a middle place between theft and robbery.
[s 384.1] Ingredients.—
(1) intentionally putting a person in fear of injury to himself or another;
(2) dishonestly inducing the person so put in fear to deliver to any person any
property or valuable security.
These ingredients have been restated by the Supreme Court as follows:
(1) the accused must put any person in fear of injury to him or to any other person;
(2) the putting of a person in such fear must be intentional;
(3) the accused must thereby induce the person so put in fear to deliver to any
person any property or anything signed or sealed which may be converted into a
valuable security;

(4) such inducement must be done dishonestly.111.
[s 384.2] Theft and extortion.—
Extortion is thus distinguished from theft—
(1) Extortion is committed by the wrongful obtaining of consent. In theft the
offender takes without the owner's consent.112.
(2) The property obtained by extortion is not limited as in theft to movable property
only. Immovable property may be the subject of extortion.
(3) In extortion the property is obtained by intentionally putting a person in fear of
injury to that person or to any other, and thereby dishonestly inducing him to

part with his property. In theft the element of force does not arise.
1. 'Puts any person in fear of any injury'.—The 'fear' must be of such a nature and
extent as to unsettle the mind of the person on whom it operates, and takes away from
his acts that element of free voluntary action which alone constitutes consent.113.
Thus threatening to expose a clergyman, who had criminal intercourse with a woman in
a house of ill-fame in his own church and village, to his own bishop, and to the
archbishop, and also to publish his shame in the newspapers, was held to be such a
threat as men of ordinary ﬁrmness could not be expected to resist.114. The making use
of real or supposed inﬂuence to obtain money from a person against his will under
threat, in case of refusal, of loss of appointment, was held to be extortion.115. The
accused husband took his wife to a forest and obtained her ornaments under threats to
kill her. The ornaments were subsequently recovered from him. He was held guilty of

the offence of extortion, not robbery.116.A refusal to allow people to carry away ﬁre-
wood collected in a Government forest without payment of proper fees;117. a payment
taken from the owners of trespassing cattle under the inﬂuence of a threat that the
cattle would be impounded if the payment were refused;118. the obtaining of a bond
under the threat of non-rendering of service as a vakil,119. and a refusal to perform a
marriage ceremony and enter the marriage in the register unless the accused was paid
Rs. 5,120. were held not to constitute extortion.
[s 384.3] Threat of criminal accusation.—
The terror of criminal charge, whether true or false, amounts to a fear of injury.121. The
guilt or innocence of the party threatened is immaterial. Even the threat need not be a

threat to accuse before a judicial tribunal, a threat to charge before any third person is
enough.122.
Housing Loan taken by the complainant. Proceedings initiated by issuing notice under
section 13 (2) of SARFAESI Act, 2002 would not amount to extortion.123.
2. 'Dishonestly induces the person … to deliver to any person any property'.— Delivery
by the person put in fear is essential in order to constitute the offence of extortion.
Where a person through fear offers no resistance to the carrying off of his property, but
does not deliver any of the property to those who carry it off, the offence committed
will be robbery and not extortion.124. The offence of extortion is not complete before
actual delivery of the possession of the property by the person put in fear.125.

When the accused honestly believes that the complainant had taken the money
belonging to him (the accused), an attempt to get it back cannot be said to be with the
intention of causing wrongful loss to him.126.
Where the headmaster of a school called a lady teacher to a place where he was alone
and induced her to sign three blank papers by threatening an attack on her modesty,
the Supreme Court held that it amounted to an offence under this section.127.
An accused was charged with the offence of murder by resorting to extortion. The
prosecution failed to prove several particulars relating to the major offence, but proved
the commission of minor offence punishable under section 384 read with section 34.
The conviction of the accused for the minor offences under section 384 read with
section 34 was held to be proper.

111.  Dhananjay v State of Bihar, (2007) 14 SCC 768 [LNIND 2007 SC 111] : 2007 Cr LJ 1440 ; J
Senthil Kumar v State of Jhar 2006 Cr LJ 4524 (Jha).
112.  See the judgment of the Supreme Court in Dhananjay v State of Bihar, (2007) 14 SCC 768
[LNIND 2007 SC 111] .
113.  Walton v Walton, (1863) 9 Cox 268. Bare threats are not enough. Ramjee Singh v State of
Bihar, 1987 Cr LJ 137 (Pat).
114.  Miard, (1844) 1 Cox 22.
115.  Meer Abbas Ali v Omed Ali, (1872) 18 WR 17 .
116.  State of Karnataka v Basavegowda, 1997 Cr LJ 4386 (Kant). See also Raju v State of
Rajasthan, 1997 Cr LJ 4547 (Raj).
117.  Abdul Kadar v State, (1866) 3 BHC (Cr C) 45.
118.  (1880) 1 Weir 438, 440; Habib-ul-Razzaq v State, (1923) 46 All 81 .
119.  (1870) 5 MHC (Appex) xiv.
120.  Nizam Din v State, (1923) 4 Lah 179.
121.  Mobarruk, (1867) 7 WR (Cr) 28.
122.  Robinson, (1837) 2 M & R 14; Abdulvahab Abdulmajid Shaikh v State of Gujarat, (2007) 4
SCC 257 [LNIND 2007 SC 527] : (2007) 3 Guj LR 1841, conviction for extortion, all the essentials
proved.

proved.
[s 384.4] 'To any person'.—
It is not necessary that the threat should be used, and the property received, by one and
the same individual. It may be a matter of arrangement between several persons that
the threats should be used by some, and property received by others; and they all would
be guilty of extortion.128.
[s 384.5] CASES.—
The accused persons came to the place of their victims with ﬁre arms and forced them
to handover their gun. The accused then abducted them and shot them dead in nearby
orchard. The Court said that all of them who came there to commit extortion must be
attributed knowledge that killings might take place in the prosecution of their object. All
of them were held vicariously liable for murder. Their conviction under sections
384/149 and 302/149 was proper.129.
[s 384.6] Compounding.—

The offences under sections 384 and 506 Part II IPC, 1860 are not compoundable
under section 320 of the Cr PC, 1973. Therefore, the prayer of compounding the
offences made by the complainant and A1 in their joint application supported by their
aﬃdavits cannot be legally accepted.130.

123.  GIC Housing Finance Ltd v The State of Maharashtra, 2016 Cr LJ 4824 (Bom) : 2017 (2)
Bom CR (Cr) 234 .
124.  Duleelooddeen Sheik, (1866) 5 WR (Cr) 19.
125.  Labhshanker, AIR 1955 Sau 42 .
126.  Mahadeo v State, (1950) Nag 715.
127.  Chander Kala v Ram Kishan, AIR 1985 SC 1268 [LNIND 1985 SC 166] : 1985 Cr LJ 1490 :
(1985) 4 SCC 212 [LNIND 1985 SC 166] : 1985 SCC (Cr) 491.
128.  Shankar Bhagvat, (1866) 2 BHC 394.
129.  Rameshwar Pandey v State of Bihar, 2005 Cr LJ 1407 : AIR 2005 SC 1064 [LNIND 2005 SC
1058] : (2005) 9 SCC 210 [LNIND 2005 SC 1058] .
130.  Karipi Rasheed v State of AP (2009) 17 SCC 515 [LNINDU 2009 SC 26] .

Of Theft
[s 385] Putting, person in fear of injury in order to commit extortion.
Whoever, in order to the committing of extortion, puts any person in fear, or attempts
to put any person in fear, of any injury, shall be punished with imprisonment of either
131.  Tanumal Udhasing, (1944) Kar 146 .
132.  Chaturbhuj, (1922) 45 All 137 .
COMMENT—
By this section a distinction between the inchoate and the consummated offence is
recognised. The attempt to commit extortion may proceed so far as to put a person in
fear of injury, or there may be an attempt to excite such fear; but there may not be any
delivery of property, etc. This section punishes the putting of a person in fear of injury
in order to commit extortion.
The injury contemplated must be one which the accused can inﬂict, or cause to be

inﬂicted. A threat that God will punish a man for some act is not such an injury. No
injury can be caused or threatened to be caused unless the act done is either an
offence or such as may properly be made the basis of a civil action.131.
[s 385.1] CASES.—
A cloth-seller was threatened with the imposition of a ﬁne if he continued to sell foreign
cloth. He continued to sell such cloth, and, to enforce payment of the ﬁne, his shop was
picketed for two hours and he lost a certain amount of business and ultimately paid the
ﬁne. It was held that the person responsible for the picketing was guilty of an offence
under this section as well as under section 384.132. Where a mukhtar in a criminal case
threatened with intent to extort money to put questions to prosecution witnesses which
were irrelevant, scandalous and indecent, and which were intended to annoy and insult,

it was held that he was guilty under this section.133. No sanction is necessary for
prosecuting a police oﬃcer under this section for his act abetting the accused to extort
money from a person by putting him under fear of arrest. Such an act is not a part of
his oﬃcial functions.134.

133.  Fazlur Rahman, (1929) 9 Pat 725.
134.  Chand Ahuja v Gautam K. Hoda, 1987 Cr LJ 1328 (P&H).

Of Theft
[s 386] Extortion by putting a person in fear of death or grievous hurt.
Whoever commits extortion by putting any person in fear of death or of grievous hurt
to that person or to any other, shall be punished with imprisonment of either
description for a term which may extend to ten years, and shall also be liable to ﬁne.
135.  Ram Chandra v State, AIR 1957 SC 381 : 1957 Cr LJ 567 .
COMMENT—
If the fear caused is that of death or grievous hurt it naturally causes great alarm. The
section therefore, provides for severe penalty in such cases.
Where the accused wrote letters demanding ransom from the father of the boy whom
they kidnapped, putting the father in fright of the boy being murdered and there was
throughout the likelihood of the boy being murdered if the ransom money was not paid,
the accused were held guilty under this section.135.

Of Theft
[s 387] Putting person in fear of death or of grievous hurt, in order to commit
extortion.
Whoever, in order to the committing of extortion, puts or attempts to put any person in
fear of death or of grievous hurt to that person or to any other, shall be punished with
COMMENT—
The relation between this section and section 386 is the same as that between section
385 and section 384.

Of Theft
[s 388] Extortion by threat of accusation of an offence punishable with death or
imprisonment for life, etc.
Whoever commits extortion by putting any person in fear of an accusation against
that person or any other, of having committed or attempted to commit any offence
punishable with death, or with 136.[imprisonment for life], or with imprisonment for a
term which may extend to ten years or of having attempted to induce any other person
to commit such offence, shall be punished with imprisonment of either description for
a term which may extend to ten years, and shall also be liable to ﬁne; and, if the
offence be one punishable under section 377 of this Code, may be punished with 137.
[imprisonment for life].
136.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
137.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).

1956).
1956).
COMMENT—
It is immaterial whether the person against whom the accusation is threatened be
innocent or guilty, if the prisoner intended to extort money. The aggravating
circumstance under this section is the threat of an accusation of an offence punishable
with imprisonment for life, or with imprisonment for ten years. If the accusation is of
unnatural offence then the penalty provided is severer.

Of Theft
[s 389] Putting person in fear of accusation of offence, in order to commit
fear of an accusation, against that person or any other, of having committed, or
attempted to commit an offence punishable with death or with 138.[imprisonment for
life], or with imprisonment for a term which may extend to ten years, shall be
years, and shall also be liable to ﬁne; and, if the offence be punishable under section
377 of this Code, may be punished with 139.[imprisonment for life].
138.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
139.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
COMMENT—

1956).
1956).
COMMENT—
This section bears the same relation to section 388 as section 385 bears to section
384.

Of Theft
Of Robbery and Dacoity
[s 390] Robbery.
In all robbery there is either theft or extortion.
When theft is robbery.
Theft is "robbery" if, in order to the committing of the theft, or in committing the
theft, or in carrying away1 or attempting to carry away property obtained by the
theft, the offender, for that end,2 voluntarily causes3 or attempts to cause to any
person4 death or hurt or wrongful restraint, or fear of instant death or of instant
hurt, or of instant wrongful restraint.
When extortion is robbery.
Extortion is "robbery" if the offender, at the time of committing the extortion, is in
the presence of the person put in fear, and commits the extortion by putting that
person in fear of instant death, of instant hurt, or of instant wrongful restraint to
that person or to some other person, and, by so putting in fear, induces the person
so put in fear then and there to deliver up the thing extorted.

Explanation.—The offender is said to be present if he is suﬃciently near to put the
other person in fear of instant death, or instant hurt, or of instant wrongful
restraint.
(a) A holds Z down and fraudulently takes Z's money and jewels from Z's clothes
without Z's consent. Here A has committed theft, and in order to the committing
of that theft, has voluntarily caused wrongful restraint to Z. A has therefore
committed robbery.
(b) A meets Z on the highroads, shows a pistol, and demands Z's purse. Z in
consequence, surrenders his purse. Here A has extorted the purse from Z by
putting him in fear of instant hurt, and being at the time of committing the
extortion in his presence. A has therefore committed robbery.
(c) A meets Z and Z's child on the highroad. A takes the child and threatens to ﬂing

it down a precipice, unless Z delivers his purse. Z, in consequence delivers his
purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant
hurt to the child who is there present. A has therefore committed robbery on Z.
(d) A obtains property from Z by saying—"Your child is in the hands of my gang, and
will be put to death unless you send us ten thousand rupees". This is extortion,

and punishable as such; but it is not robbery, unless Z is put in fear of the instant
death of his child.
COMMENT—
Robbery is a special and aggravated form of either theft or extortion. The chief
distinguishing element in robbery is the presence of imminent fear of violence. The
second para distinguishes robbery from theft, the third distinguishes it from extortion.
[s 390.1] Object.—
The authors of the Code observe: "There can be no case of robbery which does not fall
within the deﬁnition either of theft or of extortion; but in practice it will perpetually be a
matter of doubt whether a particular act of robbery was a theft or extortion. A large
proportion of robberies will be half theft, half extortion. A seizes Z, threatens to murder
him, unless he delivers all his property, and begins to pull off Z's ornaments. Z in terror
begs that A will take all he has, and spare his life, assists in taking off his ornaments,
and delivers them to A. Here, such ornaments as A took without Z's consent are taken

by theft. Those which Z delivered up from fear of death are acquired by extortion. It is
by no means improbable that Z's right-arm bracelet may have been obtained by theft,
and left-arm bracelet by extortion; that the rupees in Z's girdle may have been obtained
by theft, and those in his turban by extortion. Probably in nine-tenths of the robberies
which are committed, something like this actually takes place, and it is probable that a
few minutes later neither the robber nor the person robbed would be able to recollect in
what proportions theft and extortion were mixed in the crime; nor is it at all necessary
for the ends of justice that this should be ascertained. For though, in general the
consent of a sufferer is a circumstance which vary materially modiﬁes the character of

the offence, and which ought, therefore, to be made known to the Courts, yet the
consent which a person gives to the taking of his property by a ruﬃan who holds a
pistol to his breast is a circumstance altogether immaterial".140.
The Explanation and illustrations (b) and (c) mark the distinction between simple
extortion and extortion which is robbery. Illustration (a) indicates when theft is robbery.
An analysis of section 390 IPC, 1860 would show that in order that theft may constitute
robbery, prosecution has to establish:
(a) if in order to the committing of theft; or
(b) in committing the theft; or
(c) in carrying away or attempting to carry away property obtained by theft; or
(d) the offender for that end i.e. any of the ends contemplated by (a) to (c); or

(e) voluntarily causes or attempts to cause to any person death or hurt or wrongful
restraint or fear of instant death or of instant hurt or instant wrongful restraint.
In other words, theft would only be robbery if for any of the ends mentioned in (a) to (c)
the offender voluntarily causes or attempts to cause to any person death or hurt or
wrongful restraint or fear of instant death or of instant hurl or instant wrongful restraint.
If the ends does not fall within (a) to (c) but, the offender still causes or attempts to
cause to any person death or hurt or wrongful restraint or fear of instant death or of
instant hurt or instant wrongful restraint, the offence would not be robbery. The Court
emphasised that (a) or (b) or (c) have to be read conjunctively with (d) and (e). It is only

when (a) or (b) or (c) co-exist with (d) and (e) or there is a nexus between any of them
and (d) and (e) would theft amount to robbery.141.
[s 390.2] Theft, extortion and robbery.—
Theft or extortion when caused with violence causing death or fear of death, hurt or
wrongful restraint is robbery. When there is no theft, as a natural corollary, there cannot
be robbery. Robbery is only an aggravated form of theft or extortion. Aggravation is in
the use of violence causing death or fear of death, hurt or restraint. Violence must be in
the course of theft and not subsequently. Also, it is not necessary that violence should
actually be committed, even attempt to commit it is enough.142.
1. 'Carrying away'.—Even if death, hurt or wrongful restraint, or fear of any of these, is
caused after committing theft, in order to carry away the property obtained by theft,
this offence would be committed.
2. 'For that end'.—Death, hurt or wrongful restraint must be caused in committing theft,

or in carrying away property obtained by theft. The expression "for that end" clearly
means that the hurt caused by the offender must be with the object of facilitating the
committing of theft or must be caused while the offender is committing theft or is
carrying away or is attempting to carry away property obtained by theft.143. Where a
person caused hurt only to avoid capture when surprised while stealing144. it was held
that theft, and not robbery, was committed. The use of violence will not convert the
offence of theft into robbery, unless the violence is committed for one of the ends
speciﬁed in this section. Where the accused abandoned the property obtained by theft
and threw stones at his pursuer to deter him from continuing the pursuit, it was held
that the accused was guilty of theft and not of robbery.145. The victim was relieved of

his watch in a running train by one of the two accused who were associates in crime.
As the snatcher was trying to get down from the train, the victim raised alarm.
Whereupon the second accused gave a slap to the victim. It was held that the hurt
caused was directly related to the theft i.e., to facilitate carrying away of the property
obtained by theft and as such the accused were rightly convicted under section 392,
IPC, 1860.146.
3. 'Voluntarily causes'.—These words denote that an accidental inﬂiction of injury by a
thief will not convert his offence into robbery. Thus, where a person while cutting a
string, by which a basket was tied, with intent to steal it, accidentally cut the wrist of the
owner, who at the moment tried to seize and keep the basket, and ran away with it, it

was held that the offence committed was theft and not robbery.147. But where in
committing theft, there is indubitably an intention seconded by an attempt to cause
hurt, the offence is robbery.148. In order to make an offence of theft a robbery there
must be either theft and injury or threat of injury while committing theft.149.
4. 'Person'.—The word 'person' cannot be so narrowly construed as to exclude the dead
body of a human being who was killed in the course of the same transaction in which
theft was committed.150.
[s 390.3] CASES.—
Where participation of the accused, was not explained by the prosecution and there
were contradictions in the evidence of prosecution witnesses, the Court acquitted the
accused.151.

140.  Note N, p 162.
141.  State of Maharashtra v Joseph Mingel Koli, 1997 (2) Crimes 228 [LNIND 1996 BOM 667]
(Bom.).
142.  Venu v State of Karnataka, (2008) 3 SCC 94 [LNIND 2008 SC 208] : (2008) 1 SCC (Cr) 623 :
AIR 2008 SC 1199 [LNIND 2008 SC 208] : 2008 Cr LJ 1634 .
143.  Venu v State of Karnataka, (2008) 3 SCC 94 [LNIND 2008 SC 208] : AIR 2008 SC 1199
[LNIND 2008 SC 208] : 2008 Cr LJ 1634 .
144.  Kalio Kerio, (1872) Unrep Cr C 65.
145.  (1865) 1 Weir 442; Kalio Kiero, sup.
146.  Harish Chandra, 1976 Cr LJ 1168 : AIR 1976 SC 1430 : (1976) 2 SCC 795 .
147.  Edwards, (1843) 1 Cox 32.
148.  Teekai Bheer, (1866) 5 WR (Cr) 95.
149.  Padmanava Mohapatra, 1983 Cr LJ NOC 238 (Ori). Proved case of robbery and murder.
State of Kerala v Naduvectil Vishwanathan, 1991 Cr LJ 1501 .
150.  Jamnadas, AIR 1963 MP 106 [LNIND 1962 MP 173] .
151.  Prabhat Marak v State of Tripura, 2011 Cr LJ 1844 (Gau).
152.  Rameshwar Soni v State of MP, 1997 Cr LJ 3418 (MP). As to when theft becomes robbery

see State of Maharashtra v Vinayak Tukaram, 1997 Cr LJ 3988 (Bom), here the accused snatched
three gold buttons from the shirt of the victim at a railway platform. He gave a knife blow on
being caught. Convicted for robbery. The Court said that it could not be contended that he gave
the knife blow only to extricate himself from the clutches of the person holding him and to
ensure the taking away of the stolen gold buttons.
The accused sprinkled chilli powder in the eyes of certain persons and snatched their
attaches containing cash. The evidence of persons who were carrying was found to be
reliable. Cash was recovered as a result of disclosures made by the accused.
Presumption under section 114 of the Indian Evidence Act, 1872 applied. The accused
was accordingly convicted.152.

Of Theft
[s 391] Dacoity.
When ﬁve or more persons conjointly commit or attempt to commit a robbery, or
where the whole number of persons conjointly committing or attempting to commit a
robbery, and persons present and aiding such commission or attempt, amount to ﬁve
or more, every person so committing, attempting or aiding, is said to commit
"dacoity".
COMMENT—
Dacoity is robbery committed by ﬁve or more persons, otherwise there is no difference
between dacoity and robbery. The gravity of the offence consists in the terror it causes
by the presence of a number of offenders. Abettors who are present and aiding when
the crime is committed are counted in the number. Section 391 IPC, 1860 explains the
offence of 'dacoity'. When ﬁve or more persons conjointly commit or attempt to
commit a robbery, or where the whole number of persons conjointly committing or

attempting to commit a robbery, and persons present and aiding such commission and
attempt amount to ﬁve or more, every person so committing, attempting or aiding, is
said to commit 'dacoity'. Under section 392 IPC, 1860, the offence of 'robbery'
simpliciter is punishable with rigorous imprisonment which may extend to ten years or
14 years depending upon the facts of a given case. Section 396 IPC, 1860 brings within
its ambit a murder committed along with 'dacoity'. In terms of this provision, if any one
of the ﬁve or more persons, who are conjointly committing dacoity, commits murder in
so committing dacoity, every one of those persons shall be punished with death or
imprisonment for life or rigorous imprisonment for a term which may extend to ten
years and shall also be liable to ﬁne. On a plain reading of these provisions, it is clear

that to constitute an offence of 'dacoity', robbery essentially should be committed by
ﬁve or more persons. Similarly, to constitute an offence of 'dacoity with murder' any one
of the ﬁve or more persons should commit a murder while committing the dacoity, then
every one of such persons so committing, attempting to commit or aiding, by ﬁction of
law, would be deemed to have committed the offence of murder and be liable for
punishment provided under these provisions depending upon the facts and
circumstances of the case.153.
Dacoity is perhaps the only offence which the Legislature has made punishable at four
stages. When ﬁve or more persons assemble for the purpose of committing a dacoity,
each of them is punishable under section 402 merely on the ground of joining the

assembly. Another stage is that of preparation and if any one makes preparation to
commit a dacoity, he is punishable under section 399. The deﬁnition of 'dacoity' in this
section shows that the other two stages, namely, the stage of attempting to commit
and the stage of actual commission of robbery, have been treated alike, and come
within the deﬁnition.154. In other words, attempt to commit dacoity is also dacoity.

"It will, therefore, be seen that it is possible to commit the offence of dacoity under
section 395, IPC, 1860, by merely attempting to commit a robbery by ﬁve or more
persons without being successful in getting any booty whatsoever. Thus, if in a
particular case the dacoits are forced to retreat due to stiff opposition from the
inmates or villagers without collecting any booty, then it must be held that the offence
of dacoity is completed the moment the dacoits take to their heels without any
booty".155. Even in such a case all the dacoits can be convicted and punished under
section 395, IPC, 1860.156.
In a case of dacoity the circumstance that the inmates of the house, seeing the large
number of dacoits, do not offer any resistance and no force or violence is required or
used does not reduce the dacoity to theft.157.
[s 391.1] 'Conjointly'.—
This word manifestly refers to united or concerted action of the persons participating

in the transaction. It is only when their individual action can be properly referred to their
concerted action that the question of conviction under this section can arise.158. When
there is doubt as to how many persons are involved in commission of offence and the
accused/appellants were not identiﬁed during Test Identiﬁcation Parade, they are
entitled to beneﬁt of doubt.159.
[s 391.2] Five or more persons.—
Interpretation of section 391 IPC, 1860 is simple, that there must be at least ﬁve
persons in a dacoity; the section nowhere says that minimum ﬁve persons must be
convicted of it.160.
[s 391.3] CASES.—
Where the allegation was that on the day of incident, victim was travelling on scooter
with cash, two scooter borne accused armed with sword, knife, club and pistol stopped
victim, asked him to leave scooter and get away and then accused with their

accomplices ﬂed away with scooter, accused were acquitted on the ground that test
identiﬁcation parade was conducted after 46 days of arrest of alleged accused.161.
The accused persons took away gold ornaments and service revolver of the victim.
They were apprehended and, on the basis of their statements, stolen articles were
recovered. Identiﬁcation of the accused persons and the articles was made by the
victim at TI parade. The conviction of the accused person was held to be proper.162.
Where there were only ﬁve named accused who committed the dacoity and out of ﬁve
two were acquitted holding that only three took part in the offence, it was held that the
remaining three could not be convicted of dacoity, as the offence of dacoity could not
be committed by less than ﬁve persons.163. Where in spite of the acquittal of a number

of persons, it is found as a fact that along with the persons convicted there were other
unidentiﬁed persons who participated in the offence, bringing the total number of
participants to ﬁve or more, it was held that the conviction of the identiﬁed persons,
though less than ﬁve, was perfectly correct.164. Recovery of articles shortly after a
dacoity at the instance of the accused persons has been held by the Supreme Court to
be suﬃcient for conviction under section 396 as well as under section 412.165.

153.  Raﬁq Ahmed @ Raﬁ v State of UP, (2011) 8 SCC 300 [LNIND 2011 SC 726] : AIR 2011 SC
3114 [LNIND 2011 SC 726] .
154.  Dhanpat, AIR 1960 Pat 582 .
155.  R Deb, PRINCIPLES OF CRIMINOLOGY, CRIMINAL LAW AND INVESTIGATION, 2nd Edn, vol II,
p 780.
156.  Shyam Behari v State, 1957 Cr LJ 416 (SC-Para 5).
157.  Ram Chand, (1932) 55 All 117 .
158.  Dambaru Dhar Injal, (1951) 3 Ass 365.
159.  Musku Pentu v State of AP, 2005 Cr LJ 1355 (AP).
160.  Allaudin v State (NCT of Delhi), 2016 Cr LJ 1617 (Del) : 2016 (2) RCR (Criminal) 734.
161.  Asif Ahmad v State of Chhattisgarh, 2011 Cr LJ 4461 (Cha).
162.  Lalu v State of Orissa, 2003 Cr LJ 1677 (Ori).
163.  Debi, (1952) 2 Raj 177 ; Lingayya, AIR 1958 AP 510 ; See also Ram Shankar, 1956 Cr LJ 822
(SC); Khagendra Gahan, 1982 Cr LJ 487 (Ori); Ram Lekhan, 1983 Cr LJ 691 (1) : 1983 All LJ 283 :
AIR 1983 SC 352 (1) : (1983) 2 SCC 65 : 1983 SCC (Cr) 339. Atar Singh v State of UP, 2003 Cr LJ

676 (All), the informant alleged that 3-4 persons entered into the house forcibly, the offence
could not amount to dacoity.
164.  Ghamandi v State, 1970 Cr LJ 386 ; See also Saktu v State, 1973 Cr LJ 599 : AIR 1973 SC
760 . Conviction for dacoity requires proper identiﬁcation of the persons involved. Ram Ishwar
Paswan v State of Bihar, 1989 Cr LJ 1042 (Pat), acquittal because no identiﬁcation. State of HP v
Jagar Singh, 1989 Cr LJ 1213 , conviction for highway dacoity.
165.  Lachman Ram v State of Orissa, AIR 1985 SC 486 [LNIND 1985 SC 77] : 1985 Cr LJ 753 :
1985 SCC (Cr) 263. Failure in ﬁling the list of articles supposed to have been taken away or in
indicating their nature makes the complaint liable to be dismissed. Suresh v State of UP, 1990

Supp SCC 138 : 1990 SCC (Cr) 643. Revision against acquittal not allowed in a case where the
trial court considered every piece of evidence and gave cogent reasons, Mohamed Nagoor
Meeran v State of TN, (1995) 1 Cr LJ 857 (Mad). Joseph v State of Kerala, AIR 2000 SC 1608
[LNIND 2000 SC 746] : (1998) 4 SCC 387 [LNIND 1998 SC 328] , conviction of accused for
murder and for robbing the victim of her jewelry, good proof. George v State of Kerala, (2002) 4
SCC 475 [LNIND 2002 SC 256] , robbery, rings and wristwatch recovered from the accused,
presumption under section 114A, conviction. Sanjay v State (NCT) of Delhi, 2001 Cr LJ 1231
(SC), robbery with murder, proved against accused, conviction. Ronny v State of Maharashtra,
1998 Cr LJ 1638 : AIR 1998 SC 1251 [LNIND 1998 SC 302] robbery with triple murder.
Conviction.

Of Theft
[s 392] Punishment for robbery.
Whoever commits robbery shall be punished with rigorous imprisonment for a term
which may extend to ten years, and shall also be liable to ﬁne; and, if the robbery be
committed on the highway between sunset and sunrise, the imprisonment may be
extended to fourteen years.
COMMENT—
This section no doubt allows the Court discretion as regards the minimum punishment
to be awarded, but when the offence is attended with circumstances which would
make the attempt to commit it punishable with the minimum sentence of seven years,
it would not be a proper exercise of discretion to award a lesser sentence when the
offence has been accomplished.166. A person who has been convicted of robbery
under this section need not be convicted of theft.167. Where the wholly of the robbed
property was not recovered from the persons accused, it was held that the proper
section to convict was section 411.168.

[s 392.1] Essential ingredients for punishment under Section 392.—
Essential ingredients for punishment under section 392 are:
(1) The accused committed theft;
(2) he voluntarily caused or attempted to cause:
(i) death, hurt or wrongful restraint,
(ii) fear of instant death, hurt or wrongful restraint;
(3) he did either act for the end:
(i) of committing theft,
(ii) while committing theft,
(iii) in carrying away or in the attempt to carry away property obtained by
theft.169.
Where section 397 also applies, (robbery accompanied by attempt to cause death or
grievous hurt) the punishment has to be for a period not less than seven years. The
Supreme Court has held that this minimum prescribed sentence cannot be by-passed
by resorting to plea bargaining.170. Section 392 itself provides that when robbery is

166.  Chandra Nath, (1931) 7 Luck 543 . See also Suryamoorthi v Govindaswamy, AIR 1989 SC
1410 [LNIND 1989 SC 232] : 1989 Cr LJ 1451 : (1989) 3 SCC 24 [LNIND 1989 SC 232] , a
conviction under the section for robbery; Laxmi Raj Shetty v State of TN, AIR 1988 SC 1274
[LNIND 1988 SC 260] : 1988 Cr LJ 1783 : (1988) 3 SCC 319 [LNIND 1988 SC 260] where the
committed on a highway and between sunset and sunrise, deterrent punishment is
called for.171.
[s 392.2] CASES.—
In a case of alleged dacoity and murder, seven accused persons were convicted under
section 396 as looted property was recovered from their possession within a very short
time after the offence. The evidence of an eye-witness showed that murder was
committed only by the three of the accused persons of whom one was given beneﬁt of
doubt. It was held only the remaining two accused were liable to be punished under
sections 392 and 302 and other only under section 411.172. Where the accused was

alleged to have committed dacoity alongwith four other co-accused who were
acquitted, his conviction under section 395 was altered to one under section 392
(robbery).173. When articles recovered from accused were identiﬁed to be articles of
theft by complainant, the fact that watch recovered was not mentioned in FIR is not
suﬃcient to reject testimony of complainant. No explanation was offered by accused
as to how they came into possession of articles recovered. The Supreme Court held
that Recoveries proved suﬃcient to connect accused with crime.174.
[s 392.3] Bank Robbery.—
The identity of the accused was proved by ﬁngerprint impressions available at the door
of the bank. The photographs of the ﬁngerprints were to be proved by examining the
photographer. However, this lapse in the prosecution cannot result in acquittal of the

appellants. The evidence adduced by the prosecution must be scrutinized
independently of such lapses either in the investigation or by the prosecution or
otherwise. The result of the criminal trial would depend upon the level of investigation
or the conduct of the prosecution. Criminal trials should not be made casualty for such
lapses in the investigation or prosecution.175.
[s 392.4] Sentence.—
The offence was committed in a cool, calculated and gruesome manner. The accused
could have easily committed the robbery without taking away the life of the victim, if
robbery had been the motive. Keeping in mind the macabre nature of the crime, the
High Court of Madras ordered that the sentences imposed on the accused should run
consecutively and not concurrently.176.

death sentence was reduced to life imprisonment for offence of robbery with murder. More fully
discussed under section 302. Hardayal Prem v State of Rajasthan, AIR 1991 SC 269 : 1991 Cr LJ
345 , charges against two under sections 302, 304 and 392 for murder and robbery. Both
convicted of robbery and murder under sections 302/ 392. One did not appeal and the other
having appealed by special leave earned his acquittal. His companion was also given the same
right of acquittal; Chandran v State of Kerala, AIR 1990 SC 2148 : 1990 Cr LJ 2296 , setting aside
of conviction for robbery because of irregularities. Din Dayal v State (Delhi Admn.), AIR 1991 SC
44 , accused, a higher secondary boy of 14 years old, snatching wrist watch with others,
sentence of 2½ years reduced to 8 months already spent in custody.
167.  State of Kerala v Suku, 1989 Cr LJ 2401 (Ker).
168.  Shankar v State, 1989 Cr LJ 1066 (Del). It has also been held that an accused should not

be convicted both under sections 392 and 394, Philip Bhimsen v State of Maharashtra, (1995) 2
Cr LJ 1694 (Bom).
169.  Venu v State of Karnataka, (2008) 3 SCC 94 [LNIND 2008 SC 208] : (2008) 1 SCC (Cr) 623 :
170.  Kripal Singh v State of Haryana, 1999 Cr LJ 5031 : (1999) 5 SCC 649 ; R v Williams, (2001)
Cr App R (S) 2 [CA (Crim Div)], maximum penalty imposed upon the accused who used and
threatened violence to force the attendant to give him a whisky bottle from the vend out of
vending hours.
171.  Venu v State of Karnataka, (2008) 3 SCC 94 [LNIND 2008 SC 208] : AIR 2008 SC 1199
[LNIND 2008 SC 208] .
172.  State of MP v Samaylal, 1994 Cr LJ 3407 (MP).
173.  Madan Kandi v State of Orissa, 1996 Cr LJ 227 (Ori); Ram Rakha v State of Punjab, AIR 2000

SC 3521 : 2000 Cr LJ 4038 the two convicts came to the house of the victim and took away his
licensed riﬂe and also Rs. 3000, and jewelry belonging to some other person. Conviction under
the section was upheld. Ganga Din v State of UP, 2001 Cr LJ 1762 (All), robbery, no proper
identiﬁcation, acquittal. Ronny v State of Maharashtra, 1998 Cr LJ 1638 : AIR 1998 SC 1251
[LNIND 1998 SC 302] , in a case of triple murder and robbery, the accused persons was
recognised and articles recovered. Complete chain of circumstances, conviction not interfered
with. Ravi Magor v State, 1997 Cr LJ 2886 , robbery by entering home, tying up people,
recoveries, identiﬁcation, conviction. Identiﬁcation in court without test identiﬁcation did not
render evidence of identiﬁcation inadmissible. Kayyumkhan v State of Maharashtra, 1997 Cr LJ

3137 (Bom) robbery in train, victims identiﬁed robbers, conviction. Pravakar Behera v State of
Orisssa, 1997 Cr LJ 3291 (Ori), uncertainty as to number of persons involved. Conviction shifted
from dacoity to robbery.
174.  Akil @ Javed v State of Nct of Delhi, 2013 Cr LJ 571 : 2013 AIR(SCW) 59.
175.  Ajay Kumar Singh v The Flag Oﬃcer Commanding-in-Chief, 2016 Cr LJ 4174 : AIR 2016 SC
3528 [LNIND 2016 SC 301] : (2016) 2 SCC (LS) 547.
176.  K Ramajayam v The Inspector of Police, 2016 Cr LJ 1542 (Mad) : 2016 (2) MLJ (Crl) 715 .

Of Theft
[s 393] Attempt to commit robbery.
Whoever attempts to commit robbery shall be punished with rigorous imprisonment

Of Theft
[s 394] Voluntarily causing hurt in committing robbery.
If any person, in committing or in attempting to commit robbery, voluntarily causes
hurt, such person, and any other person jointly concerned in committing or attempting
to commit such robbery, shall be punished with 177.[imprisonment for life], or with
rigorous imprisonment for a term which may extend to ten years, and shall also be
COMMENT—
This section imposes severe punishment when hurt is caused in committing robbery.
Section 397 similarly provides for the minimum sentence of imprisonment which must
be inﬂicted when grievous hurt is caused.
Commenting on the section, the Supreme Court observed: section 394 prescribes
punishment for voluntarily causing hurt in committing or attempting to commit robbery.
The offence under section 394 is a more serious than one under section 392. Section

394 postulates and contemplates the causing of harm during commission of robbery
or in attempting to commit robbery when such causing of hurt is hardly necessary to
facilitate the commission of robbery. Section 394 applies to cases where during the
course of robbery voluntary hurt is caused. Section 394 classiﬁes two distinct classes
of persons. Firstly, those who actually cause hurt and secondly, those who do not
actually cause hurt but are "jointly concerned" in the commission of the offence of
robbery. The second class of persons may not be concerned in the causing of hurt, but
they become liable independently of the knowledge of its likelihood or a reasonable
belief in its probability.178.
In a prosecution for robbery and murder, injuries were caused to the deceased in the

process of removing earrings. The Court said that the fact that the booty was
distributed among three accused and they had secreted the robbed articles. These
things revealed the common intention to commit robbery. One of them picked up a
stone piece and caused death of the victim. There was nothing to show that the
accused even knew of any such possibility. Others could not be convicted of murder
and robbery with the help of presumption under section 114 Evidence Act, 1872. They
were liable to be convicted only under sections 394/34.179.
[s 394.1] Forceful removal of vehicle by ﬁnance company.—
Forcible removal of vehicle from possession of purchaser by ﬁnance company on
default of payment without recourse to proper remedy through civil Court or to

arbitration clause, contained in hypothecation agreement, would be covered under
section 394 of IPC, 1860.180. The practice of hiring recovery agents, who are
musclemen, is deprecated and needs to be discouraged. The Bank should resort to

177.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
178.  Aslam v State of Rajasthan, (2008) 9 SCC 227 [LNINDORD 2008 SC 127] : (2008) 3 SCC (Cr)
764 : AIR 2009 SC 363 [LNIND 2008 SC 1918] .
179.  Limbaji v State of Maharashtra, AIR 2002 SC 491 [LNIND 2001 SC 2859] ; Om Prakash v
State of Rajasthan, AIR 1998 SC 1220 [LNIND 1998 SC 87] , ﬁve accused persons robbed the
complainant of his wrist watch and currency notes and ran away. Eye-witnesses chased them
procedure recognized by law to take possession of vehicles in cases where the
borrower may have committed default in payment of the instalments instead of taking
resort to strong-arm tactics. The recovery of loans or seizure of vehicles could be done
only through legal means. The banks cannot employ goondas to take possession by
force.181.
[s 394.2] Charge framed under sections 394 and 397.—
There is nothing wrong in convicting the accused under section 394 read with section

397.182. All ingredients of offence punishable under section 392 are covered in offence
under section 394.183. Section 397 of the IPC, 1860 prescribes enhanced punishment
for using a deadly weapon at the time of committing robbery. As an obvious corollary,
section 397 had no application to the case where robbery was not actually completed.
Even so, measure of punishment had to be regulated by section 398 of the IPC, 1860
that provides for minimum punishment of seven years imprisonment in a case of
attempt to commit robbery when armed with deadly weapon. In this view of the matter,
the conviction of the appellants for the offence under section 394 read with section
397 of the IPC, 1860 deserves to be converted into one under section 394 read with
section 398 of the IPC, 1860.184.
[s 394.3] Compounding.—

An offence punishable under section 394 IPC, 1860 is not compoundable with or
without the permission of the Court concerned. But High Court can use its power under
section 482 Cr PC, 1973 for quashing the prosecution under the said provision in the
light of the compromise that the parties have arrived at.185.
[s 394.4] Presumption under section 114(a) of Evidence Act, 1872.—
As per Section 114(a) of the Evidence Act, 1872, when the stolen property is recovered
from a person, soon after the commission of theft or dacoity, a presumption can be raised
that either he has himself committed the offence of theft or he has received the stolen
property.186.

and then went to police station. Investigation was also successful. Two accused were let off,
others acquitted. Rama Kant v State of UP, 2001 Cr LJ 2072 (All), complaint against police
personnel alleging robbery and extracting of money, the court lamented that those who were
supposed to protect people themselves resorted to crime, the complaint was not to be quashed.
State of UP v Tekchand, 2000 Cr LJ 3821 (All), snatching of a gun in a hotel cabin, conviction
under section 394, but it could not be known to one of the accused that the other was going to
kill. Sudesh v State of MP, 1999 Cr LJ 2602 (MP), evidence showed that murder and removal of
ornaments from the body of the victim were simultaneous acts, conviction under sections
302/394; Rajjo v State of UP, 1999 Cr LJ 2996 (All), death caused in robbery by a single knife
blow, conviction under section 304 II, the matter being 20 years old. Abu Barks v State of
Rajasthan, 1998 Cr LJ 154 (Raj), robbery and murder, the accused was seen going towards the

place with knife, not enough to connect him with the incident, acquittal. Shravan Dashrath
Datarange v State of Maharashtra, 1998 Cr LJ 1196 (Bom), not only the accused who caused
hurt, but also an associate would be equally liable for the mischief contemplated by the section.
See also Public Prosecutor v Yenta Arjuna, 1998 Cr LJ 179 (AP); Shravan Dashrath Datrange v
State of Maharashtra, 1998 Cr LJ 1196 (Bom); Ratanlal v State of Rajasthan, 1998 Cr LJ 1788
(Raj); Ashok Kumar v State of MP, 1998 Cr LJ 4103 (MP); State of MP v Mukund, 1997 Cr LJ 534
(MP), a housewife and her two minor children found throttled to death in their house, things
recovered from robbers very soon thereafter on guidance provided by the husband. Both the
intruders and murderers convicted.
180.  V A George v Abraham Augustine, 2012 Cr LJ 3355 (Ker).

181.  ICICI Bank Ltd v Prakash Kaur, 2007 (2) SCC 711 [LNIND 2007 SC 237] : JT 2007 (4) SC 39
[LNIND 2007 SC 237] : 2007 (1) KLJ 846 : AIR 2007 SC 1349 [LNIND 2007 SC 237] ; The
Managing Director, Orix Auto Finance Indian Ltd v Shri Jagmander Singh, 2006 (1) Supreme 708 :
2006 (2) SCC 598 [LNIND 2006 SC 89] ; Maruthi Finance Ltd v Vijayalaxmi reported in (2012) 1
SCC 1 [LNIND 2011 SC 1153] : AIR 2012 SC 509 [LNIND 2011 SC 1153] -even in case of
mortgaged goods subject to Hire Purchase Agreements, the recovery process has to be in
accordance with law and the recovery process referred to in the Agreements also contemplates
such recovery to be effected in due process of law and not by use of force. Till such time as the
ownership is not transferred to the purchaser, the hirer normally continues to be the owner of

the goods, but that does not entitle him on the strength of the agreement to take back
possession of the vehicle by use of force. The guidelines which had been laid down by the
Reserve Bank of India as well as the appellant bank itself, in fact, support and make a virtue of
such conduct. If any action is taken for recovery in violation of such guidelines or the principles
as laid down by this Court, such an action cannot but be struck down.
182.  Narottam Das v State, 2013 Cr LJ 2676 (Chh).
183.  Rahamat Khan alias Badal Khan v State of W B, 2008 Cr LJ 3285 (Cal).
184.  Ganesh Singh v State of MP, relied on Phool Kumar v Delhi Admn, 1975 (1) SCC 797 [LNIND
1975 SC 112] .
185.  Shiji @ Pappu v Radhika, 2012 Cr LJ 840 (SC) : (2011) 10 SCC 705 [LNIND 2011 SC 1158] :
AIR 2012 SC 499 [LNIND 2011 SC 1158] .

186.  Satish Raju Waman Koli v State of Maharashtra, 2010 Cr LJ 4247 (Bom).

Of Theft
[s 395] Punishment for dacoity.
Whoever commits dacoity shall be punished with 187.[imprisonment for life], or with
COMMENT—
188..—When a person is involved in an offence of theft of higher magnitude, then it
becomes dacoity and when dacoity is committed with murder and also results in
causing grievous hurt to others, it becomes robbery punishable under sections 395,
section 396 and section 397 of IPC, 1860. In other words, when the offence of theft is
committed conjointly by ﬁve or more persons, it becomes dacoity and such dacoity by
those persons also results in commission of murder as well as causing of grievous
hurt to the victims, it results in an offence of robbery. A reading of section 395, section
396 and section 397 of IPC, 1860 makes the position clear that by virtue of the conjoint

effort of the accused while indulging in the said offence, makes every one of them
deemed to have committed the offence of dacoity and robbery. In the result, when such
offences of dacoity and robbery are committed, the same result in the death of a
person or hurt or wrongful restrain or creating fear of instant death or instant hurt or
instant wrongful restraint. In substance, in order to ﬁnd a person guilty of offences
committed under sections 395, 396 and 397 of IPC, 1860, his participation along with a
group of ﬁve or more persons indulging in robbery and in that process commits murder
and also attempts to cause death or grievous hurt with deadly weapons would be
suﬃcient. Use of a knife in the course of commission of such a crime has always been

held to be use of a deadly weapon. Keeping the above basic prescription of the offence
described in the above provisions in mind, we examined the case on hand. In the ﬁrst
instance, what is to be examined is whether the basic ingredient of the offence falling
under section 395, section 396 and section 397 of IPC, 1860, namely, participation of
ﬁve or more persons was made out.189.
[s 395.1] Cases.—
In T Alias Sankaranarayanan v State Rep. By Inspector of Police,190. allegation was that
accused along with others entered the premises of complainant in false pretext of
conducting income tax raid and looted jewels and cash. Accused acquitted since there
was no TIP and accused was identiﬁed for ﬁrst time in Court after seven years of
occurrence.
[s 395.2] Sentence.—

187.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
188.  Krishna Gopal Singh v State of UP, AIR 2000 SC 3616 , ﬁnding that the accused person
committed robbery is a sine qua non for sustaining a conviction under section 395. Kapoorchand
Chaudhary v State of Bihar, 2002 Cr LJ 1424 (Pat), no leniency in terms of punishment was
shown to dacoits who had robbed innocent bus passengers of their belongings irrespective of
the fact that the accused persons had been facing the rigour of the trial for 14 years. Praful
Kumar Patel v State of Orissa, 2000 Cr LJ 2724 (Ori) entry into house with court orders to seize
articles attached, complaint quashed. Gandikota Narasaiah v Superintendent, 1999 Cr LJ 3947
(AP), conviction in three cases of dacoity, direction should not be given that the sentence in all
the three cases should run concurrently. Such direction may operate as a licence to professional

dacoity. Subedar Yadav v State of UP, 1999 Cr LJ 4663 (All), punishment for dacoity in ﬁve
houses in the night of the incident, identiﬁed by 4 witnesses in lantern light. Devendran v State of
TN, 1998 Cr LJ 814 : AIR 1998 SC 2821 [LNIND 1997 SC 1368] , entered house, killed two old
ladies and car driver, and looted jewelry, etc., offence against accused persons proved beyond
doubt. Conviction under sections 302, 326. Shahul Hameed v State of TN, 1998 Cr LJ 885 (Mad),
doubtful evidence, acquittal. Badloo v State of UP, 1998 Cr LJ 1072 (All), concocted evidence, no
conviction, not even for a lesser offence. Rajvee v State of UP, 1998 Cr LJ 1588 (All), conviction
on sale basis of identiﬁcation evidence not proper. SK Jamir v State of Orissa, 1998 Cr LJ 1728

(Ori), dacoity by entering into house, good evidence, conviction. Another similar conviction,
Satish v State of UP, 1998 Cr LJ 3352 (All); Subhaya Perumal Pilley v State of Maharashtra, 1997
Cr LJ 922 (Bom), more than ﬁve were involved, force was used, threatening words were spoken,
and gold was taken away, essentials of section 395, proved. No hurt or injury caused. 10 years
imprisonment was reduced to 7 years. Araf Mulla v State of Orissa, 1997 Cr LJ 4213 (Ori),
dacoity at petrol pump, no proper proof. Abdul Gafur v State of Assam, (2007) 12 SCC 627
[LNIND 2007 SC 1422] : AIR 2008 SC 607 [LNIND 2007 SC 1422] : 2008 Cr LJ 800 , acquittal,
inﬁrmities in the prosecution in the background of admitted animosity between the parties, the
prosecution version was unacceptable.

Dacoity is a daredevil act. Most of the time, a serious crime like dacoity is committed
by unknown persons and it is very diﬃcult to trace them and still diﬃcult to secure their
conviction. As a matter of fact, looking to the nature of crime and the manner in which
the appellants looted temple properties, graver punishment was warranted. In any case,
sentence of ﬁve years rigorous imprisonment awarded by the trial Court and conﬁrmed
in appeal by the High Court for the offence under section 395 IPC, 1860 calls for no
interference.191.
Considering that the value of the alleged loot including cash and mobile was only Rs.
16,550 and the young age of the accused, the trial Court sentenced him to rigorous
imprisonment of only one year along with a ﬁne of Rs. 100. The High Court allowed the
appeal to the extent of enhancing the sentence to ﬁve years of rigorous imprisonment

along with the ﬁne imposed by the trial Court. Considering the same reasons as
recorded by the trial Court the Supreme Court reduced the sentence of imprisonment to
the extent already undergone, i.e., three years and two months.192.

189.  Deepak @ Wireless v State of Maharashtra, 2012 Cr LJ 4643 : (2012) 8 SCC 785 [LNIND
2012 SC 558] .
190.  T Alias Sankaranarayanan v State Rep. By Inspector of Police, 2011 Cr LJ 4006 (Mad).
191.  Ram Babu v State of UP, AIR 2010 SC 2143 [LNIND 2010 SC 365] : (2010) 5 SCC 63 [LNIND
2010 SC 365] ; Arjun Mahto v State of Bihar, AIR 2008 SC 3270 [LNIND 2008 SC 1627] : (2008) 15
SCC 604 [LNIND 2008 SC 1627] - the passage of time cannot wash away gravity of offence.
192.  Pareshbhai Annabhai Sonvane v State of Gujarat, 2016 Cr LJ 2076 : 2016 (3) Scale 349
[LNINDU 2016 SC 73] .

Of Theft
[s 396] Dacoity with murder.
If any one of ﬁve or more persons, who are conjointly committing dacoity, commits
murder in so committing dacoity, every one of those persons shall be punished with
death, or 193.[imprisonment for life], or rigorous imprisonment for a term which may
COMMENT—
Under this section extreme penalty of death may be inﬂicted on a person convicted of
taking part in a dacoity in the course of which a murder is committed, even though
there is nothing to show that he himself committed the murder or that he abetted it.
The section declares the liability of other persons as co-extensive with the one who has
actually committed murder. Where in the course of a dacoity one man was shot dead,
and the accused person who was tried had a gun and others of the dacoits also had
guns, and there was no evidence that the accused was the man who ﬁred the fatal

shot, the sentence was altered from one of death to one of transportation for life.194.
[s 396.1] Ingredients.—
The offence under this section requires two things:—
(1) The dacoity must be the joint act of the persons concerned.
(2) Murder must have been committed in the course of the commission of the
dacoity.195.
Section 391 IPC, 1860 explains the offence of 'dacoity'. When ﬁve or more persons
conjointly commit or attempt to commit a robbery, or where the whole number of
persons conjointly committing or attempting to commit a robbery, and persons present
and aiding such commission and attempt amount to ﬁve or more, every person so
committing, attempting or aiding, is said to commit 'dacoity'. Under section 392 IPC,
1860, the offence of 'robbery' simpliciter is punishable with rigorous imprisonment

which may extend to ten years or 14 years depending upon the facts of a given case.
Section 396 IPC, 1860 brings within its ambit a murder committed along with 'dacoity'.
In terms of this provision, if any one of the ﬁve or more persons, who are conjointly
committing dacoity, commits murder in so committing dacoity, every one of those
persons shall be punished with death or imprisonment for life or rigorous
imprisonment for a term which may extend to ten years and shall also be liable to
ﬁne.196. In the ﬁrst instance, what is to be examined is whether the basic ingredient of
the offence falling under sections 395, 396 and 397 of IPC, 1860, namely, participation
of ﬁve or more persons was made out.197. On a plain reading of these provisions, it is

clear that to constitute an offence of 'dacoity', robbery essentially should be committed
by ﬁve or more persons. Similarly, to constitute an offence of 'dacoity with murder' any
one of the ﬁve or more persons should commit a murder while committing the dacoity,
then every one of such persons so committing, attempting to commit or aiding, by
ﬁction of law, would be deemed to have committed the offence of murder and be liable
for punishment provided under these provisions depending upon the facts and
circumstances of the case.198.
For recording conviction for dacoity, there must be ﬁve or more persons. In the absence
of such ﬁnding, an accused cannot be convicted for dacoity. In a given case, however, it
may happen that there may be ﬁve or more persons and the factum of ﬁve or more
persons is either not disputed or is clearly established, but the Court may not be able to
record a ﬁnding as to identity of all the persons said to have committed the dacoity and

may not be able to convict them and order their acquittal observing that their identity is
not established. In such case, conviction of less than ﬁve persons—or even one—can
stand. But in the absence of such ﬁnding, less than ﬁve persons cannot be convicted
for dacoity. A similar situation arises in dealing with cases of "unlawful assembly" as
deﬁned in section 141 IPC, 1860 and liability of every member of such unlawful
assembly for an offence committed in prosecution of common object under section
149 IPC, 1860. In this case there were six accused. Out of those six accused, two were
acquitted by the trial Court without recording a ﬁnding that though offence of dacoity
was committed by six persons, identity of two accused could not be established. They

were simply acquitted by the Court. Therefore, as per settled law, four persons could
not be convicted for dacoity, being less than ﬁve which is an essential ingredient for
commission of dacoity. Moreover, all of them were acquitted for an offence of criminal
conspiracy punishable under section 120-B IPC, 1860 as also for receiving stolen
property in the commission of dacoity punishable under section 412 IPC, 1860. The
conviction of the appellant in this case for an offence punishable under section 396
IPC, 1860, therefore, could not stand and must be set aside.199.
[s 396.2] Presence of all not necessary.—
The section says that if "any one of ﬁve or more persons, who are conjointly
committing dacoity, commits murder in so committing dacoity" then every one of those

persons shall be liable to the penalty prescribed in the section. It is not necessary that
murder should be committed in the presence of all. When in the commission of a
dacoity a murder is committed, it matters not whether the particular dacoit was inside
the house where the dacoity is committed, or outside the house, or whether the murder
was committed inside or outside the house, so long only as the murder was committed
in the commission of that dacoity.200. The essence of an offence under this section is
murder committed in commission of dacoity. It does not matter whether murder is
committed in the immediate presence of a particular person or persons. It is not even
necessary that murder should have been within the previous contemplation of the
perpetrators of the crime.201. But in a case the dacoits were forced to retreat without

collecting any booty, the offence of dacoity would be completed as soon as they left
the house of occurrence and took to their heels. And if a murder was committed by any
one of the dacoits in course of such a retreat without any booty, then only the actual
murderer will be liable under section 302, IPC, 1860, and conjoint responsibility under
section 396, IPC, 1860, could not be ﬁxed on others though all of them could be
convicted under section 395, IPC, 1860 as attempt to commit dacoity is also
dacoity.202.

[s 396.3] Number of Persons.—
Conviction for an offence of dacoity of less than ﬁve persons is not sustainable.203. For
recording conviction, there must be ﬁve or more persons. In absence of such ﬁnding,
an accused cannot be convicted for an offence of dacoity. In a given case, however, it
record a ﬁnding as to identity of all the persons said to have committed dacoity and
not established. In such case, conviction of less than ﬁve persons — or even one can
stand. But in absence of such ﬁnding, less than ﬁve persons cannot be convicted for an
offence of dacoity.204.
[s 396.4] Presumption from recent possession.—
Simply on the recovery of stolen articles, no inference can be drawn that a person in

possession of the stolen articles is guilty of the offence of murder and robbery.205. The
nature of the presumption under Illustration (a) of section 114 of the Indian Evidence
Act, 1872 must depend upon the nature of evidence adduced. No ﬁxed time-limit can
be laid down to determine whether possession is recent or otherwise. Each case must
be judged on its own facts. The question as to what amounts to recent possession
suﬃcient to justify the presumption of guilt varies according "as the stolen article is or
is not calculated to pass readily from hand to hand". If the stolen articles were such as
were not likely to pass readily from hand to hand, the period of one year that elapsed
could not be said to be too long particularly when the appellant had been absconding
during that period.206.
[s 396.5] Section 396 and Section 302.—

The ingredients of both these offences, to some extent, are also different in as much as
to complete an offence of 'dacoity' under section 396 IPC, 1860, ﬁve or more persons
must conjointly commit the robbery while under section 302 of the IPC, 1860 even one
person by himself can commit the offence of murder. But, as already noticed, to attract
the provisions of section 396, the offence of 'dacoity' must be coupled with murder. In
other words, the ingredients of section 302 become an integral part of the offences
punishable under section 396 of the IPC, 1860. Resultantly, the distinction with regard
to the number of persons involved in the commission of the crime loses its
signiﬁcance as it is possible that the offence of 'dacoity' may not be proved but still the
offence of murder could be established, like in the present case. Upon reasonable

analysis of the language of these provisions, it is clear that the Court has to keep in
mind the ingredients which shall constitute a criminal offence within the meaning of
the penal section. This is not only essential in the case of the offence charged with but
even where there is comparative study of different penal provisions as the accused
may have committed more than one offence or even offences of a graver nature. He
may ﬁnally be punished for a lesser offence or vice versa, if the law so permits and the
requisite ingredients are satisﬁed.207. On the conjoint reading of sections 396 and 302
IPC, 1860, it is clear that the offence of murder has been lifted and incorporated in the
provisions of section 396 IPC, 1860. In other words, the offence of murder punishable

under section 302 and as deﬁned under section 300 will have to be read into the
provisions of offences stated under section 396 IPC, 1860. In other words, where a
provision is physically lifted and made part of another provision, it shall fall within the
ambit and scope of principle akin to 'legislation by incorporation' which normally is

193.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
194.  Lal Singh, (1938) All 875 . See also Nanhau Ram v State of MP, 1988 Cr LJ 936 : AIR 1988
SC 912 : 1988 Supp SCC 152 . Where all the ingredients were established and the conviction
applied between an existing statute and a newly enacted law. The expression 'murder'
appearing in section 396 would have to take necessarily in its ambit and scope the
ingredients of section 300 of the IPC, 1860. The provisions are clear and admit no
scope for application of any other principle of interpretation except the 'golden rule of
construction', i.e., to read the statutory language grammatically and terminologically in
the ordinary and primary sense which it appears in its context without omission or
addition. These provisions read collectively, put the matter beyond ambiguity that the
offence of murder, is by speciﬁc language, included in the offences under section 396.

It will have the same connotation, meaning and ingredients as are contemplated under
the provisions of section 302 IPC, 1860.208.
[s 396.6] Charge under section 396.—Conviction under section 302.—
No prejudice has been caused to the appellant by his conviction for an offence under
section 302 IPC, 1860 though he was initially charged with an offence punishable under
section 396 IPC, 1860 read with section 201 IPC, 1860. The circumstances which
constitute an offence under section 302 were literally put to him, as section 302 IPC,
1860 itself is an integral part of an offence punishable under section 396 IPC, 1860.
Once the appellant has not suffered any prejudice, much less a serious prejudice, then
the conviction of the appellant under section 302 IPC, 1860 cannot be set aside merely

for want of framing of a speciﬁc/ alternate charge for an offence punishable under
section 302 IPC, 1860. It is more so because the dimensions and facets of an offence
under section 302 are incorporated by speciﬁc language and are inbuilt in the offence
punishable under section 396 IPC, 1860. Thus, on the application of principle of
'cognate offences', there is no prejudice caused to the rights of the appellant.209.
[s 396.7] Rarest of the rare.—
Five members of a family including two minor children and the driver were ruthlessly
killed by the use of a knife, an axe and an iron rod with the help of four other. The crime
was obviously committed after pre-meditation with absolutely no consideration for
human lives and for money. Even though the appellant was young, his criminal

propensities are beyond reform and he is a menace to the society. death sentence was
held to be the appropriate punishment.210. In a dacoity with double murder, the
accused had gained conﬁdence of the lady of the house and other inmates and visited
them frequently. They committed dacoity after killing the lady and her grandson cold-
bloodedly and attempted to kill two others. Their guilt was proved duly by
circumstantial and direct evidence. The offences were found to be both heinous and
barbaric and it was a 'rarest of rare case'.211.

was sustained, Lalli v State of West Bengal, AIR 1986 SC 990 : 1986 Cr LJ 1083 : 1986 All LJ 768
: (1986) 2 SCC 409 , pre-planned dacoity, cold- blooded murder, concealment of bodies, the
Supreme Court did not reduce life sentence and six-year R I Sheodan v State of UP, 1988 Cr LJ
479 (All), R I for ﬁve years to persons robbing and injuring bus passengers disrupting social life
of the area. State of UP v Hardeo, AIR 1992 SC 1854 : 1992 Cr LJ 3160 , evidence not reliable,
195.  To bring an offence under section 396, the prosecution has to establish that murder was
committed during dacoity. Hence, when prosecution alleges commission of murder during
dacoity, the offence traverses from section 395 to section 396. Any person committing the
offence of dacoity with murder cannot be convicted and sentenced under both the sections,
Rahimal v State of UP, 1992 Cr LJ 3819 (All).
196.  Raﬁq Ahmed @ Raﬁ v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC
300 [LNIND 2011 SC 726] .

197.  Deepak @ Wireless v State of Maharashtra, 2012 Cr LJ 4643 : (2012) 8 SCC 785 [LNIND
198.  Raﬁq Ahmed @ Raﬁ v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC
199.  Raj Kumar v State of Uttaranchal, (2008) 11 SCC 709 [LNIND 2008 SC 849] : (2008) 3 SCC
(Cr) 888 : (2008) 5 All LJ 637 : AIR 2008 SC 3248 [LNIND 2008 SC 849] .
200.  Teja, (1895) 17 All 86 ; Umrao v State, (1894) 16 All 437 , dissented from; Chittu, (1900) PR
No. 4 of 1900. Sunil v State of Rajasthan, 2001 Cr LJ 3063 (Raj), it was not material that all the
ﬁve dacoits were not arrested. Miscreants entered the house of victim, caused one death,
injured others and looted property. Crime against them proved. Conviction. Shobit Chamar v
State of Bihar, 1998 Cr LJ 2259 (SC) six members of family killed in the process of dacoity,

trustworthy eye-witnesses, conviction. Anthony De Souza v State of Karnataka, AIR 2003 SC 258
[LNIND 2002 SC 674] , all the ﬁve accused proved to have participated in murder, the trial of
juvenile delinquent was split, High Court converting conviction from under sections 396/149 to
that under sections 396/34, improper.
201.  Samunder Singh, AIR 1965 Cal 598 [LNIND 1963 CAL 83] .
202.  Shyam Behari, 1957 Cr LJ 416 (SC-Para 5) : AIR 1956 SC 320 . See Suryamurthy v
Govindaswamy, AIR 1989 SC 1410 [LNIND 1989 SC 232] : 1989 Cr LJ 1451 : (1989) 3 SCC 24
[LNIND 1989 SC 232] , where some of the accused were acquitted because evidence of their
identity was not dependable. Ajab v State of Maharashtra, 1989 Cr LJ 954 : AIR 1989 SC 827 :
1989 Supp (1) SCC 601 , appeal on the matter of sentence; Hari Nath v State of UP, 1988 Cr LJ

422 : (1988) 1 SCC 14 [LNIND 1987 SC 743] : AIR 1988 SC 345 [LNIND 1987 SC 743] , dacoity at
night, identiﬁcation not dependable. Sheonath Bhar v State of UP, 1990 Cr LJ 2423 (All), no
conviction on the basis only of identiﬁcation. Ramdeo Rai Yadav v State of Bihar, AIR 1990 SC
1180 [LNIND 1990 SC 126] : 1990 Cr LJ 1183 the High Court ﬁnding that the appellant alone
was guilty of the murder shifted the conviction to under section 302 with no prejudice to the
accused, upheld by the Supreme Court.
203.  Ram Lakhan v State of UP, (1983) 2 SCC 65 .
204.  Raj Kumar Alias Raju v State of Uttranchal, (2008) 11 SCC 709 [LNIND 2008 SC 849] ; Saktu
v State of UP, (1973) 1 SCC 202 distinguished.
205.  Geejaganda Somaiah v State of Karnataka, AIR 2007 SC 1355 [LNIND 2007 SC 312] ; Gulab

Chand, AIR 1995 SC 1598 [LNIND 1995 SC 440] ; Tulsiram Kanu v State, AIR 1954 SC 1 : 1954 Cr
LJ 225 - the presumption permitted to be drawn under Section 114, Illustration (a) of the
Evidence Act, 1872 has to be drawn under the 'important time factor'. If the ornaments in
possession of the deceased are found in possession of a person soon after the murder, a

presumption of guilt may be permitted. But if a long period has expired in the interval, the
presumption cannot be drawn having regard to the circumstances of the case.
206.  Earabhadrappa v State of Karnataka, AIR 1983 SC 446 [LNIND 1983 SC 83] : 1983 Cr LJ 846
.
207.  Raﬁq Ahmed @ Raﬁ v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC
300 [LNIND 2011 SC 726] ; Iman Ali v State of Assam, AIR 1968 SC 1464 [LNIND 1968 SC 92] :
1968 (3) SCR 610 [LNIND 1968 SC 92] .
208.  Raﬁq Ahmed @ Raﬁ v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC
209.  Raﬁq Ahmed @ Raﬁ v State of UP, AIR 2011 SC 3114 [LNIND 2011 SC 726] : (2011) 8 SCC
300 [LNIND 2011 SC 726] ; State of UP v Sukhpal Singh, (2009) 4 SCC 385 [LNIND 2009 SC 339] :
AIR 2009 SC 1729 [LNIND 2009 SC 339] - Accused persons entered premises, looted licensed
gun and other articles and also killed two persons and injured others. Supreme Court held that

charging accused under section 396 and instead of sub-section 302 is proper.
210.  Sonu Sardar v State of Chhattisgarh, (2012) 4 SCC 97 [LNIND 2012 SC 909] : AIR 2012 SC
1480 [LNIND 2012 SC 909] ; Ankush Maruti Shinde v State of Maharashtra [(2009) 6 SCC 667
[LNIND 2009 SC 1056] : AIR 2009 SC 2609 [LNIND 2009 SC 1056] .
211.  State of Karnataka v Rajan, 1994 Cr LJ 1042 (Kant).

Of Theft
[s 397] Robbery or dacoity, with attempt to cause death or grievous hurt.
If, at the time of committing robbery or dacoity, the offender uses any deadly
weapon,1 or causes grievous hurt to any person, or attempts to cause death or
grievous hurt to any person, the imprisonment with which such offender shall be
punished shall not be less than seven years.
COMMENT—
Sections 397 and 398 do not create any offence but merely regulate the punishment
already provided for robbery and dacoity.212. This section ﬁxes a minimum term of
imprisonment when the commission of robbery and dacoity has been attended with
certain aggravating circumstances, viz., (1) the use of a deadly weapon, or (2) the
causing of grievous hurt, or (3) attempting to cause death or grievous hurt.
Section 34 of the Code has no application in the construction of this section.213.
[s 397.1] Accused must be armed with deadly weapon.—

It is necessary to prove that at the time of committing robbery, the accused was armed
with a deadly weapon and not merely that one of the robbers who was with him at the
time carried one.214. The liability to enhanced punishment is limited to the offender
who actually uses the weapon himself and causes grievous hurt and not to others who
in combination with such person have committed robbery or dacoity.215. The
expression 'the offender' occurring in this section pertains to actual offender. It does
not include all persons who participate in robbery or dacoity.216. The section does not
provide for constructive liability as in section 149.217.
1. 'Uses any deadly weapon'.—These words are wide enough to include a case in which
a person levels his revolver against another person in order to overawe him. It is not

correct to say that a person does not use a revolver unless he ﬁres it.218. Where the
accused carried knife open to the view of the victims, it is suﬃcient use of a deadly
weapon to terrorise them within the meaning of this section and no other overt act as
brandishing of the knife is necessary to apply this section.219. In reference to the word
"uses" as it occurs in the section, it has been held that if the weapon carried by the
offender was within the vision of the victim so as to be capable of creating terror in his
mind that is suﬃcient to satisfy the requirement of use of deadly weapon. It is not
necessary to show further any hurt caused by the use of the weapon.220.
The section postulates only the individual act of the accused to be relevant. It thus

negates the application of the principle of constructive or vicarious liability as provided
in section 34. Where all the accused persons carried their respective deadly weapons, it

was held that each one of them satisfy the requirement of section 397. Conviction
could be only under section 397 and not section 397 read with section 34.221.
[s 397.2] Comparison with section 394.—
The section relates itself only to an offender who actually uses the weapon himself. It
has no scope for constructive liability. The accused in this case had not himself caused
any grievous hurt in the commission of the robbery. His conviction under this section
read with section 34 was not proper.222. The liability under section 397 is only
individual, whereas liability under section 394 is both individual and vicarious.223.
[s 397.3] Deadly weapon.—
In Babulal Jairam Maurya v State of Maharashtra,224. it was held that the word "deadly
weapon" as used here has to be a real deadly weapon and not just assumed or
mistaken to be a deadly weapon. A toy-pistol cannot be said to be a deadly weapon
whatever be its impact on persons who were frightened with it. Bamboo sticks or lathis,

which were possessed and held by the accused, were held by the Supreme Court to be
not deadly weapons. There was no evidence of any grievous hurt or attempt to inﬂict
it.225.
[s 397.4] Grievous hurt.—
Any hurt which endangers life is a grievous hurt. It would be seen that one of the
injuries was caused just below the nipple. The term 'endangers life' is much stronger
than the expression 'dangerous to life'. Apart from that in the provision, attempt to
cause grievous hurt attracts its application.226.
[s 397.5] Recovery of property.—
The Supreme Court observed in Lachhman Ram v State of Orissa:227. "The factum of
recovery of articles at the instance of the accused persons in the presence of police
oﬃcers and panch witnesses is itself suﬃcient to bring the case not only under section
412 but also under section 391".
[s 397.6] Death sentence.—

In a robbery and double murder case, it was found that the acts of the accused persons
were heinous and they had committed murder brutally and showed no regard for
human lives. They were hardened criminals with previous criminal records. It was held
that life imprisonment could not serve any reformative treatment to the accused. The
sentence was enhanced to capital punishment.228.
The accused was convicted for the offence of robbery and murder of ﬁve persons;
murders were premeditated and carried out for gain. The entire family was

212.  Gaya Bhakta v State of Orissa, 1988 Cr LJ 1576 (Ori), the charge should, therefore be under
section 395 read with section 397. Kallu v State of MP, 1992 Cr LJ 238 (MP).
213.  Ali Mirza, (1923) 51 Cal 265 ; Dulli, (1924) 47 All 59 .
214.  Bhavjya v State, (1895) Unrep Cr C 797. Dhanai Mahto v State of Bihar, AIR 2000 SC 3602 ,
bamboo sticks and lathis have been held to be not deadly weapons for the purposes of this
section. KV Chacko v State of Kerala, 2001 Cr LJ 713 : AIR 2001 SC 537 [LNIND 2000 SC 1797] ,
circumstance of dacoity with murder not proved. Hence, acquittal.
215.  Deoji Keru, (1872) Unrep Cr C 65; Phool Kumar, 1975 Cr LJ 778 : AIR 1975 SC 905 [LNIND
1975 SC 112] : (1975) 1 SCC 797 [LNIND 1975 SC 112] ; Komali Viswasam, (1886) 1 Weir 450;
Nageshwar, (1906) 28 All 404 ; Ali Mirza, supra; Dulli, supra.
216.  Willson v State of Maharashtra, 1995 Cr LJ 4042 (Bom).
217.  Hazara Singh v State, (1946) 25 Pat 227.

218.  Chandra Nath, (1931) 7 Luck 543 . Where the accused, while committing the robbery did
not use the Deshi Katta recovered from his possession for threatening the victims nor caused
them any grievous injury, it was held that offence under section 397 was not made out against
him, Babu Lal v State of Rajasthan, 1994 Cr LJ 3531 (Raj). Where the accused was caught red-
handed brandishing his knife and demanding money from a man and was convicted under
section 397. The sentence being minimum seven years R.I., it was not interfered with. Sanjay v
State of Maharashtra, 1996 Cr LJ 2172 (Bom).
219.  Phool Kumar, 1975 Cr LJ 778 : AIR 1975 SC 905 [LNIND 1975 SC 112] ; Jai Prakash, 1981
Cr LJ 1340 (Del); Jang Singh, 1984 Cr LJ 1135 (Raj).
220.  (2004) 3 SCC 116 : AIR 2004 SC 1253 : 2004 Cr LJ 936 : (2004) 3 MPLJ 361 : (2004) 3 Mah
LJ 581 .

LJ 581 .
221.  Ashfaq v State Govt. of NCT of Delhi, (2004) 3 SCC 116 : AIR 2004 SC 1253 .
222.  Paramjeet Singh v State of Rajasthan, 2001 Cr LJ 757 (Raj).
223.  Shravan Deshrath v State of Maharashtra, 1998 Cr LJ 1196 (Bom).
224.  Babulal Jairam Maurya v State of Maharashtra, 1993 Cr LJ 281 (Bom).
225.  Dhanai Mahto v State of Bihar, 2001 Cr LJ 147 (SC), the court said that in such a case the
maximum punishment provided by section 397 need not be imposed. Four years were held to be
suﬃcient.
exterminated in a cruel manner. The accused was a young person but not the
breadwinner of anyone. The imposition of death sentence was conﬁrmed.229.
[s 397.7] Probation.—
The Supreme Court had granted the beneﬁt of probation to the appellant who was less
than 21 years of age as on the date of the offence. The report of the Probation oﬃcer

had been called and keeping in view the circumstances as had been detailed in the
report of the Probation oﬃcer coupled with the fact that the appellant being less than
21 years of age on the date of offence, he had been granted beneﬁt of probation.230.

226.  Niranjan Singh v State of M.P., AIR 2007 SC 2434 [LNIND 2007 SC 796] : (2007) 10 SCC 459
[LNIND 2007 SC 796] .
227.  Lachhman Ram v State of Orissa, AIR 1985 SC 486 [LNIND 1985 SC 77] : 1985 Cr LJ 753 :
(1985) 2 SCC 533 [LNIND 1985 SC 77] . Mangal Tularam Warkhade v State of Maharashtra 2012
Cr LJ 510 (Bom) Recovery of cash as booty of dacoity, not proved. Accused acquitted
228.  Prem v State of Maharashtra, 1993 Cr LJ 1608 (Del).
229.  KV Chacko v State of Kerala, 2001 Cr LJ 1179 (Ker).
230.  Masarullah v State of Tamil Nadu, 1983 SCC (Cr) 84 : (1983 Cr LJ 1043 ).

Of Theft
[s 398] Attempt to commit robbery or dacoity when armed with deadly weapon.
If, at the time of attempting to commit robbery or dacoity, the offender is armed with
any deadly weapon, the imprisonment with which such offender shall be punished
shall not be less than seven years.
COMMENT—
This section can regulate the punishment only in cases of an attempt to commit
robbery as distinguished from a case in which the offender has accomplished his
purpose and robbery has actually been committed.231. It applies to such of the
offenders as are armed with deadly weapons though they do not use them in the
attempt to rob or commit dacoity. It does not apply to other offenders who in
combination with such persons have committed robbery or dacoity.232. The words
"uses" and "is armed" in sections 397 and 398, IPC, 1860, have to be given identical
meaning to resolve apparent anomaly.233. Thus, carrying a deadly weapon would be

enough to attract the mischief of either section. In the charge-sheet, accused were
charged under section 396. Section 398 is referred only for the purpose of sentence.
Hence, the argument that when section 398 is attracted, life imprisonment cannot be
awarded is untenable. Substantive offence here is section 396. But, if section 398 is
attracted, minimum punishment shall be seven years. Sections 397 and 398 cannot be
used conjunctively or constructively as held by the Apex Court in Paramjeet Singh v
State of Rajasthan.234. In fact, as held in various Court decisions, a person cannot be
convicted under section 398 unless he is armed with a deadly weapon while
committing or attempting to commit robbery or dacoity.235.
Section 398, IPC, 1860 gets attracted if at the time of attempting to commit robbery or

dacoity, the offender is armed with a deadly weapon which will attract an imprisonment
not less than seven years. When no robbery or dacoity has been committed as such, in
the sense that no property was removed from the house of the complainants and
nothing said to be belonging to the complainants was recovered, it would be diﬃcult to
hold that there was any attempt in regard to the commission of robbery or dacoity.
Scattering of articles in the house may cause a scene as if ransacked, but that does not
proved the charge.236. For the offence of attempt to commit robbery the maximum
punishment prescribed by law is rigorous imprisonment for seven years with ﬁne.
However the discretion is left to the Court to quantify the actual sentence to be
awarded. However, if at the time of attempting to commit robbery the offender is

armed with any deadly weapon, the offence becomes more serious or aggravated and
therefore, section 398 provides that in such circumstances the imprisonment with
which, the offender shall be punishable, shall not be less than seven years. If at the
time of committing robbery the offender is not armed with any deadly weapon the
Court may award sentence of imprisonment for a term up to seven years and if he was

231.  Chandra Nath, (1931) 7 Luck 543 .
232.  Ali Mirza, (1923) 51 Cal 265 ; Nabibux, (1927) 30 Bom LR 88 ; 52 Bom 168.
233.  Phool Kumar, 1975 Cr LJ 778 : AIR 1975 SC 905 [LNIND 1975 SC 112] . Surender @ Babli v
State AIR 2012 SC 1725 [LNINDORD 2011 SC 141] -High Court convicted the accused under
sections 393, 398 and 302/34 of IPC, 1860 on the ground that weapon which had been
recovered at the instance of appellant proved his involvement in the incident. Supreme Court set
aside the conviction
234.  Paramjeet Singh v State of Rajasthan, 2001 Cr LJ 757 (SC)
235.  Sharafu Alias Sharafudheen v State of Kerala, 2007 Cr LJ 2908 (Ker).
236.  Chinnadurai v State of Tamil Nadu, AIR 1996 SC 546 : (1995) Supp3 SCC 686.
237.  Shahaji Ramanna Nair v State of Maharashtra, 2007 Cr LJ 4653 (Bom).
238.  Ganesh Singh v State of MP, 2009 Cr LJ 3691 (MP).
239.  Manik Miah v State of Tripura, 2013 Cr LJ 1899 (Gau).
armed with deadly weapon the sentence of imprisonment shall not be less than seven

years. In such circumstances the maximum sentence of rigorous imprisonment of
seven years has to be awarded. It is well settled that section 398 IPC, 1860 does not
create any offence but merely regulates the punishment already provided for robbery or
dacoity. One cannot be convicted and sentenced separately under sections 393 and
398 of IPC, 1860.237.
[s 398.1] Cases.—
The allegation was that appellants entered into the house of complainant, injured her in
order to commit robbery but was apprehended by police. They demanded key of
almirah and ornaments from complainant by overawing her with deadly weapons like
knife and kattas. High Court held that conviction under section 394 read with section
397 deserves to be converted into one under section 394 read with s, 398 of IPC,
1860.238.

1860.238.
[s 398.2] Charge under section 398 conviction under section 458 IPC, 1860.—
The accused was charged under section 398 of IPC, 1860 and section 25(1)(A) and
section 27 of the Arms Act, 1959. Trial Court acquitted the accused from both the
charges holding that prosecution has failed to prove the charges, however, come to the
conclusion that the accused committed an offence under section 458 of IPC, 1860. The
High Court held that section 458 of Penal Code in no way was a cognate offence of
offence prescribed under section 398, IPC, 1860. Hence, Conviction for offence under
section 458 IPC, 1860 without framing charge was set aside.239.

Of Theft
[s 399] Making preparation to commit dacoity.
Whoever makes, any preparation for committing dacoity, shall be punished with
COMMENT—
This section makes preparation to commit dacoity punishable. 'Preparation' consists in
devising or arranging means necessary for the commission of an offence.240.
Under the Code preparation to commit an offence is punishable in three cases:—
(1) Preparation to wage war against the Government of India (section 122).
(2) Preparation to commit depredation on territories of a Power at peace with the
Government of India (section 126).
(3) Preparation to commit dacoity.
In a popular sense assembling to commit dacoity may be an act of preparation for it,
but a mere assembly, without further preparation, is not 'preparation' within the

meaning of this section. Section 402 applies to mere assembling without proof of other
preparation. A person may not be guilty of dacoity, yet guilty of preparation, and not
guilty of preparation, yet guilty of assembling.241.
[s 399.1] Distinction between sections 399 and 402.—
Though the offences falling under both the sections, more or less, involve similar
ingredients, the only difference between the two is that while under section 402 mere
assemblage without preparation is enough, section 399 require some additional steps
by way of preparation. There can be cases where there may be an assembly for the
purpose of dacoity without even a fringe of preparation. The mere fact that the
appellants are acquitted of the charge under section 399 is no ground to knock off the

charge under section 402, IPC, 1860.242. In order to establish an offence punishable
under section 399, IPC, 1860 some act amounting to preparation must be proved and
what must be proved further is an act for which preparation was being made was a
dacoity, that is to say, robbery to be committed by ﬁve or more persons. The
prosecution has to establish under section 402, IPC, 1860 that there had been an
assembly of ﬁve or more persons constituted for the purpose of committing dacoity
and that the accused persons were members of that assembly. If there is no clear and
acceptable evidence of any assemblage of the appellants with three or more persons

for the purpose of committing dacoity then the appellants cannot be held liable under
section 402, IPC, 1860.243.
[s 399.2] Distinction between attempt and preparation.—
A culprit ﬁrst intends to commit the offence, then makes preparation for committing it
and thereafter attempts to commit the offence. If the attempt succeeds, he has
committed the offence; if it fails due to reasons beyond his control, he is said to have
attempted to commit the offence. Attempt to commit an offence can be said to begin
when the preparations are complete and the culprit commences to do something with
the intention of committing the offence and which is a step towards the commission of
the offence. The moment he commences to do an act with the necessary Intention, he
commences his attempt to commit the offence. The word "attempt" is not itself
deﬁned, and must, therefore, be taken in its ordinary meaning. This is exactly what the
provisions of section 511 require. An attempt to commit a crime is to be distinguished

from an intention to commit it and from preparation made for its commission. Mere
intention to commit an offence, not followed by any act, cannot constitute an offence.
The will is not be taken for the deed unless there be some external act which shows
that progress, has been made in the direction of it, or towards maturing and effecting it.
Intention is the direction of conduct towards the object chosen upon considering the
motives which suggest the choice. Preparation consists in devising or arranging the
means or measures necessary for the commission of the offence. It differs widely from
attempt which is the direct movement towards the commission after preparations are
made. Preparation to commit an offence is punishable only when the preparation is to

commit offences under section 122 (waging war against the Government of India) and
section 399 (preparation to commit dacoity). The dividing, line between a mere
preparation and an attempt is sometimes thin and has to be decided on the facts of
each case. There is a greater degree of determination in attempt as compared with
preparation.244.
[s 399.3] CASES.—
Where it is proved that the accused, who were residents of different villages had
gathered with lethal arms at an unearthly hour in a desolate place under a tree with no
explanation for their conduct whatsoever much less an acceptable one, the Court
found them guilty under sections 399 and 402.245.
Where a number of persons were sitting in a Railway waiting hall at about 9.30 at night
and a country-made gun without any cartridge, a whistle and a torch of ﬁve cells were

recovered from their possession, it could not be said without any other evidence that
they had made preparation to commit dacoity within the meaning of this section nor
would it amount to an offence of assemblage for the purpose of committing dacoity
under section 402.246. The mere fact that eight persons were found in a school at
about 1 a.m. and some of them were armed does not make out a case either under
section 399 or under section 402, IPC, 1860, unless it is shown that they assembled
there for the purpose of committing dacoity. In such a situation the possibility that they
had so assembled there for murdering somebody or committing some other offence
cannot be ruled out.247. In this connection see also Comments under section 402, IPC,
1860, especially the case of Naushera therein.
[s 399.4] Sentence.—

240.  Jain Lal, (1942) 21 Pat 667.
241.  Ramesh Chandra Banerjee, (1913) 41 Cal 350 ; Madhusudan Sen Gupta, AIR 1958 Cal 25
[LNIND 1957 CAL 48] . Shiv Ram Singh v State of UP, 1999 Cr LJ 4103 (All), assembly in
preparation for dacoity on trucks and other motor vehicles, spot arrests, 2 years RI imposed.
Another case of the same kind Radharaman v State of UP, 1997 Cr LJ 4129 (All), arrest by police
party when the accused assembled for preparation for dacoity, independent public witnesses.
242.  Naushera v State, 1982 Cr LJ 29 (P&H). Shravan Dashrath v State of Maharashtra, 1998 Cr
LJ 1196 (Bom), the same distinction stated.
243.  Asgar v State of Rajastan, 2003 Cr LJ 1997 ; In Karam Dass v State, AIR 1952 Pun 249 :
1952 Cr LJ 1119 , the Punjab High Court held that to bring the case within section 399 of the
Code, it is not necessary that persons shown to be making the preparations should be ﬁve or
more in number. It is, however, necessary for the prosecution to prove that the raid for which the

persons prosecuted were making preparation was to be committed by ﬁve or more persons, for
otherwise it would not be dacoity but merely robbery, and mere preparation for committing
robbery, unless it ends in an actual attempt, is not punishable by law.
244.  Koppula Venkat Rao v State of Andhra Pradesh, AIR 2004 SC 1874 [LNIND 2004 SC 301] :
(2004) 3 SCC 602 [LNIND 2004 SC 301] .
245.  Birbal B Chouhan v State of Chhattisgarh, AIR 2012 SC 911 [LNIND 2011 SC 1157] : (2011)
10 SCC 776 [LNIND 2011 SC 1157] .
246.  Brijlal Mandal, 1978 Cr LJ 877 (Pat); see also Gholtu Modi, 1986 Cr LJ 1031 (Pat). Suleman
v State of Delhi, AIR 1999 SC 1707 [LNIND 1999 SC 133] : 1999 Cr LJ 2525 , persons staying in
Dharamsala at noon, witness stated that he overheard them talking about their plan to loot a

petrol pump, it did not seem to be truthful to the court, their conviction under sections 399 and
402 was held to be not proper. Shiv Ram Singh v State of UP, 1999 Cr LJ 4103 (All), criminals
caught on spot alongwith articles, the sentence of two years RI being already on the lower side,
no scope for further reduction. Ram Sewak v State of UP, 1999 Cr LJ 4680 (All), failure to prove
that accused assembled in preparation for dacoity. Another similar case is Sukhlal v State of MP,
1998 Cr LJ 1366 (MP).
247.  Chaturi Yadav, 1979 Cr LJ 1090 : AIR 1990 SC 1412 [LNIND 1998 SC 579] .
248.  Nasir v State of UP, AIR 2010 SC 1926 [LNIND 2009 SC 1517] : (2010) 13 SCC 251 [LNIND
2009 SC 1517] ; Ravi Rajwar v State of Bihar, 2003 Cr LJ 634 (Pat).
The occurrence had taken place twenty nine years ago and the appellant has remained

in custody for a period of more than six months. The Supreme Court while upholding
the conviction of the appellant, sentence of imprisonment awarded against him is
reduced to the period already undergone by him.248.

Of Theft
[s 400] Punishment for belonging to gang of dacoits.
Whoever, at any time after the passing of this Act, shall belong to a gang of persons
associated for the purpose of habitually committing dacoity, shall be punished with
249.[imprisonment for life], or with rigorous imprisonment for a term which may
249.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
COMMENT—
This section provides for the punishment of those who belong to a gang of persons
who make it their business to commit dacoity. Its object is to break up gangs of dacoits
by punishing persons associated for the purpose of committing dacoity. The mere fact
that women lived as wives or mistresses with men who were dacoits was held not
suﬃcient to prove that they belonged to a gang of persons associated for the purpose

of habitually committing dacoity within the meaning of this section, unless it be proved
that the women themselves were associated with the husbands or protectors for the
purpose of themselves habitually committing dacoities.250.
The expression 'belong' implies something more than casual association for the
purpose of committing one or two dacoities by a person who was ordinarily living by
honest means. It refers to those persons who habitually associate with a gang of
dacoits and actively assist them in their operations. But if a person with a bad past
record participates in the commission of dacoity even on one occasion in association
with a well-known gang of habitual dacoits knowing them to be such a gang, it may be
reasonably inferred that he belongs to that gang unless there is some other material on

record to justify an inference that the association was of a casual nature.251.
The word 'gang' means any band or company of persons who go about together or act
in concert. The essence of the word is that the persons should act in concert.252.
Evidence that persons concerned were associated for the purpose of committing
dacoities in a number of cases during a short period of time is good enough evidence
to prove association within the meaning of this section even if such evidence was not
considered suﬃcient for conviction under section 395, IPC, 1860, in speciﬁc cases.253.

250.  Yella, (1896) Unrep Cr C 863.
251.  Bhima Shaw, (1956) Cut 195; Bai Chaturi, AIR 1960 Guj 5 [LNIND 1989 GUJ 36] .
252.  Sharaf Shah Khan, AIR 1963 AP 314 [LNIND 1961 AP 52] .
253.  State of Assam v Hetep Boro, 1972 Cr LJ 1074 (Assam).

Of Theft
[s 401] Punishment for belonging to gang of thieves.
Whoever, at any time after the passing of this Act, shall belong to any wandering or
other gang of persons associated for the purpose of habitually committing theft or
robbery, and not being a gang of thugs or dacoits, shall be punished with rigorous
imprisonment for a term which may extend to seven years, and shall also be liable to
ﬁne.
254.  Beja, (1913) PR No. 13 of 1914.
255.  Re Akbar Ali, 1981 Cr LJ NOC 36 (Mad). Acquittal by lower courts under this section and
there being no charge at that time of receiving stolen property under section 410, the Supreme
Court did not in an appeal under Article 136 of the Constitution convict under section 410.
Pandara Nadar v State of TN, AIR 1991 SC 391 : 1991 Cr LJ 468 . See the comments under
section 399.
COMMENT—
The principle enunciated in the last section is extended by this section to a gang of

COMMENT—
thieves or robbers. It is not necessary to prove that each individual member of the gang
has habitually committed theft or has committed any particular theft in company with
the other members.254. Even so the word 'belonging' implies something more than
mere casual association. It conveys the notion of continuity and more or less continued
association of the accused with the gang extending over a considerable length of time
which must be proved so as to warrant an inference that the accused identiﬁed himself
with the gang the common purpose of which was the habitual commission of either
theft or robbery.255.

Of Theft
[s 402] Assembling for purpose of committing dacoity.
Whoever, at any time after the passing of this Act, shall be one of ﬁve or more persons
assembled for the purpose of committing dacoity, shall be punished with rigorous
ﬁne.
256.  B h o l u , (1900) 23 All 124 .
COMMENT—
An unlawful assembly of persons meeting for a common purpose to commit dacoity is
subject to the severe punishment provided in this section even though no step is taken
in the prosecution of the common object.256.

Of Theft
Of Criminal Misappropriation of Property
[s 403] Dishonest misappropriation of property.
Whoever dishonestly misappropriates or converts to his own use1 any movable
property, shall be punished with imprisonment of either description for a term which
(a) A takes property belonging to Z out of Z's possession, in good faith, believing, at
the time when he takes it, that the property belongs to himself. A is not guilty of
theft; but if A, after discovering his mistake, dishonestly appropriates the
property to his own use, he is guilty of an offence under this section.
(b) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes
away a book without Z's express consent. Here, if A was under the impression
that he had Z's implied consent to take the book for the purpose of reading it, A

has not committed theft. But, if A afterwards sells the book for his own beneﬁt,
he is guilty of an offence under this section.
(c) A and B, being joint owners of a horse, A takes the horse out of B's possession,
intending to use it. Here, as A has a right to use the horse, he does not
dishonestly misappropriate it. But, if A sells the horse and appropriates the
whole proceeds to his own use, he is guilty of an offence under this section.
Explanation 1.—A dishonest misappropriation for a time only is a misappropriation
within the meaning of this section.
A ﬁnds a Government promissory note belonging to Z, bearing a blank endorsement. A,
knowing that the note belongs to Z, pledges it with a banker as a security for a loan,
intending at a future time to restore it to Z. A has committed an offence under this
section.

section.
Explanation 2.—A person who ﬁnds property not in the possession of any other
person, and takes such property for the purpose of protecting it for, or of restoring it
to, the owner does not take or misappropriate it dishonestly, and is not guilty of an
offence; but he is guilty of the offence above deﬁned, if he appropriates it to his own
use, when he knows or has the means of discovering the owner, or before he has used
reasonable means to discover and give notice to the owner and has kept the property
a reasonable time to enable the owner to claim it.
What are reasonable means or what is a reasonable time in such a case, is a question
of fact.

It is not necessary that the ﬁnder should know who is the owner of the property, or
that any particular person is the owner of it; it is suﬃcient if, at the time of
appropriating it, he does not believe it to be his own property, or in good faith believes
that the real owner cannot be found.
(a) A ﬁnds a rupee on the high road, not knowing to whom the rupee belongs. A
picks up the rupee. Here A has not committed the offence deﬁned in this
section.
(b) A ﬁnds a letter on the road, containing a banknote. From the direction and
contents of the letter he learns to whom the note belongs. He appropriates the
note. He is guilty of an offence under this section.
(c) A ﬁnds a cheque payable to bearer. He can form no conjecture as to the person
who has lost the cheque. But the name of the person, who has drawn the
cheque, appears. A knows that this person can direct him to the person in
whose favour the cheque was drawn. A appropriates the cheque without

attempting to discover the owner. He is guilty of an offence under this section.
(d) A sees Z drop his purse with money in it. A picks up the purse with the intention
of restoring it to Z, but afterwards appropriates it to his own use. A has
committed an offence under this section.
(e) A ﬁnds a purse with money, not knowing to whom it belongs; he afterwards
discovers that it belongs to Z, and appropriates it to his own use. A is guilty of
an offence under this section.
(f) A ﬁnds a valuable ring, not knowing to whom it belongs. A sells it immediately
without attempting to discover the owner. A is guilty of an offence under this
section.
COMMENT—
Criminal misappropriation takes place when the possession has been innocently come
by, but where, by a subsequent change of intention, or from the knowledge of some

section.
COMMENT—
new fact with which the party was not previously acquainted, the retaining becomes
wrongful and fraudulent.257. The offence consists in the dishonest misappropriation or
conversion, either permanently or for a time, of property which is already without wrong
in the possession of the offender.258. See illustrations (a), (b) and (c) which show that
the original innocent taking amounts to criminal misappropriation by subsequent acts.
Illustration (a) is qualiﬁed by ill. (b).259.
[s 403.1] Ingredients.—
(1) Dishonest misappropriation or conversion of property for a person's own use.

(2) Such property must be movable. Section 403 deals with the offence of dishonest
misappropriation of property. It provides that "whoever dishonestly misappropriates or
converts to his own use any movable property", shall be punished with imprisonment of
either description for a term which may extend to two years or with ﬁne or both. The
basic requirement for attracting the section is: (i) the movable property in question
should belong to a person other than the accused; (ii) the accused should wrongly
appropriate or convert such property to his own use; and (iii) there should be dishonest
intention on the part of the accused. Here again the basic requirement is that the
subject matter of dishonest misappropriation or conversion should be someone else's
movable property. When NEPC India owns/possesses the aircraft, it obviously cannot
'misappropriate or convert to its own use' such aircraft or parts thereof. Therefore,
section 403 is also not attracted.260. Section 403 uses the words 'dishonestly' and

'misappropriate'. These are necessary ingredients of an offence under section 403, IPC,
1860.261.
1. 'Dishonestly misappropriates or converts to his own use'.—There must be actual
conversion of the thing misappropriated to the accused's own use. Where, therefore,
the accused found a thing, and merely retained it in his possession, he was acquitted of
this offence.262. Where the accused found a purse on the pavement of a temple in a
crowded gathering and put it in his pocket but was immediately after arrested, it was
held that he was not guilty of criminal misappropriation, for it could not be assumed
that by the mere act of picking up the purse or putting it in his pocket he intended to
appropriate its contents to his own use.263. Where a person took possession of a

bullock which had strayed, but there was no evidence that it was stolen property, and
he dishonestly retained it, he could be convicted under this section and not under
section 411.264. The accused purchased for one anna, from a child aged six years, two
pieces of cloth valued at 15 annas, which the child had taken from the house of a third
person. It was held that assuming that a charge of dishonest reception of property
property belonged to the child's guardian and dishonestly appropriated it to his own
use.265.
[s 403.2] Theft and criminal misappropriation.—
(1) In theft the offender dishonestly takes property which is in the possession of a

use.265.
person out of that person's possession; and the offence is complete as soon as the
offender moves the property. Criminal misappropriation takes place even when the
possession has been innocently come by, but where, by a subsequent change of
intention or from the knowledge of some new fact, with which the party was not
previously acquainted, the retaining becomes wrongful and fraudulent.
(2) The dishonest intention to appropriate the property of another is common to theft
and to criminal misappropriation. But this intention, which in theft is suﬃciently
manifested by a moving of the property, must in criminal misappropriation be carried
into action by an actual misappropriation or conversion.
[s 403.3] Entrustment of cash.—
Where a certain amount of cash, which was entrusted to the cashier, was missing from

the bank and the money was neither found with the cashier nor at his home, the Court

said that he could be held liable for negligence but not for breach of trust in the
absence of proof for misappropriation by him.266.
[s 403.4] Joint property.—
An owner of property, in whichever way he uses his property and with whatever
intention, will not be liable for misappropriation and that would be so even if he is not
the exclusive owner thereof. A partner has undeﬁned ownership along with the other
partners over all the assets of the partnership. If he chooses to use any of them for his
own purposes he may be accountable civilly to the other partners. But he does not
thereby commit misappropriation.267.
[s 403.5] Main contractor receiving payment but not paying to sub-contractor.
—
The principal or main contractor contracted with a sub-contractor for completion of the
project. The sub-contractor ﬁled a criminal complaint alleging that the main contractor
had received payment under the project but was not paying him. The Supreme Court

said that the money paid to the main contractor was not in the nature of money or
immovable property of the sub-contractor. Hence, there could be no misappropriation.
It was a claim of civil nature.268.
[s 403.6] Civil nature.—
When the dispute in question is purely of civil nature, Magistrate is justiﬁed in
dismissing the complaint under section 203 Cr PC, 1973.269. Merely because a civil
claim has been raised by the complainant regarding the breach of agreement, it cannot
prevent him from initiating criminal proceedings.270.
[s 403.7] Charge under section 406.—Conviction under section 403.—
Section 222(1) Cr PC, 1973 provides when a person is charged with an offence
consisting of several particulars, a combination of some only of which constitutes a
complete minor offence, and such combination is proved, but the remaining particulars

are not proved, he may be convicted of the minor offence, though he was not charged
with it. Sub-section (2) of section 222 provides that when a person is charged with an
offence and facts are proved which reduced it to a minor offence, he may be convicted
of the minor offence, although he is not charged with it. Offence under section 403 is
certainly a minor offence in relation to the offence under section 406, IPC, 1860.271.
[s 403.8] Offence partly committed outside India.—
Indian Courts have jurisdiction against foreigners residing in foreign countries but their
acts connected with transaction or part of transaction arising in India. Foreign
nationality, their residence outside India, and the fact that they were not present in India
when the offence(s) was/were allegedly committed, are of no consequence, in view of

257.  Bhagiram Dome v Abar Dome, (1988) 15 Cal 388 , 400; Pramode, (1965) 2 Cr LJ 562 .
258.  Ramakrishna, (1888) 12 Mad 49, 50.
259.  Mahadev Govind, (1930) 32 Bom LR 356 .
260.  Indian Oil Corporation. v NEPC India Ltd. AIR 2006 SC 2780 [LNIND 2006 SC 537] : (2006) 6
SCC 736 [LNIND 2006 SC 537] ; Ramaswamy Nadar v The State of Madras, AIR 1958 SC 56
[LNIND 1957 SC 102] : 1958 Cr LJ 228 ; Mohammed Ali v State of MP, 2006 Cr LJ 1368 (MP);
Diamond Cables Ltd v State of Andhra Pradesh, 2004 Cr LJ 4100 (AP).
261.  Udhar v State, AIR 2003 SC 974 [LNIND 2003 SC 67] : (2003) 2 SCC 219 [LNIND 2003 SC
67] - Neither of these ingredients are satisﬁed in the facts and circumstance of this case. It
cannot be said that there is any dishonest intention on the part of appellants nor it can be said
that TCPL or the appellants have misappropriated or converted the movable property of the
complainant to their own use. Since the basic ingredients of the relevant Section in the IPC,

1860 are not satisﬁed, the order taking cognizance of the offence as well as the issue of
summons to the appellants is wholly uncalled for.
262.  Abdool, (1868) 10 WR (Cr) 23A.
263.  Phuman, (1907) PR No. 11 of 1908.
264.  Phul Chand Dube, (1929) 52 All 200 .
265.  Makhulshah v State, (1886) 1 Weir 470.
266.  State of Maharashtra v Mohan Radhakrishna Pednekar, 1998 Cr LJ 3771 (Bom).
267.  Velji Raghavji, (1964) 67 Bom LR 443 (SC). Mahal Chand Sikwal v State of WB, 1987 Cr LJ
1569 (Cal).
268.  U Dhar v State of Jharkhand, AIR 2003 SC 974 [LNIND 2003 SC 67] : 2003 Cr LJ 1224 .
269.  Kaumudiben Harshadbhai Joshi v State of Gujarat, 2012 Cr LJ 4720 (Guj).
270.  Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007

271.  Kundanlal v State of Maharashtra, 2001 Cr LJ 2288 (Bom).
272.  Mobarik Ali Ahmed, AIR 1957 SC 857 [LNIND 1957 SC 81] : 1957 Cr LJ 1346 .
273.  Lee Kun Hee v State of UP (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007
the aforesaid decision rendered by the Supreme Court in Mobarik Ali Ahmed272.
case.273.

Of Theft
[s 404] Dishonest misappropriation of property possessed by deceased person
at the time of his death.
Whoever dishonestly misappropriates or converts to his own use property, knowing
that such property was in the possession of a deceased person at the time of that
person's decease, and has not since been in the possession of any person legally
entitled to such possession, shall be punished with imprisonment of either
and if the offender at the time of such person's decease was employed by him as a
clerk or servant, the imprisonment may extend to seven years.
Z dies in possession of furniture and money. His servant A, before the money comes
into the possession of any person entitled to such possession, dishonestly
misappropriates it. A has committed the offence deﬁned in this section.
COMMENT—

COMMENT—
This section relates to a description of property peculiarly needing protection. The
offence consists in the pillaging of movable property during the interval which elapses
between the time when the possessor of the property dies, and the time when it comes
into the possession of some person or oﬃcer authorized to take charge of it.274. The
very object of this provision was to protect the property which was in possession of
deceased at the time of his death till the person(s) entitled to it step in.275.
[s 404.1] CASES.—
The circumstances namely recovery of revolver of the deceased from accused, along
with live and spent cartridges, the recovery of mobile handset of Panasonic from the
custody of the accused, and the fact that the accused was using the same soon after
the murder of the deceased with mobile phone which was registered in the name of the

accused (and that he continued to use it till his arrest), leaves no room for any doubt,
that the prosecution has brought home the charges as have been found to be
established against the accused.276. Where the accused misused the ATM card of the
deceased, it was held he had committed offence under this section.277.

274.  M & M 364.
275.  Prabhat Bhatnagar v State, 2007 Cr LJ 4349 (Raj).
276.  Gajraj v State (NCT) of Delhi, (2011) 10 SCC 675 [LNIND 2011 SC 929] : 2012 Cr LJ 413 ;
Munish Mubar v State, 2013 Cr LJ 56 (SC) : AIR 2013 SC 912 [LNIND 2012 SC 610] . Articles
belong to the deceased recovered from the accused based on his disclosure statement.
Accused could not offer any explanation. Conviction conﬁrmed by the Supreme Court. Prakash
Alias Ajayan v State, 2009 Cr LJ 2930 (Ker)-Gold chain of deceased recovered from one of the
accused. Conviction was held proper. Also see Ramesh v State of Rajasthan (2011) 3 SCC 685
[LNIND 2011 SC 213] .
277.  Ashok Kumar Kundi v State of Uttarakhand, 2014 Cr LJ 378 (Utknd).

Of Theft
Of Criminal Breach of Trust
[s 405] Criminal breach of trust.
Whoever, being in any manner entrusted with property,1 or with any dominion over
property, dishonestly misappropriates2 or converts to his own use that property, or
dishonestly uses or disposes of that property3 in violation of any direction of law
prescribing the mode in which such trust4 is to be discharged, or of any legal contract,
express or implied, which he has made touching the discharge of such trust, or
wilfully suffers any other person so to do, commits "criminal breach of trust".
278.[Explanation 279.[1].—A person, being an employer 280.[of an establishment whether
exempted under section 17 of the Employees Provident Fund and Miscellaneous
Provisions Act, 1952 (19 of 1952), or not] who deducts the employee's contribution
from the wages payable to the employee for credit to a Provident Fund or Family

Pension Fund established by any law for the time being in force, shall be deemed to
have been entrusted with the amount of the contribution so deducted by him and if he
makes default in the payment of such contribution to the said fund in violation of the
said law, shall be deemed to have dishonestly used the amount of the said
contribution in violation of a direction of law as aforesaid.]
281.[Explanation 2.—A person, being an employer, who deducts the employees'
contribution from the wages payable to the employee for credit to the Employees'
State Insurance Fund held and administered by the Employees' State Insurance
Corporation established under the Employees' State Insurance Act, 1948 (34 of 1948),
shall be deemed to have been entrusted with the amount of the contribution so

deducted by him and if he makes default in the payment of such contribution to the
said Fund in violation of the said Act, shall be deemed to have dishonestly used the
amount of the said contribution in violation of a direction of law as aforesaid.]
(a) A, being Executor to the will of a deceased person, dishonestly disobeys the law
which directs him to divide the effects according to the will, and appropriate
them to his own use. A has committed criminal breach of trust.
(b) A is a warehouse-keeper. Z going on a journey, entrusts his furniture to A, under
a contract that it shall be returned on payment of a stipulated sum for
warehouse room. A dishonestly sells the goods. A has committed criminal
breach of trust.
(c) A, residing in Calcutta, is agent for Z, residing at Delhi. There is an express or

implied contract between A and Z, that all sums remitted by Z to A shall be
invested by A, according to Z's direction. Z remits a lakh of rupees to A, with
directions to A to invest the same in Company's paper. A dishonestly disobeys

the direction and employs the money in his own business. A has committed
criminal breach of trust.
(d) But if A, in the last illustration, not dishonestly but in good faith, believing that it
will be more for Z's advantage to hold shares in the Bank of Bengal, disobeys Z's
directions, and buys shares in the Bank of Bengal, for Z, instead of buying
Company's paper, here, though Z should suffer loss, and should be entitled to
bring a civil action against A, on account of that loss, yet A, not having acted
dishonestly, has not committed criminal breach of trust.
(e) A, a revenue-oﬃcer, is entrusted with public money and is either directed by law,
or bound by a contract, express or implied, with the Government, to pay into a
certain treasury all the public money which he holds. A dishonestly appropriates
the money. A has committed criminal breach of trust.
(f) A, a carrier, is entrusted by Z with property to be carried by land or by water. A

dishonestly misappropriates the property. A has committed criminal breach of
trust.
278.  Ins. by Act 40 of 1973, section 9 (w.e.f. 1 November 1973).
279.  Explanation renumbered as Explanation 1 by Act 38 of 1975, section 9 (w.e.f. 1 September
1975).
280.  Ins. by Act 33 of 1988, section 27 (w.e.f. 1 August 1988).
281.  Ins. by Act 38 of 1975, section 9 (w.e.f. 1 September 1975).
COMMENT—
The basic requirement to bring home the accusations under section 405 are the
requirements to prove conjointly i) entrustment and ii) whether the accused was
actuated by dishonest intention or not, misappropriated it or converted it to his own
use to the detriment of the persons who entrusted it.282. Two distinct parts are
involved in the commission of the offence of criminal breach of trust. The ﬁrst part

consists of the creation of an obligation in relation to the property over which dominion
or control is acquired by the accused. The second is the misappropriation or dealing
with the property dishonestly and contrary to the terms of the obligation created.283. A
trust contemplated by section 405 would arise only when there is an entrustment of
property or dominion over property. There has, therefore, to be a property belonging to
someone which is entrusted to the person accused of the offence under section 405.
The entrustment of property creates a trust which is only an obligation annexed to the
ownership of the property and arises out of a conﬁdence reposed and accepted by the
owner.284. However, it must be borne in mind that section 405 IPC, 1860 does not
contemplate the creation of a trust with all the technicalities of the law of trust. It

contemplates the creation of a relationship whereby the owner of property makes it
over to another person to be retained by him until a certain contingency arises or to be
disposed of by him on the happening of a certain event.285.

282.  Sadhupati Nageswara Rao v State of Andhra Pradesh, (2012) 8 SCC 547 [LNIND 2012 SC
461] : AIR 2012 SC 3242 [LNIND 2012 SC 461] ; Asoke Basak v State of Maharashtra, (2010) 10
SCC 660 [LNIND 2010 SC 1699] : (2011) 1 SCC(Cr) 85; Indian Oil Corpn. v NEPC India Ltd, (2006)
6 SCC 736 [LNIND 2006 SC 537] ; Pratibha Rani v Suraj Kumar, (1985) 2 SCC 370 [LNIND 1985
SC 86] ; Rashmi Kumar v Mahesh Kumar Bhada, (1997) 2 SCC 397 [LNIND 1996 SC 2178] ; R
Venkatkrishnan v Central Bureau of Investigation, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .
283.  Onkar Nath Mishra v State, (NCT of Delhi) (2008) 2 SCC 561 [LNIND 2007 SC 1511] : (2008)
1 SCC (Cr) 507.
284.  Common Cause v UOI, (1999) 6 SCC 667 [LNIND 1999 SC 637] : 1999 SCC (Cr) 1196.
285.  VP Shrivastava v Indian Explosives Ltd (2010) 10 SCC 361 [LNIND 2010 SC 920] : (2010) 3
SCC (Cr) 1290; Jaswantrai Manilal Akhaney v State of Bombay, AIR 1956 SC 575 [LNIND 1956 SC
40] : 1956 Cr LJ 1116 .

Of Theft
[s 406] Punishment for criminal breach of trust.
Whoever commits criminal breach of trust shall be punished with imprisonment of
both.
COMMENT—
The criminal breach of trust would, inter alia, mean using or disposing of the property
by a person who is entrusted with or has otherwise dominion there over. Such an act
must not only be done dishonestly but also in violation of any direction of law or any
contract express or implied relating to carrying out the trust.286. To constitute this
offence there must be dishonest misappropriation by a person in whom conﬁdence is
placed as to the custody or management of the property in respect of which the breach
of trust is charged. The ownership or beneﬁcial interest in the property in respect of
which criminal breach of trust is alleged to have been committed must be in some

person other than the accused and the latter must hold it on account of some person
or in some way for his beneﬁt.287. The offence of criminal breach of trust closely
resembles the offence of embezzlement under the English law. Offences committed by
trustees with regard to trust property fall within the purview of this section.
A partner has undeﬁned ownership along with other partners over all the assets of the
partnership. If he chooses to use any of them for his own purpose he may be
accountable civilly to other partners. But he does not thereby commit any
misappropriation. A partner may have dominion over the partnership property. But
mere dominion is not enough. It must further be shown that his dominion was the
result of entrustment. Thus to prosecute a partner the prosecution must establish that

dominion over the assets or a particular asset of the partnership was by a special
agreement between the parties, entrusted to the accused partner. If in the absence of
such a special agreement a partner receives money belonging to the partnership he
cannot be said to have received it in a ﬁduciary capacity or in other words cannot be
held to have been entrusted with dominion over partnership properties and without
entrustment there cannot be any criminal breach of trust.288. The Supreme Court has
reiterated that where a partner is entrusted with property under special contract and he
holds that property in a ﬁduciary capacity, any misappropriation of that property would
amount to criminal breach of trust.289.
[s 406.1] Ingredients.—
(1) Entrusting any person with property or with any dominion over property;

(2) The person entrusted (a) dishonestly misappropriating or converting to his own
use that property; or
(b) Dishonestly using or disposing of that property or wilfully suffering any other
person so to do in violation
(i) of any direction of law prescribing the mode in which such trust is to be
discharged, or
(ii) of any legal contract made touching the discharge of such trust.
This offence consists of any one of four positive acts, namely, misappropriation,
conversion, user, or disposal of property. Neither failure to account for breach of
contract, however dishonest, is actually and by itself the offence of criminal breach of
trust.290.
Sufferance of any loss by the victim is not necessary for leading to a conviction under
the section.291.
The section does not require that the trust should be in furtherance of any lawful
object. Offences committed by trustees with regard to trust property fall within the
purview of this section. Negligence or other misconduct causing the loss of trust

property may make the person entrusted civilly responsible, but will not make him
guilty of criminal breach of trust.
[s 406.2] Criminal misappropriation and criminal breach of trust.—
In criminal misappropriation the property comes into the possession of the offender by
some casualty or otherwise, and he afterwards misappropriates it. In the case of
criminal breach of trust the offender is lawfully entrusted with the property, and he
dishonestly misappropriates the same, or wilfully suffers any other person so to do,
instead of discharging the trust attached to it.
1. 'Being in any manner entrusted with property'.—The words "in any manner" do not
enlarge the term "entrustment" itself and, unless there is entrustment, the transaction in
question cannot be affected by the terms of that section.292. The word 'entrusted' is

not a term of law. In its most general signiﬁcance all it imports is a handing over of the
possession for some purpose which may not imply the conferring of any proprietary
right at all.293. The natural meaning of 'entrusted' involves that the assured should by
some real and conscious volition have imposed on the person, to whom he delivers the
goods, some species of ﬁduciary duty.294. The expression "entrustment" carries with it
the implication that the person handing over any property or on whose behalf that
property is handed over to another, continues to be its owner. Further, the person
handing over property must have conﬁdence in the person taking the property so as to
create a ﬁduciary relationship between them.295.
Once entrustment is proved, the prosecution has not to prove any misappropriation. It

is for the accused to prove in his defence that there was no misappropriation. The
offence becomes proved when it is shown that the money has not been applied to the
purpose for which it was entrusted.296.
[s 406.3] Customary gifts at engagement, etc.—

Gifts in cash or kind which are customarily given at the time of engagement, tilak or
marriage ceremony cannot be regarded as an entrustment of items of dowry. No
complaint can be presented against the donee in respect of such customary
practices.297.
Where a person authorised to collect, delegates his functions to a subordinate of his,
and the latter acts in exercise of such delegated authority, any amount that is paid to
him would constitute 'entrustment' within the meaning of section 405.298.
[s 406.4] 'Property'.—
The word 'property' is used in the Code in a much wider sense than the expression
'movable property'. There is no good reason to restrict the meaning of the word
'property' to movable property only when it is used without any qualiﬁcation in this
section or other sections of the Penal Code.299. The offence of criminal breach of trust
is committed not only by dishonest conversion, but also by dishonest use or
disposition, and there is nothing in the wording of this section to exempt from the

deﬁnition of criminal breach of trust dishonest use of immovable property by the
person entrusted with dominion over it.
In cases of criminal breach of trust a distinction has to be drawn between the person
entrusted with property and one having control or general charge over the property. In
case of the former, if it is found that the property is missing, without further proof, the
person so entrusted will be liable to account for it. In the latter case, that person will be
liable only when it is shown that he misappropriated it or was a party to criminal breach
of trust committed in respect of that property by any other person.300.
2. 'Dishonestly misappropriates'.—A temporary misappropriation may also constitute a
criminal breach of trust. The bank oﬃcials in this case made public money available to

a private party contrary to statutory provisions and Departmental instructions. The
dishonest intention was self-evident.301. Terms of section 405 are very wide. They
apply to one who is in any manner entrusted with property or dominion over property.
Section 405 does not require that trust should be in furtherance of any lawful object. It
merely provides that a person commits criminal breach of trust if he dishonestly
misappropriates or converts to his own use the property entrusted to him.302.
[s 406.5] Negligence is not 'Dishonestly'.—
Criminal or dishonest intention is a sine qua non in an offence of criminal breach of
trust. This being so the prosecution has to show that the accused dishonestly
misappropriated or converted to his own use or dishonestly disposed of property

entrusted to him. The prosecution must prove 'entrustment' or 'domino' over the
property with the person proceeded and the person so entrusted has dishonestly
misappropriated or converted that property. Even if the prosecution succeeds in
proving entrustment, it would fail to establish the offence against the accused, if it fails
to prove that he has misappropriated the property entrusted303.
It has been held that a mere error of judgment does not attract criminal liability.304.
[s 406.6] Wilful omission to account.—

Similarly, "in the case of a servant charged with misappropriating the goods of his
master the elements of criminal offence of misappropriation will be established if the
prosecution proves that the servant received the goods, that he was under a duty to
account to his master and had not done so. If the failure to account was due to an
accidental loss the facts being within the servant's knowledge, it is, for him to explain
the loss".305. In JM Desai's case the matter was further clariﬁed by the Supreme Court
to say, "conviction of a person for the offence of criminal breach of trust may not in all
cases be founded merely on his failure to account for the property entrusted to him, or
over which he has dominion, even when a duty to account is imposed upon him, but
where he is unable to account or renders an explanation for his failure to account
which is untrue an inference of misappropriation with dishonest intent may readily be
made".306.

Mere retention of goods by a person without misappropriation does not constitute
criminal breach of trust.307.
3. 'Dishonestly uses or disposes of that property'.— To constitute the offence of
criminal breach of trust punishable under section 406 of the IPC, 1860, there must be
dishonest misappropriation by a person in whom conﬁdence is placed as to the
custody or management of the property in respect of which the breach of trust is
charged. The misappropriation or conversion or disposal must be with a dishonest
intention. Every breach of trust gives rise to a suit for damages, but it is only when there
is evidence of a mental act of fraudulent misappropriation that the commission of
embezzlement of any sum of money becomes a penal offence punishable as criminal

breach of trust. It is this mental act of fraudulent misappropriation that clearly
demarcates an act of embezzlement which is a civil wrong or tort, from the offence of
criminal breach of trust. In the present case, apparently the prosecution has failed to
establish the offence of cheating and criminal breach of trust in the absence of mens
rea. In such view of the matter, the accused persons could not have been convicted.308.
3A. In violation of any direction of law.—The criminal breach of trust would, inter alia,
mean using or disposing of the property by a person who is entrusted with or has
otherwise dominion there over. Such an act must not only be done dishonestly but also
in violation of any direction of law or any contract express or implied relating to
carrying out the trust. A direction of law need not be a law made by the Parliament or a

Legislature; it may be made by an authority having the power therefor; the law could be
a subordinate legislation, a notiﬁcation or even a custom.309. It has been held that the
expression "direction of law", even if taken literally, would include a direction issued by
authorities in exercise of their statutory power as also power of supervision. Failure on
the part of bank oﬃcials to follow RBI instructions and provisions of a Departmental
Manual was a violation of a direction of law amounting to criminal breach of trust. The
Manual was the UCO Bank Manual of Instructions on Bill Discounting.310.
It has been held that the expression "direction of law" in section 405 includes banking
norms, practices and directions given in internal Departmental instructions of a bank.

Bank oﬃcials who allowed advance credits on banker's cheques to a customer in
violation of Departmental instructions acted in violation of direction of law. The
oﬃcials had dominion over the money belonging to the bank and they dishonestly used
that money for conferring a beneﬁt on the customer. They were held guilty of the
offence under the section.311.
[s 406.7] Partner.—

In Velji Raghavji,312. the Supreme Court approved this statement of law in Bhuban
MohanRana v Surendra Mohan Das, and held that mere existence of the accused's
dominion over property is not enough and that it must be further shown that his
dominion was the result of entrustment. According to the Supreme Court the
prosecution must establish that dominion over the assets or a particular asset of the
partnership was by a special agreement between the parties, entrusted to the accused
partner. Where the partner of a ﬁrm had taken away some VCRs and cassettes, a
criminal complaint was not allowed, the loss to the ﬁrm being essentially of civil nature
and, therefore, civil proceedings would have been more appropriate.313. Signing of
contracts on behalf of the ﬁrm particularly when the partnership deed authorised
partners to sign documents on behalf of others was held to be not constituting a
criminal breach of trust.314. As to when can a partner be prosecuted on a charge of

criminal breach of trust see "Comments" ante.
[s 406.8] Misappropriation of company money by nominated director.—
The accused was the director of a public limited company and in that capacity he
misappropriated a huge sum of money. In the complaint against him the charge was
made out under section 409. However, the charge was framed under section 408. It
was held that the accused was a nominated director of the company and there was
nothing to indicate that he was an employee or servant of the company. Hence, his
conviction under section 408 was not to be legally sound. He was convicted under
section 406.315.
[s 406.9] Directors of company.—
The directors of a company were prosecuted for non-deposit of PF amount of
employees. It was held that directors are not in the position of the principal employer.

They could not be prosecuted as there was no entrustment of the amount to them in
terms of section 405, explanation 1.316. The offence alleged in the criminal complaint
ﬁled by respondent is under sections 405 and 420 IPC, 1860 where under no speciﬁc
liability is imposed on the oﬃcers of the company, if the alleged offence is by the
Company. In the absence of speciﬁc details about the same, no person other than
Company can be prosecuted under the alleged complaint.317.
The complainant was the wholesale dealer of the company. His dealership was
terminated. Even so he sent a demand draft to the company for supply of goods. He
did so because his dealership was subsequently reinstated by the company. The
proprietor of the dealer ﬁrm ﬁled a complaint alleged offence by the company because

neither it supplied the goods nor returned the money. The company's application for
quashing the complaint was rejected because the offence was prima facie made out.
The Supreme Court said that only the company could be made liable but not its
managing director or any other employee. The Supreme Court reversed the order of the
High Court. Costs and compensation of harassment was quantiﬁed at Rs. 1,00,000.318.
[s 406.10] Husband and Wife.—
The Supreme Court has held that reading this section with sections 4 and 6 of the
Dowry Prohibition Act, 1961, marriage gifts and ornaments received from in-laws must
be handed over to the wife on being driven out and a failure to do so, would amount to

an offence under this section.319. Where the wife was turned out of the house by the
husband who refused to return the 'streedhan' despite repeated requests and
persuasions, it was held that criminal breach of trust is a continuing offence and fresh
cause of action accrues to the wife till the return of the property.320.
It has been held that taking away by the mother-in-law of gifts and cash offerings to the
wife at the time of her marriage amounts to misappropriation of streedhan. It was
further held that offering of 25 lakh rupees for grant of divorce by mutual consent as
compensation to the complainant did not per se constitute any offence under the
section. Any gift made to the bridegroom or her parents, whether in accordance with
any custom or law also did not constitute an offence under the section. The
proceedings were directed to be continued only against the mother-in-law.321.
[s 406.11] Pledgee.—
where, in derogation of the statutory requirement of giving reasonable notice before

disposing of the articles pledged, the pledgee sells them and the price obtained is also
not commensurate with the real value of the goods, the Delhi High Court expressed the
opinion that it may amount to criminal breach of trust.322.
[s 406.12] Vehicle delivered under hire-purchase.—

cause wrongful loss to the hirer.323.Where a person to whom a truck was delivered
under hire-purchase scheme, altered the identity of the vehicle by tampering with
numbers, it was held that an offence under section 406 was made out. The accused
was convicted to four years R1.324.
[s 406.13] Default in refunding share application money.—
A person, who makes a public issue for inviting applications for shares and who
becomes liable to refund the share application money because of refusal by a stock
exchange to approve his securities and fails to refund the money, can be prosecuted for
criminal breach of trust.325.
[s 406.14] Money saving scheme.—
The petitioner was running money saving scheme. He used to collect money from the
members for different committees and disbursement to them. The disbursement was

stopped because of non-payment by members of the amount due. It was held that
there was no dishonest intention to misappropriate money and offences under
sections 406 and 420 were not made out.326.

[s 406.15] Re-payment of loan.—
Where the accused sold machinery and goods which had been hypothecated to bank
and the amount not paid to bank for repayment of loan, Court held that dispute in
question is of civil nature and the trial Court justiﬁed in dismissing complaint under
section 203.327.
4. 'Legal contract express or implied'.—Violation of a contract in order to amount to
criminal breach of trust has to be in respect of a legal or valid contract, and not one for
a criminal purpose, e.g., purchase of stolen property, etc.328.
[s 406.16] CASES.—Breach of trust.—
Where a retired employee of a company wrongly occupied the Company quarters for
more than 18 years, dismissal of complaint under section 630 Companies Act, 2013
and section 406 IPC, 1860 on technical grounds by the magistrate was held
untenable.329. The complaint does not contain the averment that Rs.5 lakhs was
entrusted to the appellant, either in his personal capacity or as the Chairman of MSEB

and that he misappropriated it for his own use. The said amount was deposited by the
complainant company with MSEB and there is nothing in the complaint which may
even remotely suggest that the complainant had entrusted any property to appellant or
that the appellant had dominion over the said money of the complainant, which was
converted by him to his own use, so as to satisfy the ingredients of section 405 IPC,
1860. Proceedings quashed.330. Where the accused took a jeep on loan for a speciﬁc
purpose and for a particular period but refused to return it on demand by the
complainant after the purpose had been served and the stipulated period was long
over, it was held that there was a prima facie case of criminal breach of trust and as
such the complaint could not be thrown out.331.
[s 406.17] Refusal to return streedhan.—

Where the husband and the father-in-law turned out a Hindu woman from the marital
home and refused to return her ornaments, money and clothes despite repeated
demands, it was held that an offence of criminal breach of trust as deﬁned in sections
405 and 406, IPC, 1860, was prima facie made out and the case could not be quashed.
Section 27 of the Hindu Marriage Act, 1955 and section 14 of the Hindu Succession
Act, 1956, nowhere provide that the concept of streedhan is abolished or that a remedy
under the criminal law is not available.332.
[s 406.18] Violation of legal contract.—
where there is a mere breach of the contract terms, such as default in payment of an
instalment, a liability of civil nature only would arise.333. Where a contractor was given
cement for construction work by the Minor Irrigation Department, Government of Bihar

under a speciﬁc agreement that he would return unused cement but instead of doing
so he sold the cement to outsiders, it was held a ﬁduciary relationship had been clearly
established in the instant case and the contractor was liable to be convicted under
section 406, IPC, 1860.334.

[s 406.19] Acting contrary to directions of person entrusting money.—
One of the accused persons, a registered stock broker, purchased mutual fund
securities in the name of a bank and later on sold them. The sale was contrary to the
terms subject to which securities were issued (sale before completion of lock-in
period). But otherwise there was no violation of any statutory provisions. Neither the
name lending bank nor the issuing institution objected to the sale. It was held that the
accused was the real owner of the securities. There was no breach of trust on his part
because the property sold was his own. The securities were purchased by another
ﬁnancial institution and the other accused was an oﬃcer of that institution. He was
also acquitted of similar charges. He could not be convicted under the Prevention of
Corruption Act, 1988 for the reason that purchase of securities to the tune of 33 crores
could not have been done without authorisation from higher authorities. The
transaction was also legal.335.

[s 406.20] Civil wrong when becomes crime.—
A distinction must be made between a civil wrong and a criminal wrong. When dispute
between the parties constitute only a civil wrong and not a criminal wrong, the Courts
would not permit a person to be harassed although no case for taking cognizance of
the offence has been made out336. An act of breach of trust simpliciter involves a civil
wrong of which the person wronged may seek his redress for damages in a civil Court
but a breach of trust with mens rea gives rise to a criminal prosecution as well. The
element of 'dishonest intention' is therefore, an essential element to constitute the
offence of Criminal Breach of Trust.337. Breach of trust may be basically a civil wrong,
but it gives rise to criminal liability also when there is mens rea.338. The difference

between the two lies in dishonest intention.339. If there is a ﬂavour of civil nature, the
same cannot be agitated in the form of criminal proceeding. If there is huge delay and
in order to avoid the period of limitation, it cannot be resorted to a criminal
proceeding.340. A civil suit was ﬁled alleging negligence and breach of contractual
obligations. The Court said that a breach of contract simpliciter does not constitute any
offence. The criminal complaint must disclose the ingredients of the offence. For
ascertaining the prima facie correctness of the allegations the Court can look at the
correspondence between the parties and other admitted documents. Criminal
proceedings should not be encouraged when they are found to be mala ﬁde or
otherwise an abuse of the process of the Court.341. Merely because a civil claim has

been raised by the complainant regarding the breach of agreement, it cannot prevent
him from initiating criminal proceedings.342. Though a case of breach of trust may be
both a civil wrong and a criminal offence but there would be certain situations where it
would predominantly be a civil wrong and may or may not amount to a criminal
offence. The present case is one of that type where, if at all, the facts may constitute a
civil wrong and the ingredients of the criminal offences are wanting. Having regard to
the relevant documents including the trust deed as also the correspondence following
the creation of the tenancy, the submissions advanced on behalf of the parties, the
natural relationship between the settlor and the trustee as mother and son and the fall
out in their relationship and the fact that the wife of the co-trustee was no more

interested in the tenancy, it must be held that the criminal case should not be
continued.343.
[s 406.20.1] Matters under special laws.—
The act of taking away dowry articles by the husband and in-laws, being in violation of
special legislation contained in the Dowry Prohibition Act, 1961, such offence should
be tried under the special legislation rather than under the general provisions of IPC,

1860. The Supreme Court also pointed out that if any article was given by way of
dowry, the question of its entrustment on behalf of wife would not arise.344.
[s 406.21] Arbitration clause.—
The presence of an arbitration clause between the parties does not bar criminal
proceedings under section 406. Both civil and criminal proceedings can be there side
by side.345.
[s 406.22] Period of Limitation.—
The Punjab and Haryana High Court is of the view that the offence under the section is
of continuing nature. Every day a fresh cause of action keeps accruing until the
property is actually returned.346.
[s 406.23] Sanction for prosecution.—
In a charge against a Government servant under the section read with section 120B
(conspiracy), sanction for prosecution is not necessary.347. Since transaction for
offences involved took place in a foreign country, sanction from Central Government is
a must to enable Court to take cognizance of offences and proceed further in case.

The High Court held that trial has proceeded without sanction and, thus, rendering it
invalid, and in course of such invalid trial magistrate passed order for further
investigation, which too was invalid.348.
[s 406.24] Compromise.
Compounding was denied on the ground that section 406 not compoundable as
amount involved was more than Rs. 250. The Supreme Court held that it is perhaps
advisable that in disputes where the question involved is of a purely personal nature,
the Court should ordinarily accept the terms of the compromise even in criminal
proceedings as keeping the matter alive with no possibility of a result in favour of the
prosecution is a luxury which the Courts, grossly overburdened as they are, cannot
afford and that the time so saved can be utilized in deciding more effective and

meaningful litigation. This is a common sense approach to the matter based on ground
of realities and bereft of the technicalities of the law.349.
[s 406.25] Jurisdiction.—
The Streedhan was handed over at one place and misappropriated at another place. It
was held that there was no jurisdiction at the place where it was entrusted because at
that time there might have been no intention to misappropriate. Thus jurisdiction was
only at the place where misappropriation was committed.350.
[s 406.25.1] Entrustment of cheque.—

286.  Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr)
646.
287.  CM Narayan, AIR 1953 SC 478 [LNIND 1952 SC 159] : 1954 Cr LJ 102 .
288.  Velji Raghavji Patel, 1965 (2) Cr LJ 431 : AIR 1965 SC 1433 [LNIND 1964 SC 350] .
289.  Anil Saran v State of Bihar, AIR 1996 SC 204 [LNIND 1995 SC 819] : 1996 Cr LJ 408 .
290.  Daityari Tripatti v Subodh Chandra Chaudhuri, (1942) 2 Cal 507 .
291.  R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .
292.  Satyendra Nath Mukherji, (1947) 1 Cal 97 . This case was approved by the Supreme Court
in Jaswantlal, AIR 1968 SC 700 [LNIND 1967 SC 338] : 1968 Cr LJ 803 . Dani Singh, AIR 1963 Pat
52 ; Ram Niranjan, (1964) 1 Cr LJ 614 .
293.  Per Lord Haldane in Lake v Simmons, (1927) AC 487 . VR Dalal v Yougendra Naranji
Thakkar, (2008) 15 SCC 625 [LNIND 2008 SC 1222] : AIR 2008 SC 2793 [LNIND 2008 SC 1222] ,
"entrustment" being the ﬁrst ingredient of breach of trust, if it is missing, there would be no

criminal breach of trust. Onkar Nath Mishra v State (NCT) of Delhi, (2008) 2 SCC 561 [LNIND
2007 SC 1511] : 2008 Cr LJ 1391 , entrustment of property to in-laws or any misappropriation by
them found lacking, charge not made out.
294.  Per Lord Sumner in ibid.
295.  Jaswantlal, AIR 1968 SC 700 [LNIND 1967 SC 338] : 1968 Cr LJ 803 .
296.  State of HP v Karanvir, 2006 Cr LJ 2917 : AIR 2006 SC 2211 [LNIND 2006 SC 394] : (2006) 5
SCC 381 [LNIND 2006 SC 394] .
297.  Khuman Chand v State of Rajasthan, 1998 Cr LJ 1693 (Raj).
298.  Rajkishore v State, AIR 1969 Ori 190 [LNIND 1969 ORI 35] .
299.  RK Dalmia, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1962) 2 Cr LJ 805 .
300.  Kesar Singh v State, 1969 Cr LJ 1595 .
301.  R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] . It made no difference

to the criminal liability that the money was quickly recovered and Departmental action was
taken against bank oﬃcials.
A cheque has been held to be a property within the meaning of section 405. A blank
cheque was issued to a person who misappropriated the same or used it for a purpose
for which it was not given. The case under section 406 was held to have been made
out.351.
[s 406.26] Dishonour of cheque.—
There were regular business dealings in the course of which payments were made by
cheques. One such cheque was dishonoured for which the criminal complaint was
instituted. There was nothing in the complaint to show that the intention was to cheat
the complainant by giving him the cheque as a camouﬂage. The transaction under
which the cheque was given was a mere agreement to sell without any actual transfer

of goods. Thus the offence of cheating or of criminal breach of trust was not made out.
The complaint was quashed.352.

302.  Ibid.
303.  Sardar Singh, 1977 Cr LJ 1158 : AIR 1977 SC 1766 .
304.  Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] .
305.  Krishan Kumar, 1959 Cr LJ 1508 (SC) : AIR 1959 SC 1390 [LNIND 1959 SC 135] .
306.  JM Desai, 1960 Cr LJ 1250 : AIR 1960 SC 889 [LNIND 1960 SC 79] ; See also Bipin Chandra,
1964 (1) Cr LJ 688 (Ori).
307.  Nirmalabai v State, (1953) Nag 813.
308.  Ramdeo Singh v State of Bihar, 2013 Cr LJ 891 (Pat).
309.  Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC(Cr) 646.
310.  Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] .
311.  Mir Naqvi Askari v CBI, (2009) 15 SCC 643 [LNIND 2009 SC 1651] : AIR 2010 SC 528
[LNIND 2009 SC 1651] .
312.  Velji Raghavji, (1964) 67 Bom LR 443 SC : AIR 1965 SC 1433 [LNIND 1964 SC 350] : (1965)
2 Cr LJ 431 .
313.  Alagiri v State, 1996 Cr LJ 2978 (Mad).
314.  Anwarul Islam v WB, 1996 Cr LJ 2912 (Cal). Nandlal Lakotia v State of Bihar, 2001 Cr LJ

2 Cr LJ 431 .
1900 (Pat), a partner becomes the owner of his share only after settlement of accounts and
allotment of his share to the partner. The partner in this case was a working partner. He
dishonestly misappropriated the property to the ﬁrm entrusted to him. He was liable for criminal
315.  Turner Morrison & Co, Bombay v KN Tapuria, 1993 Cr LJ 3384 .
316.  BP Gupta, v State of Bihar, 2000 Cr LJ 781 (Pat).
317.  Thermax Ltd v KM Johny, (2011) 13 SCC 412 [LNIND 2011 SC 947] : (2012) 2 SCC (Cr) 650;
Pramod Parmeshwarlal Banka v State of Maharashtra, 2011 Cr LJ 4906 (Bom).
318.  SK Alagh v State of UP, (2008) 5 SCC 662 [LNIND 2008 SC 368] : AIR 2008 SC 1731 [LNIND
2008 SC 368] : 2008 Cr LJ 2256 : (2008) 3 All LJ 588.
319.  Madhu Sudan Malhotra v Kishore Chand Bhandari, 1988 BLJR 360 : 1988 SCC (Cr) 854 :
1988 Supp SCC 424 .

320.  Balram Singh v Sukhwant Kaur, 1992 Cr LJ 792 (P&H).
321.  Bhaskar Lal Sharma v Monica, (2009) 10 SCC 604 [LNIND 2009 SC 1432] : (2009) 161 DLT
739 .
322.  JRD Tata, Chairman TISCO v Payal Kumar, 1987 Cr LJ 447 (Del).
323.  Charanjit Singh Chadha v Sudhir Mehra, AIR 2001 SC 3721 [LNIND 2001 SC 2906] : (2001) 7
324.  State of UP v Sita Ram, 1998 Cr LJ 4225 (All), the court said that ingredients of the offence
under section 420 were not made out.
325.  Radhey Shyam Khemka v State of Bihar, 1993 AIR SCW 2427 : 1993 Cr LJ 2888 : (1993) 3
SCC 54 [LNIND 1993 SC 276] .
326.  Ghansham Das v State of Haryana, 1992 Cr LJ 2594 (P&H).
327.  Kaumudiben Harshadbhai Joshi v State of Gujarat, 2012 Cr LJ 4720 (Guj).
328.  Gobardhan Chandra Mandal v Kanai Lal Mandal, (1953) 2 Cal 133 .

329.  Automobile Products India Ltd v Das John Peter, (2010) 12 SCC 593 [LNIND 2010 SC 624] :
(2011) 1 SCC(Cr) 768.
330.  Asoke Basak v State of Maharashtra, (2010) 10 SCC 660 [LNIND 2010 SC 1699] : (2011) 1
SCC(Cr) 85 ; Chandralekha v State of Rajasthan, JT 2012 (12) SC 390 [LNIND 2012 SC 809] :
2012 (12) Scale 692 [LNIND 2012 SC 809] – FIR ﬁled after six years of the incident-Continuation

of proceedings is an abuse of process of law-FIR quashed; Also see MM Prasad Khaitan v RG
Poddar, (2010) 10 SCC 673 [LNIND 2010 SC 991] .
331.  Halimuddin Ahmad, 1976 Cr LJ 449 (Pat).
332.  Pratibha Rani, 1985 Cr LJ 817 : AIR 1985 SC 628 [LNIND 1985 SC 86] : (1983) 2 SCC 370 .
For other cases of prosecution of the same kind, see Manas Kumar Dutta v Aloka Dutta, 1991 Cr
LJ 288 (Ori); Bairo Prasad v Laxmibai Pateria, 1991 Cr LJ 2535 : AIR 1985 SC 628 [LNIND 1985
SC 86] : (1985) 2 SCC 370 [LNIND 1985 SC 86] . Where the amount defalcated was surrendered
by the accused and he was released on bail. His sentence of one year R.I. was reduced to the
period already undergone. Diannatius v State of Kerala, 1988 SCC (Cr) 57 (II) : 1987 Supp SCC
189 . Such a proceeding cannot be stayed under writ jurisdiction. C Laxmichand v State of TN,
1991 Cr LJ 1647 (Mad).
333.  Sunil Ranjan Ghose v Samar Roy, 1987 Cr LJ 1603 (Cal).
334.  Kalaktar Singh, 1978 Cr LJ 663 (Pat); State v Jaswantlal Nathalal, 1968 Cr LJ 803 (SC)

distinguished on the ground that in the latter case the contract was not produced in evidence
nor any oral evidence led to prove the terms of the contract. See further Madhavrao J Scindia v
SC Angre, AIR 1988 SC 709 [LNIND 1988 SC 100] : 1988 Cr LJ 853 : (1988) 1 SCC 692 [LNIND
1988 SC 100] , where elements of a crime were wanting and, therefore, proceedings, were
quashed; Bal Kishan Das v PC Nagar, AIR 1991 SC 1531 : 1991 Cr LJ 1837 , where arbitration
proceedings about the matter in question had been going on for more than 17 years, the
Supreme Court rejected prosecution under this section. Thematter was of civil nature; AL Panian
v State of AP, 1990 Supp SCC 607 : 1991 SCC (Cr) 84, failure to pay on due date on the expiry of
credit period of sale is not a matter covered by this provision. Central Bureau of Investigation v

Duncan Industries, AIR 1996 SC 2452 [LNIND 1996 SC 1028] : 1996 Cr LJ 3501 , the allegation in
the complaint that the goods in respect of which ﬂoating charge was created in favour of banks
were disposed by the debtor company, does not constitute criminal breach of trust.
335.  S Mohan v CBI, (2008) 7 SCC 1 [LNIND 2008 SC 1234] : (2008) 106 Cut LT 360, following
the Canbank Financial Services Ltd, case (2004) 8 SCC 355 [LNIND 2004 SC 892] : AIR 2004 SC
5123 [LNIND 2004 SC 892] , where it was held that the accused had a transferable interest in the
securities purchased in the name of Andhra Bank and its subsidiary.
336.  Joseph Salvaraj A v State of Gujarat, AIR 2011 SC 2258 [LNIND 2011 SC 576] : (2011) 7 SCC
59 [LNIND 2011 SC 576] ; Devendra v State of UP, (2009) 7 SCC 495 [LNIND 2009 SC 1158] :
(2009) 3 SCC Cr 461.

337.  Venkatakrishnan v CBI, 2010 SC 1812 : (2009) 11 SCC 737 [LNIND 2009 SC 1653] ; SW
Palanikar v State of Bihar, 2002 (1) SCC 241 [LNIND 2001 SC 2381] .
338.  Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC Cr 646.
339.  R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .
340.  Thermax Ltd v KM Johny, (2011) 13 SCC 412 [LNIND 2011 SC 947] : (2012) 2 SCC(Cr) 650.
341.  All Cargo Movers India Pvt Ltd v Dhanesh Badarmal Jain, (2007) 14 SCC 776 [LNIND 2007
SC 1227] : AIR 2008 SC 247 [LNIND 2007 SC 1227] .
342.  Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] : AIR 2012 SC 1007
[LNINDORD 2012 SC 443] : 2012 Cr LJ 1551 ; Arun Bhandari v State of UP, (2013) 2 SCC 801
[LNIND 2013 SC 18] : 2013 Cr LJ 1020 (SC)- Case is not purely in civil nature- High Court erred in

quashing the order of cognizance; See also Adarsh Kaur Gill v State of NCT of Delhi, 2013 Cr LJ
1955 (Del).
343.  Thermax Ltd v KM Johny, (2011) 13 SCC 412 [LNIND 2011 SC 947] : (2012) 2 SCC (Cr) 650;
Nagawwa v Veeranna Shivalingappa Konjalgi, 1976 (3) SCC 736 [LNIND 1976 SC 188] : AIR 1976
SC 1947 [LNIND 1976 SC 188] ; State of Haryana v Bhajan Lal, 1992 Supp (1) SCC 335 : AIR 1992
SC 604 .

344.  Harmanpreet Singh Ahluwalia v State of Punjab, (2009) 7 SCC 712 [LNIND 2009 SC 1121] :
2009 Cr LJ 3462.
345.  Sham Lal v State of Punjab, 2001 Cr LJ 2987 (P&H).
346.  Balram Singh v Sukhwant Kaur, 1992 Cr LJ 972 (P&H). The court surveyed a number of
authorities on the concept of continuing offence. State of Bihar v Deokaran Kenshi, AIR 1973 SC
908 [LNIND 1972 SC 392] : 1973 Cr LJ 347 and Bhagirath Kanoris v State of MP, AIR 1984 SC
1688 [LNIND 1984 SC 377] : 1984 Lab IC 1578 , wherein the Supreme Court explained the
concept of a continuing offence. Best v Butter, (1932) 2 KB 108 , wherein it was held under the
Trade Unions Act that every day that the moneys were willfully withheld, the offence was
committed. The court noted the contrary view expressed in Waryam Singh v State of Punjab,
1982 Cr LJ (NOC) 117 (P&H) and State of Punjab v Sarwan Singh, 1981 Cr LJ 722 (SC) : 1981
PLR 451 : AIR 1981 SC 1054 [LNIND 1981 SC 201] , but distinguished them because there in the

opposite party had conceded to the proposition. In Gurcharan Singh v Lakhwinder Singh, (1987) 1
Recent CR 424 it was again taken for granted without argument that the offence under the
section was not of continuing nature.
347.  State of Kerala v V Padmanabhan, AIR 1999 SC 2405 [LNIND 1999 SC 585] : 1999 Cr LJ
3696 .
348.  P T Abdul Rahiman v State of Kerala, 2013 Cr LJ 893 (Ker).
349.  Madan Mohan Abbot v State of Punjab, AIR 2008 SC 1969 [LNIND 2008 SC 755] : (2008) 4
SCC 582; Now section 406 is made compoundable irrespective of the amount involved in the
case by the Amendment Act 5 of 2009.
350.  Vijay Kumar v Sunita, 2000 Cr LJ 4116 (MP).
351.  Suryalakshmi Cotton Mills Ltd v Rajvir Industries Ltd, (2008) 13 SCC 678 [LNIND 2008 SC
36] : AIR 2008 SC 1683 [LNIND 2008 SC 36].

352.  Sneh Lata v Swastika Agro Industrial Corp, 2001 Cr LJ 4432 (P&H).

Of Theft
[s 407] Criminal breach of trust by carrier, etc.
Whoever, being entrusted with property as a carrier,1 wharﬁnger or warehouse-keeper,
commits criminal breach of trust in respect of such property, shall be punished with
353.  The section does not apply to a custodian of goods under the Essential Commodities Act,
1955 for violation of certain clauses storage of licence. Pramod Kumar Nayak v State of Orissa,
COMMENT—
Those who receive property under a contract, express or implied, to carry it or to keep it
in safe custody are punishable under this section for a criminal breach of trust with
respect to such property.353.
1. 'Carrier'.—A carrier is a person who undertakes to transport the goods of other
persons from one place to another for hire.354. It is clear that the expression 'carrier' in

s.407 IPC, 1860 includes all types of carriers, including a common carrier or a private
carrier.355.
[s 407.1] Jurisdiction.—
Where the accused was entrusted with the carriage of a quantity of coffee from an
estate in Mysore to a ﬁrm of merchants in Mangalore, and a portion of the goods was
abstracted and there was no evidence as to when or where such abstraction took
place, it was held that the Magistrate at Mangalore had jurisdiction to try the accused
as there was failure to deliver the goods at Mangalore in accordance with the terms of
entrustment.356.
Where there was misappropriation of goods entrusted for delivery, the Court said that
the Courts at both the places, namely the place of entrustment and place of delivery,
would have jurisdiction.357.

1989 Cr LJ 1041 (Ori). Surinder Arora v Durga Das, 1988 Cr LJ 1645 , nor to company oﬃcers for
violation of Gratuity Act, 1972.
354.  Wharton, 14th Edn p. 164.
355.  Kanhayalal Baid v RajKumar Agarval, 1981 Cr LJ. 824 .
356.  Public Prosecutor v Podimonu Beary, (1928) 52 Mad 61.
357.  Jijo v State of Karnataka, 2003 Cr LJ 256 (Kant).

Of Theft
[s 408] Criminal breach of trust by clerk or servant.
Whoever, being a clerk1 or servant2 or employed as a clerk or servant,3 and being in
any manner entrusted in such capacity with property, or with any dominion over
property, commits criminal breach of trust in respect of that property, shall be
COMMENT—
Section 381 punishes theft by a clerk or a servant. This section inﬂicts enhanced
punishment on such a person for criminal breach of trust. The property must have been
entrusted to the accused in his capacity as a clerk or a servant. A clerk or a servant
who takes his master's property is punishable for theft.
1. 'Clerk'.—A clerk in modern usage means a writer in an oﬃce, public or private, either
for keeping accounts or entering minutes.

2. 'Servant'.—Master and servant—a relation whereby a person calls in the assistance
of others, where his own skill and labour are not suﬃcient to carry out his own
business or purpose.358. A servant acts under the direct control and supervision of the
master and is bound to conform to all reasonable orders given in the course of his
work.359.
3. 'Employed as a clerk or servant'.—Where the accused employee dishonestly
misappropriated money entrusted with him and left the service and there is no
documentary evidence except extra-judicial confession of accused Court held that
accused is entitled to acquittal.360. Where a person sent his salesman with a letter to
fetch Rs. 10,000 from his residence and he, instead of returning, slipped away with the

money, it was held that the fact that he absconded for a number of days clearly
established his intention of causing wrongful gain for himself.361.
In the prosecution of an employee under this section, the original account books were
destroyed after the matter was decided by the sessions' judge, so that it was
impossible for the appellate Court to verify the correctness of the questionable entries
and the other evidence was of suspicious nature, the Court had no choice but to acquit
the accused.362. The Court relied upon its own earlier decision363. where it was
observed: "The appellate court and the revisional court are entitled, while scrutinising
the case against the accused, to have complete material before it on which the
prosecution relies for proving the case against the accused persons. In the present

case, to deprive this court of the beneﬁt of looking at the entries, in a serious inﬁrmity
which must be held fatal to the prosecution case."364.

358.  Wharton, 14th Edn, p 641.
359.  Chandi Prasad, (1955) 2 SCR 1035 [LNIND 1955 SC 108] : AIR 1955 SC 149 .
360.  Raghunath Dhondu Vani v Ilahi Babulal Mujavar, 2012 Cr LJ 1345 (Bom); Mancheswar
Service Co-op Society Ltd v Anant Narayan Mishra, 2003 Cr LJ 4390 (Ori).
361.  Harish Chandra Singh v State of Orissa, (1995) 1 Cr LJ 602 (Ori), the offence under the
section was made out.
362.  Makimuddin v State, 1991 Cr LJ 2903 (Del).
363.  Mohd. Ibrahim v State, AIR 1969 (Del) 315 [LNIND 1968 DEL 115] : 1969 Cr LJ 1377 .
364.  Citing Lala Ram v State, 1988 Chand Cr C 446 : 1989 Cr LJ 572 , stressing the duty of the
prosecution under sections 451-452, Cr PC to preserve the evidence.
365.  Banwarilal Agrawal v A Suryanarayan, 1994 Cr LJ 370 .
366.  Employees State Insurance Corpn. v SK Agarwal, AIR 1998 SC 2676 : 1998 Cr LJ 4027 .
[s 408.1] Branch manager of transport company.—
The accused was a branch manager of a transport company. He delivered a

consignment to the co-accused on his promise to deposit consignee copy inspite of
speciﬁc instructions from the head oﬃce not to deliver the consignment without
receiving the consignee copy. It was held that the conduct of the accused was prima
facie dishonest and he was properly convicted under section 408.365.
[s 408.2] Employer.—Directors of company.—
Criminal proceedings were launched against the employer for default in payment of
contribution to the Employees State Insurance. It was held that the expression
"employer" did not include directors.366.

Of Theft
[s 409] Criminal breach of trust by public servant, or by banker, merchant or
agent.
Whoever, being in any manner entrusted with property, or with any dominion over
property in his capacity of a public servant1 or in the way of his business as a banker,2
merchant,3 factor,4 broker,5 attorney6 or agent,7 commits criminal breach of trust in
respect of that property, shall be punished with 367.[imprisonment for life], or with
COMMENT—
This section classes together public servants, bankers, merchants, factors, brokers,
attorneys and agents. As a rule the duties of such persons are of a highly conﬁdential
character, involving great powers of control over the property entrusted to them; and a
breach of trust by such persons may often induce serious public and private calamity.
[s 409.1] Ingredients.—

In order to sustain conviction under section 409, IPC, 1860, two ingredients are to be
proved; namely, (i) the accused, a public servant or a banker or agent was entrusted
with the property of which he is duty bound to account for; and (ii) the accused has
committed criminal breach of trust. What amounts to criminal breach of trust is
provided under section 405, IPC, 1860. The basic requirement to bring home the
accusations under section 405 are the requirements to prove conjointly (i) entrustment
and (ii) whether the accused was actuated by dishonest intention or not,
misappropriated it or converted it to his own use to the detriment of the persons who
entrusted it.368.
Merely because the accused allegedly kept the amount in deﬁance of the oﬃcial

instruction, it cannot be an incriminating circumstance to arrive at a conclusion that he
has committed the breach of trust. It is a settled position of law that suspicion
howsoever grave cannot take the place of proof.369.
The section cannot be construed as implying that any head of an oﬃce that is
negligent in seeing that the rules about remitting money to the treasury are observed is
ipso facto guilty of criminal breach of trust; but something more than that is required to
bring home the dishonest intention. There should be some indication which justiﬁes a
ﬁnding that the accused deﬁnitely had the intention of wrongfully keeping Government
out of the moneys.370. Subjecting to a civil liability would thus attract one of the
ingredients of criminal breach of trust. There cannot be, however, any doubt

whatsoever that a mere error of judgment would not attract the penal provision

contained in section 409 of the IPC, 1860.371. the fact that the accused puts back the
money,372. or promises to do so,373. does not wipe out the offence or absolve him from
liability. Where a post-master misappropriated the money entrusted to him but paid
back the whole amount before being challenged, his acquittal on this ground was held
to be wrong.374. But the Courts do take that fact into account as a mitigating factor
and would consider light punishment as suﬃcient to meet the ends of justice.375.
Where certain articles disappeared from an open godown which was being watched by
a Chowkidar (watchman), it was held that the over-all incharge overseer could not be
held liable under the section unless there was the proof that the articles disappeared
because of his doings or non-doings.376.
The offence under the section requires criminal intent or mens rea. Where in the matter
of post oﬃce deposit accounts, all that was proved showed that there was negligence

in maintaining them, the Court said that it could be a ﬁt case for departmental
proceedings but not proceedings under section 409 because the intention to
misappropriate the proceeds of the accounts was not in evidence.377.
[s 409.2] Property of Government company.—
The property of a Government company was purchased by a ﬁrm of which the accused
was a partner. He was the CM of the company. The CM or the Minister was not shown
to have dominion over the property of the company. The relationship between the CM
and the company was not shown to be of trustee and ﬁduciary. It was held that the
ingredients of the section were not satisﬁed.378. The complaint does not contain the
averment that Rs.5 lakhs was entrusted to the appellant, either in his personal capacity

or as the Chairman of Maharashtra State Electricity Board and that he misappropriated
it for his own use. The said amount was deposited by the complainant company with
MSEB and there is nothing in the complaint which may even remotely suggest that the
complainant had entrusted any property to appellant or that the appellant had
dominion over the said money of the complainant, which was converted by him to his
own use, so as to satisfy the ingredients of section 405 IPC, 1860. Proceedings
quashed.379.
[s 409.3] Prosecution against company.—
Since, the majority of the Constitution Bench ruled in Standard Chartered Bank v
Directorate of Enforcement.380. That the company can be prosecuted even in a case
where the Court can impose substantive sentence as also ﬁne, and in such case only
ﬁne can be imposed on the corporate body.381.

[s 409.4] Ownership right in ﬁlms.—
In an agreement for ﬁlm production the terms stated that the rights in the negative of
the ﬁlm and the right of distribution for exhibition were to be vested in the complainant.
The accused, the other party, departed from the terms and exhibited the ﬁlm publicly
without consent of the complainant. It was held that the accused was guilty of the
offence of breach of trust.382.

[s 409.5] Temporary misappropriation.—
The allegation is that while he was working as a Lower Division Clerk in the Oﬃce of
the Deputy Superintendent of Police, the accused had temporarily misappropriated an
amount of Rs. 1,839. Admittedly, the sum had been deposited in the post oﬃce before
the due date and that no loss had been caused to the Department, even if it is assumed
that a false entry had been made in the record. Offence alleged under IPC, 1860 against
the appellant are trivial in nature and have caused no harm and in fact no offences in
the eye of law. The beneﬁt of section 95 IPC, 1860 is available to the appellant.383.
1. 'In his capacity of a public servant'.—Persons like public servants, bankers, etc., who
are made liable under the section occupy a position of highly conﬁdential nature
involving great power of control over property entrusted to them. Breach of trust by
such persons may result in serious public or private calamity. High morality is expected

from such persons. They are supposed to discharge their duties honestly.384. Where a
police dog handler had taken a sum of money by way of travelling and daily allowance
(TA, DA), but went on to his native place on unauthorized absence and returned the
money on coming back, it was held that he did not use the money for the oﬃcial
purpose and though the diversion was temporary, it constituted an offence under the
section. The trial Court convicted him. It was held that there was no scope for
interference in the judgment of the trial Court.385.
2. 'Banker'.—A banker is one who receives money to be drawn out again as the owner
has occasion for it, the customer being lender, and the banker borrower, with the
superadded obligation of honouring the customer's cheques up to the amount of the

money received and still in the banker's hands.386. The word 'banker' includes a cashier
or shroff.387. In ANZ Grindlays Bank plc v Shipping and Clearing (Agents) Pvt Ltd,388. it
was held that relation between the bank and its depositors is that of debtor and
creditor but that the relation of trust can be created under special circumstances.
Where the principal debtor did not repay the bank loan, the bank as creditor can adjust
it at the maturity of the ﬁxed deposit receipts deposited by the guarantor with the bank
as security, though the debt became barred by limitation at the time of maturity of the
said ﬁxed deposit receipts. Such adjustment would not amount to offences punishable
under sections 109, 114 and 409 IPC, 1860.389. Bank oﬃcials who allowed advance
credits on banker's cheques to a customer in violation of Departmental instructions

acted in violation of direction of law. The oﬃcials had dominion over the money
belonging to the bank and they dishonestly used that money for conferring a beneﬁt on
the customer. They were held guilty of the offence under the section.390.
[s 409.6] Securities Scam.—
The National Housing Bank cannot advance loans to anybody except housing ﬁnance
institutions, scheduled banks and statutory slum clearance bodies. The advancement
of any loan to any individual is an offence under National Housing Bank Act, 1987.
Allegation of advancement of loan to Harshad Mehta by NHB under the disguise of a
call money transaction was held illegal. If as result of that illegal transaction a private
person who was not expected to reap the fruit of 'call money' was allowed to retain the
same for a period to make an unlawful gain therefrom, offence of criminal breach of

trust must be held to be have been committed.391.
3. 'Merchant'.—A merchant is one who traﬃcs to remote countries; also any one
dealing in the purchase and sale of goods.392. A failure on the part of persons
responsible to refund the share application money when it becomes refundable

because of the stock exchange refusal to approve the prospectus, has been taken to be
a misappropriation by a merchant.393.
4. 'Factor'.—Is a substitute in mercantile affairs; an agent employed to sell goods or
merchandise consigned or delivered to him by or for his principal, for a compensation
commonly called factorage or commission.394. Complainant took loan from company
against shares of complainant. Shares were not returned to him after repayment of
loan. Court below has found that the charge under section 409 was tenable since,
though the accused were not bankers or the public servants, they would ﬁt in the
category of factor. The "factor" has been deﬁned in Law Lexicon as "A factor is a
mercantile agent who, in the customary course of his business as such agent, is
entrusted with the possession or control of goods, wares, or merchandise for sale on
commission". An agent employed to sell goods or merchandise consigned or delivered

to him, by or for his principal, for compensation commonly called "factorage" or
"commission". The Bombay High Court held that it cannot be held that accused
directors of company were agent, employed by complainant, to sell goods or
merchandise, entrusted to them for compensation called a "factorage" or "commission"
and the accused were not covered by deﬁnition of 'factor' as envisaged under section
409 IPC, 1860.395.
5. 'Broker'.—Is an agent employed to make bargains and contracts between other
persons in matters of trade, commerce and navigation, by explaining the intentions of
both parties, and negotiating in such a manner as to put those who employ him in a
condition to treat together personally. More commonly he is an agent employed by one
party only to make a binding contract with another.396.

A factor is entrusted with the possession as well as the disposal of property; a broker is
employed to contract about it without being put in possession.397.
6. 'Attorney'.—Is one who is appointed by another to do something in his absence, and
who has authority to act in the place and turn of him by whom he is delegated.398. The
High Court, while dismissing the revision petition, observed that it was possible that the
appellants were duped by the general power of attorney holder who knew that his
powers had been revoked but concealed the fact. If there any bona ﬁdes in the conduct
of the accused person, (by reason of revival of power), such arguments could have
made at the trial stage. The Court refused to interfere in the judgment.399.
7. 'Agent'.—Is a person employed to do any act for another, or to represent another in

dealings with third persons.400. An agent though bound to exercise his authority in
accordance with all lawful instructions which may be given to him from time to time by
his principal is not subject in its exercise to the direct control or supervision of the
principal.401. The trustee of a temple is an agent of the deity, and if he misappropriates
temple jewels he is guilty under this section.402. Where it is a servant's duty to account
for and pay over the moneys received by him at stated times, his not doing so wilfully
amounts to embezzlement.403. The term 'agent' is not restricted to persons who carry
on the profession of agents. The requirements of this section would be satisﬁed if the
person is an agent of another and that other person entrusts him with property or with

any dominion over property in the course of his duties as an agent. The entrustment
must be in connection with his duties as an agent.404. Where the appellant, an agent
entrusted with the distribution of the rice under the 'Food for Work Scheme' to the
workers on production of coupons was charged with misappropriation of 67.65
quintals of rice, the evidence proves that there was entrustment of property to the
accused, Court upheld the conviction.405.

[s 409.7] Commission agent.—
The accused was appointed as commission agent. Certain accounts were found to be
outstanding against the accused. The Court said that it was a dispute between a
principal and his agent of civil nature. The agent should not be harassed for such a
dispute by resort to criminal proceedings.406.
[s 409.8] Minister.—
Accused, the Minister for electricity and higher oﬃcials of Electricity Board alleged to
have awarded contract at a very high and exorbitant rate with special conditions having
heavy ﬁnancial implications, by reducing the retention and security amount and by
allowing the contractor to return only ﬁfty per cent of the empty cement bags. It is
found that accused persons have abused their oﬃcial positions. Supreme Court set
aside the order of acquittal and convicted the accused.407.
[s 409.9] Independent contractor.—
An independent contractor was entrusted with a speciﬁc quantity of steel for purposes

of fabrication and erection of trolley. He fraudulently disposed of the steel contrary to
the terms on which possession was handed over to him. The Court said that he could
be treated as a trustee for the purposes of appropriate use of steel, in view of the
decision of the Supreme Court in Somnath v State of Rajasthan.408. He was guilty of
criminal breach of trust and liable to be punished under section.409.
[s 409.10] Insurance agent.—
Where an agent of the Life Insurance Corporation collected the premium amount from
the policy holder but did not deposit it with the corporation, his conviction for
misappropriation was held to be proper.410.
[s 409.11] Buyer of goods.—
Goods were delivered to a buyer in a sales transaction in the ordinary course of
business and he became the owner also because the vesting of property was not

linked with payment. It was held that he could not be held liable for misappropriating
his own property though his cheque, which was issued for payment of price afterwards,
bounced.411. Where the buyer refused to accept the shipment on premise that on a
random checking too many defects were found in the garments and complaint was
ﬁled to recover the dues, Supreme Court held that the dispute between the parties is
civil in nature.412.
[s 409.12] Entrustment.—"
Entrustment" being a necessary part of the offence, where it is not proved, no offence
arises under this section.413. It is the settled law that mere proof of entries in the books

of account, unsupported by any evidence of receipt, is not alone suﬃcient to fasten the
accused with the offence of criminal breach of trust.414. An Assistant Engineer was
charged for criminal breach of trust for misappropriating Govt. Funds. It was found that
there was no entrustment of funds to the accused public servant. It was held that
question of misappropriation of funds does not arise.415. Accordingly, a school
inspector withdrawing money against false pay bills and misappropriating the entire
amount was held to be punishable for misappropriation and cheating but not of
criminal breach of trust because the amount withdrawn was not entrusted to him.416.
Where a postal delivery agent was given an insured cover supposed to contain Rs.
1000 and on delivery to the addressee, who opened the cover in the presence of the
agent, it was found that it contained blank papers, the agent was held not liable under
the section. The prosecution did not prove the most vital fact that at the time of

handing over to the agent, the cover did contain the amount in question.417. Where a
quantity of diesel oil which was delivered to a junior oﬃcer under his signature and he
embezzled it, his senior was not allowed to be prosecuted. There was no entrustment
to him. The fact that he exercised authority over the junior did not establish his
possession. The conviction of the senior was set aside, while that of the junior was
upheld.418. Where no account was produced as to the quantity of yarn entrusted and
how much was returned after making the ﬁnished product, it was held that there was
no inﬁrmity in the order of acquittal.419.
[s 409.13] President of Co-operative Society.—
It has been held that the President of a Co-operative Society is not a public servant.

Dishonest retention of money of the society by the President was not an offence under
section 409. But section 406 was attracted.420. Secretary of co-operative society is not
a public servant within meaning of section 21 IPC, 1860 r/w.s. 8 of W.B. Co-operative
Societies Act, and no previous sanction is necessary for prosecuting him for offence
under section 409, IPC, 1860.421.
[s 409.14] Burden of proof.—
The prosecution has to prove that a public servant was entrusted with property which
he was duty bound to account for and that he misappropriated the property. Where the
fact of entrustment has been admitted or proved, the burden is then upon him to show
that the property was applied to the purpose for which it was entrusted to him.422.
[s 409.15] Amount repaid.—

The accused persons acting through directors of company in concert with the
Chartered Accountants and some other persons hatched a criminal conspiracy and
executed it by forging and fabricating a number of documents in order to support their
claim to avail hire purchase loan form the bank. The accused had not only duped the
bank, they had also availed of depreciation on the machinery, which was never
purchased and used by them, causing loss to the exchequer, a serious economic
offence against the society. Supreme Court had declined to quash the proceedings.
Merely because the dues of the bank have been paid up, the appellant cannot be
exonerated from the criminal liability.423.

[s 409.16] CASES.
Even a mistaken receipt of money by a public servant in oﬃcial capacity does create an
obligation for the public servant to render an account of the money so received. All that
is required is entrustment or acquisition of dominion over property in the capacity of a
public servant. Thus where the accused, an oﬃcial of the Indian Unit of Hindustan
Insurance Society who had no authority to collect premiums from Pakistani policy-
holders, did in fact represent to them that they could pay their premiums to him and
also issued receipts purporting to act in his oﬃcial capacity and thereafter
misappropriated the money after making false entries in the relevant register, it was
held that he was guilty under section 409, IPC, 1860.424. It should, however, be
remembered that the prosecution has to prove that the public servant has acted
dishonestly in regard to property entrusted to him.425.
[s 409.17] Section 420 and 409.—Distinction.—

In 'criminal breach of trust', an accused comes into possession of a property or
acquires dominion over a property honestly and bona ﬁde, but he develops dishonest
intention subsequent to the taking possession of, or subsequent to having acquired the
dominion over, the property and, having developed such dishonest intention, he
dishonestly misappropriates or converts to his own use the property or dishonestly
uses or disposes of the property in violation of any direction of law prescribing the
mode in which such trust is to be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of such trust, or wilfully suffers any
other person so to do. Thus, in 'criminal breach of trust', the intention of the accused
cannot be dishonest or mala ﬁde at the time, when he comes into possession of the

property or comes to acquire dominion over the property; but, having come into
possession of, or having acquired dominion over, the property, the accused develops
dishonest intention and actuated by such mens rea, he converts to his own use the
property or dishonestly uses or disposes of the property in violation of any direction of
law prescribing the mode in which such trust is to be discharged, or of any legal
contract, express or implied, which he has made touching the discharge of such trust,
or wilfully suffers any other person so to do. Contrary to what happens in "criminal
breach of trust", the intention of the accused, in a case or "cheating", is dishonest from
the very commencement of the transaction. There is really no consent by the person,
who is intentionally induced by deception to deliver the property or allow any person to

retain the property or is intentionally induced, as a result of deception, to do or omit to
do anything, which he would not do or omit to do if he were not so deceived, and which
act or omission causes or is likely to cause damage or harm to that person in body,
mind, reputation or property. In short, thus, while in "criminal breach of trust", the
accused comes into possession of the property without dishonest intention and
develops dishonest intention subsequent to his coming into possession of the
property, the offence of 'cheating' is one, wherein the accused has dishonest intention
from the very commencement of the transaction.426.
[s 409.18] Section 409 and section 477A IPC, 1860.—
Contention of the accused is that scheme of sections 408 and 409 IPC, 1860 goes to

show that distinct offences have been provided respectively for the clerks or servants
and for the bankers and the present petitioner has been charged for the offence under
section 409 IPC, 1860 as he is a banker, but at the same time, he has been convicted
for the offence under section 477A IPC, 1860, where bankers have not been included in
the description of offence under section 477A IPC, 1860 and conviction under sections

477A and 409 IPC, 1860 cannot go hand to hand. The accused has been charged for
the offence under section 409 IPC, 1860 as he was public servant at the relevant time
being a Postal Assistant and his contention that he was a banker is misplaced. The
accused has not been charged as a banker.427.
[s 409.19] Director.—
A director of a company is not only an agent but also a trustee of the assets of the
company which come to his hand. Thus having dominion and control over property he
can come within the mischief of this section if he dishonestly misappropriates that
property to his own use.428. The manager of a rice mill was held liable under the
section for causing disappearance of a quantity of paddy from a huge stock of the
material entrusted to him.429.
[s 409.20] Directors of Company.—Vicarious liability.—
It is to be noted that the concept of 'vicarious liability' is unknown to criminal law. As
observed earlier, there is no speciﬁc allegation made against any person but the

members of the board and senior executives are joined as the persons looking after the
management and business of the appellant Company.430. The Penal Code does not
contain any provision for attaching vicarious liability on the part of the Managing
Director or the Directors of the Company when the accused is the Company. The
learned Magistrate failed to pose unto himself the correct question, viz., as to whether
the complaint petition, even if given face value and taken to be correct in its entirety,
would lead to the conclusion that the respondents herein were personally liable for any
offence. The Bank is a body corporate. Vicarious liability of the Managing Director and
Director would arise provided any provision exists in that behalf in the Statute. Statutes

indisputably must contain provision ﬁxing such vicarious liabilities. Even for the said
purpose, it is obligatory on the part of the complainant to make requisite allegations
which would attract the provisions constituting vicarious liability.431. In the case of
Punjab National Bank v Surendra Prasad Sinha,432. a complaint was lodged by the
complainant for prosecution under sections 409, 109 and 114, IPC, 1860 against the
Chairman, the Managing Director of the Bank and a host of oﬃcers Since the principal
debtor defaulted in payment of debt, the Branch Manager of the bank on maturity of the
said ﬁxed deposit adjusted a part of the amount against the said loan. The complainant
alleged that the debt became barred by limitation and, therefore, the liability of the

guarantors also stood extinguished. It was, therefore, alleged that the oﬃcers of the
bank criminally embezzled the said amount with dishonest intention to save
themselves from ﬁnancial obligation. The Magistrate without adverting whether the
allegations in the complaint prima facie make out an offence charged for, in a
mechanical manner, issued the process against all the accused persons. The High
Court refused to quash the complaint and the matter ﬁnally came to Supreme Court.
The Supreme Court allowed the appeal, quashed the proceedings and held that the
complaint was laid impleading the Chairman, the Managing Director of the Bank by
name and a host of oﬃcers. There lies responsibility and duty on the Magistracy to ﬁnd
whether the concerned accused should be legally responsible for the offence charged

for. Only on satisfying that the law casts liability or creates offence against the juristic
person or the persons impleaded then only process would be issued.
[s 409.21] Society.—

The accused was in charge of a society's affairs. Shortage of funds was detected. It
was held that the fact that the accused agreed to make good the shortage at a later
point of time could not be treated as an admission of guilt on his part. Ingredients of
misappropriation were not made out. The mere discrepancy in amount was not
suﬃcient to sustain the conviction.433.
Prosecution has to prove entrustment and not how property was dealt with.—The
prosecution has to show that the property in question was entrusted to the accused. It
is then for the accused to show how he dealt with the property. 434.
[s 409.22] Previous sanction.—
In a prosecution against the Vice-chancellor of a University where section 50(2) of the
1994 University Act, 1904 says no prosecution will lie against the appellant without
previous sanction of the Syndicate, prosecution cannot be launched in the absence of
the previous sanction of the Syndicate.435. As far as the offence of criminal conspiracy

punishable under section 120-B, read with section 409 of the IPC, 1860 is concerned
and also section 5(2) of the Prevention of Corruption Act, 1988, are concerned they
cannot be said to be of the nature mentioned in section 197 of the Cr PC, 1973.436.
[s 409.23] Punishment.—
The accused, working as an assistant accountant in a company, received on behalf of
the company certain recoveries from a ﬁrm but did not credit them in the account of
the said ﬁrm. He was found guilty and was convicted and sentenced to undergo RI of 1
and a half years under section 409 and RI of 1 and a half years under section 477-A.
The Apex Court upheld the conviction but considering time factor and age of the
accused, the sentence was reduced to six months, RI under each count.437.
The accused, a postmaster, was convicted under this section. The offence happened

15 years ago. He deposited the misappropriated amount with interest even before the
FIR was ﬁled. He was punished only with ﬁne of Rs. 4,000 without any
imprisonment.438.
[s 409.24] Moral turpitude.—
Undoubtedly, the embezzlement of Rs.5000 by the appellant, for which he had been
convicted under section 409 IPC, 1860, was an offence involving moral turpitude.439.
[s 409.25] Conviction of Employee under section 409.—will release on
probation remove the disqualiﬁcation.—
Once a Criminal Court grants a delinquent employee the beneﬁt of P.O. Act, 1958, its
order does not have any bearing so far as the service of such employee is concerned.
The word "disqualiﬁcation" in section 12 of the Act 1958 provides that such a person
shall not stand disqualiﬁed for the purposes of other Acts like the Representation of

the People Act, 1950 etc. The conviction in a criminal case is one part of the case and
release on probation is another. Therefore, grant of beneﬁt of the provisions of Act

367.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
368.  Sadhupati Nageswara Rao v State of Andhra Pradesh, (2012) 8 SCC 547 [LNIND 2012 SC
461] : AIR 2012 SC 3242 [LNIND 2012 SC 461] .
369.  Sachindra Das v The State of Tripura, 2016 Cr LJ 3908 : 2016 (2) GLT 894 .
370.  Lala Raoji, (1928) 30 Bom LR 624 . Mohan Tiwari v State of Arunachal Pradesh, 1992 Cr LJ
737 (Gau), unauthorised extraction of timber by the contractor from a forest oﬃcer in
connivance with the oﬃcials concerned, prima facie evidence of guilt.
371.  Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr)
646.
372.  Vishwa Nath v State of J&K, AIR 1983 SC 174 : 1983 Cr LJ 231 : (1983) 1 SCC 215 .
373.  Vijay Digambar Lanjekar v State of Maharashtra, 1991 SCC (Cr) 841 : 1991 Supp (2) SCC 8,
the court reduced the sentence of 2 years' RI to the period already undergone. Where, on the

other hand, credit sale was in vogue and the amounts involved stood deposited before CID
probe, the conviction was not sustained. Narendra Pratap Narain Singh v State of UP, AIR 1991
SC 1394 [LNIND 1991 SC 186] : 1991 Cr LJ 1816 .
374.  State of MP v Prempal, 1991 Cr LJ 2878 . The court followed Vishwanath v State of J & K,
AIR 1983 SC 174 : 1983 Cr LJ 231 where the principle laid down was that a public servant
entrusted with Government money misappropriates that amount for personal use, refund of that
amount, after the act of defalcation is discovered, does not absolve the accused of the offence.
375.  See Ram Mohan Saxena v State of MP, 1977 (II) MPWN 377; Bahadur Singh v State of MP,
(1976) JLJSN 120; Narbada Singh Chouhan v State of MP, (1971) JLJ SN 11 and State v Autar
Singh, (1966) JLJ SN 99.

376.  Janeshwar Das Agarwal v State of UP, AIR 1981 SC 1646 : 1981 All LJ 887 : (1981) 18 All
CC 151 : (1981) 3 SCC 10 .
377.  Chandraiah v State of AP, (2003) 12 SCC 670 : AIR 2004 SC 252 : 2004 Cr LJ 365 .
378.  R Sai Bharathi v J Jayalalitha, (2004) 2 SCC 9 [LNIND 2003 SC 1023] : AIR 2004 SC 692
379.  Asoke Basak v State of Maharashtra, (2010) 10 SCC 660 [LNIND 2010 SC 1699] : (2011) 1
SCC(Cr) 85.
380.  Standard Chartered Bank v Directorate of Enforcement, (2005) 4 SCC 530 [LNIND 2005 SC
476] .
381.  CBI v Blue Sky Tie-up Pvt Ltd, 2012 Cr LJ 1216 : AIR 2012 SC (Supp) 613.
382.  Krishna Rao Keshav v State of UP, 1997 Cr LJ 1129 (All).
1958, only enables the delinquent not to undergo the sentence on showing his good
conduct during the period of probation. In case, after being released, the delinquent

commits another offence, beneﬁt of Act 1958 gets terminated and the delinquent can
be made liable to undergo the sentence. Therefore, in case of an employee who stands
convicted for an offence involving moral turpitude, it is his misconduct that leads to his
dismissal.440.

383.  NK Illiyas v State of Kerala, 2012 CR LJ 2418 : AIR 2012 SC 3790 [LNIND 2011 SC 646] ; R
Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] . It made no difference to the
criminal liability that the money was quickly recovered and departmental action was taken
against bank oﬃcials.
384.  R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] .
385.  Shabbir Ahmed Sherkhan v State of Maharashtra, (2009) 5 SCC 22 [LNIND 2009 SC 621] :
(2009) 1 SCC (L&S) 1016 .
386.  Wharton, 14th Edn, p 109. The relationship of trust can arise between them only under
special circumstances. ANZ Grindlays Bank v Shipping and Clearing (Agents) Pvt Ltd, 1992 Cr LJ
77 (Cal), paying money after instructions to close account, no cheating. MV Bany v State of TN,
1989 Cr LJ 667 (Mad).
387.  Hira Lal, (1907) PR No. 19 of 1908. A bank manager permitting money to be withdrawn
against false drafts signed by him commits this offence. Adithela Immanuel Raju v State of

Orissa, 1992 Cr LJ 243 . The protections and privileges of a banker are not available to persons
who are not legally engaged in the banking business. AG Abreham v State of Kerala, 1987 Cr LJ
2009 (Ker). Withdrawal of money from Post Oﬃce by forging signature, liability made out. State
of Orissa v Sapneswar Thappa, 1987 Cr LJ 612 (Ori).
388.  ANZ Grindlays Bank plc v Shipping and Clearing (Agents) Pvt Ltd, 1992 Cr LJ 77 (Cal).
389.  Punjab National Bank v Surendra Prasad Sinha, AIR 1992 SC 1815 [LNIND 1992 SC 300] :
1992 Cr LJ 2916 ; S Jayaseelan v State of SPF, 2002 Cr LJ 732 (Mad), the cashier received
repayment of loan installments, issued receipts and also made entries in the pass book but did
not show the repayments in the ledger books. Dishonest intention established. Sentence of 2

years reduced to 18 months because he had paid back. Bank of Baroda v Samrat Exports, 1998
Cr LJ 2773 (Kant), the debit by the bank to the guarantor's account in respect of the sum due
from the principal borrower was not a dishonest misappropriation. MN Ojha v Alok Kumar
Srivastav, (2009) 9 SCC 682 [LNIND 2009 SC 1708] : AIR 2010 SC 201 [LNIND 2009 SC 1708] -
the averments made in the complaint does not disclose the commission of any offence by the
appellant or any one of them. Proceedings quashed.
390.  Sudhir Shantilal Mehta v CBI, (2009) 8 SCC 1 [LNIND 2009 SC 1652] : (2009) 3 SCC (Cr)
646; Satyajit Roy v State of Tripura, 2010 Cr LJ 3397 (Gau)- Where the allegation was of Criminal
breach of trust by banker, conviction based on an alleged writing of accused without examining
the hand writing expert is held not proper.

391.  R Venkatkrishnan v CBI, (2009) 11 SCC 737 [LNIND 2009 SC 1653] : AIR 2010 SC 1812
392.  Wharton, 14th Edn, p 649.
393.  Radhey Shyam Khemka v State of Bihar, AIR 1993 SCW 2427 : 1993 Cr LJ 2888 : (1993) 3
394.  Ibid, p. 400.
395.  Pramod Parmeshwarlal Banka v State of Maharashtra, 2011 Cr LJ 4906 (Bom).
396.  Ibid, p. 148.
397.  Stevens v Biller, (1883) 25 Ch D 31 .
398.  Wharton, 14th Edn, p 95.
399.  Chaman Lal v State of Punjab, (2008) 11 SCC 721 : AIR 2009 SC 2972 [LNIND 2009 SC 721]
.
400.  The Indian Contract Act (IX of 1872) section 182.
401.  Chandi Prasad, (1955) 2 SCR 1035 [LNIND 1955 SC 108] .
402.  Muthusami Pillai, (1895) 1 Weir 432.

403.  Chandra Prasad, (1926) 5 Pat 578.
404.  RK Dalmia, AIR 1962 SC 1821 [LNIND 1962 SC 146] : (1962) 2 Cr LJ 805 . A partner of a
ﬁrm opening an account in the ﬁrm name showing himself as a proprietor and depositing ﬁrm
cheques into it and withdrawing money from it, does not commit an offence under this section
or section 419. Tapan Kumar Mitra v Manick Lal Dey, 1987 Cr LJ 1483 (Cal).
405.  Sadhupati Nageswara Rao v State of Andhra Pradesh, (2012) 8 SCC 547 [LNIND 2012 SC
406.  SK Agarwal v Manoj Dalmia, 2001 Cr LJ 3343 (All).
407.  V S Achuthanandan v R Balakrishna Pillai, AIR 2011 SC 1037 [LNIND 2011 SC 165] : 2011
(3) SCC 317 [LNIND 2011 SC 165] .
408.  Somnath v State of Rajasthan, AIR 1972 SC 1490 [LNIND 1972 SC 112] : 1972 Cr LJ 897
409.  Sadashiva Rao v State of AP, 2000 Cr LJ 2110 .
410.  Suresh Tolani v State of Rajasthan, 2001 Cr LJ 1959 (Raj).
411.  HICEL Pharma Ltd v State of AP, 2000 Cr LJ 2566 (AP).

412.  Sharon Michael v State of Tamil Nadu, (2009) 3 SCC 375 [LNIND 2008 SC 2506] : (2009) 2
SCC (Cr) 103.
413.  Roshan Lal Raina v State of J & K, AIR 1983 SC 631 : 1983 Cr LJ 975 : 1983 2 SCC 429 . See
also Jat Ram v State of HP, 1991 Cr LJ 1435 , false wage bill, not properly proved.
414.  State of Orissa v Gopinath Panigrahi, 1995 Cr LJ 4095 (Ori). Todar Singh Premi v State of UP,
1992 Cr LJ 1724 (All), no proof of entrustment of money to the accused Government service.
Prafulla Kumar Panda v State of Orissa, 1994 Cr LJ 3818 (Ori), no proof of entrustment of
cheque, the only cheque produced was of personal payment, no offence.
415.  Bansidhar Swain v State, 1993 Cr LJ 830 (Ori).
416.  Shankerlal Vishwakarma v State of MP, 1991 Cr LJ 2808 (MP). The Court cited this book at

p. 2812 to highlight the distinction between Cheating and Criminal Breach of Trust and Criminal
Misappropriation. See at p 396 of 26th Edn of 1987 and State of MP v DN Pandya, 1983 MPLJ
778 . Jitendra Nath Bose v State of WB, 1991 Cr LJ 922 (Cal), no evidence of entrustment;
Government and non-Government property lumped together in charge, held not proper,
Baikuntha v Nilamani Bantha, 1991 Cr LJ 59 (Ori), entrustment of cash not proved.
417.  Fakira Nayak v State of Orissa, 1987 Cr LJ 1479 (Ori).
418.  Jiwan Dass v State of Haryana, AIR 1999 SC 1301 [LNIND 1999 SC 204] : 1999 Cr LJ 2034 .
419.  VN Sonal v Nagamanickam, 2001 Cr PC 3428 (Mad).
420.  Shanmugham v State of TN, 1997 Cr LJ 2042 (Mad).
421.  Rabindra Nath Bera v State of West Bengal, 2012 CR LJ 913 (Cal).
422.  Mustaﬁkhan v State of Maharashtra, (2007) 1 SCC 623 [LNIND 2006 SC 1076] .

423.  Sushil Suri v CBI, (2011) 5 SCC 708 [LNIND 2011 SC 494] : AIR 2011 SC 1713 [LNIND 2011
SC 494] ; Nikhil Merchant v Central Bureau of Investigation, (2008) 9 SCC 677 [LNIND 2008 SC
1660] distinguished.
424.  S and R, Legal Affairs, West Bengal v SK Roy, 1974 Cr LJ 678 : AIR 1974 SC 794 [LNIND
1974 SC 35] .
425.  Sardar Singh, 1977 Cr LJ 1158 : AIR 1977 SC 1766 : (1977) 1 SCC 463 . See also State of
Orissa v Gangadhar Pande, 1989 Supp (2) SCC 150 : 1991 SCC (Cr) 389, leniency shown to a
misappropriating Government servant because of old age and retirement since long. Kulbir
Singh v State of Punjab, 1991 Cr LJ 1756 (P&H), embezzlement of stone metal, proceedings
instituted after a lapse of 9 yrs., quashed.
426.  Mahindra and Mahindra Financial Services Ltd v Delta Classic Pvt Ltd, 2010 Cr LJ 4591
(Bom).

427.  Vijay Kumar v State of Rajasthan, 2012 Cr LJ 2790 (Raj).
428.  Shivanarayan, 1980 Cr LJ 388 (SC).
429.  Narindra Kumar Jain v MP, 1996 Cr LJ 3200 : AIR 1996 SC 2213 .
430.  Thermax Ltd v K M Johny, 2011 (11) Scale 128 [LNIND 2011 SC 947] : 2011 (13) SCC 412
[LNIND 2011 SC 947] ; GHCL Employees Stock Option Trust v India Infoline Ltd, (2013) 4 SCC 505
[LNIND 2013 SC 232] : AIR 2013 SC 1433 [LNIND 2013 SC 232] - from perusal of order passed
by the Magistrate it reveals that two witnesses including one of the trustees were examined by
the complainant but none of them speciﬁcally stated as to which of the accused committed
breach of trust or cheated the complainant except general and bald allegations made therein-
proceedings quashed.
431.  Maksud Saiyed v State of Gujarat, 2008 (5) SCC 668 [LNIND 2007 SC 1090] : JT 2007 (11)
SC 276 [LNIND 2007 SC 1090] ; Pramod Parmeshwarlal Banka v State of Maharashtra, 2011 Cr LJ
4906 (Bom).

432.  Punjab National Bank v Surendra Prasad Sinha, AIR 1992 SC 1815 [LNIND 1992 SC 300] :
1993 Supp (1) SCC 499
433.  State of Karnataka v Syed Mehaboob, 2000 Cr LJ 1184 (Kant).
434.  N Bhargavan Pillai v State of Kerala, AIR 2004 SC 2317 [LNIND 2004 SC 520] : 2004 Cr LJ
2494 : (2004) 2 KLT 725 .
435.  R Ramachandran Nair v Deputy Superintendent Vigilance Police, (2011) 4 SCC 395 [LNIND
2011 SC 319] : (2011) 2 SCC (Cr) 251.
436.  Raghunath Anant Govilkar v State of Maharashtra, AIR 2008 SC (Supp) 1486; Shreekantiah
Ramayya Munipalli v State of Bombay, AIR 1955 SC 287 [LNIND 1954 SC 180] and also Amrik
Singh v State of Pepsu, AIR 1955 SC 309 [LNIND 1955 SC 15] ; State of UP v Paras Nath Singh,
(2009) 6 SCC 372 [LNINDORD 2009 SC 650] : 2009 Cr LJ 3069 .

437.  Inder Sen Jain v State of Punjab, AIR 1994 SC 1065 : 1994 Cr LJ 1224 . Bachchu Singh v
State of Haryana, AIR 1999 SC 2285 [LNIND 1999 SC 1375] : 1999 Cr LJ 3528 , misuse of tax
money collected by a Gram Sachiv, he was sentenced to six months RI and ﬁne. He had already
undergone 4½ months. His sentence was reduced to period already undergone.
438.  State of HP v Karanvir, 2006 Cr LJ 2917 : AIR 2006 SC 2211 [LNIND 2006 SC 394] : (2006) 5
439.  Sushil Kumar Singhal v Regional Manager, Punjab National Bank, 2010 AIR (SCW) 5119 :
(2010) 8 SCC 573 [LNIND 2010 SC 730] .
440.  Sushil Kumar Singhal v Regional Manager, Punjab National Bank, 2010 AIR (SCW) 5119 :

Of Theft
Of the Receiving of Stolen Property
[s 410] Stolen property.
Property, the possession whereof has been transferred by theft, or by extortion, or by
robbery, and property which has been criminally misappropriated or in respect of
which 441.[***] criminal breach of trust has been committed, is designated as "stolen
property", 442.[whether the transfer has been made, or the misappropriation or breach
of trust has been committed, within or without 443.[India]]. But, if such property
subsequently comes into the possession of a person legally entitled to the possession
thereof, it then ceases to be stolen property.
441.  The words "the" and "offence of" rep. by Act 12 of 1891, section 2 and Sch I and Act 8 of
1882, section 9, respectively.
442.  Ins. by Act 8 of 1882, section 9.
443.  The words "British India" have successively been subs. by the A.O. 1948, the A.O. 1950 and

Of Theft
[s 411] Dishonestly receiving stolen property.
Whoever dishonestly receives or retains1 any stolen property, knowing or having
reason to believe the same to be stolen property,2 shall be punished with
Tamil Nadu.—The following amendments were made by T.N. Act No. 28 of 1993, section
2.
Section 411 of the principal Act shall be renumbered as sub-section (1) of that section
namely—
"(2) Whoever dishonestly receives or retains any idol or icon stolen from any building
used as a place of worship knowing or having reason to believe the same to be stolen
property shall, notwithstanding anything contained in sub-section (1), be punished with

rigorous imprisonment which shall not be less than two years but which may exceed to
three years and with ﬁne which shall not be less than two thousand rupees:
judgment, impose a sentence of imprisonment for a term of less than two years."
COMMENT—
Section 410 deﬁnes stolen property. A property is stolen for the purpose of this section
when its possession is transferred by theft, extortion, robbery, dacoity or criminal
breach of trust or which was obtained under misappropriation committed whether in
India or outside. An extended meaning is given to the words 'stolen property' which are
used in the four subsequent sections. Not only things which have been stolen, extorted
or robbed but also things which have been obtained by criminal misappropriation or

criminal breach of trust are within the meaning assigned to these words. Section 411
provides punishment to the person who dishonestly receives stolen property. The
person must have the knowledge that it is a stolen property. This section as also the
succeeding sections are directed not against the principal offender, e.g., a thief, robber
or misappropriator but against the class of persons who trade in stolen articles and are
receivers of stolen property. Principal offenders are therefore, outside the scope of this
section. Accordingly the conviction of the principal offender is also not a prerequisite to
the conviction of the receiver of stolen property under this section.444.
[s 411.1] Essential ingredients.—

(a) Dishonest receipt or retention of stolen property. (b) Knowledge or reason to believe
at the time of receipt that the property was obtained in the ways speciﬁed in the
section. The offence of dishonest retention of property is almost contemporaneous
with the offence of dishonestly receiving stolen property. A person who dishonestly
receives property and retains it, must obviously continue to retain it. It is the duty of the
prosecution in order to bring home the guilt of a person under section 411 to prove:
(1) That the stolen property was in the possession of the accused.
(2) That some person other than the accused had possession of the property
before the accused got possession of it and
(3) That the accused had knowledge that the property was stolen.445. When the ﬁeld
from which the ornaments were recovered was an open one, and accessible to all and
sundry, it is diﬃcult to hold positively that the accused was is possession of these

articles. The fact of recovery by the accused is compatible with the circumstance of
somebody else having placed the articles there and of the accused somehow acquiring
knowledge about their whereabouts and that being so, the fact of discovery cannot be
regarded as conclusive proof that the accused was in possession of these articles.446.
As observed by the Apex Court in the case of N Madhavan v State of Kerala,447. as a
normal rule after an inquiry or trial when the accused is discharged or acquitted the
Court ought to restore the property from the person from whose custody it was taken
and in a case of conviction, it is the person from whose possession it was stolen, who
would be entitled to its possession when the property seized is referable to such stolen
property.

property.
1. 'Dishonestly receives or retains'.— To constitute dishonest retention, there must
have been a change in the mental element of possession,—possession always
subsisting animo et facto—from an honest to a dishonest condition of the mind in
relation to the thing possessed. Where pursuant to a hire purchase agreement, on the
default of the purchaser to pay the instalment amount, the seller of a vehicle
repossessed it, it was held that as there was no dishonest intention to retain on his
part, the provisions of this section were not attracted.448.
[s 411.2] Identity of stolen property.—
Before a conviction can be recorded under this section it must be shown that the
property recovered and seized was stolen property. Where, therefore, the identity of the

property is not established, there cannot be any conviction under section 411, IPC,
1860.449.
2. 'Knowing or having reason to believe the same to be stolen property'.—The offence
made punishable is not the receiving of stolen property from any particular person, but
receiving such property knowing it to be stolen. The word 'believe' is a much stronger
word than suspect, and it involves the necessity of showing that the circumstances
were such that a reasonable man must have felt convinced in his mind that the
property with which he was dealing must be stolen property.450.
[s 411.3] Stolen property of the deceased.—
Where stolen ornaments of the deceased which she had been wearing when she was
last seen alive are discovered within three days of the murder in pursuance of an

information given by the accused and there is no other evidence, the accused can be
convicted only under section 411 and not under section 302, IPC, 1860, or section 394,
IPC, 1860, as there is nothing to connect him with the murder or the robbery.451.
[s 411.4] Recent Possession.—
There is a presumption under the law that where a person is found to be in a recent
possession of stolen or robbed articles, he must be the offender himself or must have
received them with knowledge. In reference to the meaning of the expression "recent
possession", the Supreme Court has suggested that no ﬁxed time limit can be laid
down and each matter must go by its own facts. It varies according to whether the
property in question in its nature is capable of passing readily from hand to hand. If the
goods are not of that kind, even one year may not be too long. In the present case,
however, there was no gap of time between the arrest of the accused and the recovery
and, hence, the presumption of his guilt.452.

[s 411.5] Sentencing.—
Where the period of 12 years had elapsed since the institution of the case and the
accused (revision petitioner) remained in jail for ten months, his sentence was reduced
to the period already undergone. The Court did not interfere in the concurrent ﬁnding of
fact.453.
[s 411.6] Presumption from possession.—
A property which was alleged to have been taken by robbery at the point of pistol was
found in the possession of the accused. While the charge of robbery under section 392
failed, that of receiving stolen property became established by reason of the
presumption created by section 114 of the Evidence Act, 1872.454. When the
prosecution established beyond all reasonable doubt that M.O s. 25–27 belonged to
the deceased No. 1, were found in the possession of A2, the burden shifts to the

accused to explain the same under section 114-A of the Evidence Act. If he has not
explained the possession of stolen articles, the presumption is that he is receiver of
stolen property or a thief.455.
[s 411.7] Probation.—
The accused was under 21 years of age; has ﬁve brothers and sisters; is son of a poor
agriculturist and that the stolen articles recovered from him are not so valuable, the
sentence of imprisonment imposed by the learned appellate Court is set aside and the
petitioner is directed to be released on probation of good conduct for a period of six
months.456.

444.  Mir Naqvi Askari v CBI, (2009) 15 SCC 643 [LNIND 2009 SC 1651] : AIR 2010 SC 528
445.  Mir Naqvi Askari v CBI, (2009) 15 SCC 643 [LNIND 2009 SC 1651] : AIR 2010 SC 528
446.  Trimbak v State, AIR 1954 SC 39 : 1954 Cr LJ 335 (SC).
447.  N Madhavan v State of Kerala, AIR 1979 SC 1829 [LNIND 1979 SC 321] .
448.  Rajendra Kumar, 1969 Cr LJ 243 . Sheonath Bhar v State of UP, 1990 Cr LJ 1423 (All), where
dishonest retention of stolen watch was proved and ﬁne Rs. 125 only was imposed because a
long time had passed and the accused had already remained in jail for a month. Syed Basha v
State of Karnataka, 2001 Cr LJ 1813 (Kant), the prosecution failed to prove that the accused was
in possession of sandalwood billets stolen by someone else. The presumption under section 84
of the Karnataka Forest Act, 1963 regarding ownership of sandalwood trees was held to be not
applicable to sandalwood billets. Jitendra Kumar Agarwal v State of Bihar, 2001 Cr LJ 3834

(Jhar), charge of receiving ration material not quashed because wheat was found in the
compound of the petitioner. Karni Singh v State of Rajasthan, 1999 Cr LJ 1791 (Raj), where the
accused was not seen anywhere near the house from which things were stolen, he was
punished only for receiving stolen property because things were recovered from his possession.
A Devendran v State of TN, 1998 Cr LJ 814 : AIR 1998 SC 2821 [LNIND 1997 SC 1368] , articles
stolen in an incident of murder and robbery were recovered from the house of the accused after
two months. Not suﬃcient to convict him for robbery and murder, but only for receiving stolen
property under section 411. See also Shahul Hameed v State, 1998 Cr LJ 885 (Mad).
449.  Mahabir Sao v State, 1972 Cr LJ 458 : AIR 1972 SC 642 : (1972) 1 SCC 505 ; Chandmal,

1976 Cr LJ 679 : AIR 1976 SC 917 : (1976) 1 SCC 621 ; Mewaram v State of UP, 1988 Cr LJ 1215
All, failure to identify wrist watch recovered, conviction under the section set aside. Sabitri
Sharma v State of Orissa, 1987 Cr LJ 956 (Ori), mere possession, no liability. Narayan Das v State
of Rajasthan, 1998 Cr LJ 29 (Raj) failure to prove identity of the stolen property so as to show
that it was the same stolen property which was recovered.
450.  Mohon Lal, 1979 Cr LJ 1328 : AIR 1979 SC 1718 .
451.  Nagappa Dhondiba, 1980 Cr LJ 1270 : AIR 1980 SC 1753 . See further Joga Gola v State of
Gujarat, 1982 SCC (Cr) 141 : AIR 1982 SC 1227 : 1981 Supp SCC 66 , possession by the accused
of the cows which were in the herd of the deceased at the time of his death was considered to

be enough proof for a conviction under the section. See also Pandara Nadar v State of TN, AIR
1991 SC 391 : 1991 Cr LJ 468 , where there was neither proof of possession on the part of any
of the several persons, who were already acquitted from the charge of belonging to a gang of
thieves; Kedar Nath v State of UP, AIR 1991 SC 1224 : 1991 Cr LJ 989 , no value of recovery of
possession, where appeal being heard 17 years after occurrence. There was no charge in this
case under the section. The Supreme Court refused to convict 17 years after the occurrence.
452.  Errabhadrappa v State of Karnataka, AIR 1983 SC 446 [LNIND 1983 SC 83] : 1983 Cr LJ 846
: (1983) 2 SCC 330 [LNIND 1983 SC 83] .
453.  Kanik Lal Thakur v State of Bihar, 2003 Cr LJ 375 .

454.  Karni Singh v State of Rajasthan, 1999 Cr LJ 1791 (Raj). Public Prosecutor v Yenta Arjuna,
1998 Cr LJ 179 (AP), no evidence connecting the accused person with murder and robbery, but
recovery from him created the presumption under section 114, Evidence Act, 1872 that he was
recipient with knowledge. Preetam Singh v State, 1998 Cr LJ 1483 (Del) no presumption where
the recovery process itself was faulted. Pentapati Veerababu v State of AP, 1998 Cr LJ 2505
(AP), recovery of stolen property from an employee of the shop at the instance of the accused
from the house of his brother-in-law. Presumption against him because the in criminating
evidence.

455.  Giriraj Singh Gaghela v State of A P, 2009 Cr LJ 1257 (AP).
456.  Rajive Sandhu v State of Union Territory, 2004 Cr LJ 4308 (PH).

Of Theft
[s 412] Dishonestly receiving property stolen in the commission of a dacoity.
Whoever dishonestly receives or retains any stolen property, the possession whereof
he knows or has reason to believe to have been transferred by the commission of
dacoity, or dishonestly receives from a person, whom he knows or has reason to
believe to belong or to have belonged to a gang of dacoits, property which he knows
or has reason to believe to have been stolen, shall be punished with 457.
[imprisonment for life], or with rigorous imprisonment for a term which may extend to
COMMENT—
This section was enacted to stamp out the offence of dacoity which was very rampant
when the Code came into force. It refers to persons other than actual dacoits. It
provides the same punishment to a receiver of property obtained in dacoity as to

dacoits themselves. It is apparent from a plain reading of section 412 IPC, 1860, that a
person receiving stolen goods, would be guilty of the offence under section 412 IPC,
1860, if it can further be shown, that the recipient of the goods knew (or had reason to
believe), that the person offering the goods, belonged to a gang of dacoits.458.
[s 412.1] CASES.—
The Supreme Court held in PB Soundankar v State of Maharashtra, in absence of any
evidence to show the appellant was aware, that the silver chips presented to him by
accused were procured by the commission of a dacoity or in the alternative that he
knew (or had reason to believe) that accused belonged to a gang of dacoits the guilt of
the appellant under section 412 IPC, 1860 could not be stated to have been
substantiated in the facts and circumstances of the present case." Hence, the

conviction altered to section 411.459. Where properties looted in a dacoity were found
in the possession of the accused who was the resident of the neighbouring village
within three days of the occurrence, it was held that it could be presumed that he had
known or had reason to believe that the properties were the stolen properties of the
dacoity and as such his conviction under section 412, IPC, 1860, was quite in order.460.
The same principle was upheld by the Supreme Court to say that where property looted
in a dacoity was recovered from the accused very soon after the dacoity, the accused
could not be convicted under section 395 but his conviction under section 412, IPC,
1860, would be quite in order.461. Recovery at the instance of the accused persons of
stolen property shortly after a dacoity has been held by the Supreme Court as suﬃcient

for a conviction under this section.462.

457.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
458.  PB Soundankar v State of Maharashtra, (2013) 1 SCC 635 [LNIND 2012 SC 759] .
459.  PB Soundankar v State of Maharashtra, (2013) 1 SCC 635 [LNIND 2012 SC 759] ; Narayan
Prasad v State of Madhya Pradesh, AIR 2006 SC 204 [LNIND 2005 SC 881] : (2005) 13 SCC 247
[LNIND 2005 SC 881] ; Raﬁ v State of Uttaranchal, 2012 Cr LJ. 4012 (Utt)-where looted property
was recovered from possession of accused persons conviction under section 396 and 412 was
held proper.
460.  Ishwari, 1980 Cr LJ 571 (All).
461.  Amar Singh, 1982 Cr LJ 610 (SC) : AIR 1982 SC 129 .
462.  Lachhman Ram v State of Orissa, AIR 1985 SC 486 [LNIND 1985 SC 77] : 1985 Cr LJ 753 :
(1985) 2 SCC 533 [LNIND 1985 SC 77] . Pawan Yadav v State of Bihar, 2001 Cr LJ 3626 (Pat),
property stolen in dacoity recovered from the house of the co-accused, conviction proper, spent

3 years in jail, single identiﬁcation of looted property, sentence reduced to the period already
463.  Mojaffar v State of West Bengal, 2011 Cr LJ 1249 ; Dilip Malik v State, 1991 Cr LJ 2171
(Cal).
464.  Mursalim Shaikh v State of West Bengal, 2011 Cr LJ 1840 (Cal).
465.  Mohan Chetri v State of West Bengal, 1992 Cr LJ 2374 (Cal). Raﬁkul Alam v State of West
Bengal;2008 CR LJ 2005 (Cal); Raj Kumar v State, AIR 2008 SC 3284 [LNIND 2008 SC 2782] :
(2008) 11 SCC 709 [LNIND 2008 SC 849] - the Trial Court held that since recovery effected by
the prosecution was not in consonance with law, it could not be said that stolen articles of
dacoity were found from the accused and consequently charge for an offence punishable under
section 412, IPC, 1860 also could not be said to be established. Supreme Court did not interfere

with the order of acquittal.
[s 412.2] Conviction under section 395 and section 412;-
When the accused was convicted of having committed dacoity there could not be any
further conviction under section 412.463. Even though dacoity is proved, conviction
under section 412 is maintainable.464. In Mohan Chetri v State of West Bengal, it was
held that conviction under sections 412 or 411 is not permissible simultaneously with
conviction under sections 395 or 394, as the case may be, in respect of the same
accused.465.

Of Theft
[s 413] Habitually dealing in stolen property.
Whoever habitually receives or deals in property which he knows or has reason to
believe to be stolen property, shall be punished with 466.[imprisonment for life], or
466.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
467.  State v Waman Gheeya, 2007 Cr LJ 3614 (Raj).
COMMENT—
The reason for inserting section 413 by the legislature is clear from the language of the
section. The legislature purposely enacted knowing it well that there is already section
411 in respect of offence of dishonestly receiving stolen property knowing it to be
stolen. The legislature inserted section 413 in the IPC, 1860 where under it is provided

that if a person is habitually dealing in stolen property, he will be charged for offence
under section 413, IPC, 1860. The terms of the provision make it clear that "habitually
dealing" means there is evidence on record that there are other instances other than
the present instance of the accused found to be indulging in the act and he is facing
trial, then, it can be said that section 413, IPC, 1860 is attracted.467. This section
punishes severely the common receiver or professional dealer in stolen property.

Of Theft
[s 414] Assisting in concealment of stolen property.
Whoever voluntarily assists in concealing or disposing of or making away with
property which he knows or has reason to believe to be stolen property, shall be
three years, or with ﬁne, or with both.
COMMENT—
1. Voluntary assistance in concealing or disposing of or making away with property.
2. Knowledge or reason to believe that such property is stolen property.
The section is intended to penalise the person, who deal with stolen property in such a
way that it becomes diﬃcult to identify it or use it as evidence. It is not necessary to
establish that the property was the subject matter of any particular theft. It would
suﬃce if the prosecution can establish that the accused had knowledge or "had reason

to believe" that the property is stolen one. All that the prosecution is required to
establish is that the accused rendered help in either concealment or disposal of the
property, which he had reason to believe to be stolen property or had knowledge to
believe that it was such.468. It is not necessary for a person to be convicted under this
section that another person must be traced out and convicted of an offence of
committing theft. The prosecution has simply to establish that the property recovered
is stolen property and that the accused provided help in its concealment and
disposal.469.
[s 414.1] CASES.—
The accused was the driver of a taxi, which was carrying several persons who had hired
it. While on its way the taxi stopped at a place for some reason, not known, and two of

the passengers got down from the taxi and within a distance of about three and a half
yards from the taxi they suddenly and without premeditation attacked, injured and
robbed a man of his purse containing about Rs. 50. The robbers then boarded the taxi
and the driver, in spite of the cries of the victim, drove away as fast as he could. It was
held that the driver assisted the robbers in making away with the money so robbed and
was guilty under this section.470. A person who helps the disposal of stolen property by
buying the same himself has been held to be guilty of the offence under the
section.471.

468.  Sayyed Issaq v State of Maharashtra, 2008 Cr LJ 2950 (Bom).
469.  Ajendranath, AIR 1964 SC 170 [LNIND 1963 SC 126] : (1964) 1 Cr LJ 129 .
470.  Hari Singh, (1940) 2 Cal 9 .
471.  Bhanwarlal v State of Rajasthan, (1995) 1 Cr LJ 625 (Raj).

Of Theft
Of Cheating
[s 415] Cheating.
Whoever, by deceiving any person1, fraudulently or dishonestly induces the person so
deceived to deliver any property2 to any person, or to consent that any person shall
retain any property,3 or intentionally induces the person so deceived to do or omit to
do anything which he would not do or omit if he were not so deceived,4 and which act
or omission causes or is likely to cause damage or harm to that person in body, mind,
reputation or property,5 is said to "cheat".
Explanation.—A dishonest concealment of facts is a deception within the meaning of
(a) A, by falsely pretending to be in the Civil Service, intentionally deceives Z, and
thus dishonestly induces Z to let him have on credit goods for which he does not
mean to pay. A cheats.
(b) A, by putting a counterfeit mark on an article, intentionally deceives Z into a

belief that this article was made by a certain celebrated manufacturer, and thus
dishonestly induces Z to buy and pay for the article. A cheats.
(c) A, by exhibiting to Z a false sample of an article, intentionally deceives Z into
believing that the article corresponds with the sample, and thereby, dishonestly
induces Z to buy and pay for the article. A cheats.
(d) A, by tendering in payment for an article a bill on a house with which A keeps no
money, and by which A expects that the bill will be dishonored, intentionally
deceives Z, and thereby dishonestly induces Z to deliver the article, intending
not to pay for it. A cheats.
(e) A, by pledging as diamonds article which he knows are not diamonds,
intentionally deceives Z, and thereby dishonestly induces Z to lend money. A
cheats.

cheats.
(f) A intentionally deceives Z into a belief that A means to repay any money that Z
may lend to him and thereby dishonestly induces Z to lend him money. A not
intending to repay it. A cheats.
(g) A intentionally deceives Z into a belief that A means to deliver to Z a certain
quantity of indigo plant which he does not intend to deliver, and thereby
dishonestly induces Z to advance money upon the faith of such delivery. A

cheats; but if A, at the time of obtaining the money, intends to deliver the indigo
plant, and afterwards breaks his contract and does not deliver it, he does not
cheat, but is liable only to a civil action for breach of contract.
(h) A intentionally deceives Z into a belief that A has performed A's part of a
contract made with Z, which he has not performed, and thereby dishonestly
induces Z to pay money. A cheats.
(i) A sells and conveys an estate to B. A, knowing that in consequence of such sale
he has no right to the property, sells or mortgages the same to Z, without
disclosing the fact of the previous sale and conveyance to B, and receives the
purchase or mortgage money from Z. A cheats.
COMMENT—
In most of the foregoing offences relating to property the offender merely got
possession of the thing in question, but in the case of cheating he obtains possession
plus property in it.
The authors of the Code observe: "We propose to make it cheating to obtain property

by deception in all cases where the property is fraudulently obtained; that is to say, in all
cases where the intention of the person who has by deceit obtained the property was
to cause a distribution of property which the law pronounces to be a wrongful
distribution, and in no other case whatever. However immoral a deception may be, we
do not consider it as an offence against the rights of property if its object is only to
cause a distribution of property which the law recognizes as rightful.
"We propose to punish as guilty of cheating a man who, by false representations,
obtains a loan of money, not meaning to repay it; a man who, by false representations,
obtains an advance of money, not meaning to perform the service or to deliver the
article for which the advance is given; a man who, by falsely pretending to have

performed work for which he was hired, obtains pay to which he is not entitled.
"In all these cases there is deception. In all, the deceiver's object is fraudulent. He
intends in all these cases to acquire or retain wrongful possession of that to which
some other person has a better claim and which that other person is entitled to recover
by law. In all these cases, therefore, the object has been wrongful gain, attended with
wrongful loss. In all, therefore, there has, according to our deﬁnition, been cheating".472.
[s 415.1] Ingredients.—
(1) Deception of any person.
(2) (a) Fraudulently or dishonestly inducing that person—
(i) to deliver any property to any person; or
(ii) to consent that any person shall retain any property; or
(b) Intentionally inducing that person to do or omit to do anything which he would not

do or omit if he were not so deceived, and which act or omission causes or is likely to
cause damage or harm to that person in body, mind, reputation or property.473. There

are two separate classes of acts which the persons deceived may be induced to do. In
the ﬁrst place he may be induced fraudulently or dishonestly to deliver any property to
any person. The second class of acts set-forth in the section is the doing or omitting to
do anything which the person deceived would not do or omit to do if he were not so
deceived. In the ﬁrst class of cases the inducing must be fraudulent or dishonest. In the
second class of acts, the inducing must be intentional but not fraudulent or
dishonest.474.
In the deﬁnition of cheating there are set forth two separate classes of acts which the
person deceived may be induced to do. In the ﬁrst place, he may be induced
fraudulently or dishonestly to deliver any property to any person or to consent that any
person shall retain any property. The second class of acts set forth in the section is the
doing or omitting to do anything which the person deceived would not do or omit to do

if he were not so deceived. In the ﬁrst class of cases the inducing must be fraudulent or
dishonest. In the second class of acts the inducing must be intentional but not
fraudulent or dishonest.
The deﬁnition of the offence of cheating embraces some cases in which no transfer of
property is occasioned by the deception and some in which such a transfer occurs; for
these cases generally provision is made in section 417 of the Code. For cases in which
property is transferred a more speciﬁc provision is made by section 420.
The offence of cheating is not committed if a third party, on whom no deception has
been practised, sustains pecuniary loss in consequence of the accused's act.475.
[s 415.2] Cheating and extortion.—
The offence of cheating must, like that of extortion, be committed by the wrongful

obtaining of a consent. The difference is that the extortioner obtains the consent by
intimidation, and the cheat by deception.476.
[s 415.3] Breach of contract and cheating.—
The distinction between mere breach of contract and the offence of cheating is a ﬁne
one. It depends upon the intention of the accused at the time of inducement which may
be judged by his subsequent conduct, but for which the subsequent conduct is not the
sole test. Mere breach of contract cannot give rise to criminal prosecution under
section 420, IPC, 1860, unless fraudulent or dishonest intention is shown right at the
beginning of the transaction, which is the time when the offence is said to have been
committed.477. There was allegation from one side that no payment was being made

under the contract. The other side pleaded that part payments were made from time to
time and the balance was withheld due to non-standard nature of the work and a letter
to that effect was issued. The Court said that the controversy was wholly of civil
nature. There was total absence of dishonest criminal intention to dupe contractions'
right from the inception of the relationship.478. Although breach of contract per se
would not come in the way of initiation of a criminal proceeding, there cannot be any
doubt whatsoever that in absence of the averments made in the complaint petition
wherefrom the ingredients of an offence can be found out, the Court should not
hesitate to exercise its jurisdiction under section 482 of the Cr PC, 1973.479.
The distinction was explained by the Supreme Court in a case involving an agreement

for sale of property. The allegation in the complaint was that the seller had not
disclosed that one of his brothers had ﬁled a partition suit which was pending. There

was no allegation that non-disclosure of the suit was intentional. The dishonest
intention on the part of the accused at the beginning of negotiations was not made out
by averments in the complaint. The High Court was wrong in declining to quash the
criminal proceedings.480.
The accused promised, propagated and induced the public through advertisements to
invest money in a circulation scheme. Double the money was promised to a member
who enrolled 14 new members. The scheme was found to be practically impossible.
Thus there was an element of cheating.481.
[s 415.4] Dishonest intention at the time of making the promise a sine qua non
for the offence of cheating.—
To hold a person guilty of cheating it is necessary to show that he had a fraudulent or
dishonest intention at the time of making the promise. From mere fact that the
promisor could not keep his promise, it cannot be presumed that he all along had a
culpable intention to break the promise from the beginning.482.

[s 415.5] Cheating, criminal breach of trust, and criminal misappropriation.—
Cheating differs from the last two offences in the fact that the cheat takes possession
of property by deception. There is wrongful gain or loss in both cases and in both
cases there is inducement to deliver property. In the case of cheating the dishonest
intention starts with the very inception of the transaction. But in the case of criminal
breach of trust, the person who comes into possession of but retains it or converts it to
his own use against the terms of the contract.483.
Criminal breach of trust and cheating are two distinct offences generally involving
dishonest intention but mutually exclusive and different in basic concept. The former is
voluntary but the latter is purely on the basis of inducement with dishonest
intention.484.

1. 'Deceiving any person'.—Deceiving means causing to believe what is false, or
misleading as to a matter of fact, or leading into error. Whenever a person fraudulently
represents as an existing fact that which is not an existing fact, he commits this
offence. A wilful misrepresentation of a deﬁnite fact with intent to defraud, cognizable
by the senses—as where a seller represents the quantity of coal to be 14 cwt. whereas
it is in fact only eight cwt. but so packed as to look more; or where the seller, by
manoeuvring, contrives to pass off tasters of cheese as if extracted from the cheese
offered for sale, whereas it is not—is a cheating.485. Deception is a necessary
ingredient for the offences of cheating under both parts of this section. The
complainant, therefore, necessarily needs to prove that the inducement had been

caused by the deception exercised by the accused. Such deception must necessarily
produce the inducement to part with or deliver property, which the complainant would
not have parted with or delivered, but for the inducement resulting from deception. The
explanation to the section would clearly indicate that there must be no dishonest
concealment of facts. In other words, non-disclosure of relevant information would
also be treated as a misrepresentation of facts leading to deception.486.
It is not suﬃcient to prove that a false representation had been made but it is further
necessary to prove that the representation was false to the knowledge of the accused
and was made in order to deceive the complainant.487. Where a party was persuaded

to take out a policy of insurance and the insurer subsequently failed to pay on the
happening of the event insured against, it was held that a dishonest intention cannot be
inferred from a subsequent failure to fulﬁl a promise.488.
It is not necessary that the false pretence should be made in express words; it can be
inferred from all the circumstances attending the obtaining of the property,489. or from
conduct.490. If a person orders out goods on credit promising to pay for them on a
particular day knowing that it was impossible for him to pay, this would amount to
cheating. But the mere fact that he is in embarrassed circumstances does not lead to
such inference.491.
[s 415.6] Cheque discounting facility.—
The complainant is required to show that accused had fraudulent or dishonest
intention at the time of making promise or representation. In the absence of culpable
intention at the time of making initial promise, no offence is made out under section

420. In present case, the allowing of cheque discounting facility by bank oﬃcials to
customers of the bank, without any criminal intent being proved, did not amount to
commission of offence, particularly as facility allowed was not contrary to RBI
Guidelines. It could not also be said that there was a meeting of minds in a conspiracy
to commit an offence, nor an act of corruption could be inferred from transactions
between the bank and its customers. The accused oﬃcials might have been
prosecuted under section 409 but they were not so charged. Their conviction was set
aside.492.
2. 'Fraudulently or dishonestly induces the person so deceived to deliver any
property'.—The words 'fraudulently' and 'dishonestly' do not govern the whole of the
deﬁnition of cheating. The section is divided into two parts, the second of which

provides for the case of a person who, by deceiving another intentionally, induces the
person so deceived to do an act which causes or is likely to cause damage or harm
although the deceiver has not acted fraudulently or dishonestly.493.
3. 'Or to consent that any person shall retain any property'.—It is cheating whether a
deception causes a person fraudulently or dishonestly to acquire property by delivery,
or to retain property already in his possession.
Property does not have to be a thing which has money or market value. Since a
passport is a tangible thing and a document of great importance for travel abroad there
can be no doubt that it is property within the meaning of this section. Thus where the
accused obtained several passports by making false representation to the passport

issuing authority they were rightly convicted under sections 420 and 420/120B, IPC,
1860.494.
4. 'Intentionally inducing that person to do or omit to do anything which he would not
do or omit, etc.'.—Intention is the gist of the offence. The person cheated must have
been intentionally induced to do an act which he would not have done or to omit to do
an act which he would have done, owing to the deception practised on him. The
intention at the time of the offence and the consequence of the act or omission itself
has to be considered.495. Intent refers to the dominant motive of action, and not to a
casual or merely possible result.496. Where the facts narrated in the complaint revealed
a commercial transaction, it was held that such a transaction could not lead to the

conclusion of a criminal intention to cheat. The Court said that the crux of this offence
is the intention of the accused person.497.

Sections 415 read with section 420 indicates that fraudulent or dishonest inducement
on the part of the accused must be at the inception and not at a subsequent stage. In
this case, blank cheques were handed over to the accused during the period 2000–
2004 for use of business purposes but the dispute between the parties admittedly
arose much after that, i.e., in 2005. Thus, no case for proceeding against the
respondent under section 420 is made out. Filling up of the blanks in a cheque by itself
would not amount to forgery. A case for proceeding against the respondents under
section 406 IPC, 1860 has been made out. A cheque being a property, the same was
entrusted to the respondents. If the property has been misappropriated has been used
for a purpose for which the same had been handed over, a case under section 406 IPC,
1860 may be found to have been made out. It may be true that even in a proceeding
under section 138 of Negotiable Instruments Act, the appellant could raise a defence

that the cheques were not meant to be used towards discharge of a lawful liability or a
debt, but the same by itself would not mean that in an appropriate case, a complaint
petition cannot be allowed to be ﬁled.498.
The existence of fraudulent intention at the time of making promise or
misrepresentation is a necessary ingredient. The mere failure on the part of the
accused to keep up the promise is not suﬃcient to prove the existence of such
intention from the beginning.499.
[s 415.7] Fraudulent or dishonest intention to be at the outset.—
To hold a person guilty of cheating it is necessary to show that he had fraudulent or
dishonest intention at the time of making the promise. From his mere failure to keep up
the promise subsequently such a culpable intention right at the beginning, that is, when
he made the promise cannot be presumed.500.

A beverages company entered into a bottling agreement with a bottling company for
bottling services for a period of ﬁve years, subsequently, however, the beverage
company transferred its trade mark to another company to which the bottling
agreement was also assigned. But the latter company terminated the agreement. The
bottling company ﬁled a complaint for cheating saying that they had spent a huge
amount in setting up their bottling unit. The complaint was quashed. There was no
arrangement with the beverages company at the time when the complainant was
bringing up his unit, nor did the beverages company have any intention of cheating
from the start or at any subsequent stage.501.
Although it is necessary that there should be misrepresentation from the very
beginning, the intention to cheat may in some cases develop at a later stage in the

process of formation of the contract. The respondent in this case was a co-sharer in
the joint property. The other co-sharers sold it to others representing that they had one-
third share in the property when in fact it was not so. It was held that no cheating was
practiced in the transaction upon the complaining co-sharer. It was a fraud on others.
The complainant could not launch a criminal prosecution against them.502.
The illustration (b) provided in section 415, IPC, 1860, very well covers the facts of this
case for cheating by the accused. The illustration provides that "(b) A, by putting a
counterfoil mark on an article, intentionally deceives Z into a belief that this article was
made in a certain celebrated manufacturer, and thus dishonestly induces Z to buy and pay
for the article, A cheats."503.
[s 415.8] Civil and Criminal liability.—

the offence has been made out.504. The case of breach of trust or cheating is both a
civil wrong and a criminal offence, but under certain situations where the act alleged
would predominantly be a civil wrong, such an act does not constitute a criminal
offence.505. Sometimes case may apparently look to be of civil nature or may involve a
commercial transaction but civil disputes or commercial disputes in certain
circumstances may also contain ingredients of criminal offences and such disputes
have to be entertained notwithstanding they are also civil disputes.506.
[s 415.9] Cheating by Misrepresentation as to Encumbrance to Property.—
It is the intention which is important and not whether a man is under a legal duty to

disclose or suppress facts within his knowledge. Therefore, where a person with the
intention of causing wrongful loss to another makes a false representation to him or
suppresses certain facts, he will be said to have acted dishonestly even if the law does
not require him to state the truth. Therefore, the non-disclosure of the previous
encumbrances will not affect the rights of the previous mortgagees and will not pass a
complete title to the purchaser; the purchaser may nevertheless have been cheated.507.
Where the vendor of immovable property omitted to mention that there was an
encumbranceon the property, it was held that he could not be convicted of cheating
unless it was shown either that he was asked by the vendee whether the property was
encumbered and said it was not, or that he sold the property on the representation that

it was unencumbered.508.
[s 415.10] Disconnection of Electricity and Water by Landlord.—
The landlord disconnected the electricity and water supply of the tenant. The tenant
could not make out that the landlord had the fraudulent intention of deceiving the
tenant at the time of entering into the transaction of lease. Thus, there was no
possibility of conviction for an offence under section 415.509.
5. 'Which act or omission causes or is likely to cause damage or harm to that person
in body, mind, reputation or property'.—The damage must be the direct, natural or
probable consequence of the induced act. The resulting damage or likelihood of
damage may not be within the actual contemplation of the accused when the deceit
was practised. The person deceived must have acted under the inﬂuence of deceit, and

the damage must not be too remote.510. The use of the expression "cause" in this
section postulates a direct and proximate casual connection between the act or
omission and the harm and damage to the victim.511.
It is necessary that the harm should be caused to the person deceived. Damage or
harm in mind covers both, injury to mental faculties or mental pain or anguish.512.
Where the accused falsely identiﬁed a person before the Oaths Commissioner and thus
induced him to attest an aﬃdavit, it was held that no offence under section 419, IPC,
1860, was committed as the Oaths Commissioner did not suffer any harm in his body,
mind, reputation or property.513.
[s 415.11] Explanation.—

The Explanation refers to the actual deception itself and not to the concealment of a
deception by someone else. For the purposes of this section the concealment of fact
need not be illegal if it is dishonest.514.
[s 415.12] Trade mark.—
The Madras High Court has held that the infringement of a trade mark may constitute
the offence of cheating and, therefore, the FIR for the offence was not to be
quashed.515.
Selling property having no right to do so.—Where property is sold by a person knowing
that it does not belong to him, it was held that he defrauded the purchaser. The latter
could prosecute him under section 415, but no third person could do so.516.
The offence of cheating need not necessarily relate to property. It can also partake the
nature of personation. The accused in this case palmed off his sister as belonging to a
higher caste with the object of getting her married to the petitioner, a person of higher
caste. It was held that the offence fell under the second part of the deﬁnition.517.

[s 415.13] Prosecution of Company.—
In the case of Penal Code offences, for example under section 420 of the IPC, 1860, for
cheating and dishonestly inducing delivery of property, the punishment prescribed is
imprisonment of either description for a term which may extend to seven years and
shall also be liable to ﬁne; and for the offence under section 417, that is, simple
cheating, the punishment prescribed is imprisonment of either description for a term
which may extend to one year or with ﬁne or with both. If the appellants' plea is
accepted then for the offence under section 417 IPC, 1860, which is an offence of
minor nature, a company could be prosecuted and punished with ﬁne whereas for the
offence under section 420, which is an aggravated form of cheating by which the victim

is dishonestly induced to deliver property, the company cannot be prosecuted as there
is a mandatory sentence of imprisonment. There is no immunity to the companies from
prosecution merely because the prosecution is in respect of offences for which the
punishment prescribed is mandatory imprisonment.518. A corporation is virtually in the
same position as any individual and may be convicted of common law as well as
statutory offences including those requiring mens rea. The criminal liability of a
corporation would arise when an offence is committed in relation to the business of the
corporation by a person or body of persons in control of its affairs. Companies and
corporate houses can no longer claim immunity from criminal prosecution on ground
that they are incapable of possessing necessary mens rea.519. Since, the majority of

the Constitution Bench ruled in Standard Chartered Bank v Directorate of
Enforcement,520. that the company can be prosecuted even in a case where the Court
can impose substantive sentence as also ﬁne, and in such case only ﬁne can be
imposed on the corporate body.521.
[s 415.14] Directors of Company.—
The Penal Code does not contain any provision for attaching vicarious liability on the
part of the Managing Director or the Directors of the Company when the accused is the
Company. The learned Magistrate failed to pose unto himself the correct question, viz.,

as to whether the complaint petition, even if given face value and taken to be correct in
its entirety, would lead to the conclusion that the respondents herein were personally
liable for any offence. The Bank is a body corporate. Vicarious liability of the Managing
Director and Director would arise provided any provision exists in that behalf in the
Statute. Statutes indisputably must contain provision ﬁxing such vicarious liabilities.
Even for the said purpose, it is obligatory on the part of the complainant to make
requisite allegations which would attract the provisions constituting vicarious
liability.522.
[s 415.15] Vicarious liability of employees.—
A vicarious liability can be fastened only by reason of a provision of a statute and not
otherwise. For the said purpose, a legal ﬁction has to be created. Even under a special
statute when the vicarious criminal liability is fastened on a person on the premise that
he was in-charge of the affairs of the company and responsible to it, all the ingredients

laid down under the statute must be fulﬁlled. A legal ﬁction must be conﬁned to the
object and purport for which it has been created." No case of criminal misconduct on
their part has been made out before the formation of the contract. There is nothing to
show that the appellants herein who hold different positions in the appellant-company
made any representation in their personal capacities and, thus, they cannot be made
vicariously liable only because they are employees of the company."523.
[s 415.16] Allotment of wagons on false letters.—
The accused who were railway employees tried to divert wagons by procuring their
allotment on fake letters of request issued by a fake ﬁrm, were held to be guilty of
cheating.524.
[s 415.17] Representation to Public Service Commission and other appointing
authority.—

The accused who was at the time serving in the Madras Medical Service as a Civil
Assistant Surgeon on a temporary basis applied for a permanent post notiﬁed by the
Madras Public Service Commission and made false representations as to his name,
place of birth, father's name and a degree held by him which was a necessary
qualiﬁcation. His name was recommended by the Commission and he was appointed
by the Government to the post and drew his salary for several years before the fraud
was detected. It was held that although the Commission was an independent statutory
body performing advisory function, the deception of such adviser was deception of the
Government and the accused was liable under the section.525. Where a non-scheduled
caste candidate sat for the Indian Administrative Service Examination falsely declaring

himself to be a scheduled caste candidate in his application before the Union Public
Service Commission and thus obtained the advantage of the relaxed standard of
examination prescribed for scheduled caste candidates and eventually got appointed
as an IAS. oﬃcer by the Government of India, it was held that he had clearly cheated
both the Union Public Service Commission and the Government of India and was rightly
convicted under section 429, IPC, 1860.526.
Securing appointments from Government oﬃcials by producing fake letters from
Ministers and also by posing to be the brother of a minister, has been held to constitute

472.  Note N, pp 164, 166.
473.  The restatement of these ingredients occurs in Divender Kumar Singla v Baldev Krishna
Singla, AIR 2004 SC 3084 [LNIND 2004 SC 228] : (2005) 9 SCC 15 [LNIND 2004 SC 228] .
474.  Hridya Rajan Pd. Verma v State of Bihar, AIR 2000 SC 2341 [LNIND 2000 SC 563] ; Arun
Bhandari v State of UP, (2013) 2 SCC 801 [LNIND 2013 SC 18] : 2013 Cr LJ 1020 (SC).
475.  Sundar Singh, (1904) PR No. 25 of 1904.
476.  Note N p 163.
477.  K Periasami v State, 1985 Cr LJ 1721 (Mad); See also discussion under para "Dishonest
Intention at the outset" infra. See also Poovalappil David v State of Kerala, 1989 Cr LJ 2452 (Ker),
switching off AC machines in a cinema hall after the patrons are in, cheating. Proceedings on
the report of a police sub-inspector not illegal. Vinar Ltd v Chenab Textile Mills, 1989 Cr LJ 1858
(J&K) Ranbir Code, breach of business contract, no criminal proceeding allowed. Ranjit Pant v
State of Jharkhand, 2003 Cr LJ 1736 (Jhar), the complainant (landowner) was induced by the

accused that on his handing over his land under a lease for establishing a petrol pump he would
be given dealership. A bank guarantee of Rs. 4 lacs was taken from him, but dealership was
allotted to another person. Thus, it seemed to the court that the accused did not have bona ﬁde
intention from the beginning. Framing of charge-sheet under section 468 forgery for cheating
and section 420 was held to be proper.
an offence of cheating by personation, and of forgery under sections 466–467 and of
forging Ministerial communications under section 468.527.
[s 415.18] Illustration(f).—
It may be that the facts narrated in the present complaint would as well reveal a
commercial transaction or money transaction. But that is hardly a reason for holding
that the offence of cheating would elude from such a transaction. In fact, many a

cheatings were committed in the course of commercial and also money transactions.
One of the illustrations set out under section 415 of the IPC, 1860 (Illustration f) is
worthy of notice now "(f) A intentionally deceives Z into a belief that A means to repay
any money that Z may lend to him and thereby dishonestly induces Z to lend him
money, A not intending to repay it. A cheats."528. On its plain language it is manifest
from this illustration that what is material is the intention of the drawer at the time the
cheque is issued, and the intention has to be gathered from the facts on the record. If
from the circumstances it is established that the failure to meet a cheque was not
accidental but was the consequence expected by the accused, the presumption would
be that the accused intended to cheat.529.

The accused introduced a person to the bank only for opening an account. It was held
that such act could not by itself spell out any intention to commit fraud or cheating.
The evidence did not show that the introducer was in any way connected with the fraud
committed on the bank by the person introduced or with the loss suffered by the bank.
He was accordingly acquitted of all charges.530.

478.  Gautam Sinha v State of Bihar, 2003 Cr LJ 635 (Jhar).
479.  V Y Jose v State of Gujarat, AIR 2009 SC (Supp) 59.
480.  Hridaya Ranjan Pd. Verma v State of Bihar, AIR 2000 SC 2341 [LNIND 2000 SC 563] : 2000
Cr LJ 2983 ; Murari Lal Gupta v Gopi Singh, (2006) 2 SCC (Cr) 430; B Suresh Yadav v Sharifa Bee,
(2007) 13 SCC 107 [LNIND 2007 SC 1238] .
481.  Kuriachan Chacko v State of Kerala, (2008) 8 SCC 708 [LNIND 2008 SC 1378] .
482.  Inder Mohan Goswami v State of Uttaranchal, (2007) 12 SCC 1 [LNIND 2007 SC 1179] :
(2008) 1 SCC (Cr) 259 : AIR 2008 SC 251 [LNIND 2007 SC 1179] ; SN Palanitkar v State of Bihar,
AIR 2001 SC 2960 [LNIND 2001 SC 2381] .
483.  KC Thomas v A Varghse, 1974 Cr LJ 207 (Ker).
484.  Vadivel v Packialakshmi, 1996 Cr LJ 300 (Mad).
485.  Goss, (1860) 8 Cox 262.
486.  Iridium India Telecom Ltd v Motorola Incorporated, (2011) 1 SCC 74 [LNIND 2010 SC 1012] :
AIR 2011 SC 20 [LNIND 2010 SC 1012] .
487.  Matilal Chakrabarti, (1950) 2 Cal 73 .

488.  National Insurance Co v Narendra Kumar Jhanjari, 1990 Cr LJ 773 (Pat). The court followed,
State of Kerala v SA Pareed Pillai, AIR 1973 SC 326 : 1972 Cr LJ 1243 and Hari Prasad Chamaria v
Bishun Kumar Surekha, AIR 1974 SC 301 [LNIND 1973 SC 264] : 1974 Cr LJ 352 . VP Shrivastava
v Indian Explosives Limited, (2010) 10 SCC 361 [LNIND 2010 SC 920] : (2010) 3 SCC(Cr) 1290.
489.  Maria Giles, (1865) 10 Cox 44; Khoda Bux v Bakeya Mundari, (1905) 32 Cal 941 .
490.  Mohsinbhai, (1931) 34 Bom LR 313 : 56 Bom 204.
491.  Mohsinbhai, (1931) 34 Bom LR 313 : 56 Bom 204.
492.  SVL Murthy v State, (2009) 6 SCC 77 [LNIND 2009 SC 1167] : AIR 2009 SC 2717 [LNIND
2009 SC 1167] .
493.  Mohabat, (1889) PR No. 20 of 1889. Representation that accommodation would be
provided to tourists and taking money from them in advance and then not providing

accommodation could amount to cheating, hence, process not stopped. Sanjiv Bharadwaj v
Hasmukhlal Rambhai Patel, 1989 Cr LJ 1892 (Guj); Anil Ritolla v State of Bihar, (2007) 10 SCC 110
[LNIND 2007 SC 1096] , such offence can be committed even in the making of a commercial
transaction. The allegations in the complaint did not show any intention to induce a person to
deliver property.
494.  NM Chakraborty, 1977 Cr LJ 961 (SC) : AIR 1977 SC 1174 [LNIND 1977 SC 179] .
495.  Harendra Nath Das v Jyotish Chandra Datta, (1924) 52 Cal 188 .
496.  Ibid.
497.  Rajesh Bajaj v State, NCT of Delhi, AIR 1999 SC 1216 [LNIND 1999 SC 233] : 1999 Cr LJ
1833 .
498.  Suryalakshmi Cotton Mills Ltd v Rajvir Industries Ltd, (2008) 13 SCC 678 [LNIND 2008 SC
36] : AIR 2008 SC 1683 [LNIND 2008 SC 36] .

1833 .
499.  KC Builders v CIT, (2004) 2 SCC 731 [LNIND 2004 SC 118] : AIR 2004 SC 1340 : (2004) 265
ITR 562 [LNIND 2004 SC 118] : (2004) 1 KLT 596 .
500.  State of Kerala v AP Pillai, 1972 Cr LJ 1243 (SC) : AIR 1973 SC 326 . Followed in Bimal
Kumar v Vishram Lekhraj, 1990 Cr LJ 444 (Bom), where dishonest intention in failing to furnish
"G" form was not proved. The court referred to, Trilok Singh v Satya Deo Tripathi, AIR 1979 SC
850 : 1980 Cr LJ 822 and Ram Avtar Gupta v Gopal Das Taliwal, AIR 1983 SC 1149 : (1983) 2 SCC
431 ; Shyam Sundar v Lala Bhavan Kishore, 1989 Cr LJ 559 (All), post-dated cheques
dishonoured, intention at the outset to have them dishonoured not established. But see
Radhakishan Dalmia v Narayan, 1989 Cr LJ 443 (MP), where payment of post- dated cheques

was stopped by the drawer and the court refused to quash proceedings because dishonest
intention could be inferred.
501.  Ajay Mitra v State of MP, AIR 2003 SC 1069 [LNIND 2003 SC 108] : 2003 Cr LJ 1249 .
502.  Devendra v State of UP, (2009) 7 SCC 495 [LNIND 2009 SC 1158] : (2009) 3 SCC Cr 461.
Harmanpreet Singh Ahluwalia v State of Punjab, (2009) 7 SCC 712 [LNIND 2009 SC 1121] : 2009
Cr LJ 3462 , here also there was no element of wrongful intention in the transaction either at the
initial stage or developing subsequently.
503.  Raj Mangal Kushwaha v State of UP, 2010 Cr LJ 3611 (All).
504.  Devendra v State of UP, 2009 (7) SCC 495 [LNIND 2009 SC 1158] 2009 (7) Scale 613
[LNIND 2009 SC 1158] .
505.  GHCL Employees Stock Option Trust v India Infoline Ltd (2013) 4 SCC 505 [LNIND 2013 SC
232] : AIR 2013 SC 1433 [LNIND 2013 SC 232] .
506.  Arun Bhandari v State of UP (2013) 2 SCC 801 [LNIND 2013 SC 18] : 2013 Cr LJ 1020 (SC);
Lee Kun Hee v State, AIR 2012 SC 1007 [LNINDORD 2012 SC 443] : (2012) 3 SCC 132 [LNIND

2012 SC 89] .
507.  Kuldip Singh v State, 1954 Cr LJ 299 (P&H).
508.  Bishan Das, (1905) ILR 27 All 561.
509.  TP Amina v P Nalla Thampy Thera Dr., 2003 Cr LJ 2945 (Ker).
510.  Legal Remembrancer v Manmatha Bhusan Chatterjee, (1923) 51 Cal 250 ; Harendra Nath
Das v Jyotish Chandra Datta, (1924) 52 Cal 188 .
511.  Ramji Lakhamsi v Harshadrai, (1959) 61 Bom LR 1648 .
512.  Baboo Khan v State, (1961) 2 Cr LJ 759 .
513.  Ram Jas, 1974 Cr LJ 1261 (SC); See also Bhujang, 1977 Cr LJ NOC 17 (Kant).
514.  Surendra Meneklal v Bai Narmada, AIR 1963 Guj 239 [LNIND 1963 GUJ 55] .
515.  Anja Match Industries v South Indian Locifer Match Works, 1999 Cr LJ 181 (Mad).
516.  Mohd. Ibrahim v State of Bihar, (2009) 8 SCC 751 [LNIND 2009 SC 1774] : (2009) 3 SCC (Cr)
929.

929.
517.  G v Rao v LHV Prasad, AIR 2000 SC 2474 [LNIND 2000 SC 429] : 2000 Cr LJ 3487 . See for
example, V Srinivasa Reddy v State of AP, AIR 1998 SC 2079 [LNIND 1998 SC 158] : 1998 Cr LJ
2918 , a case of bank fraud.
518.  Standard Chartered Bank v Directorate of Enforcement (2005) 4 SCC 405 : 2005 (5) Scale 97
.
519.  Iridium India Telecom Ltd v Motorola Incorporated, (2011) 1 SCC 74 [LNIND 2010 SC 1012] :
520.  Supra.
521.  CBI v Blue Sky Tie-up Pvt Ltd 2012 Cr LJ 1216 : AIR 2012 SC (Supp) 613.
522.  Maksud Saiyed v State of Gujarat, 2008 (5) SCC 668 [LNIND 2007 SC 1090] : JT 2007 (11)
SC 276 [LNIND 2007 SC 1090] .
523.  Sharon Michael v State of Tamil Nadu, AIR 2008 SC (Supp) 688; R Kalyani v Janak C Mehta,
2008 (14) Scale 85 [LNIND 2008 SC 2127] .

524.  Jagdish Prasad v State of Bihar, 1990 Cr LJ 366 (Pat).
525.  Krishnamurthy, AIR 1965 SC 333 [LNIND 1964 SC 95] .
526.  Sushil Kumar Datta, 1985 Cr LJ 1948 (Cal).
527.  State of UP v Ram Dhani, 1987 Cr LJ 933 (All).
528.  Rajesh Bajaj v State NCT of Delhi, (1999) 3 SCC 259 [LNIND 1999 SC 233] ; Trisuns
Chemical Industry v Rajesh Agarwal, (1999) 8 SCC 686 [LNIND 1999 SC 840] .
529.  Punit Pruthi v State, 2010 (1) Crimes 439 : 2010 Cr LJ 1111 (Del).

530.  Manoranjan Das v State of Jharkhand, (2004) 12 SCC 90 : AIR 2004 SC 3623 : (2004) 121
Comp. Cas 8 : 2004 Cr LJ 3042 .

Of Theft
[s 416] Cheating by personation.
A person is said to "cheat by personation" if he cheats by pretending to be some other
person, or by knowingly substituting one person for another, or representing that he or
any other person is a person other than he or such other person really is.
Explanation.—The offence is committed whether the individual personated is a real or
imaginary person.
(a) A cheats by pretending to be a certain rich banker of the same name. A cheats by
personation.
(b) A cheats by pretending to be B, a person who is deceased. A cheats by personation.
COMMENT—
To 'personate' means to pretend to be a particular person.531. As soon as a man by
word, act, or sign holds himself forth as a person entitled to vote with the object of
passing himself off as that person, and exercising the right which that person has, he
has personated him.532. If a person at Oxford, who is not a member of the university,

goes to a shop for the purpose of fraud, wearing a commoner's cap and gown, and
obtains goods, his appearing in a cap and gown is a suﬃcient false pretence although
nothing passed in words.533.
The person personated may be a real or an imaginary person.
[s 416.1] Ingredients.—
This section requires any one of the following essentials:
(1) Pretention by a person to be some other person.
(2) Knowingly substituting one person for another.
(3) Representation that he or any other person is a person other than he or such
other person really is.
[s 416.2] CASES.—False representation at examination.—

531.  Hague, (1864) 4B & S 715, 720.
532.  Ibid, p. 721.
533.  Barnard, (1837) 7 C & P 784.
534.  Appasami, (1889) 12 Mad 151; Ashwini Kumar Gupta, (1937) 1 Cal 71 .
535.  MNA Achar v Dr. DL Rajgopal, 1977 Cr LJ NOC 228 (Kant). Anil Sharma v SN Marwaha,
(1995) 1 Cr LJ 163 (Del) complaint made after three years on the ground that the accused
concealed the fact that he had a child from his ﬁrst marriage held to be not maintainable.
Where A falsely represented himself to be B at a University Examination, got a hall-
ticket under B's name, and wrote papers in B's name, it was held that A was guilty of
cheating by personation and forgery.534.
[s 416.3] False Representation as bachelor.—
It is not correct to say that without delivery of property there cannot be any cheating. A
bare reading of section 415, IPC, 1860, will show that if the person deceived is induced
by reason of deception to do or omit to do anything which he would not do if he were

not so deceived and if the act he has done being so deceived results in some damage
or harm to his body, mind, reputation or property, the offence of cheating would
nevertheless be committed. Thus where the accused dishonestly induced the
complainant and his daughter to go through the marriage ceremony professing himself
to be a bachelor while he had a wife living, it was held that his act amounted to an
offence both under sections 416 and 417, IPC, 1860, as harm was caused to the
complainant and his daughter to their body, mind, reputation and even to their
property.535. In this connection see discussion under head "Explanation" under section
415, ante.

Of Theft
[s 417] Punishment for cheating.
Whoever cheats shall be punished with imprisonment of either description for a term
which may extend to one year, or with ﬁne, or with both.
COMMENT—
This section punishes simple cases of cheating. Where there is delivery of any property
or destruction of any valuable security, section 420 is the proper section to apply.536.
The accused made false representation to the complainant by way of promise to marry
her and believing such promise she complied with his request by sharing the bed
together. Consequently she became pregnant but he refused to marry her. The accused
challenged the proceedings initiated against him under section 417. It was held that
prima facie case was made out under the section.537.
Certain letters were prepared on the letterhead of a Minister by the accused by which
actors were invited to a cultural show. Letters did not carry the signature of the

Minister. The Court said that the act of the accused did not cause nor was likely to
cause any harm to any person in mind or body. His conviction under section 417 was
held to be not proper.538. Only because accused issued cheques which were
dishonoured, the same by itself would not mean that he had cheated the complainant.
Assuming that such a statement had been made, the same, does not exhibit that there
had been any intention on the part of the appellant herein to commit an offence under
section 417 of the Penal Code.539. Where accused giving assurance of marriage to
victim girl had undergone intercourse with victim and she would not have undergone
intercourse had there been no such assurance of marriage by accused. Accused
subsequently having disowned assurance given by him. It was held that ingredients of

cheating under section 415 can be said to have been established. Accused held guilty
of committing offence punishable under section 417 of Code.540. Where accused is
liable to be convicted under section 376 on allegation sexual intercourse by false
promise of marriage there cannot be any separate conviction under section 417.541.
Though once the accused-appellant alleged failed to keep his promise she allowed him
to commit sexual intercourse for the second time and invited her pregnancy. Not only
that, even after termination of pregnancy for the second time she again allowed the
accused-appellant to have sexual intercourse with her and make her pregnant for the
third time. Offence under section 417 not made out.542. Accused allegedly committed
sexual intercourse on prosecutrix on pretext that he would provide temporary job of

peon to her in bank which would be regularized after completion of one year. Though
the offence under section 376 is not made out, offence under section 417 is made
out.543. Where accused wanted to marry prosecutrix and on her refusal committed
forcible sexual intercourse with her. But, if the promise of marriage was given and the
girl had succumbed on that account, by itself, may not amount to cheating. Besides

536.  No process was issued where the allegations were that the girl was represented to be as
hale and hearty and it was found after the marriage that she was weak of sight and had urinary
infection. The complaint dismissed. Anilchandra Pitambardas v Rajesh, 1991 Cr LJ 487 (Bom).
537.  Ravichandran v Mariyammal, 1992 Cr LJ 1675 (Mad).
538.  Jibrial Diwan v State of Maharashtra, AIR 1997 SC 3424 [LNINDORD 1997 SC 149] : 1997 Cr
LJ 4070 .
539.  V Y Jose v State of Gujarat, AIR 2009 SC (Supp) 59. Allegation is accused cheated the
complainant by not making of payment of money within time given at time of receiving of loan.
It is held that fraudulent dishonest intention of accused at time of issuance of cheques is to be
proved to book her for offence of cheating and there is no such intention proved on the part of
accused. Accused cannot be punished under sec 417 or 420 of IPC Kanailal Bhattacharjee v
Bhajana Biswas, 2012 Cr LJ 4158 (Gau).

540.  Manik Das Baishnav v State of Tripura, 2012 Cr LJ 1954 (Gau); Bipul Medhi v State of
Assam, 2008 Cr LJ 1099 (Gau); Sukhamay Manna v State of West Bengal, 2010 Cr LJ 829 (Cal)-
question cannot be decided in revisional jurisdiction against framing of charge.
541.  Ravi v State by Inspector of Police, 2010 Cr LJ. 3493 (Mad).
542.  Kanchan Deb v State of Tripura, 2011 Cr LJ 3853 (Gau); K Ashok Kumar Reddy v State of AP,
2008 Cr LJ 2783 (AP); P Govindan v State by Inspector of Police, 2008 Cr LJ 4263 (Mad).
543.  Girish Kumar Sharan v State of Jharkhand, 2010 Cr LJ 4215 (Jha); Subrato Ghosh v State of
Jharkhand, 2011 Cr LJ 3637 (Jha).
544.  Zindar Ali SK v State of West Bengal, 2009 (3) SCC 761 [LNIND 2009 SC 249] : AIR 2009 SC
1467 [LNIND 2009 SC 249] .
this, the girl has very speciﬁcally stated that even subsequently, she was ravished

against her wishes. Therefore, the theory of promise of marriage and the consent for
sexual intercourse will wither away, acquit the accused of the offence under section
417 of IPC, 1860 though he was convicted under section 376 IPC, 1860.544.

Of Theft
[s 418] Cheating with knowledge that wrongful loss may ensue to person
whose interest offender is bound to protect.
Whoever cheats with the knowledge that he is likely thereby to cause wrongful loss to
a person whose interest in the transaction to which the cheating relates, he was
bound, either by law, or by a legal contract, to protect, shall be punished with
COMMENT—
Under section 418 of IPC, 1860 who ever cheats with the knowledge that is likely
thereby to cause wrongful loss to the person whose interest in the transaction to which
the cheating relates he was bound either by law or by legal contract to protect, shall be
punished with imprisonment or ﬁne or with both.545. This section applies to cases of
cheating by guardians, trustees, solicitors, agents, and the manager of a Hindu family,

directors or managers of a bank in fraud of the shareholders. It is the abuse of trust
that is met with severe punishment.
[s 418.1] False balance-sheet for inducing to renew deposit.—
Where the directors, manager and accountant dishonestly that is to obtain wrongful
gain for themselves or to cause wrongful loss to others put before the shareholders
balance sheets which they knew to be materially false and misleading and likely to
mislead the public as to the condition of the bank and concealed its true condition and
thereby induced depositors to allow their money to remain in deposit with the bank,
they were held liable under this section.546. In Medchl Chemicals & Pharma Pvt Ltd v
Biological E Ltd,547. wherein it was observed that: "In order to attract the provisions of

section 418 and section 420 the guilty intent, at the time of making the promise is a
requirement and an essential ingredient thereto and subsequent failure to fulﬁl the
promise by itself would not attract the provisions of section 418 or section 420. Mens
rea is one of the essential ingredients of the offence of cheating under section 420. As
a matter of fact Illustration (g) to section 415 makes the position clear enough to
indicate that mere failure to deliver in breach of an agreement would not amount to
cheating but is liable only to a civil action for breach of contract."

545.  Behram Bomanji Dubash v State of Karnataka, 2010 Cr LJ 3963 (KAR).
546.  Moss, (1893) 16 All 88 . Refusal by bank oﬃcers, for reasons beyond their control, to take
a house on rent after promising was not punishable under this section though the landlord
relying on the promise spent money on ﬁnishing the house as desired. It was a matter for a civil
action. S Shankarmani v Nibar Ranjan Parida, 1991 Cr LJ 65 (Ori).
547.  Medchl Chemicals & Pharma Pvt Ltd v Biological E Ltd, 2000 (3) SCC 269 [LNIND 2000 SC
373] .

Of Theft
[s 419] Punishment for cheating by personation.
Whoever cheats by personation shall be punished with imprisonment of either
548.  I K Narayana v State of Karnataka, 2013 Cr LJ 874 (Kar).
COMMENT—
If a person cheats by pretending to be some other person, or representing that he is a
person other than he, then, such person can be charged with the allegation of 'cheating
by personation' (section 416, IPC, 1860) and punished under section. 419, IPC, 1860.
[s 419.1] Overlapping.—
The offences under sections 170, IPC, 1860 and 419, IPC, 1860 overlap each other.
Cheating by personation (section 419, IPC, 1860) is an offence of general character,
under which a person may pretend to be anyone, other than what he really is. But,
cheating by pretending to be a public servant (section 170, IPC, 1860) is a speciﬁc

offence, where one pretends to be a public servant and has all the ingredients of
cheating by personation under section 419, IPC, 1860.548.

Of Theft
[s 420] Cheating and dishonestly inducing delivery of property.
Whoever cheats and thereby dishonestly induces the person deceived to deliver any
property to any person, or to make, alter or destroy the whole or any part of a valuable
security, or anything which is signed or sealed, and which is capable of being
converted into a valuable security, shall be punished with imprisonment of either
ﬁne.
COMMENT—
Simple cheating is punishable under section 417. But where there is delivery or
destruction of any property or alteration or destruction of any valuable security
resulting from the act of the person deceiving this section comes into operation. For an
offence under this section it must be proved that the complainant parted with his
property acting on a representation which was false to the knowledge of the accused

and that the accused had a dishonest intention from the outset.549. In Sonbhandra
Coke Products v State of UP,550. it was held that offence of cheating can be made out
only if it has been shown that damage or harm has been caused to the person so
deceived.
The Supreme Court has held that the word 'property' in this section does not
necessarily mean that the thing, of which a delivery is dishonestly desired by the
person who cheats, must have a money value or a market value, in the hand of the
person cheated. The communicated order of assessment received by an assessee is
"property".551.
An admission card to sit for an Examination of a University is property within the
meaning of this section; though the admission card as such has no pecuniary value it
has immense value to the candidate for the examination.552.A driving licence or its

duplicate553. had been held to be property within the meaning of this section. Where a
bank was defrauded of a large amount and the signatures of the accused bank
manager on drafts used for the purpose were proved beyond doubt to be his signature,
his conviction under the section was held to be proper.554. Where a builder was
defrauded by a conspiring team of ﬁnanciers by giving him counterfeit currency,
conviction under this section was fully warranted.555. In the ordinary course of things,
relationship of banker and customer is that of debtor and creditor and not that of
trustee and beneﬁciary. Payment of money against cheques already issued by the
customer at a time when the bank had received notice to close the account did not in
itself amount to cheating the customer in conspiracy with the payee.556.

[s 420.1] Intention to deceive at the time of inducement.—

The primary requirement to make out an offence of cheating under section 415
punishable under section 420 IPC, 1860 is dishonest/fraudulent intention at the time of
inducement is made.557. The intention to deceive should be in existence at the time
when the inducement was made. Mere failure to keep up a promise subsequently
cannot be presumed as leading to cheating.558.
The intention to deceive was held to be not there either at the initial stage or any
subsequent stage in the mere fact of transferring a portion of the property over which
the transferors had no complete ownership. The sale could be binding only to the
extent of the transferor's right.559. Where bogus receipts were issued for part payment
of the price of the property over which the recipient had no ownership and therefore, no
right to sell, he was held to be guilty of the offence under the section.560.
[s 420.2] Dishonour of cheque.—
A cheque was returned unpaid by the bank under the remark "payment stopped by

drawer". The complainant alleged that the cheque was dishonoured because the
drawer of the cheque had no suﬃcient balance or arrangement. The Court refused to
quash the complaint. Issuing a cheque without arrangement of suﬃcient funds may
amount to cheating.561. Where goods were delivered in a normal sales transaction and
the buyer had also become the owner of the goods because the transfer of ownership
was not linked with payment, it was held that the fact that a cheque for the price, which
was issued in due course, bounced, did not constitute the offence of cheating because
there was no evidence of intention to cheat at the outset of the transaction.562.
Dishonest intention cannot be inferred from the bouncing of a cheque issued for an
existing debt. The conviction of the accused for return of such cheque was not

proper.563.
A cheque was handed over in a share transaction by the accused. The cheque was
signed by his wife. The person who passed the cheque was held guilty of cheating
because of the dishonour but not his wife because she was not seen anywhere near
the transaction.564.
[s 420.3] Section 138, NI Act and section 420 IPC, 1860.—
In the prosecution under section 138 Negotiable Instruments Act, 1881, the mens rea,
i.e., fraudulent or dishonest intention at the time of issuance of Cheque is not required
to be proved. But in a prosecution under section 420 IPC, 1860 the issue of mens rea
may be relevant. There may be some overlapping of facts in the cases under section
420 IPC, 1860 and section 138 of Negotiable Instruments Act, 1881, but ingredients of
offences are entirely different. Thus, the subsequent case is not barred.565.

[s 420.4] Conversion of Cheques.—
Cheques issued by a company in the name of a supplier were converted by an
employee of the company by opening an account in the name of the supplier. The
opening of the account was facilitated by an employee of the bank. Both of them were
held to be joint offenders. The order of convicting both of them was held to be not
improper.566.

[s 420.5] Sections 417 and 420.—
In every case when property is delivered by a person cheated, there must always be a
stage when the person makes up his mind to give the property on accepting the false
representation made to him. It cannot be said that in such cases the person
committing the offence can only be tried for the simple offence of cheating under
section 417 and cannot be tried under this section because the person cheated parts
with his property subsequent to making up his mind to do so.567.
[s 420.6] Goods received under hire-purchase.—
Breach of the conditions of a hire purchase agreement under which goods or property
has been received does not amount to an offence under this section.568.
Where the complainant stated that the accused had taken the vehicle on hire-purchase
but failed and neglected to pay certain instalments and the Court found that there was
no dishonest intention on the part of the hirer at the time of the transaction, the

complaint was quashed, the Court observed that it was open to the complainant to
proceed against the hirer before a civil Court for appropriate relief.569.
[s 420.7] Arbitration clause.—
The presence of an arbitration clause in an agreement cannot prevent criminal
prosecution of a person if the ingredients of the offence are made out to the prima
facie extent.570.
[s 420.8] Financial crime.—
The accused an investment advisor charged with dishonestly concealing material facts
relating to bonds. The question was whether he had committed the alleged act of
dishonesty contrary to the Financial Services Act, 1986 section 47(1). Such
determination would have to include considering his intentions as to his future
conduct. It was held that the phrase "material facts" within section 47(1) was to be

widely construed so as to include his present intention as to future conduct. Dishonest
concealment was also included within "material facts". It was required under section
4(A) of the 1964 Act to consider his intentions and it was appropriate for the jury to
consider such intentions, not in relation to dishonesty, but in relation to the victims of
the alleged acts in connection with the particulars of the offence.571.
[s 420.9] Finance company's inability to pay back deposits.—
A ﬁnance company was not able to pay back deposit owing to its poor ﬁnancial
condition as found by the Company Law Board and Reserve Bank. The Court found no
evidence of any intention to commit criminal breach of trust or any dishonest
inducement. The complaint was held liable to be quashed.572.
Issuing cheques with knowledge that they would be dishonoured amounts to an

offence under this section.573. Offence under section 420 was alleged against the

accused for issuance of cheque, who died and his business was inherited by his son.
Police ﬁled ﬁnal report stating that the son is liable. The Court held that as it is well-
settled law that a criminal's culpable offence shall not be inherited by his heirs. Once
the accused died, the charge against the accused has been dismissed as abates.574.
[s 420.10] Legal opinion given by Advocate.—
Allegation is that advocate submitted false legal opinion to the bank in respect of the
housing loans in the capacity of a panel advocate and did not point out actual
ownership of the properties in question. The liability against an opining advocate arises
only when the lawyer has an active participant in a plan to defraud the bank. Merely
because his opinion may not be acceptable, he cannot be made liable for criminal
prosecution, particularly, in the absence of tangible evidence that he associated with
other conspirators. There is no prima facie case for proceeding in respect of the

charges alleged against him. Proceedings quashed.575.
[s 420.11] Fraudulent inducement for deposits, each deposit a separate
offence.—
Where a fraudulent ﬁnance company collects deposits, there is a separate offence
towards each depositor. The fact that the maximum punishment of ﬁve years is
prescribed for a single offence of a cheating could not be pressed into service by the
accused for seeking relief.576.
[s 420.12] Punishment.—
The accused obtained payments from the Government by sending bills with bogus
railway receipt numbers. This was a false representation which amounted to cheating.
A long period of 30 years had passed since then. The sentence of one year
imprisonment was reduced to the period already undergone but the ﬁne of Rs. 15,000
was maintained.577. In a conspiracy to beneﬁt from a forged will, the Court imposed

maximum possible punishment.578.
[s 420.13] Pendency of civil suit.—
A civil suit for speciﬁc performance was already pending against the party who caused
the deception. The Court said that criminal proceeding was not to be quashed on that
basis alone.579.
[s 420.14] Proceedings quashed because the dispute is purely civil in nature.—
It may be true that where the Court ﬁnds that the dispute between the parties was
purely of civil nature, it may not allow criminal proceedings to go on. But no such law
can be laid down because a case may be such that both a civil action and criminal
complaint may be maintainable, the cause of action for both being the same.580. Mere
breach of contract does not necessarily involve cheating.581. Where the dispute is

essentially about the proﬁt of the hotel business and its ownership, it is purely civil in
nature and hence, the proceedings are quashed.582. Where, complaint is about the non-
payment after placing orders for fabrication work on complainant, the complaint would
only reveal that the allegations as contained in the complaint are of civil nature and do
not prima facie disclose commission of alleged criminal offence under section 420 IPC,
1860. Proceedings quashed.583. Allegation was that appellant had executed a sale
deed in his favour in respect of a plot of land which had already been the subject
matter of a previous transfer, Court held that he can at best question such transfer and
claim damages in respect thereof from the vendor of the appellant by way of
appropriate damages, but an action in the Criminal Court would not lie in the absence
of any intention to cheat and/or defraud.584. An agreement for sale of land and the
earnest money paid to the owner as part consideration and possession of the land

having been transferred to the purchasers/complainants and the subsequent
unwillingness of the owner to complete the same, gave rise to a liability of a civil nature
and the criminal complaint was, therefore, not competent.585.
[s 420.15] Using forged marks sheet.—
The petitioner knew that they were submitting a forged marks-sheet for the purpose of
securing a seat in the medical college. Their conviction under sections 420 and 471
(using as genuine a forged document) was held to be proper. Failure in securing the
purpose would not result in acquittal.586.
[s 420.16] Checking in under false pretences.—
The allegation against the accused was that he made a representation to the railway
retiring room attendant that he was an Assistant Commercial Manager in railways and

got a room allotted to him on that basis. Thus, a prima facie case of cheating was
made out. The complaint was not to be quashed.587.
[s 420.17] Juristic persons.—
The punishment of imprisonment provided under the section cannot be imposed on a
juristic person, a construction company in this case.588.
In order to hold persons liable vicariously for any offence involved in the affairs of the
company, it is not enough to show that they were running the affairs of the company.
All the ingredients of the offence must be proved against them. The company has also
to be made a party to the proceeding. In this case, there were only individual
accusations against the persons concerned.589.
[s 420.18] Previous sanction.—
The offence of cheating under section 420 or for that matter offences relatable to

section 467, section 468, section 471 and section 120B can by no stretch of
imagination by their very nature be regarded as having been committed by any public
servant while acting or purporting to act in discharge of oﬃcial duty. Hence, the
sanction of the competent authority under section 197 Cr PC, 1973 is not required.590.

549.  Mobarik Ali, (1958) SCR 328 [LNIND 1957 SC 81] .
550.  Sonbhandra Coke Products v State of UP, 1994 Cr LJ 657 (All).
551.  Ishwarlal Girdharilal, 1969 (71) Bom LR 52 : AIR 1969 SC 40 [LNIND 1968 SC 143] ; see also
NM Chakraborty, 1977 Cr LJ 961 (SC).
552.  Abhayanand, (1961) 2 Cr LJ 822 SC.
553.  Ramchander, AIR 1966 Raj 182 [LNIND 1965 RAJ 67] .
554.  Adithela Immanuel Raju v State of Orissa, 1992 Cr LJ 243 .
555.  Nellai Ganesan v State of TN, 1991 Cr LJ 2157 (Mad).
556.  ANZ Grindlays Bank v Shipping and Clearing (Agent) Pvt Ltd, 1992 Cr LJ 77 (Cal).
557.  Annamalai v State of Karnataka, 2011 Cr LJ 692 (SC) : (2010) 8 SCC 524 [LNIND 2010 SC
745] .
558.  SN Palantikar v State of Bihar, AIR 2001 SC 2960 [LNIND 2001 SC 2381] : 2001 Cr LJ 4765 .
Hira Lal Hari Lal Bhagwati v CBI, New Delhi, 2003 (5) SCC 257 [LNIND 2003 SC 499] .
559.  Ramesh Dutt v State of Punjab, (2009) 15 SCC 429 [LNIND 2009 SC 1475] .
560.  N Devindrappa v State of Karnataka, (2007) 5 SCC 228 [LNIND 2007 SC 602] : AIR 2007 SC

1741 [LNIND 2007 SC 602] : 2007 Cr LJ 2949 .
561.  Thomas Verghese v P Jerome, 1992 Cr LJ 3080 (Ker). Nemichand Swaroopchand v TH
Raibhagi, 2001 Cr LJ 4301 (Kant), a cheque issued for return of articles in a business
transaction dishonoured, there was nothing to show any fraudulent or dishonest intention, no
offence made out. Jasmin B Shah v State of Jharkhand, 2003 Cr LJ 621 (Jhar), dishonour of
cheque, investigation not complete, charge sheet not submitted, prayer for quashing the
proceeding rejected.
562.  HICEL Pharma Ltd v State of AP, 2000 Cr LJ 2566 (AP). Rajendra Vasantrao Khoda, v
Laxmikant, 2000 Cr LJ 1196 (Bom) a complaint as to dishonour of cheque was not quashed,
ingredients of cheating being made out. Subodh S Salaskar v Jayaprakash M Shah, (2008) 13
[s 420.19] Compounding.—

Where the allegation was that accused with the assistance of known oﬃcials of AICTE
had produced forged and fraudulent document to obtain recognition of the mentioned
institution from AICTE and thereby cheated AICTE, the application for compounding of
offence could not have been considered by the learned Magistrate without affording an
opportunity of hearing to the AICTE. It is not the CBI which has been cheated by the
action of the respondent No. 1 but in fact the AICTE.591.
[s 420.20] Section 420 with non-compoundable offences.—
Simply because an offence is not compoundable under section 320 Cr PC, 1973 is by
itself no reason for the High Court to refuse exercise of its power under section 482 Cr
PC, 1973. That power can be exercised in cases where there is no chance of recording
a conviction against the accused and the entire exercise of a trial is destined to be an
exercise in futility.592.

SCC 689 [LNIND 2008 SC 1549] : AIR 2008 SC 3086 [LNIND 2008 SC 1549] : (2008) KLT 616 :
2008 Cr LJ 3953 post-dated cheque issued in 1996, presented in 2001, dishonoured because
account closed, but money had been paid back before that, no cheating, subsequent closing
was inconsequential.
563.  Venkatchalam v State, 1998 Cr LJ 3189 (Mad). Bipin Singh v Chongitham, 1997 Cr LJ 724 :
AIR 1997 SC 1448 [LNIND 1996 SC 1690] , representation by the accused so as to create public
belief that a particular writing was that of a certain other person and not that he had himself
written that book. No forgery or cheating. Mintu Singha Roy v Tenzing Dolkar; 2012 Cr LJ 3115
(Sik) regarding the bounced cheque it was condoned as 50% of payment is received by the
complainant
564.  Devender Kumar Singla v Baldev Krishna Singla, AIR 2004 SC 3084 [LNIND 2004 SC 228] :
(2005) 9 SCC 15 [LNIND 2004 SC 228] .
565.  Sangeetaben Mahendrabhai Patel v State of Gujarat, (2012) 7 SCC 621 [LNIND 2012 SC

1473] : AIR 2012 SC 2844 [LNIND 2012 SC 1473] ; See the other view in Kolla Veera Raghav Rao v
Gorantla Venkatewwara Rao, (2011) 2 SCC 703 [LNIND 2011 SC 128] : 2011 Cr LJ 1094 .
566.  Vadivelu v State of TN, 1999 Cr LJ 369 (Mad).
567.  BS Dhaliwal, (1967) 1 SCR 211 [LNIND 1966 SC 165] .
568.  Abdul Rahim v Inspector of Police, 1992 Cr LJ 370 (Mad). OPTS Marketing Pvt Ltd v State of
AP, 2001 Cr LJ 1489 (AP), prosecution under section 420, IPC, 1860 is still possible after the
introduction of section 138 in the Negotiable Instruments Act, if the ingredients of the offence
are satisﬁed, the complaint cannot be quashed.
569.  Mahesh Kumar v State of Karnataka, 2003 Cr LJ 528 (Kant).
570.  SN Palanitkar v State of Bihar, AIR 2001 SC 2960 [LNIND 2001 SC 2381] : 2001 Cr LJ 4765 .
571.  R v Central Criminal Court, (2002) EWHC 548 : (2002) 2 Cr App. R 12 [QBD (Admin. Ct)].

572.  Nilesh Lalit Parekh v State of Gujarat, 2003 Cr LJ 1018 (Guj); Mohd. Shaf-at Khan v National
Capital Territory of Delhi, (2007) 13 SCC 354 [LNIND 2007 SC 924] , collection by fraud company,
the court said that it would be appropriate to work out modalities as to how the properties of the
company could be sold to get the highest price, so that the dues of the depositors and others
could be paid back.
573.  Ramprasad Chatterjee v Md. Jakir Kureshi, 1987 Cr LJ 1485 (Cal). But otherwise a cheque
is not a representation that there is balance in the account. GK Mohanty v Pratap Kishore Das,
1987 Cr LJ 1446 (Ori). Where cheques were given subsequently to the transaction and there
was no inducement at the stage of negotiations, prosecution under the section was quashed,

MS Natrajan v Ramasis Shaw, (1995) 2 Cr LJ 2011 (Cal). S Muthu Kumar v State of TN, (1995) 1
Cr LJ 350 (Mad) purchasing goods against post-dated cheques knowing that they would not be
honoured is a ground for registering a complaint and the complaint is not liable to be quashed.
574.  Lakshmi Metal Works v State, 2016 Cr LJ 2730 (Mad) : IV (2016) CCR 282 (Mad).
575.  Central Bureau of Investigation Hyderabad v K Narayana Rao, 2012 Cr LJ 4610 : (2012) 9
SCC 512 [LNIND 2012 SC 569] .
576.  Narinderjit Singh v UOI, AIR 2001 SC 3810 [LNIND 2001 SC 2325] .
577.  Kuldip Sharma v State, 2000 Cr LJ 1272 (Del).
578.  R v Spillman, (2001) 1 Cr App R (S) 139 [CA (Crim Div)]. R v Ball, (2001) 1 Cr App R (S)
49[CA (Crim Div)] serious custodial punishment awarded where the accused persons deceived

81 year old lady by receiving several times more money than the actual worth of the repair work
done. The sentences correctly reﬂected that both the accused were jointly part of the
conspiracy which concerned an extremely serious fraud, an enormous sum of money and the
worst possible breach of trust. The report had been considered and the judge was entitled to

decide what weight should be attached to the evidence. Rajamani v Inspector of Police, 2003 Cr
PC 2002 (Mad), freezing of the accounts of third parties was held to be illegal.
579.  Vitoori Pradeep Kumar v Kaisula Dharmaiah, 2001 Cr LJ 4948 (SC).
580.  VR Dalal v Yougendra Naranji Thakkar, (2008) 15 SCC 625 [LNIND 2008 SC 1222] : AIR 2008
SC 2793 [LNIND 2008 SC 1222] . In the relations between partners in opening and closing a ﬁrm,
the essential ingredients of the offence of criminal breach of trust and cheating were missing.
581.  VY Jose v State of Gujarat, (2009) 3 SCC 78 [LNIND 2008 SC 2435] : (2009) 1 SCC Cr 996.
Dalip Kaur v Jagnar Singh, (2009) 14 SCC 696 [LNIND 2009 SC 1409] : AIR 2009 SC 3191 [LNIND
2009 SC 1409] , mere failure to refund the amount of advance which became due constituting
breach of contract did not amount to cheating or criminal breach of trust. B Suresh Yadav v
Sharifa Bee, (2007) 13 SCC 107 [LNIND 2007 SC 1238] : AIR 2008 SC 210 [LNIND 2007 SC 1238]

: 2008 Cr LJ 431 , dispute of civil nature, complaint was an abuse of process, quashed.
582.  Paramjeet Batra v State of Uttarakhand, JT 2012 (12) SC 393 [LNIND 2012 SC 812] : 2012
(12) Scale 688 [LNIND 2012 SC 812] ; Hussainbeg Hayatbeg Mirza v State of Gujarat, 2013 Cr LJ
1090 (SC) - proceedings quashed since there were no ingredients or elements of criminal
offence; to the same effect VP Shrivastava v Indian Explosives Limited, (2010) 10 SCC 361
[LNIND 2010 SC 920] : (2010) 3 SCC (Cr) 1290.
583.  Thermax Ltd v KM Johny, (2011) 13 SCC 412 [LNIND 2011 SC 947] : (2012) 2 SCC (Cr) 650;
but where the allegation is about the execution of ﬁctitious sale deeds the purpose of which
was to make unlawful gain, the question whether the respondent was aware that such deeds

were executed for getting lawful gain, which may cause injury to another person as deﬁned
under section 44 IPC, 1860 is a matter which can be established only on adducing evidence.
Order quashing the proceedings set aside [State of Madhya Pradesh v Surendra Kori, (2012) 10
SCC 155 [LNIND 2012 SC 681] : 2013 Cr LJ 167 : AIR 2012 SC (Supp) 949; Joseph Salvaraj A v
State of Gujarat, AIR 2011 SC 2258 [LNIND 2011 SC 576] : (2011) 7 SCC 59 [LNIND 2011 SC 576]
; Udai Shankar Awasthi v State of UP, (2013) 2 SCC 435 [LNIND 2013 SC 22] 2013 (1) Scale 212
[LNIND 2013 SC 22] .
584.  Rama Devi v State of Bihar, (2010) 12 SCC 273 [LNIND 2010 SC 875] : AIR 2010 SC (Supp)
83; Kishan Singh v Gurpal Singh, (2010) 8 SCC 775 [LNIND 2010 SC 747] : AIR 2010 SC 3624

[LNIND 2010 SC 747] - After losing in civil suit FIR ﬁled with the sole intention of harassing the
respondents and enmeshing them in long and arduous criminal proceedings. Proceedings
quashed.
585.  Nageshwar Prasad Singh v Narayan Singh,k (1998) 5 SCC 694 ; distinguished on facts in SP
Gupta v Ashutosh Gupta, (2010) 6 SCC 562 [LNIND 2010 SC 507] : (2010) 3 SCC (Cr) 193.
586.  AS Krishna v State of Kerala, 1998 Cr LJ 207 (Ker). The incident was 17 years old. The
sentence of 1 year and 2 years was reduced to the period of three months. Premlata v State of
Rajasthan, 1998 Cr LJ 1430 (Raj) using false certiﬁcate to secure an appointment.
587.  Develle Venkateswarlu v State of AP, 2000 Cr LJ 2929 (AP).
588.  Essar Constructions Ltd v CBI, 1999 Cr LJ 1861 (Bom).

589.  R Kalyani v Janak C Mehta, (2009) 1 SCC 516 [LNIND 2008 SC 2127] : (2009) 1 SCC Cr 567;
MAA Annamalai v State of Karnataka, (2010) 8 SCC 524 [LNIND 2010 SC 745] : 2011 Cr LJ. 692
(SC).
590.  Om Dhankar v State of Haryana, (2012) 11 SCC 252 [LNINDORD 2012 SC 439] : 2012 (3)
Scale 363 [LNINDORD 2012 SC 439] relied on Prakash Singh Badal v State of Punjab, 2007 (1)
SCC 1 [LNIND 2006 SC 1091] : AIR 2007 SC 1274 [LNIND 2006 SC 1091] .
591.  All India Council for Technical Education v Rakesh Sachan, 2013 (2) Scale 15 .
592.  AIR 2012 SC 499 [LNIND 2011 SC 1158] ; Jayrajsinh Digvijaysinh Rana v State of Gujarat,
2012 (6) Scale 525 [LNIND 2012 SC 417] : 2012 CR LJ 3900 ; Shiji @ Pappu v Radhika, 2011 (10)

Of Theft
Of Fraudulent Deeds and Dispositions of Property
[s 421] Dishonest or fraudulent removal or concealment of property to prevent
distribution among creditors.
Whoever dishonestly or fraudulently removes, conceals or delivers to any person, or
transfer or causes to be transferred to any person, without adequate consideration,
any property,1 intending thereby to prevent, or knowing it to be likely that he will
thereby prevent, the distribution of that property according to law among his creditors
or the creditors of any other person, shall be punished with imprisonment of either
COMMENT—
This and the three following sections deal with fraudulent conveyances referred to in
section 53 of the Transfer of Property Act, 1882 and the Presidency- towns and
Provincial Insolvency Acts.

This section specially refers to frauds connected with insolvency. The offence under it
consists in a dishonest disposition of property with intent to cause wrongful loss to the
creditors. It will cover benami transactions in fraud of creditors. It will apply to property
both movable and immovable.
Compare sections 205–210 with sections 421–424 as they are similar in character.
The former sections deal with fraud on Courts, the latter, with fraud on creditors.
[s 421.1] Ingredients.—
To prove an offence under this section the prosecution must show:—
1. That the accused removed, concealed or delivered the property or that he transferred
it or caused it to be transferred to someone.
2. That such transfer was without adequate consideration.

3. That the accused thereby intended to prevent or knew that he was thereby likely to
prevent the distribution of that property according to law among his creditors or
creditors of another person.
4. That he acted dishonestly and fraudulently.593.
1. 'Property'.—This word includes a chose in action. The right to cut trees under an
agreement for the purpose of making charcoal from wood is movable property.594.

593.  Ramautar Chaukhany, 1982 Cr LJ 2266 (Gau).
594.  Manchersha v Ismail, (1935) 60 Bom 706, 38 Bom LR 168.

Of Theft
[s 422] Dishonestly or fraudulently preventing debt being available for
creditors.
Whoever dishonestly or fraudulently prevents any debt or demand due to himself or to
any other person from being made available according to law for payment of his debts
or the debts of such other person, shall be punished with imprisonment of either
COMMENT—
This section, like the preceding section, is intended to prevent the defrauding of
creditors by masking property. Any proceedings to prevent the attachment and sale of
debts due to the accused will fall under this section. The offence consists in the
dishonest or fraudulent evasion of one's own liability.

Of Theft
[s 423] Dishonest or fraudulent execution of deed of transfer containing false
statement of consideration.
Whoever dishonestly or fraudulently signs, executes or becomes a party to any deed
or instrument which purports to transfer or subject to any charge any property, or any
interest therein, and which contains any false statement relating to the consideration
for such transfer or charge, or relating to the person or persons for whose use or
beneﬁt it is really intended to operate, shall be punished with imprisonment of either
595.  Gurditta Mal, (1901) PR No. 10 of 1902; Mahabir Singh, (1902) 25 All 31 .
596.  Mukesh Dhirubhai Ambani v State of Orissa, 2005 Cr LJ 2902 (Ori).
597.  Mania Goundan, (1911) 37 Mad 47.
COMMENT—
This section deals with fraudulent and ﬁctitious conveyances and trusts. Under it, the

COMMENT—
dishonest execution of a benami deed is punishable. Where the consideration for the
sale of immovable property was, with the consent of the purchaser, exaggerated in a
deed of sale in order to defeat the claim of the pre-emptor, it was held that the
purchaser was guilty of this offence.595.
The scope of section 423, IPC, 1860 deals with two speciﬁc frauds in the execution of
deeds or instruments of transfer or charge, namely, (i) false recital as to consideration
and (ii) false recital as to the name of beneﬁciary.596.
The word 'consideration' does not mean the property transferred. An untrue assertion in
a transfer deed that the whole of a plot of land belonged to the transferor is not a
statement relating to the consideration for the transfer and is not an offence under this
section.597.

Of Theft
[s 424] Dishonest or fraudulent removal or concealment of property.
Whoever dishonestly or fraudulently conceals or removes any property of himself or
any other person, or dishonestly or fraudulently assists in the concealment or removal
thereof, or dishonestly releases any demand or claim to which he is entitled, shall be
COMMENT—
This section provides for cases not coming within the purview of sections 421 and 422.
It contemplates such a concealment or removal of property from the place in which it is
deposited, as can be considered fraudulent. Where one of the several partners removed
the partnership books at night, and when questioned denied having done so;598. where
a judgment-debtor, whose standing crops were attached, harvested them while the

attachment was in force;599. where the accused who was bound under the conditions
of his tenure to share the produce of his land with the landholder in a certain
proportion, dishonestly concealed and removed the produce, thus preventing the
landholder from taking his due share,600. it was held that this offence was committed.
But a removal of crops to avoid an illegal restraint,601. or removal of property, which
was attached after the date ﬁxed for the return of the warrant of attachment, from the
possession of the custodian602. was held not to amount to an offence under this
section. Certain crops were attached in execution of a decree and placed in the
custody of a bailiff. The crops did not belong to the judgment-debtors, and the owners
cut and removed a portion of them in spite of the resistance of the bailiff. It was held

that no offence was committed.603. In order to bring the case within section 424, IPC,
1860 it is necessary to show that there has been dishonest or fraudulent concealment
or removal of any property or dishonest or fraudulent assistance in the matter of
concealment or removal of the property. The other part of section 424 is not applicable
and therefore, it is not adverted to. There is no case in the complaint that any furniture
or equipment have been concealed or removed. The facts averred do not indicate any
such removal or concealment. What is stated is that they are still there, but that the
complainant is being obstructed from exercising the rights of joint possession over
them. The question of assisting in the dishonest or fraudulent removal arises only if

there is concealment. Therefore, section 424, IPC, 1860 is not applicable.604.

598.  Gour Benode Dutt, (1873) 21 WR (Cr) 10.
599.  Obayya, (1898) 22 Mad 151.
600.  Sivanupandia Thevan, (1914) 38 Mad 793.
601.  Gopalasamy, (1902) 25 Mad 729.
602.  Gurdial, (1932) 55 All 119 .
603.  Ghasi, (1929) 52 All 214 .
604.  GS Rajakumar v Dr. Subramoniam Poti, 1979 Cr LJ 738 .

Of Theft
Of Mischief
[s 425] Mischief.
Whoever with intent to cause, or knowing that he is likely to cause, wrongful loss or
damage to the public or to any person,1 causes the destruction of any property, or any
such change in any property or in the situation thereof2 as destroys or diminishes its
value or utility, or affects it injuriously,3 commits "mischief".
Explanation 1.—It is not essential to the offence of mischief that the offender should
intend to cause loss or damage to the owner of the property injured or destroyed. It is
suﬃcient if he intends to cause, or knows that he is likely to cause, wrongful loss or
damage to any person by injuring any property, whether it belongs to that person or
not.
Explanation 2.—Mischief may be committed by an act affecting property belonging to
the person who commits the act, or to that person and others jointly.
(a) A voluntarily burns a valuable security belonging to Z intending to cause

wrongful loss to Z. A has committed mischief.
(b) A introduces water into an ice-house belonging to Z and thus causes the ice to
melt, intending wrongful loss to Z. A has committed mischief.
(c) A voluntarily throws into a river a ring belonging to Z, with the intention of
thereby causing wrongful loss to Z. A has committed mischief.
(d) A, knowing that his effects are about to be taken in execution in order to satisfy
a debt due from him to Z, destroys those effects, with the intention of thereby
preventing Z from obtaining satisfaction of the debt, and of thus causing
damage to Z. A has committed mischief.
(e) A, having insured a ship, voluntarily causes the same to be cast away, with the
intention of causing damage to the under-writers. A has committed mischief.
(f) A causes a ship to be cast away, intending thereby to cause damage to Z who

has lent money on bottomry on the ship. A has committed mischief.
(g) A, having joint property with Z in a horse, shoots the horse, intending thereby to
cause wrongful loss to Z. A has committed mischief.
(h) A causes cattle to enter upon a ﬁeld belonging to Z, intending to cause and

knowing that he is likely to cause damage to Z's crop. A has committed
mischief.
605.  Satish Chand Singhal v State of Rajasthan, 2007 Cr LJ 4132 (Raj).
606.  Dilip Kumar v State of U P, 2011 Cr LJ 2832 (All).
COMMENT—
A bare perusal of this provision clearly reveals that either intention or knowledge, is
required for the offence of mischief. Explanation-1 clearly states that it is not essential
for the offence of mischief that the offender should intend to cause loss or damage to
the owner of the property injured or destroyed. In fact it is suﬃcient if he intends to
cause, or knows that he is likely to cause, wrongful loss of damage to any person by
injuring any property, whether it belongs to that person or not. Thus, for the offence of
mischief it is suﬃcient that the offender knows that by his act he is likely to cause
wrongful loss or damage to the public or to any person.605. This section clearly speaks
of causing any change in property or to destroy or diminishes its value or utility, or

affects it injuriously, commits "mischief. Thus, on this broad deﬁnition, certainly by
making construction on public land, which is not permissible, its utility will be
diminished and the property will be injuriously affected".606.

Of Theft
[s 426] Punishment for mischief.
Whoever commits mischief shall be punished with imprisonment of either description
for a term which may extend to three months, or with ﬁne, or with both.
COMMENT—
Ingredients.—This section requires three things:—
(1) intention or knowledge of likelihood to cause wrongful loss or damage to the
public or to any person;
(2) causing the destruction of some property or any change in it or in its situation;
and
(3) such change must destroy or diminish its value or utility, or affect it injuriously.
This section deals with a physical injury from a physical cause.607. Section 426, IPC,
1860 deals with punishment for the offence of "mischief" as deﬁned in section 425.
The said section 425 enacts a rule of which the maxim sic utere tuo ut alienum non
laedasis but a partial exponent. It enacts a rule which, while preserving to the owner the

maximum rights of property, prevents his using it to the injury or damage of another
and all fortiori it punishes all who wantonly cause such injury or damage to another's
property. Neither malice nor an intention to cause injury is essential for the constitution
of the offence which may be committed by injury caused with only the knowledge of
likelihood, which must, however, he strictly proved. The ﬁrst part of the section sets out
the mens rea on the guilty mind, which is the intention or the knowledge of likelihood of
causing wrongful loss or damage to the public or to any person. The second part of the
section pertains to the actus res, that is to say, the criminal act, which consists in
causing destruction to any property or any such change in any property or in the

situation thereof as destroys or diminishes its value or utility or affects it injuriously.
The express mention of "damage" in the section is indicative of the fact that the
purview of the offence of "mischief" is not intended to be conﬁned only to cases of
"wrongful loss", but also to engulf within it all such cases of damages by unlawful
means. Destruction of any property within the meaning of the section carries with it the
implication that something should be done to the property contrary to its natural use
and serviceableness. Mischief implies the causing of wrongful loss or damage and no
loss or damage is wrongful unless it involves invasion of a legal right. In any other case
it is damnum sine injuria.608.
Acts done or attempted to be done in bona ﬁde assertion of a right, however ill-founded

in law that right may be, cannot amount to the offence of mischief within section
425.609. Thus, where the accused pulled down a wall which obstructed his pathway to

his kotha and which pathway he had been using for the last 22 years, it was held no
offence under section 425, IPC, 1860, was committed.610.
1. 'Intend to cause, or knowing that he is likely to cause, wrongful loss or damage to
the public or to any person'.—This section does not necessarily contemplate damage
of a destructive character. It requires merely that there should be an invasion of right
and diminution of the value of one's property, caused by that invasion of right, which
must have been contemplated by the doer of it when he did it.611. A dominant owner,
having a right of way over land belonging to another, has no right himself to remove an
obstruction unless his right of way is impaired by it. If he does so, he has employed
unlawful means and if loss of property is caused thereby to another, he is guilty under
this section.612. It is no answer to a charge of mischief to plead that the motive of the
accused was to beneﬁt himself, and not to injure another, if he knew that he could only

secure that beneﬁt by causing wrongful loss to another.613. Where while taking
possession of the allotted portion of a house on the basis of a valid allotment order, the
goods were simply put outside the premises and no obstruction was caused to the
complainant landlord to collect his goods, offences under sections 425 and 427 were
not made out.614.
2. 'Causes the destruction of any property or any such change in any property, etc.'.—It
is the essence of this offence that the perpetrator must cause the destruction of
property or such change in it as destroys or diminishes its value or utility. The
destruction of a document evidencing an agreement void for immorality constitutes
this offence as it can be used as evidence for other collateral purposes.615. The

accused on receiving delivery of a registered article from a Postmaster was requested
to sign an acknowledgement for the article received by him, but instead of returning the
same duly signed he tore it up and threw it on the ground. It was held that he was guilty
of mischief.616.
The 'destruction' or 'change' should be contrary to the natural use and serviceableness
of the property in question. If a person unauthorisedly allows goats to graze in a forest,
the grazing rights in which are restricted to holders of permits, the offence of mischief
is not committed as by such an act the grass is only put to its normal use.617. The
accused had a dispute about the possession of a certain land with the complainant.
The complainant dug a well with a view to cultivate the said land, but the accused

forcibly entered on the land and damaged the well. It was held that accused were guilty
of mischief even though the complainant was a trespasser.618. Merely disconnecting
electric supply does not amount to destruction of property or to such a change in
property as destroys or diminishes its utility or value, and does not constitute an
offence of mischief.619. A contrary view to this view of the Calcutta High Court has
been taken by the Delhi High Court to say that switching off the electric supply by the
landlord to the tenanted premises, even without causing damage to the distribution
board or wires supplying electric current diminishes the value and utility of the tenanted
premises within the meaning of section 425, IPC, 1860.620. In order to make out an
offence of mischief it is necessary to show that there was wrongful loss or damage to

the property. So unless the property was destroyed or underwent such a change due to
the action of the accused that its utility or value was diminished, no offence under
section 425, IPC, 1860, could be said to have been committed. Thus where a family
took shelter in the door-way of an uninhabitable and dilapidated house by throwing
away a few articles, the offence of mischief was not committed.621. Cutting off the
water supply constitutes such destructive change in the ﬂat as diminishes its value or
utility.622.
[s 426.1] 'Property'

means some tangible property capable of being forcibly destroyed but does not include
an easement. The section refers to corporeal property and provides for cases in which
such property is either destroyed or altered or otherwise damaged with a particular
intent. A right to collect tolls at a public ferry is not property within the meaning of this
section.623. Where a person owns land on which there is a drain, the water running
through which is used as of right by way of easement by another person, the former is
not guilty of mischief, if the drain is destroyed by him because an easement does not
come within the purview of 'property' within the meaning of section 425.624. The
offence of mischief may be committed in respect of both movable and immovable
property.625.
[s 426.2] 'Change'
means a physical change in composition or form. The section contemplates a physical
injury from a physical cause. Making a breach in the wall of a canal is an act which

causes such a change in the property as destroys or diminishes its value or affects it
injuriously.626.
Where a landlord, in breach of an agreement with his tenants, omitted to pump water
into their ﬂats from a central reservoir without, however, interfering in any way with their
taking water from the central reservoir, such omission did not constitute such a change
as would make it "mischief" within the meaning of this section.627. There is a contrary
view to this which holds that cutting off the water supply does constitute an offence of
mischief.628. So also would be the case in regard to cutting off the supply of electricity
by the landlord to the tenanted portion of the house.629. This latter view appears to be
more reasonable.
3. 'As destroys or diminishes its value or utility, etc.'.—Destruction or diminution in

value of the property regarding which the offence is committed is essential. The utility
referred to in this section is that conceived by the owner and not by the accused.630.
[s 426.3] Explanation 1.—
Illustrations (e) and (f) exemplify this Explanation. It is not essential that the property
interfered with should belong to the person injuriously affected. D, as a lessee of
Government, held rights of ﬁshery in a particular stretch of a river. C, by diverting the
water of that river, converted the bed of the river for a considerable distance into dry
land, or land with a very shallow covering of water upon it, and by so doing he was
enabled to destroy, and did destroy, very large quantities of ﬁsh, both mature and
immature. It was held that when C deliberately changed the course and condition of the

river in the manner described to the detriment of D. he was guilty of mischief.631.
[s 426.4] Explanation 2.—
A person who destroys property, which, at the time, belongs to himself, with the
intention of causing, or knowing that it is likely to cause, wrongful loss or damage to
anybody else is guilty of this offence.632. Illustrations (b) and (g) show that a man may
commit mischief on his own property. In order, however, to his doing so, it is necessary
that he intends to cause wrongful loss to some person, as in the cases stated in the
illustrations.

607.  Moti Lal, (1901) 24 All 155 , 156.
608.  Gopinath Nayak v Lepa Majhi, 1996 Cr LJ 3814 (Ori).
609.  Ramchandra, (1968) 70 Bom LR 399 .
610.  Manikchand, 1975 Cr LJ 1044 (Bom); see also Santosh Kumar Biswas, 1979 Cr LJ NOC 79
(Cal.)
611.  Juggeshwar Dass v Koylash Chunder, (1885) 12 Cal 55 . In Nagendranath Roy v Bijoy Kumar
Dasburma, 1992 Cr LJ 1871 (Ori), it was held that mere negligence is not mischief. Negligence
accompanied with intention to cause wrongful loss or damage may amount to mischief.
Mischief involves mental act with destructive animus. In the instant case, an ailing calf died due
to administering of injections despite protests.
612.  Hari Bilash Shau v Narayan Das Agarwala, (1938) 1 Cal 680 ; Zipru v State, (1927) 51 Bom
487, 29 Bom LR 484.
613.  S Pannadi, AIR 1960 Mad 240 [LNIND 1959 MAD 76] . Breaking open a person's godown
and throwing out articles is an offence under this section. Balai Chandra Nandy v Durga Charan
Banerjee, 1988 Cr LJ 710 (Cal).

614.  Ved Prakash v Chaman Singh, 1995 Cr LJ 3890 (All).
615.  Vyapuri, (1882) 5 Mad 401.
616.  Sukha Singh, (1905) PR No. 24 of 1905.
617.  Ragupathi Ayyar v Narayana Goundan, (1928) 52 Mad 151.
618.  Abdul Hussain, (1943) Kar 7 .
619.  IH Khan v M Arathoon, 1969 Cr LJ 242 (Cal).
620.  PS Sundaran v S Vershaswami, 1983 Cr LJ 1119 (Del).
621.  Jaddan, 1973 Cr LJ 490 (All).
622.  Gopi Naik, 1977 Cr LJ 1665 (Goa).
623.  Ali Ahmad v Ibadat-Ullah Khan, (1944) All 189 .
624.  Punjaji v Maroti, (1951) Nag 855.
625.  Ram Birich v Bishwanath, (1961) 2 Cr LJ 265 . See however, Sippattar Singh v Krishna, AIR
1957 All 405 [LNIND 1957 ALL 15] .
626.  Bansi v State, (1912) 34 All 210 .
627.  Ram Das Pandey v Nagendra Nath Chatterji, (1948) 1 Cal 329 .
628.  Gopi Naik, 1977 Cr LJ 1665 (Goa).
629.  PS Sundaram, 1983 Cr LJ 1119 (Del).
630.  Sumerchand, (1962) 2 Cr LJ 692 .

631.  Chanda, (1905) 28 All 204 .
632.  Dharma Das Ghose v Nusseruddin, (1886) 12 Cal 660 .

Of Theft
[s 427] Mischief causing damage to the amount of ﬁfty rupees.
Whoever commits mischief and thereby causes loss or damage to the amount of ﬁfty
rupees or upwards, shall be punished with imprisonment of either description for a
term which may extend to two years, or with ﬁne, or with both.
633.  Kashiben Chhaganbhai Koli v State of Gujarat, (2008) 17 SCC 100 [LNIND 2008 SC 2366] :
2009 Cr LJ 1156 (SC).
634.  Ramnish v CBI, 2016 Cr LJ 2371 (Del) : 2016 V AD (Del) 574.
COMMENT—
Where evidence on record clearly establishes that the sugarcane stems in the ﬁelds of
the claimants were totally destroyed by using a tractor. Therefore, section 427, IPC,
1860 is clearly established.633.
While causing mischief, there must be an intention behind that. In the present case, the
petitioners were discharging their oﬃcial duty. Therefore, they had no intention to
cause any injury or mischief.634.

Of Theft
[s 428] Mischief by killing or maiming animal of the value of ten
rupees.Mischief by killing or maiming animal of the value of ten rupees.
Whoever commits mischief by killing, poisoning, maiming or rendering useless any
animal or animals of the value of ten rupees or upwards, shall be punished with
635.  F a t t e h d i n , (1881) PR No. 33 of 1881.
636.  J e a n s , (1884) 1 C & K 539.
COMMENT—
This section is intended to prevent cruelty to animals and consequent loss to the
owner.
[s 428.1] 'Maiming'.—
refers to those injuries which cause the privation of the use of a limb or a member of
the body.635. 'Maiming' implies a permanent injury,636. wounding is not necessarily
maiming.

Of Theft
[s 429] Mischief by killing or maiming cattle, etc., of any value or any animal of
the value of ﬁfty rupees.
Whoever commits mischief by killing, poisoning, maiming or rendering useless, any
elephant, camel, horse, mule, buffalo, bull, cow or ox, whatever may be the value
thereof, or any other animal of the value of ﬁfty rupees or upwards, shall be punished
with imprisonment of either description for a term which may extend to ﬁve years, or
COMMENT—
This section provides for enhanced punishment owing to the greater value of the
animals mentioned therein. This section is applicable where permanent injury is
caused to the animal by the offence of mischief.637. It has been held by the Supreme
Court that the offence created by this section and the one under section 9(1) read with
section 50 of the Wild Life Protection Act, 1972 are substantially the same offence.

Therefore, the bar of double jeopardy will not operate.638. It is apparent that the most
signiﬁcant words are the opening words of the section which says, "whoever commits
mischief by killing..." and thus 'mischief' appears to be an essential ingredient for
attracting the offence and the mischief has been deﬁned under section 425 of the IPC,
1860. For constituting offence of mischief the essential ingredient would be the
destruction of the property. Therefore, if no one has any property or right in any animal,
the killing of that animal does not come within the purview of section 425 of the Code
and thus, in the facts and circumstances of the instant case where the complainant
has never come with the case that any dog over which somebody has right, has been

caught, rather according to complaint, only stray dogs have been caught that too where
it has never been alleged to have been poisoned, maimed or rendered useless there
would be no application of section 429 of the IPC, 1860.639.
[s 429.1] Cruelty to animals.—
Though the complainant under the allegations made in the complaint petition made
prayer to take cognizance of the offence under sections 11 (i) (a)(b)(c)(e)(f)(g)(h)(i)
and (1) of the Prevention of Cruelty to Animals Act, 1960 and also under section 429 of
the IPC, 1860 but the Court did not ﬁnd any ground to proceed with the case so far
offence under section 429 of the IPC, 1860 is concerned and hence, he did not take any
cognizance of the said offence, still the petitioner has been summoned to face trial not

only for the offence under sections 11 (i)(a)(b)(c)(e)(f)(g)(h)(i) and (l) of the Prevention
of Cruelty to Animals Act, 1960 but also under section 429 of the IPC, 1860 and
therefore, any insertion of the offence under section 429 of the IPC, 1860 in the
summon under the facts and circumstances stated above is an error which may have

637.  Gopalakrishna v Krishna Bhatta, AIR 1960 Ker 74 [LNIND 1959 KER 134] .
638.  State of Bihar v Murad Ali Khan, (1988) 4 SCC 655 [LNIND 1988 SC 507] : 1989 Cr LJ 1005 :
AIR 1989 SC 1 [LNIND 1986 SC 198] .
639.  A P Arya v State of Jharkhand, 2008 Cr LJ 3350 (Jha).
640.  A P Arya v State of Jharkhand, 2008 Cr LJ 3350 (Jha).
crept in inadvertently but otherwise also in the fact of allegation there would be no
application of section 429 of the IPC, 1860.640.

Of Theft
[s 430] Mischief by injury to works of irrigation or by wrongfully diverting
water.
Whoever commits mischief by doing any act which causes, or which he knows to be
likely to cause, a diminution of the supply of water for agricultural purposes, or for
food or drink for human beings or for animals which are property, or for cleanliness or
for carrying on any manufacture, shall be punished with imprisonment of either
description for a term which may extend to ﬁve years, or with ﬁne, or with both.
641.  Ashutosh Ghosh, (1929) 57 Cal 897 .
COMMENT—
This section deals with diminution of water supply, e.g., the placing of an embankment
across a channel. Section 277 applies if the water is fouled so as to be unﬁt for use.
This section applies equally to irrigation channels as to other sources of irrigation, such
as tanks and ponds.
For a conviction under this section, there must be some infringement of right resting in

some one by the act of the accused.641.

Of Theft
[s 431] Mischief by injury to public road, bridge, river or channel.
Whoever commits mischief by doing any act which renders or which he knows to be
likely to render any public road, bridge, navigable river or navigable channel, natural or
artiﬁcial, impassable or less safe for travelling or conveying property, shall be

Of Theft
[s 432] Mischief by causing inundation or obstruction to public drainage
attended with damage.
Whoever commits mischief by doing any act which causes or which he knows to be
likely to cause an inundation or an obstruction to any public drainage attended with
injury or damage, shall be punished with imprisonment of either description for a term
which may extend to ﬁve years, or with ﬁne, or with both.

Of Theft
[s 433] Mischief by destroying, moving or rendering less useful a light-house
or sea-mark.
Whoever commits mischief by destroying or moving any light-house or other light
used as a sea-mark or any sea-mark or buoy or other thing placed as a guide for
navigators, or by any act which renders any such light-house, sea-mark, buoy or other
such thing as aforesaid less useful as a guide for navigators, shall be punished with
imprisonment of either description for a term which may extend to seven years, or
COMMENT—
This section is an extension of the principle laid down in section 281. Sea-marks are
very important in navigation and any tampering with them may lead to disastrous
results.

Of Theft
[s 434] Mischief by destroying or moving, etc., a land-mark ﬁxed by public
Whoever commits mischief by destroying or moving any land-mark ﬁxed by the
authority of a public servant, or by any act which renders such land-mark less useful
as such, shall be punished with imprisonment of either description for a term which
may extend to one year, or with ﬁne, or with both.
642.  Kannan Pillai v Ismail, (1961) KLT 656 .
COMMENT—
This section is similar to the last section but the punishment prescribed is not so
severe because tampering with land-marks does not lead to disastrous results.
Possession by the accused of the land in which the land-marks are situated will not be
a defence in a case where the ingredients of the offence under this section are made
out.642.

Of Theft
[s 435] Mischief by ﬁre or explosive substance with intent to cause damage to
amount of one hundred or (in case of agricultural produce) ten rupees.
Whoever commits mischief by ﬁre or any explosive substance intending to cause, or
knowing it to be likely that he will thereby cause, damage to any property to the
amount of one hundred rupees or upwards 643.[or (where the property is agricultural
produce) ten rupees or upwards], shall be punished with imprisonment of either
ﬁne.
643.  Ins. by Act 8 of 1882, section 10.

Of Theft
[s 436] Mischief by ﬁre or explosive substance with intent to destroy house,
etc.
Whoever commits mischief by ﬁre or any explosive substance, intending to cause, or
knowing it to be likely that he will thereby cause, the destruction of any building which
is ordinarily used as a place of worship or as a human dwelling or as a place for the
custody of property, shall be punished with 644.[imprisonment for life], or with
644.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
645.  Manning, (1871) LR 1 CCR 338.
646.  William Edgell, (1867) 11 Cox 132.
COMMENT—
In order to attract section 436 of the IPC, 1860, the following ingredients must be
satisﬁed:
(i) There must be commission of mischief by ﬁre or any explosive substance.

COMMENT—
satisﬁed:
(ii) It should have been committed intending to cause, or knowing it to be likely that
the accused will thereby cause the destruction of any building.
(iii) The building should be one which is ordinarily used as a place of worship or as
a human dwelling or as a place for custody of property.
The section contemplates the destruction of a building. A 'building' is not necessarily a
ﬁnished structure.645. An unﬁnished house, of which the walls are built and ﬁnished,
the roof on and ﬁnished, a considerable part of the ﬂooring laid, and the internal walls
and ceiling prepared ready for plastering is a building.646. The dominant intention of
the Legislature in framing section 436, IPC, 1860, was to give protection to those
buildings which are used as human dwelling or as places where properties are stored
for custody.

See also discussions under head 'Building' under section 442, infra.

Of Theft
[s 437] Mischief with intent to destroy or make unsafe a decked vessel or one
of twenty tons burden.
Whoever commits mischief to any decked vessel or any vessel of a burden of twenty
tons or upwards, intending to destroy or render unsafe, or knowing it to be likely that
he will thereby destroy or render unsafe, that vessel, shall be punished with
COMMENT—
The vessel must be a 'decked vessel' or a 'vessel of a burden of twenty tons or
upwards'. This limitation is laid down to exclude small craft of all kinds. The intention
of the Legislature is to punish mischief committed on vessels which are likely to carry
passengers.

Of Theft
[s 438] Punishment for the mischief described in section 437 committed by
ﬁre or explosive substance.
Whoever commits, or attempts to commit, by ﬁre or any explosive substance, such
mischief as is described in the last preceding section, shall be punished with 647.
[imprisonment for life], or with imprisonment of either description for a term which
647.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
COMMENT—
This section merely extends the principle laid down in the last section. It imposes
higher penalty owing to the dangerous nature of the means used.

Of Theft
[s 439] Punishment for intentionally running vessel aground or ashore with
intent to commit theft, etc.
Whoever intentionally runs any vessel aground or ashore, intending to commit theft of
any property contained therein or to dishonestly misappropriate any such property, or
with intent that such theft or misappropriation of property may be committed, shall be
COMMENT—
This section punishes an act which is akin to piracy.

Of Theft
[s 440] Mischief committed after preparation made for causing death or hurt.
Whoever commits mischief, having made preparation for causing to any person death,
or hurt, or wrongful restraint, or fear of death, or of hurt, or of wrongful restraint, shall
648.  Abid Ali Khan v Prabhakara Rao, 1968 CR LJ 398 (Vol 74, C. N. 115)(AP); Ramakant Rai v
Madan rai, (2003) 12 SCC 395 [LNIND 2003 SC 837] : 2004 Cr LJ 36 (SC)- Order of acquittal
reversed.
COMMENT—
In order to attract the provisions of section 440 read with section 44, Penal Code, it is
necessary to allege and establish the following three essentials which constitute the
offence under the said sections:-
(1) Intention or knowledge of likelihood to cause wrongful loss or damage to the
public or to any person.

(2) Causing the destruction of some property or any such change in any property or
in the situation thereof; and
(3) Such changes must result in destroying or diminishing the value or utility of any
property or affecting it injuriously.
It is thus, plain that either destruction of property or some change in the property or in
the situation which has the effect of destroying or diminishing the value or utility or, in
any event, affecting it injuriously is necessary. The word 'property' used in this section
really means some intangible property capable of being destroyed or damaged in its
value or utility. It must be remembered that section 440 read with section 44, IPC, 1860
is an offence committed against the property. Sections 425 and 440 appear in the 17th
chapter entitled "Offences against Property." If there is no allegation that mischief was

committed through the medium of property as is visualised by section 440 read with
section 425, IPC, 1860, it is plain that it cannot be validly said that an offence is
constituted.648.

Of Theft
Of Criminal Trespass
[s 441] Criminal trespass.
Whoever enters into or upon property in the possession of another1 with intent to
commit an offence2 or to intimidate, insult or annoy any person in possession3 of
such property,
or having lawfully entered into or upon such property, unlawfully remains there4 with
intent thereby to intimidate, insult or annoy any such person, or with intent to commit
an offence,
is said to commit "criminal trespass".
Orissa.—Amendment by Orissa Act No. 22 of 1986 (w.e.f. 6-12-1986). Same as in Uttar
Pradesh except that for the words "whether before or after the coming into force of the
Criminal Laws (U.P. Amendment) Act, 1961" read "remains there", and omit "by the
speciﬁed in the notice."
Uttar Pradesh.—The following amendments were made by U.P. Act No. 31 of
1961,section 2 (w.e.f. 13-11-1961).
For Section 441, substitute the following:—

"441. Criminal Trespass.—Whoever enters into or upon property in possession of
another with intent to commit an offence or to intimidate, insult or annoy any person in
possession of such property, or, having lawfully entered into or upon such property,
unlawfully remains there with intent thereby to intimidate, insult or annoy any such
person, or with intent to commit an offence,
or, having entered into or upon such property, whether before or after the coming into
force of the Criminal Law (U.P. Amendment) Act, 1961, with the intention of taking
unauthorised possession or making unauthorised use of such property fails to
withdraw from such property or its possession or use, when called upon to do so by
that another person by notice in writing, duly served upon him, by the date speciﬁed in
the notice,

is said to commit "criminal trespass"."
COMMENT—
The word "trespass" in common english acceptation means and implies unlawful or
unwarrantable intrusion upon land. It is a transgression of law or right, and a trespasser
is a person, entering the premises of another with the knowledge that his entrance is in

excess of the permission that has been given to him.649. The authors of the Code say:
"We have given the name of trespass to every usurpation, however slight, of dominion
over property. We do not propose to make trespass, as such, an offence, except when it
is committed in order to the commission of some offence injurious to some person
interested in the property on which the trespass is committed, or for the purpose of
causing annoyance to such a person. Even then we propose to visit it with a light
punishment, unless it is attended with aggravating circumstances".650.
[s 441.1] Ingredients.—
(1) Entry into or upon property in the possession of another.
(2) If such entry is lawful, then unlawfully remaining upon such property.
(3) Such entry or unlawful remaining must be with intent—
(a) to commit an offence; or
(b) to intimidate, insult, or annoy any person in possession of the property.
The use of criminal force is not a necessary ingredient.

1. 'Enters into or upon property in the possession of another'.—'Property' in this
section means immovable corporeal property, and not incorporeal property such as a
right of ﬁshery,651. or a right of ferry.652. A person plying a boat for hire within the
prohibited distance from a public ferry cannot be said, with reference to such ferry, to
commit criminal trespass.653.
The possession must be actual possession of some person other than the alleged
trespasser.654. The offence can only be committed against a person who is in actual
physical possession of the property in question. If the complainant is not in actual
possession of the property this offence cannot be committed.655. But the offence may
be committed even when the person in possession of the property is absent provided

the entering into or upon the property is done with intent to do any of the acts
mentioned in the section. Where a person entered upon a ﬁeld that had been leased,
during the absence of the lessee, and ploughed it, and the lessor came to the spot on
hearing of it to prevent the commission of such acts, it was held that that was not
enough to exonerate that person from intention to annoy the lessee and that such a
person could be convicted of criminal trespass.656. The mere taking of unlawful
possession of a house will not amount to either criminal trespass or house-trespass.
An unlawful act is not necessarily an offence. The house in question must be in actual
possession of the complainant. Mere constructive possession is not suﬃcient.657.
2. 'Intent to commit an offence'.—Where in a pen-down peaceful strike the employees

of the bank entered the oﬃce and occupied their seats and refused to work during
oﬃce hours and was wholly conﬁned to regular working hours and the only act alleged
against them was that they refused to vacate their seats when they were called upon to
do so by the superior oﬃcers, it was held by the Supreme Court that the conduct of
strikers did not amount to criminal trespass.658.
3. 'Or to intimidate, insult or annoy any person in possession'.— In order to establish
that the entry on the property was with intent to annoy, intimidate or insult, it is
necessary for the Court to be satisﬁed that causing such annoyance, intimidation or
insult was the main aim of the entry; it is not suﬃcient to show merely that the natural

consequence of the entry was likely to be annoyance, intimidation or insult and this
was known to the accused.659.
The word 'intimidate' must be understood in its ordinary sense "to overawe, to put in
fear, by a show of force or threats of violence". 660.
The Supreme Court has held that this section does not require that the intention must
be to annoy a person who is actually present at the time of the trespass.661.
4. 'Having lawfully entered into or upon such property, unlawfully remains there'.— The
original entry may be lawful, but if the person entering remains on the property with the
intent speciﬁed in the section he commits trespass. Where a person armed with
weapons went on land of which he was the owner when no one else was there at the
time and refused to vacate it, when called upon to do so by a person who had no right
to the land, it was held that the owner did not remain on the land unlawfully and was
not therefore, guilty of the offence of criminal trespass.662.
[s 441.2] Bona ﬁde claim.—

If a person enters on land in the possession of another in the exercise of a bona ﬁde
claim of right, but without any intention to intimidate, insult, or annoy the person in
possession, or to commit an offence, then although he may have no right to the land,
he cannot be convicted of criminal trespass, because the entry was not made with any
such intent as constitutes the offence.663. Bona ﬁde claim of right, however ill-founded,
nulliﬁes a case of criminal trespass.664. Where certain hutment dwellers of Bombay
were facing demolition for having erected their huts on public footpaths and
pavements, the Supreme Court held that no offence under the section was made out.
Their act was not voluntary. It was the dictate of their moral right to survive and their

state of helplessness. They did not intend to commit an offence or to intimidate, insult
or annoy any person in possession and that is the gist of the offence of criminal
trespass under section 441.665. Where the accused continued in possession of the
tenanted premises even after the expiry of the lease period, he could not be said to be
in unauthorised possession and to have committed trespass.666.
[s 441.3] Dispute as to possession in civil suit.—
Where dispute regarding possession of a property was pending in a civil suit, there
could be no trespass in respect of that property. The complainant must be in
unquestionable possession of property at the time of alleged trespass.667.
[s 441.4] Honest civil trespass.—
A Judicial Magistrate was posted at a place where no Government accommodation

was available. He, therefore, stayed in a room in a dak bungalow. When he went away
on leave, he locked his household effects in the room. A junior engineer broke open the
lock and shifted the belongings to another room as a senior oﬃcial was to visit the
area. On return, the Magistrate ﬁled an FIR against the junior engineer and cognizance
of the offence was taken. It was held that the engineer was not actuated with any
dishonest intention and it was a case of honest civil trespass for which no cognizance
could be taken.668.

[s 441.5] Uttar Pradesh Amendment.—
The effect of the Uttar Pradesh amendment was considered by the Allahabad High
Court in Somnath Paul v Ram Bharose.669. The amendment has the effect of converting
a civil trespass into a criminal trespass when the entry into, or retention of, premises is
for the purpose of taking unauthorised possession or making unauthorised use. Going
by the earlier authorities, the court held that refusal to vacate premises after revocation
of licence under which possession was given would not by itself constitute a criminal
trespass. The intent to do the acts stated in the amendment must also be proved.670.
[s 441.6] Orissa Amendment.—
Section 441, IPC, 1860, as amended by Orissa Act, 22 of 1986, deﬁnes criminal
trespass, which, when committed in respect of, inter alia, a human dwelling, becomes
an offence punishable under section 448, IPC, 1860. Ordinarily, a dispute between the
tenant and the landlord regarding vacation of a premise after expiry of the period of

tenancy is a civil dispute, unless an offence of criminal trespass can be said to have
been committed. Prosecution against the tenant would not lie except the cases
covered by the Orissa Amendment. Section 441, IPC, 1860, which has been deﬁned by
Orissa Act, 22 of 1986, is quoted hereunder for better appreciation:
....... Whoever enters into or upon property in possession of another with intent to commit
an offence or to intimidate, insult or annoy any person in possession of such property.
Or having lawfully entered into or upon such property, unlawfully remains there with intent
thereby to intimidate, insult or annoy any such person or with intent to commit an offence;
or having lawfully entered into or upon such property, remains there with the intention of

taking unauthorised possession or making unauthorised use of such property and fails to
withdraw from such property or its possession or use, when called upon to do so by that
another person by notice in writing duly served on him, is said to commit criminal trespass.
The aforesaid section consists of three parts. The ﬁrst two parts are same and similar
to that of the original section of the IPC, 1860. The third part, with which the charge is
concerned, says that if the person has lawfully entered into the premises and remains
there with intention of (i) taking unauthorised possession or (ii) making unauthorised
use of such property or (iii) fails to withdraw from such property or its possession or
use when called upon to do so by notice in writing duly served on him, he is said to

have committed the offence.671. The rigors of section 441, IPC, 1860 as amended by
the Orissa Act, 22 of the 198 shall not be applicable to the following cases:
(i) Statutory tenants whose tenancy is governed by any statute.
(They are protected by tenancy laws like Public Premises Eviction Act, etc.)
(ii) Tenant who has entered into possession by virtue of a lease.
(Rights of such tenant are governed under the provisions of the Transfer of Property
Act and the Speciﬁc Relief Act and he acquires a right of possession. After
determination of tenancy by notice, he would become "Tenant holding over""Tenant on
sufferance" or 'Tenant at will" as the case may be. His possession being juridical, is
protected. He can be evicted only in due process of law. The possession of such
tenant cannot be equated with that of trespassers.)

(iii) Person who has entered into possession by virtue of some covenant like, agreement
to sell, will etc. and/or put forth a genuine right over the property possessed.
(If a person claims a right of title coupled with possession, till the dispute is
adjudicated, his possession cannot be conclusively said to be that of a trespasser and
his right to possess would be subject to the result of the suit or legal proceeding.)672.

649.  Kewal Chand v SK Sen, AIR 2001 SC 2569 [LNIND 2001 SC 1415] : (2001) 6 SCC 512
[LNIND 2001 SC 1415] .
650.  Note N, p 168.
651.  Charu Nayiah, (1877) 2 Cal 354 .
652.  Muthra v Jawahir, (1877) 1 All 527 .
653.  Ibid.
654.  Foujdar, (1878) PR No. 28 of 1878; Kunjilal v State, (1913) 12 ALJR 151.
655.  Bismillah, (1928) 3 Luck 661 .
656.  Venkatesu v Kesamma, (1930) 54 Mad 515.
657.  Satish Chandra Modak, (1949) 2 Cal 171 .
658.  Punjab National Bank v AIPNBE Federation, AIR 1960 SC 160 [LNIND 1959 SC 166] .
659.  Mathri v State, AIR 1964 SC 986 [LNIND 1963 SC 292] . Sujya v State of Rajasthan, 2003 Cr
LJ 1612 (Raj), entering the ﬁeld of another and releasing cows to graze there, revenue records
showed that the victims were khatedars of the ﬁeld, the trespassers caused injuries on
resistance, guilty of criminal trespass. They have no right of private defence.
660.  TH Bird, (1933) 13 Pat 268.
661.  Rash Behari v Fagu Shaw, (1970) 1 SCR 425 [LNIND 1969 SC 192] .

662.  Adalat, (1945) 24 Pat 519. The offence is of continuing nature within the meaning of
section 472 Cr PC. The offence would be continuing so long as the trespass is not lifted or
vacated or insult etc. of the person lawfully in possession is not stopped. Gokak Patel Valkart
Ltd v Dundayya Gurushiddaiah Hiremath, (1991) 71 Com Cases 403 : (1991) 2 SCC 141 [LNIND
1991 SC 878] . Akapati Bhaskar Patro v Trinath Sahu, 2002 Cr LJ 3397 (Ori), by virtue of the
Orissa Amendment and even otherwise also a tenant remaining in possession even after
termination notice does not commit the offence of mischief by trespass. His possession is not
unlawful.
663.  Budh Singh, (1879) 2 All 101 , 103.
664.  Manik Chand, 1975 Cr LJ 1044 (Bom); Santosh Kumar Biswas, 1979 Cr LJ NOC 79 (Cal).

unlawful.
665.  Olga Tellis v Bombay MC, (1985) 3 SCC 545 [LNIND 1985 SC 215] : AIR 1986 SC 180
[LNIND 1985 SC 215] . For an analysis of the wider implications of this decision, see TN Singh,
Ex Curia : Tulsiram Patel v Olga Tellis, (1987) 29 JI LI 547.
666.  S Subramanium v State of UP, 1996 Cr LJ 929 (All).
667.  State of Goa v Pedro Lopes, 1996 Cr LJ 256 (Bom).
668.  Bagirath Singh v State of Rajasthan, 1992 Cr LJ 3934 (Raj).
669.  Somnath Paul v Ram Bharose, 1991 Cr LJ 2499 (All).
670.  The court followed Punjab National Bank v AIP NBE Federation, AIR 1960 SC 160 [LNIND
1959 SC 166] , entry of employees on pen down strike; Kanwal Sood v Nawal Kishore, AIR 1983
SC 159 [LNIND 1982 SC 180] : 1983 Cr LJ 173 : (1983) 3 SCC 25 [LNIND 1982 SC 180] , refusal
to vacate premises after the death of testator; Sinnasamy v King, 1951 AC 83 (PC), entry with

bona ﬁde belief in right to do so; Jawanmal v Bhanwari, AIR 1958 Raj 214 [LNIND 1958 RAJ 237] :
1958 Cr LJ 1099 , bona ﬁde belief; Babu Ram v State of UP, 1971 All LJ 4, bona ﬁde belief;
Mahabir Pd v State, 1976 Cr LJ 245 , notice under section 447; Rashid Ad v Rashidan, 1980 All LJ

939, effect of UP Amendment, lawful entry becoming criminal trespass; DP Titus v LW Lyall, 1981
Cr LJ 68 , lawful entry, subsequent unauthorised use.
671.  Abdul Samad v Md. Qamruddin, 2007 Cr LJ. 4383 (Ori).
672.  Kumar Debasish v State of Orissa, 2008 Cr LJ 2397 (Ori).

Of Theft
[s 442] House trespass.
Whoever commits criminal trespass by entering into1 or remaining in any building,2
tent or vessel used as a human dwelling or any building used as a place for worship,
or as a place for the custody of property, is said to commit "house-trespass".
E x p l a n a t i o n .—The introduction of any part of the criminal trespasser's body is entering
suﬃcient to constitute house-trespass.
COMMENT—
The offence of criminal trespass may be aggravated in several ways. It may be
aggravated by the way in which it is committed, and by the end for which it is
committed. When criminal trespass is committed in a dwelling house, or any building,
tent or vessel used for human dwelling, it becomes, 'house trespass' as deﬁned under
section 442 IPC, 1860 and punishable under section 448 IPC, 1860. The offence
intended to be committed so as to constitute 'criminal trespass' is any offence. But if

such offence intended to be committed is one punishable with imprisonment and the
criminal trespass is committed in a dwelling house, then the offence which is made out
is not one punishable under section 448 IPC, 1860 but one punishable under section
451 IPC, 1860 which is an aggravated form of house trespass.673.
1. 'Entering into'.—The introduction of any part of the trespasser's body is entering
suﬃcient to constitute house-trespass.674. The roof being a part of a building, if any
one goes on the roof of a building that will be tantamount to "entering into" the building
within the meaning of that expression in this section.675. Section 441, IPC, 1860 would
show that it is only when a person unlawfully remains in a property of another person
"with intent thereby to intimidate, insult or annoy any such person, or with intent to

commit an offence" that an offence of criminal trespass is committed. While there may
be evidence in the present case that the accused/opposite party has unlawfully
remained in the property belonging to the petitioner or that of the Mosque Committee
to whom the petitioner is said to have donated the property, there is no evidence
whatsoever that the accused/opposite party remained there with intent to intimidate,
insult or annoy the petitioner or the Mosque Committee or with intent to commit an
offence.676.
2. 'Building'.—What is a 'building' must always be a question of degree and
circumstances; its ordinary and usual meaning is an enclosure of brick or stone work
covered in by a roof.677. The mere surrounding of an open space of ground by a wall or
fence of any kind cannot be deemed to convert the open space itself into a building,

and trespass thereon does not amount to house-trespass.678. Even a structure with a

673.  Appukuttan v State, 2010 Cr LJ. 3186 .
674.  Vide Explanation.
675.  Dinesh Thakur, 1970 Cr LJ 1199 .
676.  Md. Sahabuddin v Sayed Monowar Hussain, 1999 Cr LJ. 349 (Gau).
677.  Moir v Williams, (1892) 1 QB 264 , 270.
678.  Palani Goundan, (1896) 1 Weir 523.
679.  Rajoo v State, 1977 Cr LJ 837 (Raj).
680.  State of Karnataka v Richard, 2008 Cr LJ 2200 (Kar).
thatched roof, doors and shutters would come within the meaning of building if it is
used as a human dwelling or place for the custody of property.679..
[s 442.1] Police Station.—
The criminal trespass in question need not be only in respect of a building used as a
human dwelling, but it also covers in building used as a place for custody of property
and as the police station is a place where there will also be custody of property, it will
also come under the deﬁnition of "Building" in section 442 IPC, 1860.680.

Of Theft
[s 443] Lurking house-trespass.
Whoever commits house-trespass having taken precautions to conceal such house-
trespass from some person who has a right to exclude or eject the trespasser from
the building, tent or vessel which is the subject of the trespass, is said to commit
"lurking house-trespass".
COMMENT—
The authors of the Code say: "House-trespass, again, may be aggravated by being
committed in a surreptitious or in a violent manner. The former aggravated form of
house-trespass we designate as lurking house-trespass; the latter we designate as
house-breaking. Again, house-trespass, in every form, may be aggravated by the time at
which it is committed. Trespass of this sort has, for obvious reasons, always been
considered as a more serious offence when committed by night than when committed
by day. Thus, we have four aggravated forms of that sort of criminal trespass which we

designate as house-trespass, lurking house-trespass, house-breaking, lurking house-
trespass by night, and house-breaking by night".
"These are aggravations arising from the way in which the criminal trespass is
committed. But criminal trespass may also be aggravated by the end for which it is
committed. It may be committed for a frolic. It may be committed in order to (commit)
a murder. It may also often happen that a criminal trespass which is venial, as respects
the mode, may be of the greatest enormity as respects the end; and that a criminal
trespass committed in the most reprehensible mode may be committed for an end of
no great atrocity. Thus, A may commit house-breaking by night for the purpose of
playing some idle trick on the inmates of a dwelling. B may commit simple criminal

trespass by merely entering another's ﬁeld for the purpose of murder or gang-robbery.
Here A commits trespass in the worst way. B commits trespass with the worst object.
In our provisions we have endeavoured to combine the aggravating circumstances in
such a way that each may have its due effect in settling the punishment.681. The law is
well settled that unless the accused is alleged to have taken some active steps and
means to conceal his presence, the allegation that the house-trespass was committed
by night and the darkness helped the accused in concealing his presence, does not and
cannot justify a charge for the offence of committing lurking house-trespass. But if the
house-trespass is a lurking house-trespass" as deﬁned in section 443, IPC, 1860,
because of the offender having taken some active steps to conceal his presence, it

becomes automatically lurking house-trespass by night under section 444, IPC, 1860, if
it is committed after sunset and before sunrise.682.
[s 443.1] CASES.—

681.  Note N, p 168.
682.  Prem Bahadur, 1978 Cr LJ 945 (Sikkim); see also Dasai Kandu, 1979 Cr LJ NOC 110 (Pat);
Bejoy Kumar Mohapatra, 1982 Cr LJ 2162 (Ori).
683.  Alla Bakhsh, (1886) PR No. 9 of 1887.
684.  Fazla, (1890) PR No. 9 of 1890.
Entry upon the roof of a building may be criminal trespass. But it cannot sustain a
conviction for lurking house-trespass,683. or for house-breaking.684.

Of Theft
[s 444] Lurking house-trespass by night.
Whoever commits lurking house-trespass after sunset and before sunrise, is said to
commit "lurking house-trespass by night".

Of Theft
[s 445] House-breaking.
A person is said to commit "house-breaking" who commits house-trespass if he
effects his entrance into the house or any part of it in any of the six ways hereinafter
described; or if, being in the house or any part of it for the purpose of committing an
offence, or, having committed an offence therein, he quits the house or any part of it
in any of such six ways, that is to say—
F i r s t .—If he enters or quits through a passage by himself, or by any abettor of the
house-trespass, in order to the committing of the house-trespass.
S e c o n d l y .—If he enters or quits through any passage not intended by any person,
other than himself or an abettor of the offence, for human entrance; or through any
passage to which he has obtained access by scaling or climbing over any wall or
building.
T h i r d l y .—If he enters or quits through any passage which he or any abettor of the

building.
house-trespass has opened, in order to the committing of the house-trespass by any
means by which that passage was not intended by the occupier of the house to be
opened.
F o u r t h l y .—If he enters or quits by opening any lock in order to the committing of the
house-trespass, or in order to the quitting of the house after a house-trespass.
F i f t h l y .—If he effects his entrance or departure by using criminal force or committing
an assault or by threatening any person with assault.
S i x t h l y .—If he enters or quits by any passage which he knows to have been fastened
against such entrance or departure, and to have been unfastened by himself or by an
abettor of the house-trespass.
E x p l a n a t i o n .—Any out-house or building occupied with a house, and between which

and such house there is an immediate internal communication, is part of the house
(a) A commits house-trespass by making a hole through the wall of Z's house, and
putting his hand through the aperture. This is house-breaking.
(b) A commits house-trespass by creeping into a ship at a port-hole between decks.
This is house-breaking.
(c) A commits house-trespass by entering Z's house through a window. This is
house- breaking.

(d) A commits house-trespass by entering Z's house through the door, having
opened a door which was fastened. This is house-breaking.
(e) A commits house-trespass by entering Z's house through the door, having lifted
a latch by putting a wire through a hole in door. This is house-breaking.
(f) A ﬁnds the key of Z's housedoor, which Z had lost, and commits house-trespass
by entering Z's house, having opened the door with that key. This is house-
breaking.
(g) Z is standing in his doorway. A forces a passage by knocking Z down, and
commits house-trespass by entering the house. This is house-breaking.
(h) Z, the door-keeper of Y, is standing in Y's doorway. A commits house-trespass by
entering the house, having deterred Z from opposing him by threatening to beat
him. This is house-breaking.
685.  Ghulam, (1923) 4 Lah 399. See Bhagwan Das v State of UP, 1990 Cr LJ 916 (All), there
being no evidence that the accused was armed with any weapons whatsoever or anybody had

received injury, the offence was converted from one under section 395 to section 448.
COMMENT—
Invasion of a person's residence should naturally be meted out with deterrent
punishment. This section describes six ways in which the offence of house-breaking
may be committed. Clauses 1–3 deal with entry which is effected by means of a
passage which is not ordinary. Clauses 4–6 deal with entry which is effected by force.
Where a hole was made by burglars in the wall of a house but their way was blocked by
the presence of beams on the other side of the wall, it was held that the offence
committed was one of attempt to commit house-breaking and not actual house-
breaking, and illustration (a) to this section did not apply.685.

Of Theft
[s 446] House-breaking by night.
Whoever commits house-breaking after sunset and before sunrise, is said to commit
"house-breaking by night".
COMMENT—
The preceding section contains an elaborate deﬁnition of house-breaking. The addition
in this section of the element of time turns the offence into 'house-breaking by night'.
The analysis of this offence suggests a division of its ingredients into (1) the breaking;
(2) the entry; (3) the place; (4) the time; and (5) the intent.

Of Theft
[s 447] Punishment for criminal trespass.
Whoever commits criminal trespass shall be punished with imprisonment of either
description for a term which may extend to three months, with ﬁne or which may
extend to ﬁve hundred rupees, or with both.
686.  Jageshwar Ramsahay Ahir v Parmeshwar, AIR 2000 MP 223 [LNIND 1999 MP 382] .
687.  Dhanna Ram v State of Rajasthan, 2000 Cr LJ 1204 (Raj).
688.  State of Rajasthan v Dipti Ram, 2001 Cr LJ 3910 (Raj); Janggu v State of MP, 2000 Cr LJ 711
(MP) here also the complainant could not prove his possession. Paramjeet Batra v State of
Uttarakhand; JT 2012 (12) SC 393 [LNIND 2012 SC 812] : 2012 (12) Scale 688 [LNIND 2012 SC
812] -proceedings quashed as it appears to be essentially a civil dispute
689.  Jasbir Singh v State of Himachal Pradesh, 2012 Cr LJ 2955 (HP).
COMMENT—
A party claimed title by adverse possession. The other ﬁled a complaint for criminal

COMMENT—
trespass. The complaint was dismissed for the fact that the dispute was of civil nature.
It was held that such acquittal did not have the effect of proving the existence of title
by adverse possession.686. Where the land in question was not shown to be in the
exclusive possession of the complainant, and the accused having his right of entry, his
entry into the land did not constitute a criminal trespass.687. Where certain land was
allotted to the complainant but the same was already in the possession of the accused,
the offence of criminal trespass was not made out because mere occupation even if
illegal cannot amount to criminal trespass.688.
[s 447.1] Continuing offence.—
Trespass is a continuing offence. Allegation is that petitioners had constructed a wall
on the retaining wall of the complainant. The petitioners in the petition have not

projected the case that they had removed alleged wall. Thus, it is a continuing offence
under section 472 Cr PC, 1973. The bar of limitation is not applicable.689.

Of Theft
[s 448] Punishment for house-trespass.
Whoever commits house-trespass shall be punished with imprisonment of either
description for a term which may extend to one year, or with ﬁne which may extend to
one thousand rupees, or with both.
690.  Vidyadharan v State of Kerala, (2004) 1 SCC 215 [LNIND 2003 SC 985] : AIR 2004 SC 536
[LNIND 2003 SC 985] : (2004) 1 KLT 105 [LNIND 2003 SC 985] : 2004 Cr LJ 605 : (2004) 2 MPLJ
COMMENT—
In order to sustain conviction under the section it has to be found that the intention of
the accused to commit an offence or intimidate, insult or annoy the complainant. There
must be an unlawful entry and there must be proof of one or the other of the intentions
mentioned in section 441. In this case, the evidence produced clearly established the
offence.690. The complainant was allotted a shop by the Rehabilitation Department

because of his being a displaced person, but the accused persons did not allow him to
enter the shop. Though the accused persons entered the shop lawfully they retained it
unlawfully and dishonestly for more than 37 years. They were held to be guilty under
this section read with section 34. The complainant died during the revision petition.
The accused persons' conviction was maintained but they were released on probation
and directed to restore the shop to the complainant's son.691. Allegation was that
accused went to house of victim in order to commit offence of rape. Though rape was
not committed at house of victim but committed at house of accused but entry of
accused into house of victim was with intent to commit offence of rape. Accused is
liable to be convicted under section 448 IPC, 1860.692.

[s 448.1] Accused acquitted of main offence, trespass stands.—
Case of trespass and culpable homicide. Cause of death was not clearly established.
There might have been some jostling but that did not lead to the death of the victim.
The cardiac arrest cannot be attributed to this act of the accused. Though the accused
was acquitted of the offence under section 304, he was found to be guilty of section
447.693.

251 .
691.  Kirpal Singh v Wazir Singh, 2001 Cr LJ 1566 (Del); NC Singhal (Dr.) v State, 1998 Cr LJ 3568
(Del), the petitioner was carrying on medical practice in a licenced chamber of which the
respondent always had actual physical possession. He alleged that the respondent demolished
the chamber and committed theft of his books and equipment. The court found that there was
written notice to the petitioner of demolition and also that the charge of theft was vague
because no details of books and equipment alleged to be stolen were given. See also Ram
Chandra Singh v Nabrang Rai Burma, 1998 Cr LJ 2156 (Ori); Bimal Ram v State of Bihar, 1997 Cr
LJ 2846 (Pat), house trespass, the testimony of a witness could not be thrown overboard just
only because he was a chance witness. Conviction. Chintamani Sethi v Raghunath Mohanty,
2003 Cr LJ 2866 (Ori), complaint against the Sarpanch was found to be motivated for other
reasons, hence, dismissed. Kishori Lal Agarwal v Ram Chandra Sindhi, 2003 Cr. LJ 2299 (All),

charge on tenant that he occupied an additional room in the house, he was given notice to
vacate, the notice did not specify the date within which he should do so. An offence under the
section, held, not made out.
692.  Krishna Bordoloi v State of Assam, 2012 Cr LJ 4099 (Gau).
693.  Bappa Malik v The State of West Bengal, 2016 Cr LJ 95 (Cal).

Of Theft
[s 449] House-trespass in order to commit offence punishable with death.
Whoever commits house-trespass in order to the committing of any offence
punishable with death, shall be punished with 694.[imprisonment for life], or with
rigorous imprisonment for a term not exceeding ten years, and shall also be liable to
ﬁne.
694.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
695.  Matiullah, AIR 1965 SC 132 [LNIND 1964 SC 56] . See the decision of the Supreme Court in
Laxmi Raj Shetty v State of TN, AIR 1988 SC 1274 [LNIND 1988 SC 260] : (1988) 3 SCC 319
[LNIND 1988 SC 260] , where death sentence for bank robbery and murder was reduced to life
imprisonment. Bhaskar Chattoraj v State of WB, 1991 Cr LJ 451 (SC) : AIR 1991 SC 317 . One of
the accused against whom there was no evidence, discharged. Satrughana Lamar v State, 1998

Cr LJ 1588 , the accused entered into a hut, killed a person there with an axe, seen coming out
with axe, recovery of weapon at his instance, conviction under sections 304/349 held proper.
Muniappan v State of TN, 1997 Cr LJ 2336 (Mad), charge of beating and murder not proved. All
round failure of evidence.
696.  K Ramajayam v The Inspector of Police, 2016 Cr LJ 1542 (Mad) : 2016 (2) CTC 135 [LNIND
2016 MAD 88] .
COMMENT—
An act can be said to be committed "in order to the committing of an offence" even
though the offence may not have been completed. The words "in order to" have been
used to mean "with the purpose of".695.
[s 449.1] Sentence to run concurrently.—
Offence under sections 302, 392, 404 and 449 committed in a gruesome manner.
Considering the macabre nature of the crime the Court ordered the sentence to run

consecutively.696.

Of Theft
[s 450] House-trespass in order to commit offence punishable with
punishable with 697.[imprisonment for life], shall be punished with imprisonment of
698.COMMENT—
Section 450 deals with house trespass in order to commit offence punishable with life
imprisonment. In the case, where the offence punishable with life imprisonment has
been ruled out, one would have to look into actual act of the accused person. The act
of the appellant is that of assaulting the complainant with chopper. The injury caused
by the appellant is a simple injury. In such case, it would not attract life imprisonment
and hence, section 450 of the IPC, 1860 would not be attracted.699.
[s 450.1] Murder and house trespass.—

Where accused entered the house of deceased and killed him by giving sword blow,
and his wife, who was the eye-witness to the incident lodged FIR within a period of
three hours, it was held that accused was rightly convicted under sections 450 and 302
of IPC, 1860.700.
[s 450.2] Rape and House trespass.—
Where the victim aged above 18 years alleged that while she was sleeping, accused
entered her house and she woke-up when he was committing sexual intercourse with
her, and it was proved that she did not bolted door of house from inside and when she
woke-up she did not raise alarm for help, it was held that offences are not made
out.701. Where it was proved that the accused entered the mentally challenged victim's
house, threw her on the cot and after removing her underwear committed forcible

sexual intercourse with her, conviction under section 450 and section 376 IPC, 1860
was upheld.702.

697.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
698.  Her Chand v State of Rajasthan, 1997 Cr LJ 345 (Raj), entry into parental house to which the
right of access was there. Hence, criminal trespass was not made out. Surjit Singh v State of
Punjab, (2007) 15 SCC 391 [LNIND 2007 SC 724] , 5 policemen were accused of entering into
the house of a woman with the intention to rape her. Their attempt was foiled by her sons who
cried for help. On the suggestion of one of them, the other killed the woman. They were not the
persons before the court. These two were neither involved in killing nor there any evidence of
common intention. Criminal trespass into the house was established against them. They were
convicted for the same.
699.  Mohd. Kamar Abdul Ansari v State of Maharashtra, 2008 Cr LJ 4736 (Bom).
700.  Mohanlal v State of Rajasthan, 2012 Cr LJ 769 (Raj); Bablu Alias Mahendra v State of

Madhya Pradesh, 2009 Cr LJ 1856 (MP)-material witnesses are not examined and evidence of
identiﬁcation is doubtful. Accused is entitled to beneﬁt of doubt.
701.  Prahalad Mohanlal Sahu v State of Chhattisgarh, 2013 Cr LJ 1726 (SC); Ramesh v State,
2011 Cr LJ. 3816 (Mad); Wilson David v State of Chhattisgarh, 2009 Cr LJ 1402 (Chh).
702.  Jhaduram Sahu v State of Chhattisgarh, 2013 Cr LJ 1722 (Chh); Moti Lal v State of MP, 2008
Cr LJ 3543 (SC);2008 (11) SCC 20 [LNIND 2008 SC 1427] ; Sadan v State of Madhya Pradesh,
2011 Cr LJ 2488 (MP).

Of Theft
[s 451] House-trespass in order to commit offence punishable with
punishable with imprisonment, shall be punished with imprisonment of either
description for a term which may extend to two years, and shall also be liable to ﬁne;
and if the offence intended to be committed is theft, the term of the imprisonment
may be extended to seven years.
COMMENT—
This section is similar to sections 449 and 450. It provides punishment for house-
trespass committed with intent to commit an offence punishable with imprisonment.
Where the accused was convicted of house-breaking, his object being to have sexual
intercourse with the complainant's wife, it was held that the conviction was valid.703.
The accused was held to be guilty of the offence under section 450 (lurking house-

trespass where he entered the house at mid-night getting easy access because of
acquaintance with the family and forcibly raped the victim girl ﬁnding her alone in her
room. He was punished for rape and lurking house-trespass for committing an
offence.704. Accused persons committed house trespass in order to commit an
offence punishable with imprisonment. They went to the house of complainant with
preparation by holding sticks in their hands for assaulting the complainant. Therefore,
all the four accused are liable to be convicted under section 451 of the IPC, 1860.705.
Where evidence shows that accused after entering the house unlawfully remained
there and had even intimidated and insulted and annoyed the victim when they were
called upon to quit the house. Court held that conduct of the accused will clearly come

within the latter part of section 441 IPC, 1860 and the same will be punishable under
section 451 IPC, 1860.706. There is enough material to show that the appellant had
committed house trespass, however, not with intention to commit offence punishable
with life imprisonment, hence, in such case section 451 IPC, 1860 would be attracted
instead of section 450.707. The accused trespassed into the house of the victim girl
who was nearly about ten years of age on the date of occurrence and committed
unnatural offence on her. After ﬁnding the victim alone in the house the accused
committed unnatural offence by putting his penis having carnal intercourse against
order of nature. Order of acquittal is reversed by the Supreme Court.708.
It was alleged that the accused trespassed into the house of the victim when she was

all alone in order to commit rape. But there was no evidence of any preparation or
attempt to rape. The conviction under section 452 was held to be not proper. Since the
trespass was not for any pious purpose because an offence under section 354
(outraging modesty) was likely to be involved, conviction was recorded under section
451.709. In another case the Courts below observed that from the evidence of PWs 1

703.  (1875) 8 MHC (Appex) vi.
704.  Pacigi Narasimha v State of AP, 1996 Cr LJ 2997 (AP).
705.  State of Maharashtra v Tatyaba Bajirao Jadhav, 2011 Cr LJ 2717 (Bom).
706.  Appukuttan v State, 2010 Cr LJ. 3186 .
707.  Mohd. Kamar Abdul Ansari v State of Maharashtra, 2008 Cr LJ 4736 (Bom).
708.  State v Antony, (2007) 1 SCC 627 [LNIND 2006 SC 940] : AIR 2007 SC Supp 1828.
709.  Ram Pratap v State of Rajasthan, 2002 Cr LJ 1450 (Raj). Gulam v State of Madhya Pradesh,
2011 Cr LJ 179
710.  Azeez v State, (2013) 2 SCC 184 [LNIND 2013 SC 54] ; Alistait v State, (2009) 17 SCC 794 .
711.  State of Kerala v Kurissum Moottil Antony, (2007) 1 scc 627.
and 2 it is seen that theft had taken place in the room in which PW 2 was sleeping; the
thief entered the house and committed theft of gold chain which PW 2 was wearing
and, therefore, this act will be covered by section 451 of the IPC, 1860, i.e., house-
trespass in order to commit offence punishable with imprisonment. A1 and A3 have

been acquitted because nothing links them to the offence. But, similar is the case with
the appellant. The only evidence against him is the alleged recovery of gold chain at his
instance. That cannot connect the appellant to the offence.710.
The accused was convicted for house trespass for committing unnatural offence. The
accused was convicted by the trial court but acquitted by the High Court because of no
corroboration of the testimony of the victim. The Supreme Court restored the
conviction and observed that corroboration could not be required as a fossil formula,
even if the story revealed by the victim appeals to the judicial mind as probable.711.

Of Theft
[s 452] House-trespass after preparation for hurt, assault or wrongful restraint.
Whoever commits house-trespass, having made preparation for causing hurt to any
person, or for assaulting any person, or for wrongfully restraining any person, or for
putting any person in fear of hurt, or of assault, or of wrongful restraint, shall be
712.  Pirmohammad, AIR 1960 MP 24 [LNIND 1959 MP 33] . Syam Lal v State of HP, 2002 Cr LJ
3178 (HP), murder, rioting and house trespass, conviction. Raghunandan Pd. v State of UP, 1998
Cr LJ 1571 (All), probably accused persons were in possession and complainants ﬁred at them
causing gunshot injuries thus, the accused persons had the right of private defence of person
and property and were given the beneﬁt of doubt. See also Jai Narain v State of Rajasthan, 1998

Cr LJ 2199 (Raj); Devkaran v State of Rajasthan, 1998 Cr LJ 3883 (Raj). Rala Singh v State, 1997
Cr LJ 1313 (P&H), in a charge of trespass and kidnapping against the accused persons, the
victim gave her age to be 20 years. She was examined but not subjected to ossiﬁcation test.
COMMENT—
The Legislature has enacted this section to provide higher punishment where house-
trespass is committed in order to cause hurt, or to assault, or to wrongfully restrain any
person. For a conviction under this section, it is necessary to prove that the dominant
intention of the accused was to cause hurt to or to assault or to wrongfully restrain any
person.712. Preparation is the genesis of offence under section 452 of IPC, 1860. In
absence of it being proved that any device as a metal rod, crow bar or even a stick was

used by the accused due to which it could be described as "preparation for commission
of offence," it appears to be impossible to hold that there exists adequate material even
to frame the charge for offence under section 452 of IPC, 1860.713. Criminal trespass is
committed by the accused when they entered the house of an individual with a view to
insult, intimidate or annoy such owner of the house/property. If the accused entered
the house of an individual to insult, intimidate or annoy any person other than the
owner of the property, it would not constitute criminal trespass. Once the conduct of
the accused is not criminal trespass, it would not be house trespass and would not
become punishable under section 452 IPC, 1860.714.

School leaving certiﬁcate showed her age to be 18 but her parents were not examined for
corroboration. Guilt not proved beyond reasonable doubt.
713.  Subhash Sahebrao Datkar v State of Maharashtra, 2011 Cr LJ 736 (Bom); Chandreee v State
2011 (3) Crimes 215 (Raj)-although there is no evidence on record that the present accused
Chandraee entered the house of the complainant with any preparation, therefore, the essential
fact of preparation is missing in the evidence and in the absence of any preparation, the offence
under section 452 IPC, 1860 cannot be said to be made out and thus, the offence of the
accused petitioner comes within the purview of section 451 IPC, 1860.
714.  Koduri Venkata Rao v State of A P, 2011 Cr LJ. 3512 (AP).

Of Theft
[s 453] Punishment for lurking house-trespass or house-breaking.
Whoever commits lurking house-trespass or house-breaking, shall be punished with
imprisonment of either description for a term which may extend to two years, and
715.  Subhash Sahebrao Datkar v State of Maharashtra, 2011 Cr LJ 736 (Bom).
COMMENT—
This section provides penalty for the offences deﬁned in sections 443 and 444.
In all "house-breaking" there must be "house-trespass", and in all "house-trespass" there
must be "criminal trespass". Unless, therefore, the intent necessary to prove "criminal
trespass" is present, the offence of house-breaking or house-trespass cannot be
committed. Where accused simply unlatched the chain and entered house of
complainant in the night and there was nothing to show that any device such as metal
rod, crow bar or even a stick was used by accused. It was held that preparation for

commission of offence not proved. It is also held that house trespass without
preparation is covered under section 453 IPC, 1860, not under section 452 IPC,
1860.715.

Of Theft
[s 454] Lurking house-trespass or house-breaking in order to commit offence
punishable with imprisonment.
Whoever commits lurking house-trespass or house-breaking, in order to the
committing of any offence punishable with imprisonment, shall be punished with
shall also be liable to ﬁne; and if the offence intended to be committed is theft, the
term of the imprisonment may be extended to ten years.
Section 4.
Section 454 of the Principal Act, shall be renumbered as sub-section (1) of that section
and after sub-section (1) as to renumbered, the following sub-section shall be added,
namely:—
"(2) Whoever commits lurking house-trespass or house-breaking in any building used

namely:—
as a place of worship, in order to the committing of the offence of theft of any idol or
icon from such building, shall notwithstanding anything contained in sub-section (1), be
punished with rigorous imprisonment which shall not be less than three years but
which may extend to ten years and with ﬁne which shall not be less than ﬁve thousand
rupees:
judgment, impose a sentence of imprisonment for a term of less than three years."
COMMENT—
This is an aggravated form of the offence described in the last section. The latter
portion of this section is framed to include the cases of house-trespassers and house-
breakers by night who have not only intended to commit, but have actually committed,

theft.716. Though the relationship between parties is of landlord and tenant and
accused is tenant in complainant's premises, It cannot be said that origin of dispute
being of civil nature. It is held that criminal proceedings are maintainable.717.
[s 454.1] Section 380 and section 454.—
In view of the conviction for section 454 of the IPC, 1860, separate conviction for the
offence under section 380 of the IPC, 1860 is not needed as the offence under section
454 also includes section 380.718.

716.  Zor Singh, (1887) 10 All 146 . See Khuda Bakhsh, (1886) PR No. 10 of 1886. Breaking open
a person's godown and throwing out articles is an offence under this section. Balai Chandra
Nandy v Durga Charan Banerjee, 1988 Cr LJ 710 (Cal).
717.  Balwant Singh Chuphal v State of Uttaranchal, 2007 Cr LJ 1362 (Utt); Kana Ram v State of
Rajasthan, 2002 Cr LJ 1867 (Raj)-possession of house/room in question remained with accused
petitioner. Offence not made out.
718.  K E Lokesha v State of Karnataka, 2012 Cr LJ 2120 (Kar).

Of Theft
[s 455] Lurking house-trespass or house-breaking after preparation for hurt,
assault or wrongful restraint.
Whoever commits lurking house-trespass, or house-breaking, having made
preparation for causing hurt to any person, or for assaulting any person, or for
wrongfully restraining any person, or for putting any person in fear of hurt, or of
assault, or of wrongful restraint, shall be punished with imprisonment of either
COMMENT—
The relation between this section and section 435 is the same as that between
sections 452 and 450. This section is similar to section 458. The only difference is that
the trespass here is committed by day, whereas under section 458 it is committed
during night.

Of Theft
[s 456] Punishment for lurking house-trespass or house-breaking by night.
Whoever commits lurking house-trespass by night, or house-breaking by night, shall
three years, and shall also be liable to ﬁne.
719.  Sankarsan, 1957 Cr LJ 286 .
720.  Jotharam Davay, (1878) 2 Mad 30.
COMMENT—
Lurking house-trespass or house-breaking is ordinarily punishable under section 453;
but when it is committed at night, this section is applicable. The intent necessary to
prove 'criminal trespass' must be present and the Court must come to a deﬁnite
inference as to the intention with which the entry was effected.719. Where the accused
persons, execution creditors, broke open the complainant's door before sunrise with
intent to distrain his property, for which they were convicted on a charge of lurking

house-trespass by night or house-breaking by night, it was held that as they were not
guilty of the offence of criminal trespass the conviction must be quashed.720.

Of Theft
[s 457] Lurking house-trespass or house-breaking by night in order to commit
off-ence punishable with imprisonment.
Whoever commits lurking house-trespass by night, or house-breaking by night, in
order to the committing of any offence punishable with imprisonment, shall be
years, and shall also be liable to ﬁne; and, if the offence intended to be committed is
theft, the term of the imprisonment may be extended to fourteen years.
Section 5.
Section 457 of the principal Act, shall be renumbered as sub-section (1) of that section
namely:—
"(2) Whoever commits lurking house-trespass by night or house-breaking by night in

namely:—
any building used as a place of worship, in order to the committing of the offence of
theft of any idol or icon from such building, shall, notwithstanding anything contained
in sub-section (1), be punished with rigorous imprisonment which shall not be less than
three years but which may extend to fourteen years and with ﬁne which shall not be
less than ﬁve thousand rupees:
U.P.—The following amendments were made by U.P Act No. 24 of 1995, Section 11.
namely:—

namely:—
"(2) Whoever commits lurking house-trespass by night or house breaking by night in
any building used as a place of worship in order to the committing of the offence of
theft of any idol or icon from such building shall notwithstanding anything contained in
sub-section (1) be punished with rigorous imprisonment which shall not be less than

721.  Sankarasan Boral v State, 1957 Cr LJ 286 ; Narayanan v State, AIR 1962 Ker.81 [LNIND 1961
KER 232] .
722.  Kandarpa Thakuria v State of Assam, 1992 Cr LJ 3084 (Gau). State of Rajasthan v Vinod,
2002 Cr LJ 1308 (Raj), the accused and his family were proved to be persons known to the
complainant being neighbours. The entry into the house could not be proved to be with the
intention of committing an offence punishable with imprisonment. The ﬁnding of acquittal was
not interfered with. Satyanarayanan v State of Rajasthan, 2000 Cr LJ 2529 (Raj) accused entered
house at night, beat up the girl and subjected her to rape, conviction under section 458 was
altered to one under section 457 as the accused had not committed lurking house trespass. He
had made preparation for assault. Harjit Singh v State of Haryana, 1999 Cr LJ 580 (SC) offence
under sections 457, 392, 397, 307, 332, 34, made out. See also R Trinath v State of Orissa, 1998

Cr LJ 3458 (Ori). Joseph v State of Kerala, 1997 Cr LJ 4289 (Ker), case of theft not made out.
Raghabacharan Panda v V Dindayal Patra, 2003 Cr LJ 1307 (Ori), allegation that the shop of the
chemist broken open by the landlord and handed over to another person for another purpose,
evidence was in favour of the accused land lord and his new tenant. Beneﬁt of doubt. Md.
Siddique Hussain v State of Assam, 2003 Cr LJ 1487 (Gau), it was diﬃcult for the court to believe
that any one should force his way to the house of another just only to committing a hurt. Beneﬁt
of doubt.
COMMENT—
preceding section. When a person is charged under section 457 IPC, 1860, on the

of doubt.
COMMENT—
allegation that he entered the dwelling house of another person with the intention of
committing theft it will not be legal to convict him under section 456 on the ground that
the entry was made with the intention of committing some other offence or with the
intention of annoying or insulting the inmates.721.
[s 457.1] For committing offence under the section.—
To constitute an offence under section 457, it is necessary to prove that house
trespass or breaking at night was committed in order to commit any offence
punishable under this section. The mere fact that house trespass was committed at
night does not attract the offence of lurking house trespass within the meaning of this
section.722.

Of Theft
[s 458] Lurking house-trespass or house-breaking by night after preparation
for hurt, assault, or wrongful restraint.
Whoever commits lurking house-trespass by night, or house-breaking by night, having
made preparation for causing hurt to any person or for assaulting any person, or for
description for a term which may extend to fourteen years, and shall also be liable to
ﬁne.
COMMENT—
This section is similar to sections 452 and 455. To prove the charge for the offence
under section 458, IPC, 1860, the prosecution must prove:—
(i) that the accused committed lurking house-trespass by night, or house-breaking
by night;
(ii) that he did as above after having made preparation for causing hurt, or for

by night;
assaulting, or for wrongfully restraining some person, or for putting some one in
fear of hurt, assault or wrongful restraint.723.
It only applies to the house-breaker who actually has himself made preparation for
causing hurt to any person, etc., and not to his companions as well who themselves
have not made such preparation.724. There should also be some evidence of lurking
house-trespass, as deﬁned in section 443, IPC, 1860.
[s 458.1] Section 458 is not a cognate offence of section 398.—
charges holding that prosecution has failed to prove the charges however, come to the

offence under section 398, IPC, 1860. Hence, conviction for offence under section 458
IPC, 1860 without framing charge is liable to be set aside.725.

723.  Pania v State, 2002 Cr LJ 3050 (Raj).
724.  Ghulam, (1923) 4 Lah 399.
725.  Manik Miah v State of Tripura, 2013 Cr LJ 1899 (Gau).

Of Theft
[s 459] Grievous hurt caused whilst committing lurking house-trespass or
house-breaking.
Whoever, whilst committing lurking house-trespass or house-breaking, causes
grievous hurt to any person or attempts to cause death or grievous hurt to any person,
shall be punished with 726.[imprisonment for life], or imprisonment of either
726.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
727.  Ismail Khan v State, (1886) 8 All 649 ; Hasmatullah Khan v State, 2005 Cr LJ 2266 (Utt)-
Charge U.S 459 convicted under section 457 since the injuries are simple in nature. Gopal Singh
v State of Rajasthan, 2008 Cr LJ 3272 (Raj)-conviction and sentence of the accused under
sections 458, 459, 395/397 and 396, IPC, 1860 are maintained.

728.  Bhanwarlal v Parbati, 1968 Cr LJ 130 . See contra Said Ahmed, (1927) 49 All 864 .
Dharampal Singh v State of Rajasthan, 1998 Cr LJ 3372 (Raj) murder in a chowk not owned and
COMMENT—
The offence under this section is an aggravated form of the offence described in
section 453.
This and the following section provide for a compound offence, the governing incident
of which is that either a 'lurking house-trespass' or 'house-breaking' must have been
completed in order to make a person, who accompanies that offence either by causing
grievous hurt or attempt to cause death or grievous hurt, responsible under those
sections.727.
During the period house-breaking lasts, if the trespasser causes grievous hurt to any
person or attempts to cause death or grievous hurt, the provisions of this section will

be attracted. It cannot be accepted that it is only in the process of making an entry into
a house if the trespasser causes grievous hurt, that this section will be attracted, for,
the essential ingredient of lurking house-trespass or house- breaking is 'criminal
trespass' and that offence continues so long as the trespasser remains on the property
in possession of another.728.

possessed by the complainant party. The accused also had the right of way through it. He was
not liable to be convicted under section 459 or 460.

Of Theft
[s 460] All persons jointly concerned in lurking house-trespass or house-
breaking by night punishable where death or grievous hurt caused by one of
them.
If, at the time of the committing of lurking house-trespass by night or house-breaking
by night, any person guilty of such offence shall voluntarily cause or attempt to cause
death or grievous hurt to any person, every person jointly concerned in committing
such lurking house-trespass by night or house-breaking by night, shall be punished
with 729.[imprisonment for life], or with imprisonment of either description for a term
COMMENT—
Before holding a person to be guilty of offence under section 460, IPC, 1860, the
prosecution must prove:—
(i) that the accused committed lurking house trespass by night; or house breaking by
night;
(ii) that he caused, or attempted to cause, death or grievous hurt;

night;
(iii) that he did above whilst engaged in committing lurking house trespass by night or
house breaking by night. On the aforesaid analysis of section, it is clear that this
section applies to those persons who have actually committed lurking house trespass
at night and not to those who may have accompanied their associates but did not
commit the offence. Indeed, it applies to actual doers, and not the others.730. This
section deals with the constructive liability of persons jointly concerned in committing
'lurking house-trespass' or 'house-breaking by night' in the course of which death or
grievous hurt to any one is caused. It is immaterial who causes death or grievous hurt.
Every person jointly concerned in committing such house-trespass or house-breaking

shall be punished in the manner provided in the section. A person who actually
commits murder in the course of committing house-breaking will attract the penalty
under section 302.731. Every person who is jointly concerned in committing the offence
of lurking house trespass by night or house breaking by night is to be punished with life
imprisonment where death has been caused or with imprisonment which may extend
to ten years where grievous hurt has been caused to any person. This joint liability is
based upon the principle of constructive liability. Thus, the person who has actually
committed the death or grievous hurt would be liable to be punished under the relevant
provisions, i.e., section 302 or section 326, as the case may be, while committing the
offence of lurking house trespass by night. It is possible that common intention or

object be not the foundation of an offence under section 460 IPC, 1860. Thus, to
establish an offence under section 460, it may not be necessary for the prosecution to
establish common intention or object. Suﬃce it will be to establish that they acted

729.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
730.  Badri Prasad Prajapati v State of Madhya Pradesh, 2005 Cr LJ 1856 (MP).
731.  Sohan Singh v State, AIR 1964 Punj 156 . Where in a case of house-breaking committed in
well-lighted house, the victim identiﬁed the accused and the articles stolen from her house in
two exercises of identiﬁcation parades, conviction of the accused was sustained. Kasu Bhai v
State of HP, 1992 Cr LJ 3251 (HP). State of MP v Bhagwan Singh, 2002 Cr LJ 3169 (MP), the
accused assailants entered into a house during night time, assaulted a man and hanged him
and also caused death of his daughter. The motive was to avenge the action against them to
prevent them from opening drainage towards the disputed land. They were held guilty of lurking
trespass and murder. Abdul Aziz v State of Rajasthan, (2007) 10 SCC 283 [LNIND 2007 SC 592] ,
house-breaking by several persons, death caused by one of them, others also constructively

liable, attracted section 302. It would require the accused to be charged with murder also. Mati
Ratre v State of Chhattisgarh, 2013 Cr LJ 560 (Chh)-Conviction set aside since testimony of sole
witness found to be not reliable
732.  Abdul Aziz v State of Rajasthan, 2007 (10) SCC 28 .
733.  Haradhan Das v State of West Bengal, (2013) 2 SCC 197 [LNIND 2012 SC 817] ; Dukalu v
State of Madhya Pradesh, 2011 CR LJ 1548 (Chh)- the appellants have been held responsible for
causing death of the 2 deceased persons with the aid of section 149, IPC, 1860. It is not a case
jointly and committed the offences stated in section 460 IPC, 1860. The principle of
constructive liability is applicable in distinction to contributory liability. The Supreme
Court in the case of Abdul Aziz v State of Rajasthan,732. clearly stated that if a person

committing housebreaking by night also actually commits murder, he must attract the
penalty for the latter offence under section 302 and the Court found it almost
impossible to hold that he can escape the punishment provided for murder merely
because the murder was committed by him while he was committing the offence of
housebreaking and that he can only be dealt with under section 460.733.
The words "at the time of the committing of" are limited to the time during which the
criminal trespass continues which forms an element in house-trespass, which is itself
essential to house-breaking, and cannot be extended so as to include any prior or
subsequent time.734. If the offender causes grievous hurt while running away, he will
not be punishable under this section.735.
[s 460.1] Section 449 and section 460.—

The element of house-trespass is common in both the sections and section 460 has
large ambit. In section 449 actual commission of offence punishable with death is not
required and if the house trespass is proved in order to commit such offence, the
accused persons would be liable for punishment under section 449, whereas in section
460 if a person guilty of lurking house trespass or housebreaking in night voluntarily
cause or attempt to cause death or grievous hurt to any person then every person
jointly concerned in committing such lurking house trespass in night shall be liable for
punishment.736.

in which at the time of committing lurking house trespass by night any one of the appellant
caused death of the deceased person and liability has to be fastened on the principle of section
460. In the facts and circumstances of the case, if all the appellants were held liable for
punishment under section 302 with the aid of section 149, IPC, 1860 on the principles of
common object of the unlawful assembly, of which they were the members, it was not
necessary to punish them separately under section 460, IPC, 1860 and punishment of the
appellants under section 460, IPC, 1860, in the facts and circumstances of the case, also
requires to be set aside.
734.  Muhammad, (1921) 2 Lah 342. State of Madhya Pradesh v Kalli, 2012 Cr LJ 2399 (MP)-
where death was caused while committing theft in the house of deceased, and looted property
from house of deceased were recovered from possession of accused and identiﬁed by
witnesses in test identiﬁcation parade, conviction of accused is held proper.

735.  Ibid. Mohan Manjhi v State of Bihar, 2000 Cr LJ 4482 (Pat), for an offence under sections
460 and 382, the accused was sentenced to undergo 3 years RI. The proceeding had lasted for
11 years. The accused had been in jail for 6 months. Considering their mental and ﬁnancial
strain, the court reduced their sentence to the period already undergone with a ﬁne of Rs. 1000.
736.  Dukalu v State of Madhya Pradesh, 2011 CR LJ 1548 (Chh).

Of Theft
[s 461] Dishonestly breaking open receptacle containing property.
Whoever dishonestly or with intent to commit mischief, breaks open or unfastens any
closed receptacle which contains or which he believes to contain property, shall be
737.  State of Maharashtra v Narayan Champalal Bajaj, 1990 Cr LJ 2635 : 1990 Tax LR 918 (Bom).
COMMENT—
This and the following section provide for the same offence. As soon as the receptacle
is broken open or unfastened the offence is complete. Where an IT raid could not be
completed on the same day and the raiding team put the seized jewellery in an almirah
and after locking and sealing it, left it in the custody of the accused, the latter was held
liable of this offence because he cut the almirah to take out some articles.737.

Of Theft
[s 462] Punishment for same offence when committed by person entrusted
with custody.
Whoever, being entrusted with any closed receptacle which contains or which he
believes to contain property, without having authority to open the same, dishonestly,
or with intent to commit mischief, breaks open or unfastens that receptacle, shall be
738.  Yamunabai w/o Trimbak Lolge v The State of Maharashtra, 1994 (2) Bom CR 73 [LNIND
1993 AUG 18] .
COMMENT—
An offence under section 462 of IPC, 1860 is an aggravated form of the offence made
punishable under section 461 of IPC, 1860.738.

CHAPTER XVIII OF OFFENCES RELATING TO DOCUMENTS AND TO
PROPERTY MARKS
[s 463] Forgery.
1. [Whoever makes any false documents or false electronic record or part of a
document or electronic record, with intent to cause damage or injury], to the public or
to any person, or to support any claim or title, or to cause any person to part with
property, or to enter into any express or implied contract, or with intent to commit
fraud or that fraud may be committed, commits forgery.
1.  Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the
words "Whoever makes any false documents or part of a document with intent to cause
damage or injury w.e.f. 17 October 2000. The words "electronic record" have been deﬁned in
2.  Sushil Suri v CBI, (2011) 5 SCC 708 [LNIND 2011 SC 494] : AIR 2011 SC 1713 [LNIND 2011 SC
494] ; State of UP v Ranjit Singh, AIR 1999 SC 1201 : (1999) 2 SCC 617 .
3.  Nahul Kohli v State, 2010 Cr LJ 4536 (Del).

The deﬁnition of 'forgery' in section 463, Indian Penal Code, 1860 (IPC, 1860) is very
wide. The basic elements of forgery are: (i) the making of a false document or part of it;
and (ii) such making should be with such intention as is speciﬁed in the section, viz., (a)
to cause damage or injury to (i) the public, or (ii) any person, or (b) to support any claim
or title, or (c) to cause any person to part with property, or (d) to cause any person to
enter into an express or implied contract, or (e) to commit fraud or that fraud may be
committed.2. If a document, which is not genuine, is being used as such and a person
is made to part with money on that basis then not only the offence of cheating as
deﬁned under section 415 IPC but also the offence of forgery as deﬁned under section
463 IPC is attracted.3.

[s 464] Making a false document.
4. [A person is said to make a false document or electronic record—
First.—Who dishonestly or fraudulently—
(a) makes, signs, seals or executes a document or part of a document;
(b) makes or, transmits any electronic record or part of any electronic record;
(c) aﬃxes any 5.[electronic signature] on any electronic record;
(d) makes any mark denoting the execution of a document or the authenticity of the
6.[electronic signature],
with the intention of causing it to be believed that such document or part of
document, electronic record or 7.[electronic signature] was made, signed,
sealed executed, transmitted or aﬃxed by or by the authority of a person by
whom or by whose authority he knows that it was not made, signed, sealed,
executed or aﬃxed; or
Secondly.—Who, without lawful authority, dishonestly or fraudulently, by cancellation

or otherwise, alters a document an electronic record in any material part thereof, after
it has been made, executed or aﬃxed with 8.[electronic signature] either by himself or
by any other person, whether such person be living or dead at the time of such
alteration; or
Thirdly.—Who dishonestly or fraudulently causes any person to sign, seal, execute or
alter a document or an electronic record or to aﬃx his 9.[electronic signature] or any
electronic record knowing that such person by reason of unsoundness of mind or
intoxication cannot, or that by reason of deception practised upon him, he does not
know the contents of the document or electronic record or the nature of the
alteration.]
(a) A has a letter of credit upon B for rupees 10,000 written by Z. A, in order to

defraud B, adds a cipher to the 10,000, and makes the sum 1,00,000, intending
that it may be believed by B that Z so wrote the letter. A has committed forgery.
(b) A, without Z's authority, aﬃxes Z's seal to a document purporting to be a
conveyance of an estate from Z to A, with the intention of selling the estate to B
and thereby of obtaining from B the purchase-money. A has committed forgery.
(c) A picks up a cheque on a banker signed by B, payable to bearer, but without any

sum having been inserted in the cheque. A fraudulently ﬁlls up the cheque by
inserting the sum of ten thousand rupees. A commits forgery.
(d) A leaves with B, his agent, a cheque on a banker, signed by A, without inserting
the sum payable and authorizes B to ﬁll up the cheque by inserting a sum not
exceeding ten thousand rupees for the purpose of making certain payment. B
fraudulently ﬁlls up the cheque by inserting the sum of twenty thousand rupees.
B commits forgery.
(e) A draws a bill of exchange on himself in the name of B without B's authority,
intending to discount it as a genuine bill with a banker and intending to take up
the bill on its maturity. Here, as A draws the bill with intent to deceive the banker
by leading him to suppose that he had the security of B, and thereby to discount
the bill, A is guilty of forgery.
(f) Z's will contains these words—"I direct that all my remaining property be equally
divided between A, B and C". A dishonestly scratches out B's name, intending

that it may be believed that the whole was left to himself and C. A has
committed forgery.
(g) A endorses a Government promissory note and makes it payable to Z or his
order by writing on the bill the words "Pay to Z or his order" and signing the
endorsement. B dishonestly erases the words "Pay to Z or his order" and thereby
converts the special endorsement into a blank endorsement. B commits forgery.
(h) A sells and conveys an estate to Z. A afterwards, in order to defraud Z of his
estate, executes a conveyance of the same estate to B, dated six months earlier
than the date of the conveyance to Z, intending it to be believed that he had
conveyed the estate to B before he conveyed it to Z. A has committed forgery.
(i) Z dictates his will to A. A intentionally writes down a different legatee from the

legatee named by Z, and by representing to Z that he has prepared the will
according to his instructions, induces Z to sign the will. A has committed forgery.
(j) A writes a letter and signs it with B's name without B's authority, certifying that A
is a man of good character and in distressed circumstances from unforeseen
misfortune, intending by means of such letter to obtain alms from Z and other
persons. Here, as A made a false document in order to induce Z to part with
property. A has committed forgery.
(k) A without B's authority writes a letter and signs it in B's name certifying to A's
character, intending thereby to obtain employment under Z. A has committed
forgery in as much as he intended to deceive Z by the forged certiﬁcate, and
thereby to induce Z to enter into an express or implied contract for service.

Explanation 1.—A man's signature of his own name may amount to forgery.
(a) A signs his own name to a bill of exchange, intending that it may be believed
that the bill was drawn by another person of the same name. A has committed
forgery.

(b) A writes the word "accepted" on a piece of paper and signs it with Z's name, in
order that B may afterwards write on the paper a bill of exchange drawn by B
upon Z, and negotiate the bill as though it had been accepted by Z. A is guilty of
forgery; and if B, knowing the fact, draws the bill upon the paper pursuant to A's
intention, B is also guilty of forgery.
(c) A picks up a bill of exchange payable to the order of a different person of the
same name. A endorses the bill in his own name, intending to cause it to be
believed that it was endorsed by the person whose order it was payable; here A
has committed forgery.
(d) A purchases an estate sold under execution of a decree against B. B, after the
seizure of the estate, in collusion with Z, executes a lease of the estate of Z at a
nominal rent and for a long period, and dates the lease six months prior to the
seizure, with intent to defraud A, and to cause it to be believed that the lease

was granted before the seizure. B, though he executes the lease in his own
name, commits forgery by antedating it.
(e) A, a trader, in anticipation of insolvency, lodges effects with B for A's beneﬁt, and
with intent to defraud his creditors; and in order to give a colour to the
transaction, writes a promissory note binding himself to pay to B a sum for value
received, and antedates the note, intending that it may be believed to have been
made before. A was on the point of insolvency. A has committed forgery under
the ﬁrst head of the deﬁnition.
Explanation 2.—The making of a false document in the name of a ﬁctitious person,
intending it to be believed that the document was made by a real person, or in the
name of a deceased person, intending it to be believed that the document was made
by the person in his lifetime, may amount to forgery.

10.[Explanation 3.—For the purposes of this section, the expression "aﬃxing 11.
[electronic signature]" shall have the meaning assigned to it in clause (d) of
subsection (1) of section 2 of the Information Technology Act, 2000].
A draws a bill of exchange upon a ﬁctitious person, and fraudulently accepts the bill in
the name of such ﬁctitious person with intent to negotiate it. A commits forgery.
An analysis of section 464 of IPC, 1860 shows that it divides false documents into
three categories:
A. The ﬁrst is where a person dishonestly or fraudulently makes or executes a
document with the intention of causing it to be believed that such document was made
or executed by some other person, or by the authority of some other person, by whom
or by whose authority he knows it was not made or executed.

B. The second is where a person dishonestly or fraudulently, by cancellation or
otherwise, alters a document in any material part, without lawful authority, after it has
been made or executed by either himself or any other person.

C. The third is where a person dishonestly or fraudulently causes any person to sign,
execute or alter a document knowing that such person could not by reason of (a)
unsoundness of mind, or (b) intoxication, or (c) deception practised upon him, know the
contents of the document or the nature of the alteration. In short, a person is said to
have made a 'false document', if (i) he made or executed a document claiming to be
someone else or authorised by someone else, or (ii) he altered or tampered a
document, or (iii) he obtained a document by practicing deception, or from a person not
in control of his senses.12. Making of any false document, in view of the deﬁnition of
'forgery' is the sine qua non therefor. What would amount to making of a false
document is speciﬁed in section 464 thereof. What is, therefore, necessary is to
execute a document with the intention of causing it to be believed that such document
inter alia was made by the authority of a person by whom or by whose authority he

knows that it was not made.13. In the case of Mir Nagvi Askari v CBI, the Court held that:
A person is said to make a false document or record if he satisﬁes one of the three
conditions as noticed hereinbefore and provided for under the said section. The ﬁrst
condition being that the document has been falsiﬁed with the intention of causing it to be
believed that such document has been made by a person, by whom the person falsifying the
document knows that it was not made. Clearly the documents in question in the present
case, even if it be assumed to have been made dishonestly or fraudulently, had not been
made with the intention of causing it to be believed that they were made by or under the
authority of some one else. The second criteria of the section deals with a case where a

person without lawful authority alters a document after it has been made. There has been
no allegation of alteration of the voucher in question after they have been made. Therefore
in our opinion the second criteria of the said section is also not applicable to the present
case. The third and ﬁnal condition of Section 464 deals with a document, signed by a
person who due to his mental capacity does not know the contents of the documents which
were made i.e because of intoxication or unsoundness of mind etc. Such is also not the
case before us. Indisputably therefore the accused before us could not have been convicted
with the making of a false document.14.
To attract the second clause of section 464 there has to be alteration of document
dishonestly and fraudulently. So in order to attract the clause 'secondly' if the document

is to be altered it has to be for some gain or with such objective on the part of the
accused. Merely changing a document does not make it a false document.15.
[s 464.1] Making of false document.—
False document is said to have been made when a person dishonestly or fraudulently
makes a document with the intention of causing it to be believed that such document
was made by some other person.16.
[s 464.2] Issuance of a caste certiﬁcate.—
The Sub-Divisional Oﬃcer (SDO) issued a caste certiﬁcate. The application for the
same was supported by aﬃdavit of the father of the applicant. Later, the High Power
Scrutiny Committee cancelled the certiﬁcate. A complaint was ﬁled alleging forgery,
cheating, conspiracy, etc. The High Court held that no offence of forgery was

constituted as neither signature nor seals, etc., of Sub-Divisional Oﬃcer were forged
but the caste certiﬁcate was issued by the SDO, himself and therefore it was not a false
document in the eyes of law according to the provisions of section 464 of IPC, 1860.17.

4.  Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Schedule,
w.e.f. 17 October 2000. The words "electronic record" have been deﬁned in section 29A.
5.  Subs. for the words "digital signature" by the Information Technology (Amendment) Act,
2008 (10 of 2009), section 51 (w.e.f. 27 October 2009).
6.  Subs. for the words "digital signature" by the Information Technology (Amendment) Act,
7.  Ibid.
8.  Ibid.
9.  Ibid.
10.  Ins. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch, w.e.f. 17
October 2000.
11.  Subs. for the words "digital signature" by the Information Technology (Amendment) Act,
12.  Mohammed Ibrahim v State of Bihar, (2009) 8 SCC 751 [LNIND 2009 SC 1774] : 2010 Cr LJ
2223 : AIR 2010 SC (Supp) 347; Malay Chatterjil v State of Bihar, 2012 Cr LJ 2240 (Pat).

13.  Devendra v State of UP, 2009 (7) SCC 495 : 2009 (7) Scale 613 [LNIND 2009 SC 1158] .
14.  Mir Nagvi Askari v CBI, AIR 2010 SC 528 [LNIND 2009 SC 1651] : (2009) 15 SCC 643 [LNIND
2009 SC 1651] .
15.  Parminder Kaurl v State of UP, (2010) 1 SCC 322 [LNIND 2009 SC 1924] : AIR 2010 SC 840
[LNIND 2009 SC 1924] .
16.  Raj Shekhar Agrawal v State of WB, 2016 Cr LJ 993 (Cal) : (2015) 4 CALLT 615 (HC).
17.  Harvir Singh v State of MP, 2016 Cr LJ 3608 (MP) : 2016 (2) JLJ 422 .

[s 465] Punishment for forgery.
Whoever commits forgery shall be punished with imprisonment of either description
COMMENT.—
The offence of forgery is deﬁned in sections 463 and 464 of the Code. Under section
463 the making of a false document with any of the intents therein mentioned is
forgery, and section 464 sets forth when a person is said to make a 'false document'
within the meaning of the Code.
The deﬁnition of forgery in the Code is not as simple and clear as the deﬁnition of
forgery in common law. Forgery in common law is deﬁned as the fraudulent making or
alteration of a writing to the prejudice of another man's right.
[s 465.1] Ingredients.—
The elements of forgery are—
1. The making of a false document or part of it.
2. Such making should be with the intent
(a) to cause damage or injury to (i) public, or (ii) any person; or

(b) to support any claim or title; or
(c) to cause any person to part with property; or
(d) to cause any person to enter into express or implied contract; or
(e) to commit fraud or that fraud may be committed.
1. 'Makes any false document'.— A school inspector prepared under his own signature
false pay bills containing false claims for salaries of teachers who had not worked
within his jurisdiction, some of whom being purely ﬁctitious, and encashed them from
the treasury. He was held to be guilty of making a false document but not of forgery
because he had not made the signature or writing of another, nor had altered the pay
bills.18.
The antedating of a document is not forgery, unless it has or could have operated to the
prejudice of some one.19. Incorporation or inclusion of a false statement in a document

bills.18.
would not ipso facto make the document false. For a document to be false, it has to tell
a lie about itself.20.

[s 465.2] Publication of book.—
There was allegation that the accused person, in order to induce the public to purchase
the book, falsely represented that the book was by a certain person. There was no
allegation that the accused himself had written the book and represented it to be that
of some other person. The Court said such allegations, even if true, do not make out a
case of forgery. The offence of cheating could not also be said to have been made out
because it was a consequential offence.21.
Where the allegation was that the accused, who was working as a stenographer in the
High Court, had fabricated a forged bail order and the evidence showed that the bail
order in question was in fact written by the accused, the ﬁnding of the High Court that
the paper could not be said to be a document in the absence of signature of the
accused was held to be not tenable. The document could have been used for causing
wrongful loss or obtaining wrongful gain. Hence, the offence under sections 466 and

468 was made out.22.
2. 'To cause damage or injury to the public or to any person'.—The damage or injury
must be intended to be caused by the false document to the public or any individual.23.
Thus, a police-oﬃcer who alters his diary so as to show that he had not kept certain
persons under surveillance does not commit forgery, inasmuch as there is no risk of
loss or injury to any individual and the element of fraud as deﬁned in section 25 is
absent.24. It is the intent to cause damage or injury which constitutes the gist of this
offence. It is immaterial whether damage, injury or fraud is actually caused or not.25.
Mere making of a false document would not constitute defrauding unless injury or
intent to cause injury to the person deceived was also proved.26.
To tamper with a proceeding in a Court of Justice in order to obtain from the Court a

decision or order, which it otherwise would not make, is as much a public mischief as
to attempt to secure the unauthorised release of a prisoner from jail or to obtain for an
unqualiﬁed person credentials entitling him to practise as a surgeon or to navigate a
ship.27.
3. 'Support any claim or title'.—Even if a man has a legal claim or title to property, he
will be guilty of forgery if he counterfeits documents in order to support it. See
illustrations (f), (g), (h) and (i). An actual intention to convert an illegal or doubtful claim
into an apparently legal one is dishonesty and will amount to forgery.28.
The term 'claim' is not limited in its application to a claim to property. It may be a claim
to anything, as for instance, a claim to a woman as the claimant's wife, a claim to the

custody of a child as being the claimant's child, or a claim to be admitted to attendance
at a law class in a college, or to be admitted to a university or other examination, or a
claim to the possession of immovable or any other kind of property.29.
4. 'To cause any person to part with property'.—It is not necessary that the property
with which it is intended that false document shall cause a person to part should be in
existence at the time when the false document was made. For example, if A gave an
order to B to buy the material for making and to make a silver tea service for him, and
C, before the tea service was made or the materials for making it had been bought
were to make a false letter purporting, but falsely, to be signed by A, authorizing B to

deliver to D the tea service when made, C would have committed forgery within the
meaning of section 463 by making that false document with intent to cause B to part
with property, namely, the tea service, when made.30. A written certiﬁcate has been
held to be 'property' within the meaning of this section.31.

5. 'Intent to commit fraud'.—The Supreme Court had held that the expression "defraud"
involves two elements, namely, deceit and injury to the person deceived. Injury is
something other than economic loss that is deprivation of property, whether movable
or immovable, or of money, and it will include any harm whatever caused to any person
in body, mind, reputation or such others. In short, it is a non-economic or non-pecuniary
loss. A beneﬁt or advantage to the deceiver will almost always cause loss or detriment
to the deceived. Even in those rare cases where there is a beneﬁt or advantage to the
deceiver, but no corresponding loss to the deceived the second condition is
satisﬁed.32.
6. 'Fraudulently'.—This word is used in sections 471 and 464 together with the word
'dishonestly' and presumably in a sense not covered by the latter word. If, however, it be
held that 'fraudulently' implies deprivation, either actual or intended, then apparently

that word would perform no function which would not have been fully discharged by
the word 'dishonestly' and its use would be mere surplusage. So far as such a
consideration carries any weight, it obviously inclines in favour of the view that the
word 'fraudulently' should not be conﬁned to transactions of which deprivation of
property forms a part.33.
7. 'Makes'.—"The 'making of a document, or part of a document, does not mean
'writing' or 'printing' it, but signing or otherwise executing it; as in legal phrase we speak
of 'making an indenture' or 'making a promissory note', by which is not meant the
writing out of the form of the instrument, but the sealing or signing it as a deed or note.
The fact that the word 'makes' is used in the section in conjunction with the words

'signs', 'seals' or 'executes', or 'makes any mark denoting the execution', etc., seems to
very clearly to denote that this is its true meaning. What constitutes a false document
or part of a document is not the writing of any number of words which in themselves
are innocent, but aﬃxing the seal or signature of some person to the document, or part
of a document, knowing that the seal or signature is not his, and that he gave no
authority to aﬃx it. In other words, the falsity consists in the document, or part of a
document, being signed or sealed with the name or seal of a person who did not in fact
sign or seal it".34.
[s 465.3] Fabricating letter or certiﬁcate.—
In a case, the allegation was that the accused made false document for getting sim
cards of mobile phones. Handwriting expert deposed that he was not in a position to

give any ﬁnding on basis of specimen signature of appellant. It was held that since
ﬁnding recorded by Special Judge was contrary to evidence given by handwriting
expert, conviction of appellant for offence punishable under section 465 read with
section 471 of IPC, 1860, could not be sustained.35. Where accused was alleged to
have obtained employment on strength of forged document, ﬁnding that accused had
not been proved to have forged the documents, it was held that offence under section
465 is not made out.36.
[s 465.4] Creation of a website by the company—
Where the appellant created a website with the name Devi Consultancy Services for the
development of the existing company named Devi Polymers Private Limited, in the
absence of any possibility to impute any intent to cause damage or injury or to enter

into any express or implied contract or any intent to commit fraud in the making of the
said website, no offence of forgery is made out, especially when he has not received a

single rupee or nor has he entered into any contract in his own name on the basis of
the above website.37.
[s 465.5] Acting for society after takeover.—
Where the entire management of a society was taken over by the petitioners and they
were looking after its affairs by writing letters, drawing cheques and operating bank
accounts by signing their names on behalf of the society and not on anybody else's
names or behalf, the offence of forgery/making false document was not made out.38.
[s 465.6] Alteration of document.—
The mere alteration of a document does not make it a forged document. The alteration
must be for some gain or for some objective. The Court said that presuming that ﬁgure
"1" was added to the date mentioned on the document, it could not be said that the
document became false. The accused had nothing to gain from it, nor it affected the
period of limitation.39.
[s 465.7] Clause second.—Alteration on or cancellation of document [Section
464].—

464].—
This clause requires dishonest or fraudulent cancellation or alteration of a document in
any material part without lawful authority after it has been made or executed by a
person who may be living or dead.
The conduct of an Advocate's clerk in forging the signature of another Advocate on a
surety bond and in altering certain endorsements for the purposes of identiﬁcation and
attestation, was held by the Supreme Court as amounting to an offence under this
section and not under section 468.40.
[s 465.8] Sentence.—
Accused employed as a sanitation supervisor was found to have committed offence of
making fake trade licences and issuing them to various persons. Court below convicted
him for one year under section 471 read with section 465 IPC, 1860, and two years'

simple imprisonment (SI) under section 468, IPC imposed upon him. Considering the
fact that he was a ﬁrst offender and an orphan and sole bread earner of his family
which consisted of a minor child and an unemployed wife, the sentence under section
471 read with section 465 IPC, 1860 was reduced to one month and the sentence
under section 468 IPC, 1860 was reduced to two months.41.

18.  Shankerlal Vishwakarma v State of MP, 1991 Cr LJ 2808 (MP).
19.  Gobind Singh, (1926) 5 Pat 573.
20.  AK Khosla v TS Venkatesan, 1994 Cr LJ 1448 (Cal); Lee Cheung Wing v R, 1992 Cr App R 355
(PC), falsiﬁcation of a withdrawal slip to enable the withdrawal of money, offence; Premlata v
State of Rajasthan, 1998 Cr LJ 1430 (Raj); Manilal v State of Kerala, 1998 Cr LJ 785 (Ker). See
also Joginder Lal v State (Delhi Admn.), 1998 Cr LJ 3175 (Del); Mohandas v State of TN, 1998 Cr
LJ 3409 (Mad); Bharat Hiralal v Jaysiri Amarsinh, 1997 Cr LJ 2509 (Bom), forgery of a document
is possible even if the accused himself is the author and signatory of the document. A case of a
false bill, magistrate justiﬁed in taking cognizance.
21.  Guru Bipin Singh v Chongtham Manihar Singh, AIR 1997 SC 1448 [LNIND 1996 SC 1690] :
1997 Cr LJ 724 .
22.  State of UP v Ranjit Singh, AIR 1999 SC 1201 : 1999 Cr LJ 1830 .
23.  RR Diwakar v B Guttal, 1975 Cr LJ 90 (Kant).
24.  Sanjiv Ratnappa, (1932) 34 Bom LR 1090 : 56 Bom 488.

25.  Kalyanmal, (1937) Nag 45.
26.  Sadanand, 1977 Cr LJ NOC 103 (Goa); Tul Mohon Ram, 1981 Cr LJ NOC 223 (Del); see also
Harnam Singh, 1976 Cr LJ 913 (SC), as in 'Comments' under section 477A infra. TN Rugmani v C.
Achutha Menon, AIR 1991 SC 983 [LNIND 1990 SC 803] , application for permission for
construction made in another's name, but without any intention of causing harm, no offence
under the section.
27.  Mahesh Chandra Prasad v State, (1943) 22 Pat 292.
28.  Ibid.
29.  Soshi Bhushan, (1893) 15 All 210 , 217.
30.  Soshi Bhushan, (1893) 15 All 210 , 217, 218.
31.  Ibid, p 218.
32.  Dr. Vimla, (1963) 2 Cr LJ 434 .
33.  Abbas Ali, (1896) 25 Cal 512 , 521, FB overruling Haradhan, (1892) 19 Cal 380 .
34.  Per Garth CJ in Riasat Ali, (1881) 7 Cal 352 , 355.

35.  Nazeem Ahmed Wahid Ahmed Khanl v State of Maharashtra, 2011 Cr LJ 1786 (Bom).
36.  Rupa Bania v State of Assam, 2006 Cr LJ 3455 (Gau).
37.  Ramesh Rajagopal v Devi Polymers Pvt Ltd, AIR 2016 SC 1920 [LNIND 2016 SC 170] :
2016(4) Scale 198 [LNIND 2016 SC 170] .
38.  PN Parthasarthy v GK Srinivasa Rao, 1995 Cr LJ 3406 (Kant).
39.  Parminder Kaur v State of UP, 2010 Cr LJ 895 : AIR 2010 SC 840 [LNIND 2009 SC 1924] :
(2010) 1 SCC 322 [LNIND 2009 SC 1924] .
40.  Sharvan Kumar v State of UP, AIR 1985 SC 1663 [LNIND 1985 SC 231] : (1985) 3 SCC 658
[LNIND 1985 SC 231] , reducing the sentence to nine months, already undergone.
41.  Tashi Dadul Bhutia v State of Sikkim, 2011 Cr LJ 1315 (Sik).

[s 466] Forgery of record of Court or of public register, etc.
42. [Whoever forges a document or an electronic record], purporting to be a record or
proceeding of or in a Court of Justice, or a register of birth, baptism, marriage or
burial, or a register kept by a public servant as such, or a certiﬁcate or document
purporting to be made by a public servant in his oﬃcial capacity, or an authority to
institute or defend a suit, or to take any proceedings therein, or to confess judgment,
or a power of attorney, shall be punished with imprisonment of either description for a
term which may extend to seven years, and shall also be liable to ﬁne.
43.[ E x p l a n a t i o n .—For the purposes of this section, "register" includes any list, data or
record of any entries maintained in the electronic form as deﬁned in clause (r) of sub-
section (1) of section 2 of the Information Technology Act, 2000].

42.  Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the
words "whoever forges a document', w.e.f. 17 October 2000. The words "electronic record" have
been deﬁned in section 29A.
43.  Ins. by the Information Technology Act (21 of 2000), section 91 and First Sch, (w.e.f. 17
October 2000).
COMMENT.—
Forging a document and using the forged document are quite different and distinct
offence. The reliance on the false documents will not ipso facto implicate the person
who relied upon, under sections 465 and 466.44. If by virtue of preparing a false
document purporting it to be a document of a Court of Justice and by virtue of such
document, a person who is not entitled to be released on bail could be released then,
undoubtedly damage or injury has been caused to the public at large and, therefore,

there is no reason why under such circumstances the accused who is the author of
such forged document cannot be said to have committed offence under section 466 of
IPC, 1860. A person is said to do a thing fraudulently if he does that thing with intent to
defraud but not otherwise. The expression 'defraud' involves two elements, namely
deceit and injury to the person deceived. Injury is something other than economic loss
and it will include any harm whatever caused to any person in body, mind, reputation or
such others. A beneﬁt or advantage to the deceiver will almost always cause loss or
detriment to the deceived. The preparation of a forged bail order by the utilisation of
which the person concerned obtained an advantage of being released deceiving the
courts and the society at large cannot but be said to have made the document

fraudulently, thereby attracting section 466 of IPC, 1860.45.

44.  C R Alimchandani v I K Shah, 1999 Cr LJ 2416 (Bom).
45.  State of UP v Ranjit Singh, AIR 1999 SC 1201 : 1999 (2) SCC 617 .

[s 467] Forgery of valuable security, will, etc.
Whoever forges a document which purports to be a valuable security or a will, or an
authority to adopt a son, or which purports to give authority to any person to make or
transfer any valuable security, or to receive the principal, interest or dividends
thereon, or to receive or deliver any money, movable property, or valuable security, or
any document purporting to be an acquittance or receipt acknowledging the payment
of money, or an acquittance or receipt for the delivery of any movable property or
valuable security, shall be punished with 46.[imprisonment for life], or with
COMMENT.—
preceding section. The forged document must be one of those mentioned in the

COMMENT.—
section. A complaint by the court is necessary for cognizance of the offence.47.
Section 467, IPC, 1860, does not require the prosecution to prove that the accused who
commits forgery, has beneﬁtted thereby or any loss has occasioned to anyone
thereby.48. There is a fundamental difference between a person executing a sale deed
claiming that the property conveyed is his property, and a person executing a sale deed
by impersonating the owner or falsely claiming to be authorised or empowered by the
owner, to execute the deed on owner's behalf. When a person executes a document
conveying a property describing it as his, there are two possibilities. The ﬁrst is that he
has a bona ﬁde belief that the property actually belongs to him. The second is that he
may be dishonestly or fraudulently claiming it to be his even though he knows that it is

not his property. But to fall under ﬁrst category of "false documents", it is not suﬃcient
that a document has been made or executed dishonestly or fraudulently. There is a
further requirement that it should have been made with the intention of causing it to be
believed that such document was made or executed by, or by the authority of a person,
by whom or by whose authority he knows that it was not made or executed. When a
document is executed by a person claiming a property which is not his, he is not
claiming that he is someone else nor is he claiming that he is authorised by someone
else. Therefore, execution of such document (purporting to convey some property of
which he is not the owner) is not execution of a false document as deﬁned under
section 464 of the Code. If what is executed is not a false document, there is no

forgery. If there is no forgery, then neither section 467 nor section 471 of the Code is
attracted.49.
[s 467.1] Quashing of complaint.—
There were bold allegations in the complaint that the shares of the complainant had
been transferred on forged signatures. There was nothing to show how all or any of the
accused persons were involved. No offence was constituted under sections 406, 420,
467, 468 and 120-B. The order taking cognizance was held to be improper. It was

quashed in respect of accused persons who preferred special leave petition and also in
respect of those who did not ﬁle a petition.50.
[s 467.2] CASES.—
Where the allegation was that a company, acting through its directors in concert with
the chartered accountants and some other persons: (i) conceived a criminal conspiracy
and executed it by forging and fabricating a number of documents, like photographs of
old machines, purchase orders and invoices showing purchase of machinery in order to
support their claim to avail hire-purchase loan from Bank; (ii) on the strength of these
false documents, bank parted with the money by issuing pay orders and demand drafts
in favour of the Company; and (iii) the accused opened six ﬁctitious accounts in the
banks to encash the pay orders/bank drafts issued by Bank in favour of the suppliers of
machines, thereby directly rotating back the loan amount to the borrower from these
ﬁctitious accounts, and in the process committed a systematic fraud on the Bank and

obtained pecuniary advantage for themselves. Precise details of all the ﬁctitious
accounts as also the further ﬂow of money realized on encashment of demand
drafts/pay orders have been incorporated in the charge sheet additionally, by allegedly
claiming depreciation on the new machinery, which was never purchased, on the basis
of forged invoices, etc.; the accused cheated the public exchequer as well. The
Supreme Court held that proceedings are not liable to be quashed merely because
dues of bank have been paid up.51.
A deed of agreement for purchase of shares is not a valuable security.52. A person who
received money from a postman under a false representation that he was the payee
when in fact he was not, and signed the postal acknowledgement in the name of the
payee, was held to have committed an offence under this section.53. Where the

accused fraudulently brought into existence a registered sale deed, said to have been
executed by the widow of a person, intending to deceive and also to injure the
reversioners of that person, it was held that they were guilty under this section.54.
Where the accused falsely identiﬁed a person before the Oaths Commissioner as the
deponent and the said person aﬃxed his thumb impression on the document and it
was also apparent that the document could not even become an aﬃdavit without
identiﬁcation of the deponent by the accused, it was held that the accused abettor
having been present at the time of the commission of the offence of impersonation he
was guilty under section 467 read with section 114, IPC, 1860.55. A bank draft is a
security for the purposes of this section and the bank manager signing a forged draft is

guilty of this offence.56. Making out cheques for withdrawing money for oﬃcial
purposes and obtaining the signature of the signing oﬃcer under that pretence was
held to be punishable offence under this section.57.
[s 467.3] Bar under section 195(1)(b)(ii) of the Code of Criminal Procedure,
1973 (Cr PC, 1973).—
Section 195(1)(b)(ii), Cr PC mandates that no court shall take cognizance of any
offence described in section 463, or punishable under sections 471, 475 or 476, of IPC,
1860, when such offence is alleged to have been committed in respect of a document
produced or given in evidence in a proceeding in any court, except on the complaint in
writing of that court, or of some other court to which that court is subordinate. It
contemplates a situation where offences enumerated therein are committed with

respect to a document subsequent to its production or giving in evidence in a
proceeding in any court.58. The petitioner stood before the Court as surety in favour of

46.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
47.  See Sardul Singh v State of Haryana, 1992 Cr LJ 354 (P&H).
48.  Suresh Hingorani v State of Haryana, 2013 (1) Scale 225 [LNIND 2013 SC 21] : JT 2013 (8)
SC 66 [LNIND 2013 SC 21] .
49.  Shiv Charan v State of Rajasthan, 2012 Cr LJ 211 (Raj).
50.  Ashok Chaturvedi v Shitual H Chanchani, 1998 Cr LJ 4091 : AIR 1998 SC 2796 [LNIND 1998
SC 751] .
51.  Sushil Suri v CBI, (2011) 5 SCC 708 [LNIND 2011 SC 494] : AIR 2011 SC 1713 [LNIND 2011
SC 494] .
52.  AK Khosla v TS Venkatesan, 1992 Cr LJ 1448 (Cal).
53.  Jogidas v State, (1921) 24 Bom LR 99 ; Sanjay Gaikwad v State of Maharashtra, 2013 Cr LJ
(NOC) 304 —using genuine special adhesive stamps fraudulently obtained for making false
document— offence is under section 468 not under section 256–259 IPC.
54.  Ganga Dibya, (1942) 22 Pat 95.
55.  Calcutta Singh, 1978 Cr LJ 477 (P&H).

56.  Adithela Immanuel Raju v State of Orissa, 1992 Cr LJ 243 ; State of Haryana v Parmanand,
(1995) 1 Cr LJ 396 , embezzlement by forging entries in records, but neither signature nor
handwriting proved by expert evidence, conviction on the statement of a sole witness not
justiﬁed.
57.  State of Punjab v Baj Singh, (1995) 2 Cr LJ 1311 (P&H); Joginder Pal Dhiman v UOI, 2002 Cr
LJ 677 (HP), bank manager defrauded bank by forging amounts on FDRs and issuing drafts in
his own and wife's name. But on being detected he returned the whole amount involved.
Sentence reduced to one year and amount of ﬁne maintained.
58.  Iqbal Singh Marwah v Meenakshi Marwah, (2005) 4 SCC 370 [LNIND 2005 SC 261] ; Mahesh
Chand Sharma v State of UP, AIR 2010 SC 812 [LNIND 2009 SC 1740] : (2009) 15 SCC 519

[LNIND 2009 SC 1740] ; CP Subhash v Inspector of Police Chennai, 2013 Cr LJ 3684 : JT 2013 (2)
SC 270 [LNIND 2013 SC 74] , sale deed had not been forged while in custody of court, bar under
section 195 not applicable.
59.  Jagannath Singh v State of MP, 2011 Cr LJ 3008 (MP).
the accused person and ﬁled the aﬃdavit, bail declaration form and title document of
the Land record-of-rights book before the Court. It was further revealed that the
petitioner ﬁled the false declaration as well as false aﬃdavit in support of the said
declaration. It was further found that both the documents, i.e., the declaration form as
well the aﬃdavit of accused were prepared just before production of them in the Court.
Admittedly, the offence was committed before the documents were ﬁled in the Court.

Section 195(1)(b)(ii) of Cr PC would be attracted only when the offences enumerated in
the said provision have been committed with respect to a document after it had been
produced or given in evidence in a proceeding in any court, i.e., during the time when
the document was in custodia legis. This being the settled position of law, there
appears to be no justiﬁcation in quashing the prosecution of the petitioner-accused on
the ground that provisions of section 195(1)(b)(ii) are applicable.59.

[s 468] Forgery for purpose of cheating.
Whoever commits forgery, intending that the 60.[document or electronic record
forged] shall be used for the purpose of cheating, shall be punished with
COMMENT.—
This section does not require that the accused should actually commit the offence of
cheating. What is material is the intention or purpose of the offender in committing
forgery.61. Where documents had been forged and fabricated only to be used as
genuine to make fraudulent and illegal claim over land owned by complainant, the
Supreme Court held that it cannot be held that respondents were not makers of
documents or that ﬁling of civil suit based on same would not constitute an offence.62.
The Supreme Court has expressed the opinion that the conduct of an Advocate's clerk

in forging the signature of another advocate on a surety bond and forging some
endorsements for identiﬁcation and attestation, would not constitute an offence under
this section and that the conviction should have been under section 465.63.
[s 468.1] Banking and other frauds.—
Where the accused, being the BDO, who was authorised to recommend the sanctioning
of housing loans to the villagers misappropriated the money of the bank by availing
loans in their names by forging their signatures, he was held to be guilty based on the
evidence of the villagers that they did not apply under the scheme.64.
[s 468.2] Signing differently in v a k a l a t n a m a .—
Where it was alleged that in order to cheat the Complainant the accused signed in his
vakalathnama differently from his signatures available in his income tax returns, the

Court quashed the complaint as neither the Complainant has alleged any 'forgery' by
the petitioners causing any damage, or injury to the public nor to any person, nor to
cause any person to part with property, nor to enter into any express or implied
contract, nor with intent to commit fraud to any person or the Complainant in
particular.65.

60.  Subs. by The Information Technology Act (Act 21 of 2000) for the words "document forged",
61.  Shivaji Narayan, (1970) 73 Bom LR 215 . Mallinath Ambanna Shedjale v Purushottam
Vasudeo Somshetty, 2002 Cr LJ 506 (Bom), forgery of signature on partnership registration
form, the mere fact that the handwriting expert could not positively say who committed the
forgery, the accused partners could not be acquitted. Chandu Mahto v State of Bihar, 2000 Cr LJ
4472 (Pat), forgery of signature for operating colleague's PF Account. Held, guilty under
sections 120-B, 419, 420, 468, 471 and 477-A. Srinivas Rao v State of AP, 2002 Cr LJ 3880 (AP),
the offence took place about nine years ago. The sentence of six months was reduced to two
months. Saroj Kumar Sahoo v State of Orissa, 2003 Cr LJ 1872 , allegation that the oﬃcers of the
State Financial Corporation and accused persons entered into a conspiracy to cheat the owner

of the unit of disposing it of at a lower value than the market price. The allegation was not
proved on evidence.
62.  CP Subhash v Inspector of Police Chennai, 2013 Cr LJ 3684 : JT 2013 (2) SC 270 [LNIND
2013 SC 74] ; Siba Prasad Satpathy v Republic of India, 2011 Cr LJ 3656 .
63.  Sharvan Kumar v State of UP, AIR 1985 SC 1663 [LNIND 1985 SC 231] : (1985) 3 SCC 658
[LNIND 1985 SC 231] : 1985 SCC (Cr) 437. A complaint by the Court concerned is necessary for
cognizance of this offence. See Sardul Singh v State of Haryana, 1992 Cr LJ 354 (P&H) vide
section 195, Cr PC, 1973. Surender Singh v State, 2013 Cr LJ 3211 (Del), allegation of using fake
number plates, not proved. Mere recovery of fake number plate does not establish guilt of
appellant that he intended to cheat police oﬃcial, accused acquitted.

64.  Sukh Ram v State of HP, 2016 Cr LJ 4146 (SC) : 2016 (7) Scale 354 .
65.  Padam Chand v State of Bihar, 2016 Cr LJ 4998 (Pat) : 2016 (3) PLJR 258 .

[s 469] Forgery for purpose of harming reputation.
Whoever commits forgery, 66.[intending that the document or electronic record
forged] shall harm the reputation of any party, or knowing that it is likely to be used
for that purpose, shall be punished with imprisonment of either description for a term
which may extend to three years, and shall also be liable to ﬁne.
66.  Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the
words "intending that the document forged", w.e.f. 17 October 2000. The words "electronic
record" have been deﬁned in section 29A.

[s 470] Forged **[document or electronic record].
A false 67.[document or electronic record] made wholly or in part by forgery is
designated "a forged 68.[document or electronic record]".
67.  Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the
words "document", w.e.f. 17 October 2000. The words "electronic record" have been deﬁned in
68.  Subs. by Act 21 of 2000, section 91 and Sch I, for "document" (w.e.f. 17 October 2000).
COMMENT.—
A person who forges a document or electronic record for the purpose of harming the
reputation of another and thereby commits an offence under section 500 (defamation)
commits an offence also under this section.

[s 471] Using as genuine a forged ***[document or electronic record].
Whoever fraudulently or dishonestly uses as genuine 1 any 69. [document or electronic
record] which he knows or has reason to believe to be a forged 70. [document or
electronic record], 2 shall be punished in the same manner as if he had forged such 71.
[document or electronic record].
COMMENT.—
What this section requires is the use as genuine of any document which is known or
believed to be a forged document; it does not lay down that such use can only occur
when the original itself is produced, for the section does not require the production of
the original.72.
[s 471.1] Ingredients.—
There must be—
1. Fraudulent or dishonest use of a document as genuine.
2. The person using it must have knowledge or reason to believe that the document
is a forged one.
1. 'Uses as genuine'.— Accused registered various documents relating to a project

without verifying the credentials of the purchaser and seller and without examining that
the land covered by the sale deeds was in existence or not or the land belongs to the
State Government. Documents were prima facie found to be forged so as to get the
beneﬁt of the package which was meant for the project affected persons/oustees
displaced from the land. Order of High Court quashing the proceedings was held liable
to be set aside.73.
[s 471.2] Sections 467 and 471.—
Where there is forgery of a document purporting to be a valuable security as deﬁned in
section 471 becomes an offence under section 471 when it is used as genuine. The
Supreme Court observed that the basic ingredient of both the offences is that there
should be "forgery" as deﬁned in section 463 and forgery in turn depends upon creation

of a "false document" as deﬁned in section 464. If there is no "false document" as
deﬁned in section 464, offences under sections 467 and 471 are not made out. Further
the mere execution of a sale deed by claiming that property being sold was executant's
property did not amount to commission of offences under sections 467 and 471 even if
title to property did not vest in the executant. This was for the reason that no "false
document" as deﬁned in section 464, was created.74.

2. 'Knows or has reason to believe to be a forged document'.—These words are of
general application.75. Where it was not shown that the accused had knowledge of the
forged nature of the cheque76. or the lottery ticket77. which he used as genuine he
cannot be convicted under sections 467 and 471, IPC, 1860.
"Knowledge" is an awareness on the part of the person concerned indicating his state
of mind. Reason to believe is another fact of the state of mind. It is not the same thing
as "suspicion" or "doubt". The mere seeing also cannot be equated to believing.
"Reason to believe" is a higher level of the state of mind. Likewise knowledge will be
slightly on a higher plane than reason to believe. A person can be supposed to know
when there is a direct appeal to his senses and a person is presumed to have reason to
believe if he has suﬃcient cause to believe the same. In substance, what is meant is
that a reason to believe requires that a reasonable man would, by probable reasoning

conclude or infer regarding the nature of the thing concerned. "Knowledge" and "reason
to believe" has to be deduced from the various circumstances of the case.78. The
section is intended to apply to persons other than the forger himself but the forger is
not excluded from the operation of the section. It is not required that the person forging
the document must necessarily be convicted along with the person using the
document.79.
[s 471.3] Compounding.—
Where there is no chance of recording a conviction insofar as the accused is
concerned and the entire exercise of trial is destined to be an exercise in futility, the
High Court by exercising the inherent power under section 482 Cr PC, 1973, even in
offences which are not compoundable under section 320 may quash the
prosecution.80.
[s 471.4] Punishment.—

in Bank of India v Yeturi Maredi Shanker Rao,81. the Supreme Court conﬁrmed the
sentence of nine months of rigorous imprisonment to a person who had knowledge of
the forged signatures on withdrawal forms and who used them to affect withdrawal of
money. A forged will was prepared and executed in favour of the accused, but he could
not draw any beneﬁt under it, nor it was acted upon in any civil proceedings. He had
faced trial for more than 26 years. He was in jail for more than seven months. His
sentence was accordingly reduced to the period already undergone.82. The accused
ﬁled a false marks sheet and gained admission. His past record was good. He had
already lost a job. The sentence of imprisonment was reduced to the period already
undergone.83.
[s 471.5] CASE.—

Accused while working as a lower division clerk in the oﬃce of the Deputy
Superintendent of Police had temporarily misappropriated an amount of Rs. 1,839 and
made false entry in the record. Admittedly the sum had been deposited in the post
oﬃce before the due date and that no loss had been caused to the department.
Offence alleged under IPC, 1860, against the accused are trivial in nature and have
caused no harm and in fact no offences in the eye of law. The beneﬁt of section 95, IPC
is available to the appellant.84.

69.  Subs. by Ibid.
[s 471.6] Certiﬁcate.—
Where the accused applied to the Superintendent of Police for employment in the
Police force, and in support of his application presented two certiﬁcates which he knew
to be false, it was held that he was guilty of offences under sections 463 and 471.85.
Where the accused used a forged certiﬁcate of competency as an engine-room ﬁrst
Tindal, he was held guilty under sections 471 and 463.86. With a view to qualify for
appearance at the competitive P.C.S examination the accused presented a certiﬁed
copy of the certiﬁcate granted to him by the University at his Matriculation examination,
in which the date of birth had been altered from "5 January 1901" to "15 January 1904".
It was held that he was guilty of an offence under this section inasmuch as the
document presented, being a false document, was used with intent to cause damage
and injury to the other candidates in the competitive examination for P.C.S. and to

support his claim to appear.87. Where a forged certiﬁcate of age was ﬁled by an
employee for the purpose of getting his superannuation postponed by two years, his
conviction under sections 471, 420 and 511 was upheld. It was immaterial that the
employer had not acted upon the certiﬁcate.88.
[s 471.7] Passport.—
A person who forges a passport and uses it as genuine to get entry into India is guilty
under section 471and section 467.89. Where unauthorised endorsements were made in
a passport with a view to helping the person having his photograph on the passport to
travel to countries to which he was not entitled to go, such endorsements were made
dishonestly and fraudulently and, therefore, the use of such a passport constituted an
offence under section 471, IPC, 1860. Where, however, the very basis of the

prosecution case was that the endorsements were in the handwriting of the accused
but the expert opinion was hesitant and unsatisfactory, the conviction of the accused
could not be sustained.90.
Where passport alleged to have issued by using the former seal of the passport oﬃcer,
it is the duty of the investigating oﬃcer to ﬁnd out in whose custody the unused seal
was kept and how the accused obtained possession of the same, for using it for
committing forgery.91.
[s 471.8] Sanction.—
sections 467, 468, 471 and 120B can by no stretch of imagination, by their very nature,
be regarded as having been committed by any public servant while acting or purporting
to act in discharge of oﬃcial duty. In such cases, oﬃcial status only provides an

opportunity for commission of the offence.92.

70.  Subs. by Ibid.
71.  Subs. by Ibid.
72.  Budhu Ram v State, (1963) 2 Cr LJ 698 (SC).
73.  State of Madhya Pradesh v Surendra Kori, 2013 Cr LJ 167 (SC); (2012) 10 SCC 155 [LNIND
2012 SC 681] .
74.  Mohd Ibrahim v State of Bihar, (2009) 8 SCC 751 [LNIND 2009 SC 1774] : (2009) 3 SCC (Cr)
929.
75.  Ranchhoddas, (1896) 22 Bom 317.
76.  Abdul Karim v State, 1979 Cr LJ 1123 (SC).
77.  Chatt Ram, 1979 Cr LJ 1411 (SC).
78.  AS Krishanan v State of Kerala, (2004) 11 SCC 576 [LNIND 2004 SC 349] : AIR 2004 SC 3229
[LNIND 2004 SC 349] : 2004 Cr LJ 2833 , forged marksheets were used in this case for securing
admission to medical college. The candidate (accused) deserved no leniency in the matter of
79.  Ibid.
80.  Jayrajsinh Digvijaysinh Rana v State of Gujarat, 2012 AIR (SCW) 4092 : 2012 Cr LJ 3900 ;
Ashok Sadarangani v UOI, AIR 2012 SC 1563 [LNIND 2012 SC 180] : (2012) 11 SCC 321 [LNIND
2012 SC 180] , where emphasis is more on the criminal intent of the petitioners than on the civil

aspects involving the dues of the bank in respect of which a compromise was worked out,
proceedings cannot be quashed.
81.  Bank of India v Yeturi Maredi Shanker Rao, (1987) 1 SCC 577 [LNIND 1987 SC 104] : AIR 1987
SC 821 [LNIND 1987 SC 104] : 1987 Cr LJ 722 . Encashing a forged bank draft is an offence
under this section. Adithelo Immanuel Raju v State of Orissa, (1992) Cr LJ 243 .
82.  Jagdish v State of Rajasthan, 2002 Cr LJ 2171 (Raj).
83.  Tulsibhai Jivabhai Changani v State of Gujarat, 2001 Cr LJ 741 (SC).
84.  NK Illiyas v State of Kerala, 2012 Cr LJ 2418 : AIR 2012 SC 3790 [LNIND 2011 SC 646] .
85.  Khandusingh, (1896) 22 Bom 768.
86.  Abbas Ali, (1896) 25 Cal 512 (FB).
87.  Chanan Singh, (1928) 10 Lah 545.
88.  Galla Nageswara Rao v State of AP, 1992 Cr LJ 2601 (AP).

89.  Daniel, AIR 1968 Mad 349 [LNIND 1967 MAD 140] . Hema v State, 2013 Cr LJ 1011 : AIR
2013 SC 1000 [LNIND 2013 SC 1240] , where accused in conspiracy with the owner of a travel
agency ﬁled application for passport by giving bogus particulars, court held that she is guilty.
90.  Mahendra Singh v State, 1972 Cr LJ 34 (SC).
91.  Vijayachandran KK v The Supdt. of Police, 2008 (2) Ker LJ 751 : 2008 (3) Ker LT 307 .
92.  Om Dhankar, (2012) 11 SCC 252 [LNINDORD 2012 SC 439] : 2012 (3) Scale 363 [LNINDORD
2012 SC 439] ; Prakash Singh Badal v State of Punjab, 2007 (1) SCC 1 [LNIND 2006 SC 1091] :
AIR 2007 SC 1274 [LNIND 2006 SC 1091] ; Rakesh Kumar Mishra v State of Bihar, 2006 (1) SCC
557 [LNIND 2006 SC 8] : AIR 2006 SC 820 [LNIND 2006 SC 8] .

[s 472] Making or possessing counterfeit seal, etc., with intent to commit
forgery, punishable under section 467.
Whoever makes or counterfeits any seal, plate or other instrument for making an
impression, intending that the same shall be used for the purpose of committing any
forgery which would be punishable under section 467 of this Code, or, with such
intent, has in his possession any such seal, plate or other instrument, knowing the
same to be counterfeit, shall be punished with 93.[imprisonment for life], or with
93.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
COMMENT.—
This section and the section following are akin to sections 235, 255 and 256.

[s 473] Making or possessing counterfeit seal, etc., with intent to commit
forgery punishable otherwise.
forgery which would be punishable under any section of this Chapter other than
section 467, or, with such intent, has in his possession any such seal, plate or other
instrument, knowing the same to be counterfeit, shall be punished with imprisonment
of either description for a term which may extend to seven years, and shall also be

[s 474] Having possession of document described in sections 466 or 467
knowing it to be forged and intending to use it as genuine.
94.[Whoever has in his possession any document or electronic record, knowing the
same to be forged and intending that the same shall fraudulently or dishonestly be
used as genuine, shall, if the document or electronic record is one of the description
mentioned in section 466 of this Code], be punished with imprisonment of either
description for a term which may extend to seven years, and shall also be liable to ﬁne;
and if the document is one of the description mentioned in section 467, shall be
punished with 95.[imprisonment for life], or with imprisonment of either description, for
a term which may extend to seven years, and shall also be liable to ﬁne.
94.  Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the

words "whoever has in his possession …., section 466 of this code", w.e.f. 17 October 2000. The
words "electronic record" have been deﬁned in section 29A.
95.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
96.  Dharam Pal, 1985 Cr LJ 474 (Del).
COMMENT.—
This section resembles sections 242, 243 and 259.
The offence under section 474, IPC, 1860, is made out by the mere fact of possession
of forged documents knowing them to be forged and intending the same to be
fraudulently and dishonestly used. So even if such documents are not actually used, it
need not absolve the accused from the mischief of provisions contained in section 474,
IPC. Thus, where the accused falsely posed as an I.A.S. oﬃcer and as a Joint Director

(Vigilance) attached to the Central Bureau of Investigation and was also found in
possession of ﬁctitious documents supporting such claim and such documents were
being created by him from time to time with a view to entangle people in bogus
criminal cases, it was held that the accused was an impostor and had intended to use
these faked documents in furtherance of his criminal design. He was, therefore, rightly
convicted under section 474, IPC.96.

[s 475] Counterfeiting device or mark used for authenticating documents
described in section 467, or possessing counterfeit marked material.
Whoever counterfeits upon, or in the substance of, any material, any device or mark
used for the purpose of authenticating any document described in section 467 of this
Code, intending that such device or mark shall be used for the purpose of giving the
appearance of authenticity to any document then forged or thereafter to be forged on
such material, or who, with such intent, has in his possession any material upon or in
the substance of which any such device or mark has been counterfeited, shall be
punished 97.[with imprisonment for life], or with imprisonment of either description
97.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
COMMENT.—

1956).
COMMENT.—
The commencement of the forgery of banknotes and other similar securities, where it
has proceeded to the length which is described in this section, is treated as a
substantive offence and punished. This section supplements the provisions of section
472.

[s 476] Counterfeiting device or mark used for authenticating documents other
than those described in section 467, or possessing counterfeit marked
material.
used for the purpose of authenticating 98.[any document or electronic record] other
than the documents described in section 467 of this Code, intending that such device
or mark shall be used for the purpose of giving the appearance of authenticity to any
document then forged or thereafter to be forged on such material, or who, with such
intent, has in his possession any material upon or in the substance of which any such
device or mark has been counterfeited, shall be punished with imprisonment of either
ﬁne.

ﬁne.
98.  Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the
words "any document", w.e.f. 17 October 2000. The words "electronic record" have been deﬁned
in section 29A.
COMMENT.—
This section is similar to the preceding section, but as the document, the counterfeit of
which is made punishable, is not of so much importance as in that section, the
punishment is not so severe.

[s 477] Fraudulent cancellation, destruction, etc., of will, authority to adopt or
valuable security.
Whoever fraudulently or dishonestly, or with intent to cause damage or injury to the
public or to any person, cancels, destroys or defaces, or attempts to cancel, destroy or
deface, or secretes or attempts to secrete any document which is or purports to be a
will, or an authority to adopt a son, or any valuable security, or commits mischief in
respect of such documents, shall be punished with 99.[imprisonment for life], or with
99.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
100.  Akbar Hossain, (1938) 43 Cal WN 222.
COMMENT.—
This section applies when the document tampered with or destroyed is either a will or

1956).
COMMENT.—
an authority to adopt or a valuable security. Owing to the great importance of
documents of this kind the punishment provided is severe.
1. 'Document'.—The document must be a genuine one. The offence under this section
cannot be committed in respect of a document which is a forgery.100.

[s 477A] Falsiﬁcation of accounts.
Whoever, being a clerk, oﬃcer or servant, or employed or acting in the capacity of a
clerk, oﬃcer or servant, wilfully, and with intent to defraud, destroys, alters, mutilates
or falsiﬁes any 101.[book, electronic record, paper, writing], valuable security or
account which belongs to or is in the possession of his employer, or has been
received by him for or on behalf of his employer, or wilfully, and with intent to defraud,
makes or abets the making of any false entry in, or omits or alters or abets the
omission or alteration of any material particular from or in, any such 102.[book,
electronic record, paper, writing], valuable security or account, shall be punished with
Explanation.—It shall be suﬃcient in any charge under this section to allege a general

intent to defraud without naming any particular person intended to be defrauded or
specifying any particular sum of money intended to be the subject of the fraud, or any
particular day on which the offence was committed.]
COMMENT.—
This section refers to acts relating to book-keeping or written accounts. It makes the
falsiﬁcation of books and accounts punishable even though there is no evidence to
prove misappropriation of any speciﬁc sum on any particular occasion.
[s 477A.1] Ingredients.—
This section requires that—
1. The person coming within its purview must be a clerk, an oﬃcer, or a servant, or
acting in the capacity of a clerk, an oﬃcer, or a servant.
2. He must wilfully and with intent to defraud—
(i) destroy, alter, mutilate, or falsify, any book, electronic record, paper, writing,

valuable security, or account which:
(a) belongs to or is in the possession of his employer, or
(b) has been received by him for or on behalf of his employer;
(ii) make or abet the making of any false entry in or omit or alter or abet the
omission or alteration of any material particular from or in any such book, paper,
writing, valuable security or account.
To convict a person under section 477-A IPC, 1860, the prosecution has to prove that
there was a wilful act, which had been made with an intent to defraud and while proving
"Intention to defraud" the prosecution has to further prove two elements that the act

101.  Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the
words "book, paper, writing", w.e.f. 17 October 2000. The words "electronic record" have been
102.  Subs. by The Information Technology Act (Act 21 of 2000), section 91 and First Sch for the
103.  Kandipalli Madhavarao v State of AP, 2007 Cr LJ 4555 (AP).
104.  Supra.
105.  Kandipalli Madhavarao v State of AP, 2007 Cr LJ 4555 (AP).
106.  Rasul Mohd v State of Maharashtra, 1972 Cr LJ 313 : AIR 1972 SC 521 ; V Srinivasa Reddy v
State of AP, AIR 1998 SC 2079 [LNIND 1998 SC 158] : 1998 Cr LJ 2918 , false advance shown by
bank employee to customers against their FDs. This was abuse of position as public servant.
Audit report was against any such manipulation. Proper documents were also not produced

before the court. Evidence actually produced was also not examined properly. The case was
sent back for fresh disposal without calling for additional evidence. See also Mohandass v State,
1998 Cr LJ 3409 (Mad); Sharif Masin v State (UT Chandigarh), 1998 Cr LJ 1689 (P&H).
107.  State of Punjab v Rathanchand, 1984 Cr LJ NOC 153 (P&H). See also Ravichandran v State
by Dy. Supdt. of Police, Madras, 2010 Cr LJ 2879 (SC) : AIR 2010 SC 1922 [LNINDORD 2010 SC
76] ; Mir Nagivi Askari v CBI, AIR 2009 SC 528 [LNIND 2008 SC 1354] : (2009) 15 643; State v
Mohan, AIR 2008 SC 368 [LNIND 2007 SC 1250] : (2007) 14 SCC 667 [LNIND 2007 SC 1250] .
was an act of deceit and it had caused an injury. In the present case, there may be an
injury, but there is no deceit.103.
The principles laid down by the Supreme Court in Harnam Case104. are that there

should be a wilful act of an accused with an intention to defraud. So both elements
must be present and in other words it would mean that the act should be a wilful act
and should also be done with an intention to defraud. While trying to deﬁne "intent to
defraud", the Court noted that it contains two elements, deceit and injury. There is no
doubt that to convict a person under section 477-A IPC, the prosecution has to prove
that there was a wilful act, which had been made with an intent to defraud and while
proving "Intention to defraud" the prosecution has to further prove two elements that
the act was an act of deceit and it had caused an injury. In the present case, there may
be an injury, but there is no deceit.105.
[s 477A.2] CASES.—
Where, however, the documents alleged to have been falsiﬁed are found to be missing

from oﬃce records, no charge under section 477A, IPC, 1860, can be made out;106.
where the Nazir of Special Judicial Magistrate's Court accepted an amount as ﬁne but
failed to deposit it in the treasury and made false entries in the Register of Judicial
Fines saying that the amount had been deposited, it was held that he was guilty of
offences under sections 409, 467, 468 and 477A, IPC.107.

Of 108. [***] Property and Other Marks
[s 478] [Omitted]
[Rep. by the Trade and Merchandise Marks Act, 1958 (43 of 1958, section 135 and Sch.
(w.e.f. 25-11-1959).]
108.  A m e n d m e n t .—The word "trade" has been omitted by the Trade and Merchandise Marks
Act, 1958 (Act XLIII of 1958), section 135 and Sch. The Act came into force on 25 November
1959.

[s 479] Property mark.
A mark used for denoting that movable property belongs to a particular person is
called a property mark.
1959.
COMMENT.—
The distinction between 'trade mark' and 'property mark' is not recognised in English
law.

[s 480] [ O m i t t e d ] 
[Rep. by the Trade and Merchandise Marks Act, 1958 (43 of 1958), section 135 and
Sch. (w.e.f 25-11-1959).]
1959.

[s 481] Using a false property mark.
Whoever marks any movable property or goods or any case, package or other
receptacle containing movable property or goods, or uses any case, package or other
receptacle having any mark thereon, in a manner reasonably calculated to cause it to
be believed that the property or goods so marked, or any property or goods contained
in any such receptacle so marked, belong to a person to whom they do not belong, is
said to use a false property mark.
COMMENT.—
False property mark.—This section deﬁnes the offence of using a false property mark.
A property mark is intended to denote ownership over all movable property belonging
to a person whether it is all of one kind or of different kinds. So long as the person
owns movable property, his property mark impressed upon them remains his, though

any particular article out of it may after such impression pass out of his hands and
cease to be his.109.
The function of a property mark to denote certain ownership is not destroyed because
any particular property on which it was impressed has ceased to be of that ownership.
[s 481.1] Ingredients.—
1. Marking any movable property or goods, or any case, package or receptacle
containing goods; or using any case, package or receptacle, with any mark
thereon.
2. Such marking or using must be in a manner reasonably calculated to cause it to
be believed that the property or goods so marked, or the property or goods,
contained in such receptacle, belonged to the person to whom they did not
belong.
The Supreme Court in Sumant Prasad's case said that the concept of a trade mark

belong.
under section 2(1)(g) of Trade and Merchandise Marks Act, 1958, is distinct from that
of a property mark under section 479 of IPC, 1860. It means the concept of trade mark
has not nulliﬁed the concept of property mark. Thus, where the accused ﬁnding that his
'Puspa Raj' scent could not capture the market copied the property mark from the
carton of complainant's best-selling scent 'Basant Bahar' in toto and marketed his
inferior product under the same name, it was held that he had committed the offence
of both using a false property mark as well as of selling goods marked with a

108.  Amendment.—The word "trade" has been omitted by the Trade and Merchandise Marks
1959.
109.  Dahyabhai, (1904) 6 Bom LR 513 .
110.  Sumant Prasad v Sheojanan, 1972 Cr LJ 1707 (SC).
counterfeit property mark. The fact that the complainant loosely mentioned in his
complaint 'trade mark' did not make any difference, for despite this the complainant's
allegations clearly made out that the accused tried to palm off his inferior scent as if it
was manufactured by and belonged to the complainant. He was, therefore, rightly
convicted under sections 482 and 486, IPC.110.

[s 482] Punishment for using a false property mark.
Whoever uses 111.[***] any false property mark shall, unless he proves that he acted
without intent to defraud, be punished with imprisonment of either description for a
1959.
111.  The words "any false trade mark or" omitted by Act 43 of 1958, section 135 and Sch (w.e.f.
25 November 1959).
112.  Sumat Prasad Jain v Sheojanam Prasad, AIR 1972 SC 2488 [LNIND 1972 SC 399] : (1973) 1
SCC 56 [LNIND 1972 SC 399] .
COMMENT.—
To succeed on the charges under sections 482 and 486 the complainant had to
establish that the appellant marked the scent manufactured and sold by him, or the

COMMENT.—
packets and receptacles containing such scent or used packets or receptacles bearing
that mark, and that he did so in a manner reasonably calculated to cause it to be
believed that the goods so marked or the scent contained in the packets and
receptacles so marked belong to the complainant.112.

[s 483] Counterfeiting a property mark used by another.
Whoever counterfeits any 113.[***] property mark used by any other person shall be
1959.
113.  The words "trade mark or" omitted by Act 43 of 1958, section 135 and Sch (w.e.f. 25
November 1959).

[s 484] Counterfeiting a mark used by a public servant.
Whoever counterfeits any property mark used by a public servant, or any mark used
by a public servant to denote that any property has been manufactured by a particular
person or at a particular time or place, or that the property is of a particular quality or
has passed through a particular oﬃce, or that it is entitled to any exemption, or uses
as genuine any such mark knowing the same to be counterfeit, shall be punished with
1959.
COMMENT.—

1959.
COMMENT.—
preceding one. Enhanced punishment is inﬂicted where the mark used by a public
servant is counterfeited.

[s 485] Making or possession of any instrument for counterfeiting a property
mark.
Whoever makes or has in his possession any die, plate or other instrument for the
purpose of counterfeiting a property mark, or has in his possession a property mark
for the purpose of denoting that any goods belong to a person to whom they do not
belong, shall be punished with imprisonment of either description for a term which
may extend to three years or with ﬁne, or with both.
1959.
COMMENT.—
The making or possession of instruments for counterfeiting a property mark is hereby
punished.

[s 486] Selling goods marked with a counterfeit property mark.
114.[Whoever sells, or exposes, or has in possession for sale, any goods or things with
a counterfeit property mark] aﬃxed to or impressed upon the same or to or upon any
case, package or other receptacle in which such goods are contained, shall, unless he
proves—
(a) that, having taken all reasonable precautions against committing an offence
against this section, he had at the time of the commission of the alleged
offence no reason to suspect the genuineness of the mark, and
(b) that, on demand made by or on behalf of the prosecutor, he gave all the
information in his power with respect to the persons from whom he obtained
such goods or things, or
(c) that otherwise he had acted innocently,
be punished with imprisonment of either description for a term which may

1959.
114.  Subs. by Act 43 of 1958, section 135 and Sch, for certain words (w.e.f. 25 November
1959).
COMMENT.—
This section punishes those who sell or have in possession for sale goods marked with
a counterfeit property mark. For the purpose of section 486, it is necessary to establish
that the appellant had sold, or exposed for sale, or had in his possession for sale goods
having a mark calculated to cause it to be believed that the scent was the scent
manufactured by and belonging to the complainant.115.

115.  Sumat Prasad Jain v Sheojanam Prasad, AIR 1972 SC 2488 [LNIND 1972 SC 399] : (1973) 1

[s 487] Making a false mark upon any receptacle containing goods.
Whoever makes any false mark upon any case, package or other receptacle
containing goods, in a manner reasonably calculated to cause any public servant or
any other person to believe that such receptacle contains goods which it does not
contain or that it does not contain goods which it does contain, or that the goods
contained in such receptacle are of a nature or quality different from the real nature or
quality thereof, shall, unless he proves that he acted without intent to defraud, be
1959.
COMMENT.—

1959.
COMMENT.—
This section is more comprehensive than sections 482 and 486. The fraudulent making
of false marks of any description on goods for the purpose of deceiving public
servants, such as customs oﬃcers, is punishable under this section.

[s 488] Punishment for making use of any such false mark.
Whoever makes use of any such false mark in any manner prohibited by the last
foregoing section shall, unless he proves that he acted without intent to defraud be
punished as if he had committed an offence against that section.
1959.
COMMENT.—
This section punishes the making use of a false mark. The preceding section punishes
the making of such a mark.

[s 489] Tampering with property mark with intent to cause injury.
Whoever removes, destroys, defaces or adds to any property mark, intending or
knowing it to be likely that he may thereby cause injury to any person, shall be
1959.
COMMENT.—
This section punishes the tampering with a property mark, criminal intention or
knowledge on the part of the accused is necessary.

Of Currency-Notes and Bank-Notes
[s 489A] Counterfeiting currency-notes or bank-notes.
[Whoever counterfeits, or knowingly performs any part of the process of
counterfeiting, any currency-note or bank-note, shall be punished with 116.
Explanation.—For the purposes of this section and of sections 117.[489B, 489C, 489D
and 489E], the expression "bank-note" means a promissory note or engagement for
the payment of money to bearer on demand issued by any person carrying on the
business of banking in any part of the world, or issued by or under the authority of any
State or Sovereign Power, and intended to be used as equivalent to, or as a substitute
for money.]
COMMENT.—
The term counterfeit is deﬁned in section 28 of the Code. Circulation of counterfeit

COMMENT.—
currency would cause irreparable harm to our economy. Existence of a parallel
economy would be highly detrimental to the growth of the nation. It affects the society
as a whole. Offences affecting the people at large are to be viewed in a different angle.
In such cases, harm would be caused not to an individual or to a few individuals. The
adverse impact of traﬃcking in counterfeit currency in a large scale would be
disastrous. It would appear that the society does not cast much of a stigma on people,
who deal with counterfeit currency.118. Sections 489A, 489B, 489C and 489D were
introduced in order to provide more adequately for the protection of currency-notes and
banknotes from forgery. Under the IPC, 1860, which was passed prior to the existence

of a paper currency in India, currency-notes were not protected by any special
provisions, but merely by the general provisions, applying to the forgery of valuable
securities. Before these sections were introduced charges for forging currency-notes
had to be preferred under section 467, for uttering them under section 471, and for
making or possessing counterfeit plates under section 472. The provisions of section
467 afforded suﬃcient means for dealing both with forgery generally and with forgery
of currency-notes. But it was at times diﬃcult to obtain a conviction under the other
sections. This provision says that the prosecution is required to prove that the accused
was knowingly performing any part of the process to counterfeit currency-notes. It is
needless to mention that for proving the offence of conspiracy, there must be some

convincing evidence to the prosecution to prove that it was pre-arranged plan of all or
some of the accused either for preparing fake currency or for their circulation. Only on
the basis of circumstance like some persons were found in possession of counterfeit
currency-notes at or about the same time, inference cannot be drawn that all of them
had engaged themselves in a conspiracy. However, if an accused is found in
possession of counterfeit currency-notes, it is up to him to furnish satisfactory
explanation regarding the possession. This proposition is also applicable in respect of

116.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
117.  Subs. by Act 35 of 1950, section 3 and Sch II, for "489C and 489D".
the material which can be used for preparing fake currency-notes and the process
which can be used for making fake currency-notes. If there is no such explanation, a
person found in possession of such material and counterfeit currency-notes can be
convicted for offence under section 489-A of IPC.119.
The object is not only to protect the economy of the country but also to provide
adequate protection to currency-notes and banknotes.120. The section deals not only
with the complete act of counterfeiting, it also covers cases where the accused
performs any part of the process of counterfeiting.121.
[s 489A.1] Counterfeit currency-notes and terrorism.—
The Act 3 of 2013 introduced amendment in the Unlawful Activities (Prevention) Act
1967 to include the act of doing damage to the monetary stability of India by way of

production or smuggling or circulation of high quality counterfeit Indian paper currency,
coin or of any other material within the purview of terrorism. Thus, the act of dealing
with high quality counterfeit Indian currency-notes and coins with the intention of
threatening the economic security of India is viewed as a terrorist act. (For details see
UA (P) Act, 1967, as amended by Act 3 of 2013.)
[s 489A.2] Foreign currency.—
The Supreme Court in State of Kerala v Mathai Vergheese122. held that the expression
'any currency-note' refers to all currency-notes and cannot be conﬁned only to Indian
currency. The purpose of the provisions is to maintain market respectability of the
currency by assuring people that notes being offered to them are genuine and not
worthless pieces of paper. The Legislature could not have intended to exclude from the

protection counterfeiting of currency-notes issued by foreign States. Further, the
expression 'bank-note' as used by sections 498A–498E would include a dollar bill or
note because they are also issued under the authority of a State or sovereign power.
This section is similar to sections 231 and 255.
[s 489A.3] CASES.—
Where many fake currency-notes, hundreds of stamp and some material required for
preparing fake currency-notes were allegedly recovered from room and also from
person of appellant, and evidence and material was seized by police. The Court ruled
out possibility of implanting the material by police for falsely implicating the accused. It
was held that accused appellant liable to be convicted under section 489-A, IPC,
1860.123.

118.  Ahammed v State, 2010 Cr LJ 1797 (Ker).
119.  Narayan Maruti Waghmode v State of Maharashtra, 2011 Cr LJ 3318 (Bom).
120.  K Hashim v State of TN, (2005) 1 SCC 237 [LNIND 2004 SC 1142] : AIR 2005 SC 128 [LNIND
2004 SC 1142] .
121.  K Hashim v State of TN, 2005 Cr LJ 143 : (2005) 1 SCC 237 [LNIND 2004 SC 1142] : AIR
2005 SC 128 [LNIND 2004 SC 1142] .
122.  State of Kerala v Mathai Vergheese, (1986) 4 SCC 746 [LNIND 1986 SC 461] : AIR 1987 SC
33 [LNIND 1986 SC 461] : 1987 Cr LJ 308 ; Surinder Pal v State of Punjab, 2009 Cr LJ 4100
(P&H), counterfeiting US dollars, accused convicted. K Hashim v State of TN, 2005 Cr LJ 143 :
AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1 SCC 237 [LNIND 2004 SC 1142] , the
evidence of accomplice, the artist, provided material for corroboration of evidence, being the
evidence of an accomplice, reliable. Chuwan Suba v State of Sikkim, 2013 Cr LJ 2135 (Sik),
allegation of possession of machinery to print fake notes. Conviction was held improper since

the disclosure statement was not voluntary.
123.  Narayan Maruti Waghmode v State of Maharashtra, 2011 Cr LJ 3318 (Bom); Md Amir
Hussain v State of Assam, 2010 Cr LJ. 4201 [Gau]. See also Roney Dubey v State of WB, 2007 Cr
LJ 4577 (Cal); Jayeshkumar Panchal v State, 2007 Cr LJ 2254 (Guj); Golo Mandla Ram Rao v
State of Jharkhand, 2004 Cr LJ 1738 (Jha).

[s 489B] Using as genuine, forged or counterfeit currency-notes or bank-notes.
[Whoever sells to, or buys or receives from, any other person, or otherwise traﬃcs in
or uses as genuine, any forged or counter-feit currency-note or bank-note, knowing or
having reason to believe the same to be forged or counter-feit, shall be punished with
124.[imprisonment for life], or with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to ﬁne.]
COMMENT.—
This section resembles sections 239, 241 and 258. It provides against traﬃcking in
forged or counterfeit notes. The section deals with the use of counterfeited currency-
notes.125.
An offence under section 489-B has the following essential ingredients:—
(i) selling, buying or receiving from any person or otherwise traﬃcking currency-
note or banknote;

(ii) any forged or counterfeit currency-note or bank-note;
(iii) knowing (or having reason to believe) that such note was forged or counterfeit.
To bring home an offence under section 498-B, IPC, 1860: (a) the prosecution is to
prove that the relevant currency-note or banknote was forged or counterfeit; (b) that the
accused sold to or received from, some person, or traﬃcked in, or used as genuine the
aforesaid currency-note or banknote; (c) that when the accused did so he had
knowledge or reason to believe about its being forged or counterfeit. In order to sustain
the conviction of an accused, the prosecution has not only to prove that he had the
possession of counterfeit note, having reason to believe it as such, but also to prove
circumstances which lead clearly, indubitably and irresistibly to his intention to

use/circulate the notes in the public. Such intention can be proved by a collateral
circumstance that he had palmed off such notes before, or that he was in possession
of such notes in such large a number, that his possession for any other purpose was
inexplicable.126. Merely because the petitioner had been found to be in possession of
the counterfeit notes of similar denomination of the same series and numbers closer
to the numbers of the notes detected by the bank, it would be diﬃcult to accept that the
notes have been used or circulated by the applicant.127. Mere possession does not
necessarily indicate that there was mal-intention or intention to use. Intention to use
the counterfeit currency-notes, being an essential ingredient of the offence under
sections 489B and 489C of IPC, prosecution is, no doubt, saddled with the liability to

establish such intention or attempt on the part of the appellant/accused to use such
counterfeit notes. On careful scrutiny of the evidence on record there was no evidence,

124.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
125.  K Hashim v State of TN, 2005 Cr LJ 143 : AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1
SCC 237 [LNIND 2004 SC 1142] .
126.  Kiran Kumar K Khanda v State of Maharashtra, 2011 Cr LJ 2748 (Bom).
127.  Aditya Yadav v State, 2013 Cr LJ 3352 (Bom).
128.  Ashu Mondal v State of WB, 2013 Cr LJ 715 (Cal); Tej Pratap Singh v State, 2012 Cr LJ 486
(Del).
129.  Golo Mandla Ram Rao v State of Jharkhand, 2004 Cr LJ 1738 : 2004 AIR Jhar HCR 453.
130.  Mehboob Ali v State of Rajasthan, 2015 (4) Crimes 357 (SC) : (2016) 14 SCC 640 [LNIND
2015 SC 630] .
whatsoever, which suggests that the appellant had made any effort to use the
counterfeit currency-notes. Since evidence on that issue is lacking manifestly, hence,
the conviction of the appellant under section 489B of IPC cannot be sustained.128.
[s 489B.1] Burden of proof.—
Under section 489B of IPC, 1860, the burden is on the prosecution to prove that at the

time when the accused was passing the counterfeit notes, he knew that they were
forged one and the mere possession of such notes by him does not shift the burden of
the accused to prove his innocent possession of such notes. The knowledge or reason
to believe that the note was forged has to be proved to ﬁx the liability under sections
489B and 489C of IPC. In the case of Golo Mandla Ram Rao v State of Jharkhand,129.
the counterfeit currency-notes and incriminating articles were recovered from the
possession of the accused and only the counterfeit coins from the possession of the
co-accused.
[s 489B.2] Information regarding the involvement of the accused admissible.—
Where on the basis of information regarding the source of counterfeit currency notes

accused, who supplied it and subsequently all the others involved in the racket were
arrested, though there were no recovery of notes from the intermediaries, the
information was held admissible as the police were not aware of the other accused,
who were involved in the offence.130.

[s 489C] Possession of forged or counterfeit currency-notes or bank-notes.
[Whoever has in his possession any forged or counterfeit currency-note or banknote,
knowing or having reason to believe the same to be forged or counterfeit and
intending to use the same as genuine or that it may be used as genuine, shall be
seven years, or with ﬁne, or with both.]
COMMENT.—
The ingredients which are required to constitute an offence under section 489C are as
follows:
(1) The note in question is a currency-note or bank-note;
(2) Such note was forged or counterfeited;
(3) The accused was in possession of the currency-note or bank-note;
(4) The accused intended to use the same as genuine;
(5) The accused knew or had reason to believe the note to be forged.131.

This section resembles sections 242, 243 and 257. It deals with possession of a forged
or counterfeit currency-note or banknote. The mere possession of a forged note is not
an offence. It is not only necessary to prove that the accused was in possession of the
forged note; but it should be further established that (1) at the time of this possession
he knew the note to be forged or had reason to believe it to be so, and (2) he intended
to use it as genuine. The onus lies on the prosecution to prove circumstances which
lead clearly, indubitably and irresistibly to the inference that the accused had the
intention to foist the notes on the public.132. Possession and knowledge that the
currency-notes in question were counterfeit are both necessary. The section is not

conﬁned to Indian currency-notes alone.133. Possession of a large number of
counterfeit currency-notes may itself justify drawing up of a presumption that the
intention of the accused was to use them as genuine or that they may be used as
genuine within the meaning of section 489C, IPC, 1860. Thus, where the accused led
the searching oﬃcer to his Press premises and after digging the ﬂoor of it brought out
a box containing many bundles of counterfeit currency-notes or where he produced 20
bundles of counterfeit currency-notes from his sachet, it was held an offence under
section 489C, IPC, was made out.134. This is, however, not to say that such a
presumption can always be drawn from the mere fact of possession of a large bundle
of counterfeit currency-notes by the accused. Thus, where the accused while trying to

alter a two-rupee counterfeit note was caught and on search of his person 99 more
such counterfeit notes were recovered but the accused claimed in course of his

examination that he got these notes by selling three quintals of tamarind to an
unknown person and that he had no knowledge that they were counterfeit till his
interrogation by the police and the notes too were not of such description that a mere
look at them will convince anyone that they were counterfeit, it was held that the
accused could not be convicted under sections 389B and 389C, IPC, in the absence of
any evidence or circumstance showing that he had knowledge that the notes were
counterfeit notes. In this case the accused was not even asked in his examination
under section 342, Cr PC, 1973 (now section 313) if he knew the notes to be
counterfeit.135.
In Umashankar v State of Chhatisgarh,136. the Supreme Court examined the facts of the
case and principle involved therein as follows:137.
A perusal of the provisions, shows that mens rea of offences under Section 489B and
489C is, "knowing or having reasons to believe the currency-notes or bank-notes are

forged or counterfeit". Without the afore-mentioned mens rea, selling, buying or
receiving from another person or otherwise traﬃcking in or using as genuine forged or
counterfeit currency-notes or bank-notes is not enough to constitute offence under
Section 489B of IPC. So also possessing or even intending to use any forged or
counterfeit currency-notes or bank-notes is not suﬃcient to make out a case under
Section 489C in the absence of mens rea, noted above. No material is brought on
record by the prosecution to show that the appellant had the requisite mens rea. The
High Court, however, completely missed this aspect. The learned trial Judge on the
basis of the evidence of [some prosecution witnesses] that they were able to make out
that currency note alleged to have been given to [one of them] was fake "presumed"

such a mens rea. On the date of the incident, the appellant was said to be 18 years old
student. On the facts of this case the presumption drawn by the trial Court is not
warranted under Section 4 of the Evidence Act. Further, it is also not shown that any
speciﬁc question with regard to the currency-notes being fake or counterfeit was put to
the appellant in his examination under Section 313 of the Criminal Procedure Code. On
these facts, we have no option but to hold that the charges framed under Sections
489B and 489C are not proved. We, therefore, set aside the conviction and sentence
passed on the appellant under Sections 489B and 489C of IPC and acquit him of the
said charges.138.
[s 489C.1] Burden of proof.—
In order to uphold conviction under section 489C of IPC, 1860, intention to use

counterfeit currency-notes as genuine, is also to be proved beyond reasonable doubt.
Since the burden lies on the prosecution to prove the possession, knowledge and
intention to use the currency-notes, it is also burden of the prosecution to establish the
circumstances which lead clearly and irresistibly to the inference that the accused had
intention to pass the currency-notes to the public. When a large number of counterfeit
notes are recovered from the accused, in absence of any reasonable explanation
tendered by the accused, this case must give rise to the presumption that possession
of such notes was for traﬃcking in currency-notes. That presumption, no doubt, is a
presumption of fact, which can be drawn from the circumstances of the case. The fact
that the accused was found in possession of a large number of notes gives rise to
inference that it might be used as genuine.139.

131.  Panna Lal Gupta v State of Sikkim, 2010 Cr LJ 825 (Sik); See also Karunakaran Nadar v State
of Kerala, 2000 Cr LJ 3748 (Ker).
132.  Bur Singh, (1930) 11 Lah 555. Md Amir Hussain v State of Assam, 2010 Cr LJ 4201 [Gau].
133.  K Hashim v State of TN, 2005 Cr LJ 143 : AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1
134.  State of Karnataka v KS Ramdas, 1976 Cr LJ 228 (Kant). See also Ashu Mondal v State of
WB, 2013 Cr LJ 715 (Cal), recovery of large number of counterfeit notes gives rise to
presumption that possession was for traﬃcking in currency notes. Conviction under section
489C upheld. Chuwan Suba v State of Sikkim, 2013 Cr LJ 2135 (Sik), conviction was held
improper since the disclosure statement is found not voluntary. Tej Pratap Singh v State, 2012 Cr
LJ 486 (Del), difference in number of currency, held not material, conviction was held proper.
Prabhakar Narayan Patlola v State of Maharashtra, 2011 Cr LJ 738 (Bom); Kurukshetra Sena v

State of Chhattisgarh, 2011 Cr LJ 2493 ; Inthiyas Ahmed v State, 2011 Cr LJ 4802 (Kant),
prosecution has not proved that the notes seized from the possession of the accused were the
same notes which were subjected for examination and further that on examination they were
found to be counterfeit notes. Accused acquitted.
135.  M Mammutti v State of Karnataka, 1979 Cr LJ 1383 (SC). Followed in Mohan Lal Sarma v
State of WP, 1990 Cr LJ 215 (Cal), where the court added that mere possession does not shift
the burden to the accused. The prosecution has to prove the presence of the type of mens rea
required by these sections. Vijayan v State of Kerala, 2002 Cr LJ 187 (Ker), the informant stated
that even at ﬁrst blush he was convinced that the notes in the possession of the accused were

counterfeit as there was difference in colour. The accused held liable under the section. Abdul
Majeed v State of Maharashtra, 2002 Cr LJ 720 (Bom), the notes in question did not carry any
sign of being counterfeit, the accused was an ordinary person, mere possession by him did not
create a presumption of guilty knowledge. Mohammed Yasin v State of UP, 1997 Cr LJ 3188 (All),
a note of which two parts were pasted together was presented to a shopkeeper. He suspected
genuineness and consulted another shopkeeper for guidance. Counterfeiting was so tactful that
the accused could not detect it. He did not run away. He remained at the shop till police arrived.
He had no other note. Ingredients of the offence not made out.
136.  Umashankar v State of Chhatisgarh, AIR 2001 SC 3074 [LNIND 2001 SC 2237] : 2001 Cr LJ
4696 .

4696 .
137.  Ibid at p 3075.
138.  Citing M Mammutti v State of Karnataka, AIR 1979 SC 1705 [LNIND 1979 SC 125] : 1979 Cr
LJ 1383 .
139.  Ashu Mondal v State of WB, 2013 Cr LJ 715 (Cal).

[s 489D] Making or possessing instruments or materials for forging or
counterfeiting currency-notes or bank-notes.
[Whoever makes, or performs, any part of the process of making, or buys or sells or
disposes of, or has in his possession, any machinery, instrument or material for the
purpose of being used, or knowing or having reason to believe that it is intended to be
used, for forging or counterfeiting any currency-note or bank-note, shall be punished
with 140.[imprisonment for life], or with imprisonment of either description for a term
140.  Subs. by Act 26 of 1955, section 117 and Sch, for "transportation for life" (w.e.f. 1 January
1956).
141.  State of Karnataka v Ramdas, Supra.
142.  K Hashim v State of TN, 2005 Cr LJ 143 : AIR 2005 SC 128 [LNIND 2004 SC 1142] : (2005) 1
COMMENT.—

1956).
COMMENT.—
This section is analogous to sections 233, 234, 256, 257 and 485.
Where there is no evidence to show that the printing machine found on the land of the
accused had any connection with the printing of the counterfeit notes found in the
possession of the accused, he could not be held guilty under section 489, IPC,
1860.141. It is not necessary that the machinery for counterfeiting found in possession
of the accused should be the whole set required for counterfeiting.142.

[s 489E] Making or using documents resembling currency-notes or bank-
notes.
(1) [Whoever makes, or causes to be made, or uses for any purpose whatsoever, or
delivers to any person, any document purporting to be, or in any way
resembling, or so nearly resembling as to be calculated to deceive, any
currency-note or bank-note shall be punished with ﬁne which may extend to
one hundred rupees.
(2) If any person, whose name appears on a document the making of which is an
offence under sub-section (1), refuses, without lawful excuse, to disclose to a
police-oﬃcer on being so required the name and address of the person by
whom it was printed or otherwise made, he shall be punished with ﬁne which
may extend to two hundred rupees.
(3) Where the name of any person appears on any document in respect of which
any person is charged with an offence under sub-section (1) or on any other

document used or distributed in connection with that document it may, until
the contrary is proved, be presumed that person caused the document to be
made.]
COMMENT.—
This section was introduced by Act VI of 1943 because photo prints and other
reproductions of currency-notes and banknotes, though printed for innocent purposes,
had passed into circulation in a number of cases and it was considered undesirable
that in a country like India with a large mass of illiterate and ignorant persons such
reproductions should be permitted to go unchecked before they menaced the safety of
the currency.
While the counterfeiting of any currency-note or banknote constituted a criminal
offence under section 489A read with section 28, there was no legal provision

prohibiting the reproduction, or the production of imitations, of currency-notes and
banknotes for such purposes as advertisement and the like where there was no
intention to practise deception on any one, nor even a knowledge that deception was
likely to be practised with the help of imitations.143. There is no material on the record
to show that the xerox machine, the voltage stabiliser, the blank papers and the paper
containing some impression of the Indian currency-note belonged to the convict. Mere
fact that they were seized is not enough. Therefore, the question of the convict
becoming liable for possession of the aforesaid articles does not arise.144.

143.  Statement of Objects and Reasons, Gaz of India, 1943, Part V, p 56, dated 10 February 1943.
144.  Roney Dubey v State of WB, 2007 Cr LJ 4577 (Cal).

CHAPTER XIX OF THE CRIMINAL BREACH OF CONTRACTS OF SERVICE
We agree with the great body of Jurists in thinking that in general a mere breach of
contract ought not to be an offence but only to be the subject of a civil action.
To this general rule there are, however, some exceptions. Some breaches of contract
are very likely to cause evil such as no damages or only very high damages can repair,
and are also very likely to be committed by persons from whom it is exceedingly
improbable that any damages can be obtained. Such breaches of contract are, we
conceive, proper subjects for penal Legislation.1.
[s 490] [ R e p e a l e d ] 
2.[* * *].
1.  The Works of Lord Macaulay - Note P.
2.  Omitted by Act 3 of 1925.

[s 491] Breach of contract to attend on and supply wants of helpless person.
Whoever, being bound by a lawful contract to attend on or to supply the wants of any
person who, by reason of youth, or of unsoundness of mind, or of a disease or bodily
weakness, is helpless or incapable of providing for his own safety or of supplying his

own wants, voluntarily omits so to do, shall be punished with imprisonment of either
description for a term which may extend to three months, or with ﬁne which may
extend to two hundred rupees, or with both.
COMMENT.—
Object.—The authors of the Code say:
We also think that persons who contract to take care of infants of the sick and of the
helpless, lay themselves under an obligation of a very peculiar kind, and may with propriety
be punished if they omit to discharge their duty. The misery and distress which their neglect
may cause is such as the largest pecuniary payment would not repair; they generally come
from the lower ranks of life, and would be unable to pay anything. We, therefore, propose to
add to this class of contracts the sanction of the penal law.3.
[s 491.1] Ingredients.—This section requires:—

1. Binding of a person by a lawful contract.
2. Such contract must be to attend on or to supply the wants of a person who is
helpless or incapable of providing for his own safety or of supplying his own
wants by reason of
(i) youth; or
(ii) unsoundness of mind; or
(iii) disease; or
(iv) bodily weakness.
3. Voluntary omission to perform the contract by the person bound by it.
Under this section it is not the breach of contract towards the other party to the
contract that is to be regarded, but the breach of the legal obligation towards the

3.  The Works of Lord Macaulay - Note P.
4.  V i t h u , (1892) (Unrep) CrC 608.
incapable person, which had been accepted and transferred by the contract.
[s 491.2] Ordinary servants do not come within this section.—
The accused, a cook, on a morning whilst the complainant's wife was ill and unable to
supply her wants, left his service without warning or permission. It was alleged that the
illness of the complainant's wife was aggravated thereby. It was held that the accused
was engaged only as an ordinary cook to a family, and was not bound to attend on, or
to supply the wants of, any helpless person, and that, therefore, this section did not
apply.4.

[s 492] [ R e p e a l e d ] 
5.[* * *].
5.  Omitted by Act 3 of 1925.

CHAPTER XX OF OFFENCES RELATING TO MARRIAGE
[s 493] Cohabitation caused by a man deceitfully inducing a belief of lawful
marriage.
Every man who by deceit causes any woman who is not lawfully married to him to
believe that she is lawfully married to him and to cohabit or have sexual intercourse
with him in that belief, shall be punished with imprisonment of either description for a
COMMENT.—
Upon perusal of section 493 of the IPC, 1860 to establish that a person has committed
an offence under the said section, it must be established that a person had deceitfully
induced a belief to a woman, who is not lawfully married to him, that she is a lawfully
married wife of that person and thereupon she should cohabit or should have had
sexual intercourse with that person. Looking at the afore-stated section, it is clear that
the accused must induce a woman, who is not lawfully married to him, to believe that

he is married to her and as a result of the afore-stated representation, the woman
should believe that she was lawfully married to him and there should be cohabitation or
sexual intercourse as a result of the deception. The essence of an offence under
section 493 IPC, 1860 is, therefore, practice of deception by a man on a woman as a
consequence of which the woman is led to believe that she is lawfully married to him
although she is not and then make her cohabit with him.1. The offence under this
section may also be punished as rape under section 375, clause (4).2.
[s 493.1] Ingredients.—
The section contains two ingredients:—
(1) Deceit causing a false belief in the existence of a lawful marriage.
(2) Cohabitation or sexual intercourse with the person causing such belief.
[s 493.2] Proof of marriage.—

Section 493 IPC, 1860 do not presuppose a marriage between the accused and the
victim necessarily by following a ritual or marriage by customary ceremony. What has
been clearly laid down and emphasised is that there should be an inducement of belief
in the woman that she is lawfully married to the accused/ appellant and the
inducement of belief of a lawful marriage cannot be interpreted so as to mean or infer
that the marriage necessarily had to be in accordance with any custom or ritual or
under the Special Marriage Act, 1954. If the evidence on record indicate inducement of
a belief in any manner in the woman which cannot possibly be enlisted but from which
it can reasonably be inferred by ordinary prudence that she is a lawfully married wife of
the man accused of an offence under section 493 IPC, 1860 the same will have to be

treated as suﬃcient material to bring home the guilt under section 493 IPC, 1860.

1.  Ram Chandra Bhagat v State of Jharkhand, 2013 (1) SCC 562 [LNIND 2010 SC 1138] .
Interpretation of the section in any other manner including an assertion that the
marriage should have been performed by customary rituals or in similar manner only in
order to establish that a belief of marriage had been induced, is bound to frustrate the
very object and purpose of the provision for which it has been incorporated in the IPC,
1860 which is clearly to prevent the deceitful act of a man inducing the belief of a
lawful marriage for the purpose of cohabitation merely to satisfy his lust for sexual
pleasure.3.
Where a man and woman exchanged garlands, the man promising to marry formally,
and had sex as a result of which the woman became pregnant, it was held that the
exchange of garlands did not amount to falsely inducing the woman to believe that she
was married to the man. Section 493 was not attracted.4. Where a woman married a
man with full knowledge that he was already a married man and there was no proof

that the man falsely induced her to believe anything, it was held that the ingredients of
the offence under section 493 were not made out.5.
[s 493.3] Rape and section 493.—
In a case, the complainant made the allegation of fraud played by the petitioner by
suppressing the fact of earlier marriage and the alleged physical relationship were
under a belief that she was a legally wedded wife of the petitioner. The Court held that
a bare perusal of provision of sections 493 and 495 of IPC, 1860 shows that the bodily
relationship or sexual intercourse by a husband with his second wife falls under the
category of offence under sections 493 and 495 of IPC, 1860 and it cannot be treated
as rape as deﬁned in section 375 of IPC, 1860. It is an independent offence, the
cognizance of which can be taken by the Court on the basis of complaint ﬁled by the

complainant herself, therefore, the offence punishable under section 376 of IPC, 1860
is not made out as the alleged act of sexual intercourse by the petitioner with the
complainant may fall within the category of sections 493 and 495 of IPC, 1860 but not
in the category of rape as deﬁned in section 375 of IPC, 1860 and made punishable
under section 376 of IPC; therefore, the cognizance of section 376 of IPC, 1860 is
against the settled principles of law.6.
[s 493.4] Cohabitation during the operation of divorce decree, set aside later.—
The fact that the marriage between the appellant and the respondent was dissolved by
an ex parte decree and while that order was in force, the respondent husband
continued sexual relationship with the appellant, until he married another woman.

Subsequently the ex parte decree was set aside by the Court. The Supreme Court held
that the allegation that there was deception on the part of the husband for having
sexual relationship and that constituted an offence under section 493 of IPC, 1860
would not arise for the reason that there was subsistence of valid marriage during this
period as the ex parte decree was set aside later.7.

2.  Kartick Kundu, 1967 Cr LJ 1411 (Cal). Sammun v State of MP, 1988 Cr LJ 498 (MP) where the
court added that the accused promising to marry the woman and passing her to others as his
wife does not come under this section. Moideenkutty Haji v Kunhikoya, 1987 Cr LJ 1106 (Ker—
FB), a woman, who knows that the man whom she is permitting sex is not married to him,
cannot have recourse to this section to punish him.
3.  Ram Chandra Bhagat v State of Jharkhand, 2013 (1) SCC 562 [LNIND 2010 SC 1138] . The
three-Judge Bench accepted the view of Gyan Sudha Mishra J, in the referral order.
4.  Amruta Gadtia v Trilochan Pradhan, 1993 Cr LJ 1022 (Ori).
5.  Saurava Barik v Gouri Kaudi, 1994 Cr LJ 440 . The court referred to Raghunath Padhy v State,
AIR 1954 Ori. 198 [LNIND 1954 ORI 28] . Akhaya Kumar v State or Orissa, 1998 Cr LJ 1757 (Ori),
the accused and prosecutrix were in love with each other for several years. The accused married

another and still continued to cohabit with the prosecutrix on false pretences of marrying her.
The prosecutrix was aware of this fact. Hence, there was no deception. Framing of charge
against the accused was not proper. Mana Begum v Jula Mohd, 1998 Cr LJ 3244 (Ori), evidence
of the victim that the accused on promise to marry her had sex with her. The court said that
ingredients of the offence under s 493 were not made out.
6.  Mahesh Kumar Dhawan v State of MP, 2012 Cr LJ 1639 .
7.  Ravinder Kaur v Anil Kumar, AIR 2015 SC 2447 [LNIND 2015 SC 268] : (2015) 8 SCC 286
[LNIND 2015 SC 268] .

[s 494] Marrying again during lifetime of husband or wife.
Whoever, having a husband or wife living, marries 1 in any case in which such
marriage is void by reason of its taking place during the life of such husband or wife, 2
Exception3.—This section does not extend to any person whose marriage with such
husband or wife has been declared void by a Court of competent jurisdiction,
nor to any person who contracts a marriage during the life of a former husband or
wife, if such husband or wife, at the time of the subsequent marriage, shall have been
continually absent from such person for the space of seven years, and shall not have
been heard of by such person as being alive within that time provided the person
contracting such subsequent marriage shall, before such marriage takes place,

inform the person with whom such marriage is contracted of the real state of facts so
far as the same are within his or her knowledge.
Andhra Pradesh.—In A.P. the offence is cognizable, non-bailable, triable by the Magistrate
of the ﬁrst class and non-compoundable vide A.P. Act No. 3 of 1992, Section 2 (w.e.f. 15-
2-1992).
COMMENT.—
This section punishes the offence known to the English law as bigamy.
[s 494.1] Scope.—
The section does not apply to Mohammedan males, who are allowed to marry more
than one wife, but it applies to Mohammedan females, and to Hindus, Christians8. and
Parsis9. of either sex.
[s 494.2] Ingredients.—
Section 494, IPC, 1860, inter alia, requires the following ingredients to be satisﬁed,
namely,
(i) the accused must have contracted ﬁrst marriage;
(ii) he must have married again;

namely,
(iii) the ﬁrst marriage must be subsisting; and
(iv) the spouse must be living.10.

1. 'Having a husband or wife living, marries, etc'.—The validity of a marriage in the case
of Mohammedans and Jews will be determined in accordance with their religious
usages: in the case of Native Christians, by Act XV of 1872, in the case of Parsis, by Act
III of 1936; and in the case of Hindus, Buddhists, Sikhs and Jains, by Act XXV of 1955.
The validity of a marriage solemnised under the Special Marriage Act, 1954 will be
determined by its provisions.11.
There must be at the time of the second marriage a previous valid and subsisting
marriage.12. If the ﬁrst marriage is not a valid marriage, no offence is committed by
contracting a second marriage.13.
Divorce dissolves a valid marriage, and the parties obtaining such dissolution can re-
marry.14.
A Mohammedan woman marrying within the period of her iddat (the period of four
months which a divorced wife was to observe after divorce before re-marrying) is not
guilty of bigamy.15.
[s 494.3] Second marriage under Special Marriage Act, 1954.—

SI Jafri J, of the Allahabad High Court observed:16.
Notwithstanding the fact that the personal law permits a muslim male to contract four
marriages, if a second marriage is contracted under the Special Marriage Act 1954 vis-a-vis
the fact that he has a legally wedded wife who has been married to him under the
Mohammedan law, s. 494 has to claw at the erring male … Mohammedan law does not take
preference over Special Marriage Act 1954 … There being no saving clause for the applicant
to purge him of the charges u/s. 494 …, the applicant is liable to be punished under [this
section].
2. 'Marries in any case in which such marriage is void by reason of its taking place
during the life of such husband or wife'.—The Supreme Court has observed that prima
facie, the expression "whoever marries" must mean "whoever marries validly" or

"whoever … marries and whose marriage is a valid one". If the marriage is not a valid
one according to the law applicable to the parties no question of its being void by
reason of its taking place during the life of the wife or the husband of the person arises.
If the marriage is not a valid marriage, it is no marriage in the eyes of the law.17. The
Supreme Court in another case had held that in a bigamy case, the second marriage as
a fact, that is to say, the essential ceremonies constituting it, must be proved.18.
Admission of marriage by the accused is not evidence of it for the purposes of proving
marriage in an adultery or bigamy case.19. Thus, where the second Hindu marriage was
not proved by showing saptapadi and homam, the mere production of a marriage
certiﬁcate under section 16 of the Special Marriage Act, 1954 would not be suﬃcient to

prove that the second marriage was performed validly by performing all the essential
ceremonies of a valid marriage. The mere fact of subsequent registration of the second
marriage does not prove the validity of second marriage.20. Merely because the second
marriage even if performed by performing all the essential ceremonies turns out to be
void by virtue of section 17 of the Hindu Marriage Act, 1955, it cannot be said that
section 494, IPC, 1860 will not be attracted.21. If the second marriage was not proved
to have been validly performed by observing essential ceremonies and customs in the
community, the conviction under section 494, IPC, 1860 could not be maintained.22.
Perhaps the Courts in India were obliged to take the view they have taken because of
the word "solemnised" occurring in section 17 of the Hindu Marriage Act, 1955 and the

inhibition contained in the proviso to section 50 of the Indian Evidence Act, 1972 which
forbids taking into consideration even the opinion of a person with special means of

knowledge to show that the two persons were always received and treated as husband
and wife by their friends and relatives so far offences under sections 494, 495, etc., IPC,
1860 are concerned.23.
Thus, if one deliberately keeps a small lacuna, e.g., instead of taking the seven steps
(saptapadi), takes only six steps while celebrating the second marriage, one can easily avoid
the penalty prescribed by these sections even though one virtually ruins the lives of two
girls. If we are to effectively root out polygamy from this country, we must amend s. 494,
IPC, and s. 17 of the Hindu Marriage Act, in such a way that anyone who goes through a
form of marriage during the lifetime of his or her spouse will come within the mischief of
the offence of bigamy. At the same time we should also delete from the proviso to s. 50 of
the Indian Evidence Act, the last portion which says 'or in prosecutions u/s. 494, 495, 497 or
498 of the Indian Penal Code'. The National Committee on the Status of Women too made,

more or less, similar recommendations in its report. It is also felt that ss. 493, 494, 495 and
496, IPC, which have an element of cheating in them and affect unsophisticated rural
women more than women in urban areas should be made cognizable so that these poor
women could get justice without being required to engage lawyers at their own cost.24.
The Courts are also changing their viewpoint. In Indu Bhagya Natekar v Bhagya
Pandurang Natekar,25. it was held that it is not correct to say that in every case of
bigamy, unless the second marriage can be proved by bringing in the evidence of the
performance of ceremonies itself, a conviction under section 494 is virtually
impossible. The accused can be convicted even if there is other reliable evidence to
establish the charge.

Where in a particular community 'saptapadi' was not an essential ceremony, the
provisions of section 7-A of the Hindu Marriage Act, 1955 applied and, therefore, the
performance of other ceremonies prevalent in the community constituted a valid
marriage.26.
Under the provisions of the Indian Christian Marriage Act (XV of 1872), the ﬁrst
accused, who was a Roman Catholic Indian Christian, married the complainant, who
was a Protestant, in a Protestant Church, the ceremony being performed by a
Protestant Pastor, and subsequently, after obtaining a release deed from her, he
married the second accused in a Roman Catholic Church, the ceremony being
performed by a Roman Catholic priest. It was held that the ﬁrst accused had
committed the offence of bigamy punishable under this section. The release deed

executed by the complainant did not operate as a dissolution of the marriage between
the ﬁrst accused and herself. The marriage between the ﬁrst accused and the
complainant was a legal and valid marriage and, as it was subsisting when the ﬁrst
accused married the second accused, the marriage of the ﬁrst accused with the
second accused was void by reason of its taking place during the life of the
complainant.27.
Good faith and mistake of law are no defences to a charge of bigamy.28.
[s 494.4] Conversion from Hinduism.—
A married Hindu person contracted second marriage after embracing Islam. The
Supreme Court said that despite his conversion he was guilty of the offence under
section 17 of the Hindu Marriage Act, 1955 read with section 494, IPC, 1860 since mere
conversion did not automatically dissolve his ﬁrst marriage.29. The Court followed its

own decision in Sarla Mudgal v UOI,30. which was to the effect that a Hindu husband
who had, after conversion to Islam, contracted a second marriage without dissolving
his ﬁrst marriage was guilty of the offence under section 494.

[s 494.5] Ex parte divorce.—
The accused husband entered into second marriage after obtaining ex parte divorce
against his ﬁrst wife. The Court said that he could not possibly be convicted under the
section, even if the ex parte divorce is subsequently set aside. Criminal proceeding
against the husband was quashed, it being only an exercise in futility.31.
[s 494.6] Custom of second marriage in the community.—
A person was not allowed to be prosecuted under the section because of a custom in
the community. The parties belonged to a scheduled tribe. Their marriage was
governed by the customs and usages applicable to the tribe. There was no allegation in
the complaint nor a proof of it that there was a custom of monogamy in the
community.32.
3. Exception.—The Exception lays down three conditions:—
1. Continual absence of one of the parties for the space of seven years;
2. The absent spouse not having been heard of by the other party as being alive within
that time; and

3. The party marrying must inform the person with whom he or she marries of the
above fact.
[s 494.7] Locus standi to ﬁle complaint.—
According to section 198 of Cr PC, 1973, no Court shall take cognizance of an offence
punishable under Chapter XX of the IPC (45 of 1860) except upon a complaint made by
some person aggrieved by the offence. Where the person aggrieved by an offence
punishable under sections 494 or 495 of the IPC (45 of 1860) is the wife, complaint
may be made on her behalf by her father, mother, brother, sister, son or daughter or by
her father's or mother's brother or sister, (with the leave of the Court) or by any other
person related to her by blood, marriage or adoption.
[s 494.8] Complaint by Second wife.—
Section 494 is intended to achieve laudable object of monogamy. This object can be

achieved only by expanding the meaning of the phrase "aggrieved person". Having
regard to the scope, purpose, context and object of enacting section 494 IPC, 1860 and
also the prevailing practices in the society sought to be curbed by section 494 IPC,
1860 there is no manner of doubt that the second wife should be an aggrieved person.
Until the declaration contemplated by section 11 of the Hindu Marriage Act, 1955 is
made by a competent Court, the woman with whom second marriage is solemnised
continues to be the wife within the meaning of s 494 IPC and would be entitled to
maintain a complaint against her husband.33.
[s 494.9] Police report.—

8.  Act XV of 1872.
9.  Act III of 1936.
10.  Pashaura Singh v State of Punjab, AIR 2010 SC 922 [LNIND 2009 SC 1988] : 2010 Cr LJ 875
(SC).
11.  Act XLIII of 1954.
12.  Padi v State, AIR 1963 HP 16 [LNIND 1962 HP 8] .
13.  Chadwick, (1847) 11 QB 173 , 205.
14.  Where without granting divorce the court passed orders relieving the physically weak wife
from the burden of the husband's sex demands and at the request of the wife permitted him to
take another wife; that was held to be wrong. Santosh Kumari v Surjit Singh, AIR 1990 HP 77
[LNIND 1989 HP 19] : 1990 Cr LJ 1012 .
15.  Abdul Ghani v Azizul Huq, (1911) 39 Cal 409 .
16.  Anwar Ahmed v State of UP, 1991 Cr LJ 717 at 719. Radhika Sameena v SHO Habeebnagar
PS, 1997 Cr LJ 1655 (AP), a Muslim entered into second marriage under the Special Marriage
Act, 1954. He was liable to be prosecuted for the offence of bigamy.
In the case of Ushaben v Kishorbhai Chunilal Talpada34.,35. taking note of sub-section

(4) of section 155, Cr PC, 1973 the Apex Court held that if a complaint contains the
allegation about commission of offences both under section 498-A of the IPC, 1860 as
well as section 494 of the IPC, 1860 the Court can take cognizance thereof even on a
police report. The bar under section 198 would not be applicable as complaint lodged
before police for offence under section 494 IPC, 1860 also related to other cognizable
offences and if police ﬁles a charge-sheet, the Court can take cognizance also of
offence under section 494 along with other cognizable offences by virtue of section
155(4) of the Cr PC, 1973.36.
[s 494.10] Jurisdiction.—
According to section 182(2) of the Cr PC, 1973 any offence punishable under sections
494 or 495 of the IPC (45 of 1860), may be inquired into or tried by a Court within

whose local jurisdiction the offence was committed or the offender last resided with
his or her spouse by the ﬁrst marriage or the wife by the ﬁrst marriage has taken up
permanent residence after the commission of the offence.37.
[s 494.11] Divorce in foreign country.—
The marriage of the accused with the complainant was dissolved by a decree of
divorce granted by a District Court in Sweden. The marriage of the accused with
another lady after expiry of the period of appeal was held to be not an offence under
the section.38.

17.  Bhaurao, (1965) 67 Bom LR 423 (SC). For a critical examination of such cases, see MP
Singh, Bigamy : A Conjecture for Deconstruction, (1988) 30 J ILI 225.
18.  Proof must be by cogent evidence. The mere fact of living together as husband and wife or
of some letters on the point would not do. Religious ceremony of saptapadi also not proved.
Revanasiddaswamy HM v State of Karnataka, 1990 Cr LJ 1001 (Kant), no speciﬁc allegation that
saptapadi was not required in the community. Second marriage not proved. Santi Deb Berma v
Kanchan Prava Devi, AIR 1991 SC 816 : 1991 Cr LJ 660 .
19.  Kanwal Ram, AIR 1966 SC 614 [LNIND 1965 SC 198] .
20.  Baby Kar v Ram Rati, 1975 Cr LJ 836 (Cal); see also Chandra Bahadur, 1978 Cr LJ 942
(Sikkim).
21.  Gopal Lal v State of Rajasthan, 1979 Cr LJ 652 (SC).
22.  L Obulamma, 1979 Cr LJ 849 (SC). Acting upon these cases in Kashiram v Somvati, 1992 Cr
LJ 760 , the MP High Court found evidence of second formally valid marriage, but the earlier one

was performed while the accused was a child, lesser sentence was awarded and the parents
who arranged the second marriage were not awarded jail term citing, Bhunda Sukru v Chetram,
1976 MPLJ 600 [LNIND 1975 MP 112] : 1977 Cr LJ 134 ; and Priya Bala v Suresh Chandra, AIR
1971 SC 1153 [LNIND 1971 SC 163] : 1971 Cr LJ 939 . Where the second marriage was
performed according to the Arya Samaj Custom and it was pleaded that accordingly only three
and a half-rounds of sacred ﬁre were enough to complete the marriage, it was held that without
saptapadi the marriage was not complete; Urmila v State of UP, 1994 Cr LJ 2910 (All). Where
there was no proof of performance of necessary ceremonies in the second marriage, it was held
that conviction for bigamy was not permissible and the accused could not be punished for

attempt to commit bigamy, Subir Kumar Kundu v State of WB, 1992 Cr LJ 1502 (Cal). D
Vijyalakhsmi v D Sanjeeva Reddy, 2001 Cr LJ 1583 , the ﬁrst and second marriages should be
proved to have been performed according to the legal or customary requirements applicable to
the caste or community. The Andhra Pradesh State Amendment which has been approved by
the President and which makes the offence cognizable would prevail over the Central
Legislation in case of conﬂict. P Satyanarayana v P Mallaiah, 1997 Cr LJ 211 : (1996) 6 SCC 122 ,
the husband admitted second marriage after 10 years of desertion by his wife. The court said
that the prosecution was not absolved of its burden of proving that the second wife was taken
after solemnising due ceremonies of Hindu marriage. Manju Ram Kalita v State of Assam, (2009)

13 SCC 330 [LNIND 2009 SC 1363] , concurrent ﬁnding of three courts below of the existence of
second marriage, the Supreme Court refused to interfere in such ﬁnding at the fourth place, and
also not in the punishment awarded. Purandar Sahoo v Golapi Sahoo, (2007) 15 SCC 696 ,
disputes between man and wife, the latter left and lived with parents for 14 years, complaint of
second marriage by the husband about four years ago from the date of complaint, prosecution
not successful because neither there was any good proof of a second marriage, nor any
explanation of four years' silence. Manju Ram Kalita v State of Assam, (2009) 13 SCC 330 [LNIND
2009 SC 1363] , petty quarrels could not be termed as "cruelty".
23.  R Deb, Offences Against Women, 1985 Cr LJ, Journal portion, pp 9–16 (at p 11).
24.  Ibid.

24.  Ibid.
25.  Indu Bhagya Natekar v Bhagya Pandurang Natekar, 1992 Cr LJ 601 (Bom).
26.  S Nagalingam v Sivagami, AIR 2001 SC 3576 [LNIND 2001 SC 1898] , the accused being
already a married man at the time he was convicted of the offence under the section. The
matter was remanded to the trial court for proper punishment. Manju Devi v State of Bihar, 2000
Cr LJ 3382 (Pat), mere exchange of garlands could not take the place of a ceremony unless
there was a custom to that effect. Manjula v Mani, 1998 Cr LJ 3244 (Ori), ﬁrst marriage
subsisting, second marriage proved by witnesses and entries in the marriage register under the

Hindu Marriage Act, 1955. Those who came to bless the second marriage were not held to be
guilty of abetment. The court also said that solemnisation of second marriage in accordance
with applicable ceremonies is not necessary for conviction, viz., section 7A of the Hindu
Marriage Act, 1955. Yelamanchali Nageswari v Venkata Prasada Rao, 1998 Cr LJ 4128 (AP),
admission of second marriage by the accused in the application for mutual divorce was not
considered to be suﬃcient unless there was evidence of ceremonies or some other legally
sanctioned form. See also, Bhagwan Swaroop Srivastava v Asha Srivastava, 1998 Cr LJ 265 (Raj);
Sutesh Kurnat v State of Rajasthan, 1998 Cr LJ 601 (Raj); Elango S v S Ravindran, 1998 Cr LJ 3095
(Mad); Sham Singh v Satabjit Kaur, Cr LJ 4788 (P&H).
27.  Gnanasoundari v Nallathambi, (1946) Mad 367. Prasanna Kumar v Dhanalaxmi, 1989 Cr LJ
1829 (Mad), where the date, place and form of second marriage were not given, nor witnesses

indicated, complaint not good. B Chandra Manikyamma v B Sudarasna Rao, 1988 Cr LJ 1849
(AP), second marriage must be strictly proved. Converting into another faith for show off and
solemnising a marriage under that faith, no second marriage is valid in law.
28.  Narantakath v Parakkal, (1922) 45 Mad 986; Abdul Ghani v Azizul Hiq, (1911) 39 Cal 409 ,
dissented from. Gomathi v Vijayaraghavan, (1995) 1 Cr LJ 81 (Mad), the court did not order
blood test of a child alleged to be from second wife for the purpose of proving a bigamous
marriage. The mere birth of a child does not bring about a ceremonised marriage.
29.  Lily Thomas v UOI, AIR 2000 SC 1650 [LNIND 2000 SC 827] : 2000 Cr LJ 2433 .
30.  Sarla Mudgal v UOI, AIR 1995 SC 1531 [LNIND 1995 SC 661] : 1995 AIR SCW 2326 : 1995 Cr
LJ 2926 : (1995) 3 SCC 635 [LNIND 1995 SC 661] .

31.  Krishna Gopal Divedi v Prabha Divedi, AIR 2002 SC 389 [LNIND 2002 SC 142] .
32.  Surajmani Stella Kujur (Dr) v Durga Charan Hansdah, AIR 2001 SC 938 [LNIND 2001 SC 412] .
33.  A Subhash Babu v State of AP, AIR 2011 SC 3031 [LNIND 2011 SC 679] : 2011 (7) SCC 616
[LNIND 2011 SC 679] ; Babu Ram Saini v State of Uttaranchal, 2013 Cr LJ 1896 (Utt).
34.  Also see Pintu Alias Sujit Kumar Giri v State Of Orissa, 2013 Cr LJ 2099 (Ori).
35.  Ushaben v Kishorbhai Chunilal Talpada, (2012) 6 SCC 353 [LNINDU 2012 SC 25] : 2012 Cr LJ
2234 .
36.  A Subhash Babu v State of AP, AIR 2011 SC 3031 [LNIND 2011 SC 679] : 2011 (7) SCC 616
[LNIND 2011 SC 679] ; Victor Auxilium v State, 2008 Cr LJ 774 (Mad).
37.  Azad @Naresh Kr Azad v State of Bihar, 2012 (2) Crimes 652 [LNIND 2012 PAT 329] (Pat).
38.  T Venkateswarlu v State of AP, 1999 Cr LJ 39 (AP).

[s 495] Same offence with concealment of former marriage from person with
whom subsequent marriage is contracted.
Whoever commits the offence deﬁned in the last preceding section having concealed
from the person with whom the subsequent marriage is contracted, the fact of the
former marriage, shall be punished with imprisonment of either description for a term
Andhra Pradesh.— The offence is cognizable, non-bailable, triable by the Magistrate of
the ﬁrst class and non-compoundable vide A.P. Act No. 3 of 1992, Section 2 (w.e.f. 15-2-
1992), in A.P.
39.  Babu Ram Saini v State Of Uttaranchal, 2013 Cr LJ 1896 (Utt).
COMMENT.—
The offence mentioned in section 495 IPC, 1860 is extension of section 494 IPC, 1860
and also is an aggravated form of bigamy provided in section 494 IPC, 1860. The
complainant (second wife) has adduced enough evidence to prove that the accused

had concealed the fact of the former marriage by assuring her that he had taken
divorce from his ﬁrst wife and subsequently married her by performing the essential
Hindu rites and ceremonies in accordance with section 7 of the Hindu Marriage Act,
1955. It is undisputed that accused ﬁrst got married to Smt. Vijay Saini and thereafter
to the complainant, as admission to this effect has been made by the accused himself
in his statement under section 313 Cr PC, 1973. Accused was rightly convicted under
section 495 IPC, 1860.39.
[s 495.1] Right to ﬁle complaint.—
Non-ﬁling of the complaint under sections 494 or 495 IPC, 1860 by the ﬁrst wife does
not mean that the offence is wiped out. Even otherwise, the second wife suffers several
legal wrongs and legal injuries and hence, complainant (second wife) was having every

right to ﬁle the complaint under section 495 IPC, 1860.40.
A bare perusal of the provisions of sections 493 and 495 of IPC, 1860 shows that the
bodily relationship or sexual intercourse by a husband with his second wife falls under
the category of offence under sections 493 and 495 of IPC, 1860 and it cannot be
treated as rape as deﬁned in section 375 of IPC, 1860.41.

40.  Babu Ram Saini v State Of Uttaranchal, 2013 Cr LJ 1896 (Utt); A Subhash Babu v State of AP,
AIR 2011 SC 3031 [LNIND 2011 SC 679] : 2011 (7) SCC 616 [LNIND 2011 SC 679] .
41.  Mahesh Kumar Dhawan v State of MP, 2012 Cr LJ 1639 .

[s 496] Marriage ceremony fraudulently gone through without lawful marriage.
Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of
being married, knowing that he is not thereby lawfully married, shall be punished with
COMMENT.—
This section punishes fraudulent or mock marriages.
It applies to cases in which a ceremony is gone through which would in no case
constitute a marriage, and in which one of the parties is deceived by the other into the
belief that it does constitute a marriage, or in which effect is sought to be given by the

proceeding to some collateral fraudulent purpose. Where the ceremony gone through
does, but for the previous marriage, constitutes a valid marriage, and both parties are
aware of the circumstances of the previous marriage, s. 494 applies.42.
[s 496.1] Ingredients.—
The section requires two essentials:—
1. Dishonestly or with a fraudulent intention going through the ceremony of marriage.
2. Knowledge on the part of the person going through the ceremony that he is not
thereby lawfully married.
[s 496.2] Sections 493 and 496.—
The two sections are somewhat alike: the difference appears to be that under section
493, deception is requisite on the part of the man, and cohabitation or sexual
intercourse consequent on such deception. The offence under section 496 requires no

deception, cohabitation, or sexual intercourse as a sine qua non, but a dishonest or
fraudulent abuse of the marriage ceremony. In the latter case the offence can be
committed by a man or woman, in the former, only by a man.
[s 496.3] Sections 494 and 496.—

42.  Rama Sona, (1873) Unrep Cr C 77.
43.  Kailash Singh, 1982 Cr LJ 1005 (Raj).
44.  Ibid. Where the second marriage is performed fraudulently, complaint can be made by the
person so deceived, and not by the ﬁrst regular wife. Prasanna Kumar v Dhanalaxmi, 1989 Cr LJ
1829 (Mad).
An offence under section 494 is different from an offence under section 496, IPC, 1860.
If the accused intends that there should be valid marriage and honestly goes through
the necessary ceremonies during the lifetime of the other spouse, then it may be a case
under section 494, IPC, 1860, but if the accused only intends that there should only be a
show of marriage and dishonestly and fraudulently goes through the marriage
ceremony knowing fully well that he is not legally married thereby, then it is an offence
under section 496, IPC, 1860.43.
[s 496.4] CASE.—
Where the accused married for the second time during the pendency of special appeal
against decree of divorce in violation of section 15 of the Hindu Marriage Act, 1955 but

without concealing the fact of pendency of the appeal from the girl or her parents, no
conviction could be entered under section 496, IPC, 1860 as the act of the accused was
neither dishonest nor fraudulent.44.

[s 497] Adultery.
Whoever has sexual intercourse with a person who is and whom he knows or has
reason to believe to be the wife of another man, without the consent or connivance of
that man, such sexual intercourse not amounting to the offence of rape, is guilty of
the offence of adultery, and shall be punished with imprisonment of either description
for a term which may extend to ﬁve years, or with ﬁne, or with both. In such case the
wife shall not be punishable as an abettor.
Andhra Pradesh.— Punishment–Imprisonment for 5 years, or ﬁne, or both–Non-
cognizable, bailable triable by 1st class Magistrate and non-compoundable vide A.P. Act 3
of 1992, w.e.f. 15-2-1992.
45.  Joseph Shine v UOI, AIR 2018 SC 4898 .
COMMENT.—
In Joseph Shine v UOI,45. a Constitution bench of the Supreme Court decriminalised
adultery and held section 497 of the IPC, 1860 unconstitutional as violative of Articles

COMMENT.—
14 and 21 of the Constitution. Under section 397 a man who had sex with a married
woman without getting her husband's permission could be charged and face
punishment with imprisonment for a term up to ﬁve years, or with ﬁne, or with both, if
convicted. Before, it was struck down, the cognizance of the offence was limited to
adultery committed with a married woman, and the male offender alone was made
liable to punishment. Thus, under the Code, adultery was an offence committed by a
third person against a husband in respect of his wife. A married man was not liable if
had sexual intercourse with an unmarried woman, or with a widow, or even with a
married woman whose husband consented to it.
Prior to the judgment in Joseph Shine case, the Supreme Court in Sowmithri Vishnu's case46.

had upheld the constitutional validity of section 497, IPC, 1860. In Joseph Shine v UOI, AIR
2018 SC 4898 , the Supreme Court observed that: Adultery is different from an offence
committed under Section 498-A or any violation of the Protection of Women from Domestic
Violence Act, 2005 or, for that matter, the protection conceived of under Section 125 of the
Code of Criminal Procedure or Sections 306 or 304B or 494 IPC. These offences are meant
to sub-serve various other purposes relating to a matrimonial relationship and extinction of
life of a married woman during subsistence of marriage. Treating adultery an offence would
tantamount to the State entering into a real private realm. The act, i.e., adultery does not ﬁt
into the concept of a crime. If it is treated as a crime, there would be immense intrusion into

the extreme privacy of the matrimonial sphere. It is better to be left as a ground for divorce.
For any other purpose as the Parliament has perceived or may, at any time, perceive, to treat
it as a criminal offence will offend the two facets of Article 21 of the Constitution, namely,
dignity of husband and wife, as the case may be, and the privacy attached to a relationship
between the two.

46.  Sowmithri Vishnu v UOI, 1985 Cr LJ 1302 (SC) : AIR 1985 SC 1618 [LNIND 1985 SC 202] :
(1985) Supp SCC 137 . Again emphasised in V Revathi v UOI, (1988) 2 SCC 72 [LNIND 1988 SC
20] : AIR 1988 SC 835 [LNIND 1988 SC 144] : (1988) 1 Ker LT 771 : (1988) 2 HLR 39 : (1988) 1
Punj LR 649 .

[s 498] Enticing or taking away or detaining with criminal intent a married
woman.
Whoever takes or entices away any woman who is and whom he knows or has reason
to believe to be the wife of any other man, from that man, or from any person having
the care of her on behalf of that man, with intent that she may have illicit intercourse
with any person, or conceals or detains with that intent any such woman, 1 shall be
COMMENT.—
Under section 498, IPC, 1860 enticing or taking away a married woman with criminal
intent is an offence. Entering or taking away somebody's wife for the purpose other
than mentioned in section 498, IPC, 1860 does not constitute an offence. Therefore, in
order to bring home guilt of a person under section 498, IPC, 1860, the prosecution has

to prove that a married woman was enticed or taken away with an intention that she
might have illicit intercourse with any person.47.
Sections 361 and 366 may be compared with this section, which may come into
operation when the two former sections fail to apply, but only in respect of a married
woman. This and the preceding sections are evidently intended for the protection of
husbands, who alone can institute prosecutions for offences under them.
The gist of the offence under this section appears to be the deprivation of the husband
of his custody and his proper control over his wife with the object of having illicit
intercourse with her.48.
[s 498.1] Ingredients.—
The section requires three things:—
1. Taking or enticing away or concealing or detaining the wife of another man from that

man or from any person having the care of her on behalf of that man.
2. Such taking, enticing, concealing or detaining, must be with intent that she may have
illicit intercourse with any person.
3. Knowledge or reason to believe that the woman is the wife of another man.
[s 498.2] Sections 366 and 498.—
A comparison of the ingredients constituting an offence under sections 366 and 498
shows that though there are some ingredients which are common, but the ingredients
for the offence under section 498 constitute of some of the very important particulars
which are not in an offence under section 366, IPC, 1860. The additional ingredients of

47.  Singana Naga Nooka Chakrarao v State of AP, 2007 Cr LJ 3466 .
48.  Alamgir v State of Bihar, (1959) Pat 334 : AIR 1959 SC 436 [LNIND 1958 SC 145] : 1959 Cr LJ
527 : (1959) 2 SCA 116 [LNIND 1958 SC 145] . Natarajan v Ramanujam, 1977 Cr LJ 389 (Mad),
the main ingredient is enticing away married woman from her husband. Criminal intent on the
part of the accused has to be proved. The consequence of not examining the material witness,
the wife, led to acquittal of accused. No interference.
49.  Satya Narain v State of Bihar, 1985 Cr LJ 747 (Pat).
50.  Prithi Missir v Harak Nath, (1937) 1 Cal 166 .
51.  Alamgir, (1959) Pat 334 : AIR 1959 SC 436 [LNIND 1958 SC 145] .
section 498, IPC, 1860 namely, (i) that the woman said to have been taken away is the
married wife of another man, and (ii) that the accused has taken her away with the
knowledge that she is the wife of that person are not at all in the offence under section
366, IPC, 1860. Therefore, the offence under section 498 cannot be said to be a minor

offence or an offence under section 366 within the meaning of the term used in section
222(2) of the Cr PC, 1973.49.
1. 'Detains with that intent any such woman'.—The word "detains" means "keeps back".
The keeping back need not necessarily be by physical force, it may be by persuasion or
by allurement and blandishment. The use of the word requires that there should be
something in the nature of control or inﬂuence which can properly be described as a
keeping back of the woman. To constitute detention proof of some kind of persuasion
is necessary. It cannot properly be said that a man detains a woman if she has no
desire to leave and on the contrary wishes to stay with him.50. The Supreme Court has
held that the keeping back may be by force, but it need not be by force. It can be the

result of persuasion, allurement or blandishment, which may either have caused the
willingness of the woman, or may have encouraged, or co-operated with, her initial
inclination to leave her husband.51.

1.[CHAPTER XX-A OF CRUELTY BY HUSBAND OR RELATIVES OF
HUSBAND
[s 498A] Husband or relative of husband of a woman subjecting her to cruelty.
Whoever, being the husband or the relative of the husband of a woman, subjects such
woman to cruelty shall be punished with imprisonment for a term which may extend
to three years and shall also be liable to ﬁne.
Explanation.—For the purpose of this section, "cruelty" means—
(a) any wilful conduct which is of such a nature as is likely to drive the woman to
commit suicide or to cause grave injury or danger to life, limb or health
(whether mental or physical) of the woman; or
(b) harassment of the woman where such harassment is with a view to coercing
her or any person related to her to meet any unlawful demand for any property
or valuable security or is on account of failure by her or any person related to
her to meet such demand.]
Andhra Pradesh.—In Andhra Pradesh, offence is compoundable.
COMMENT.—

COMMENT.—
This section has been introduced in the Code by the Criminal Law (Amendment) Act,
1983 (Act 46 of 1983) to combat the menace of dowry deaths. By the same Act section
113A has been added to the Indian Evidence Act, 1872 to raise a presumption
regarding abetment of suicide by a married woman.
[s 498A.1] Ingredients.—
Ingredients of 498A of the Indian Penal Code (IPC), 1860 are:
a) The woman must be married;
b) She must be subjected to cruelty or harassment; and
c) Such cruelty or harassment must have been shown either by husband of the
woman or by the relative of her husband.2.
If the validity of the marriage itself is under legal scrutiny, the demand of dowry in
respect of an invalid marriage would be legally not recognisable.3.
Concept of cruelty under section 498A IPC, 1860 and its effect under section 306 IPC,

1860 varies from individual to individual also depending upon the social and economic
status to which such person belongs. The Supreme Court held that cruelty for the

purpose of offence and the said Section need not be physical. Even mental torture or
abnormal behaviour may amount to cruelty or harassment in a given case.4. Mental
cruelty, of course, varies from person to person, depending upon the intensity and the
degree of endurance, some may meet with courage and some others suffer in silence,
to some it may be unbearable and a weak person may think of ending one's life.5.
The usual and common domestic discord in any matrimonial home cannot amount to
'cruelty' within the meaning of section 498A of IPC, 1860.6. Assault on a woman
offends her dignity. It is one thing to say that every wear and tear of married life need
not lead to suicide and it is another thing to put it so crudely and suggest that one or
two assaults on a woman is an accepted social norm. Judges have to be sensitive to
women's problems. What effect it will have on a woman depends on facts and
circumstances of each case. There cannot be any generalisation on this issue.7.

In a case before the Supreme Court8. involving the death by burning of a newly married
woman, the circumstances did not establish either murder or an abetted suicide and
thus the in-laws escaped the jaws of sections 300 and 306, but they were caught in the
web of this newly-enacted section for prevention of harassment for dowry. Not to
speak of the things they were persistently demanding from the girl's side, the fact that
a large number of articles were taken back by her father after her death from her
matrimonial abode, showed that there was pressure being exerted on in-laws and
continued to be exerted till death for more money and articles. The Supreme Court
observed in another case that this section has given a new dimension to the concept of
cruelty for the purposes of matrimonial remedies and that the type of conduct

described here would be relevant for proving cruelty.9. It is no impediment to a
conviction under the section that the accused has been acquitted of the larger offence
of murder under section 302. Where the charge was that of murdering wife for dowry
and no evidence was available except this that the accused projected the theory of
intruders killing her (which the Court did not believe) and did not immediately made
police report or to get medical help for his injured wife, this was held to be not
suﬃcient to convict him for murder. The harassment for dowry was established from
his own conduct in deserting her and also through the mouth of the witnesses. That
was held to be suﬃcient to convict him under section 498A.10.
Where after a spell of cruelty, the husband and wife reconciled and resumed joint life

and it was found that the husband left the wife back with her parents for a short spell
and then took her back and within two days informed her parents of her death, the wife
made no complaint of cruelty, etc., during her short stay with parents, the section could
not come into play because there was no complaint after reconciliation.11. The Court
also added that sections 498A and 304B create distinct offences. "Cruelty" is common
element to both. A person charged under section 304B can be convicted under section
498A without any charge under that section.
A married woman committed suicide by burning herself after pouring kerosene. In her
dying declaration she said that her husband used to beat her after taking liquor and he
used to borrow money from the villagers for the purpose. The Court said that this

amounted to cruelty within the meaning of the section making the accused liable to be
punished.12. When the accused mother-in-law, the husband and his brother harassed
the married woman and did not permit her to go to her parents. The husband and his
brother disposed her of by ﬁre after pouring kerosene. They were punished under
section 302. Their mother was punished under this section (section 498A).13.
Consequences of cruelty which was likely to drive a woman to commit suicide or to
cause grave injury danger to life or limb or health, whether mental or physical, have to
be shown for attracting the section.14.

[s 498A.2] Mens rea.—
The requirement of proving that soon before her death the woman was subjected to
cruelty or harassment by her husband or any relation of her husband for or in
connection with any demand of dowry clearly shows that the legislation has imbibed
the necessary mens rea for the offence of dowry death.15.
[s 498A.3] Actus reus.—
The Supreme Court has observed that in-laws of a deceased cannot be roped in only on
the ground of being the close relatives of the husband of the deceased. Some overt act
must be attributed to them in the incident and the same should also be proved beyond
reasonable doubt.16.
[s 498A.4] Suicide note.—
The suicide note of the deceased wife made serious castigation against her husband
for being an addict to some kind of narcotic drug. Serious allegations were also made
against the mother-in-law. Allegations against the accused sister-in-law were not grave.
But in no case there was reference to any concrete instance which could be termed to

be cruelty. Hence, no case was made out against the accused persons.17.
[s 498A.5] Constitutional validity of section 498A.—
The husband and relatives of the husband of a married woman form a class apart by
themselves and it amounts to reasonable classiﬁcation especially when a married
woman is treated with cruelty within the four walls of the house of her husband and
there is no likelihood of any evidence available. Consequently, this section cannot be
said to be violative of Article 14 of the Constitution.18.
The mere possibility of abuse of a provision of law does not per se invalidate a
legislation. The plea that section 498-A has no legal or constitutional foundation was
held to be not tenable.19. Mere possibility of abuse of power in a given case would not

make it objectionable, ultra vires or unconstitutional. In such case, 'action' and not the
'section' may be vulnerable.20.
Where the wife coming from respectable orthodox family was subjected by her
husband, who was of highly suspicious nature, to humiliation by demeaning and
insulting her, calling her a prostitute, denying her family life and comfort and not
permitting anybody to meet her, all this was held to be suﬃcient to justify the husband's
conviction under the section.21. The Court said:22.
The expression cruelty postulates such a treatment as to cause reasonable apprehension in
the mind of the wife that her living with the husband will be harmful and injurious to her life.
To decide the question of cruelty the relevant factors are the matrimonial relationship

between the husband and wife, their cultural and temperamental state of life, state of health
and their inter-action in daily life.
[s 498A.6] Cruelty by vexatious litigation.—
Where out of a sense of vindictiveness, the husband instituted vexatious litigation
against his wife and she was feeling humiliated and tortured by reason of execution of
search warrants and seizure of personal property, it was held that the section was wide
enough to encompass a cruelty committed through an abuse of the litigative process.
[s 498A.7] Cruelty by deprivation and wasteful habits.—
The husband disregarded his duty to provide his wife and infant child the elementary
means of sustenance. He deliberately and irresponsibly squandered his earnings on

gambling and other vices and thereby starved his wife and infant child to death. This
was held to be amounting to cruelty under section 498A.23.
[s 498A.8] Calling wife "barren woman".—
It was alleged that, as the deceased did not beget children for a period of three years
after the marriage, accused harassed the deceased by calling her "barren woman". It
was held that mere commenting that deceased was not begetting children, dose not
amount to subjecting the deceased to cruelty within the meaning of section 498A IPC,
1860.24.
[s 498A.9] Cruelty by persistent demand.—
Cruelty or harassment need not be physical. Mental torture may amount to cruelty in a
given situation. The bride, in this case, was repeatedly taunted, maltreated and mentally
tortured right from the next day of marriage. There was a quarrel between her and the
husband only a day before her death. This led the bride to commit suicide. Presumption
as to dowry death under section 113B, Indian Evidence Act, 1872 became applicable.

There was no rebuttal from the side of the accused husband.25.
[s 498A.10] Cognizance on Police Report.—
Section 198A of Code of Criminal procedure (Cr PC), 1973 permits a Court to take
cognizance of offence punishable under section 498A upon a police report of facts
which constitute offence. Explanation to section 2(d) makes it clear that a report made
by a police oﬃcer after investigation of a non-cognizable offence is to be treated as a
complaint and the oﬃcer by whom such a report is made is to be deemed to be the
complainant. Thus, if a complaint contains allegations about commission of offence
under section 498A of the IPC, 1860 which is a cognizable offence, apart from
allegations about the commission of offence under section 494 of the IPC, 1860 the

Court can take cognizance thereof even on a police report. No fetters can be put on the
police preventing them from investigating the complaint which alleges offence under
section 498A of the IPC, 1860 and also offence under section 494 of the IPC, 1860.26.
[s 498A.11] Cruelty by extra-marital relations.—
To the question whether 'extra-marital relationship' could be considered as 'cruelty'
under section 498A IPC, 1860 had arisen, the Supreme Court has answered the
question in negative. Mere fact that the husband has developed some intimacy with
another, during the subsistence of marriage and failed to discharge his marital
obligations, as such would not amount to "cruelty", but it must be of such a nature as is
likely to drive the spouse to commit suicide to fall within the explanation to section

498A IPC, 1860.27. Courts should carefully assess the facts of each case before
deciding whether the cruelty meted out to the victim which induces her to commit
suicide. The accused continued his relation with another woman and his illicit relation
with another woman would have deﬁnitely created the psychological imbalance to the
deceased which led her to take the extreme step of committing suicide. The conviction
of accused under sections 498-A and 306, IPC was held proper.28. In Laxman Ram
Mane v State of Maharashtra,29. it was held that an illicit relationship of a married man
with another woman would clearly amount to cruelty within the meaning of section
498A. Even assuming for a moment that this did not amount to cruelty within the
meaning of section 498A, it could still be used as a piece of evidence of harassment

and misbehaviour of the appellant towards the deceased. The act of the husband in
bringing a concubine to his house, living with her as husband and wife, and having
sexual relations in the presence of his wife, amounts to 'cruelty' within the meaning of
section 498A of IPC, 1860.30. Permitting the ﬁrst wife to enter the house of deceased
with new born child does not amount to a cruel act to the second wife as such act

cannot amount to cruelty within the meaning of second limb of clause (a) of the
Explanation under section 498A, IPC, 1860.31.
[s 498A.12] Harassment and bigamy.—
The wife ﬁled an FIR alleging harassment and bigamy by the accused husband. The
fact was that the second marriage was performed by the accused husband after the
ﬁrst marriage was dissolved. The aﬃdavit ﬁled by the wife did not state that the divorce
decree had been either stayed or set aside. Thus, ingredients of the offence of bigamy
were not made out. The aﬃdavit was also silent about harassment for dowry demand.
It was held that the FIR was frivolous, vexatious, unwarranted and abuse of process.32.
[s 498A.13] Harassment for non-dowry demand.—
Four years after the marriage, the wife was called upon to bring some money from her
parents for sending her husband's younger brother abroad. It could not be termed as a
dowry demand, but because she was harassed for it and on account of this she

became compelled to end her life, it was held that an offence under section 498A was
made out.33. Section 498A does not speciﬁcally speak of a dowry demand. It speaks
only of unlawful demand for property and valuable articles.34.
[s 498A.14] Cruelty by non-acceptance of baby girl.—
The conduct of the accused husband and his father in not accepting the birth of the
baby girl was held as amounting to cruelty.35.
[s 498A.15] Demand of son in adoption.—
The Supreme Court has held that the demand of a son in adoption did not amount to a
dowry demand so as to attract the provisions of section 498A.36.
[s 498A.16] Act of remaining silent.—
The allegation was that accused Nos. 2 and 4 did not come forward to participate in
the settlement of the dowry on the ground that they belonged to the groom's family and

remained silent. The act of remaining silent with regard to the settlement of the dowry
demand will not amount to cruelty within the meaning of either clause (a) or clause (b)
of the Explanation of section 498A IPC, 1860.37.
[s 498A.17] Cruelty by false attacks on chastity.—
The father-in-law and the husband were shown to demand dowry though their demand
was met by stepfather of the girl at the time of marriage. They also attacked her
chastity when there was no reasonable ground for it. Homicidal death of the wife took
place within ﬁve months of marriage. The Court said that all this amounted to cruelty
within the meaning of section 498A.38.
[s 498A.18] Taking away children.—
The act of the husband in taking away the minor child without the consent of the wife
was held as not amounting to cruelty for the purposes of section 498A.39.

[s 498A.19] Outraging of modesty by father-in-law.—
Trying to outrage the modesty of a married woman in her matrimonial house, by her
father-in-law also amounts cruelty as deﬁned under section 498A IPC, 1860.40.
[s 498A.20] Demand for looking after aged in-laws.—

A difference of opinion within family on everyday mundane matters would not fall
within the category of cruelty. Merely because the appellants were of the opinion that
the deceased, as a good daughter-in-law, should look after them in old age could not be
said to be an abetment of suicide.41.
[s 498A.21] Mere demand of dowry an offence.—
Mere demand of dowry will not attract an offence under section 498-A IPC, 1860.42.
From a single instance of the accused stating that he had received meagre dowry, it
could not be inferred that he demanded dowry and maltreated his deceased wife on
that count.43. In the absence of any agreement or settlement for dowry at the time of
marriage, a demand constitutes no offence. The demand must come within the
deﬁnition of dowry.44.
Mere harassment or mere demand for property, etc., is not cruelty. It is only where
harassment is shown to have been caused for the purpose of coercing a woman to
meet demands that it amounts to a cruelty which has been made punishable under the

section.
[s 498A.22] Presumption of cruel treatment.—
The wife of the accused committed suicide by jumping into a well. Her father testiﬁed
that the neighbours told him of the sounds of a quarrel going on in the family on the
fateful night. He testiﬁed that she was ill-treated for dowry and for being issueless. She
attempted to jump into the same well earlier also. The ill-treatment did not stop even
after she bore two sons. The Court said that a presumption could be raised that the ill-
treatment continued unabated till the last moment of her decision to put an end to her
life.45.
The presumption of cruelty within the meaning of section 113A, Indian Evidence Act,
1872 also arose making the husband guilty of abetment of suicide within the meaning
of section 306 where the husband had illicit relationship with another woman and used

to beat his wife making it a persistent cruelty within the meaning of Explanation (a) of
section 498A.46.
[s 498A.23] Harassment.—
There should be suﬃcient nexus between incidents to constitute harassment. The
accused was convicted of harassment under the Protection from Harassment Act,
1997 [English] section 2 following two incidents separated by a period of four months
in which he ﬁrst slapped his former girlfriend and later on threatened her companion.
He appealed by way of case stated on the basis that there had to exist a suﬃcient
nexus between the incidents complained of so as to give rise to a "course of conduct"
for the purposes of section 7(3). His appeal was allowed. The Court said that whilst no
more than two incidents were needed to constitute harassment, the fewer the number

of incidents and the wider the time lapse, the less likely such a ﬁnding would be
justiﬁed. On the facts of the instant case there was insuﬃcient evidence upon which
the ﬁnding of harassment could be proved.47.
[s 498A.24] Every kind of harassment not covered.—
It is not every harassment or every type of cruelty that would attract section 498A. The
complainant has conclusively to establish that the beating and harassment in question
was with a view to force her to commit suicide or to fulﬁl the illegal demand of dowry.
In this case, though there might have been a previous history of harassment for those
purposes, at the moment of the complaint those urges were not proved to be ﬁguring in
the harassment.48. Where the deceased was asked to part with her jewellery and

valuables for the marriage of her sister-in-law but the matter was not pressed further
on her refusal and there was no harassment or coercion by her in-laws, it was held that
it did not amount to cruelty.49.
A husband who does not call his wife back to the matrimonial home does not thereby
cause any harassment.50. Where the deceased wife was told not to attend kitchen as a
measure for prevention of wastage, this was held to be no cruelty.51.
The remarks passed by the mother-in-law that the daughter-in-law was not beautiful
were held to be not suﬃcient to drive anybody to suicide. There was no evidence of
cruelty or deprivation.52. The mere statements in the dying declaration that she wanted
to live separately, her husband gave her a beating the previous day and her
grandmother disliked her were held to be not suﬃcient to substantiate the prosecution
case that cruel treatment was meted out to her so as to constitute an offence under
section 498A.53.

Where the deceased wife's annoyance was due to the fact that the children of a relative
were being looked after in her husband's home, the Court said that it did not amount to
cruelty or harassment because of dowry demand.54.
[s 498A.25] Kicking daughter-in-law.—
A three-judge Bench of the Supreme Court by order dated 14 March 2013 set aside its
own judgment in Bhaskar Lal Sharma v Monica,55. which held that the action of a
woman merely kicking her daughter-in-law or threatening her with divorce would not
come within the meaning of "cruelty" under section 498A of the IPC, 1860. The
Supreme Court allowed the curative petition ﬁled by the National Commission directed
restoration of the special leave petition (SLP) ﬁled by Bhaskar Lal Sharma and his wife
for a fresh hearing.
[s 498A.26] Wife's desire to stay separately.—

Howsoever strong the desire of wife might be of staying separately, and howsoever
genuine her grief would be for having been required to stay in a joint family, the same
cannot constitute as "wilful conduct" of the appellants which was likely to drive wife to
[s 498A.27] Make section 498A compoundable.—
Offence under section 498A is not compoundable except in the State of Andhra
Pradesh where by a State amendment, it has been made compoundable. In Ramgopal v
State of MP,57. the Supreme Court requested the Law Commission and the Government
of India to examine whether offence punishable under section 498A of the IPC, 1860
could be made compoundable. The Commission has given a comprehensive report
(237th Report) under the title of "Compounding of IPC Offences" recommending that

that the offence under section 498A should be made a compoundable offence with the
permission of Court. But it has not been made compoundable yet.
[s 498A.28] Complaint ﬁled after institution of suit.—
A complaint was lodged by the wife under the section after a divorce suit was ﬁled by
her husband. In her written statement to the suit, the wife made no allegations of
cruelty or harassment. In the meantime, the divorce was decreed and her application
for reconciliation was rejected by the family Court, the complainant wife had also been
living with her mother for a long time. Thus, no case was made out and the husband
was entitled to acquittal.58.

Where the marriage was already 10 years old at the time of the incident of suicide by
taking poison and there was neither any record of cruelty or harassment, nor any sign
of forcible administration of poison, the conviction of the accused husband was held to
be not proper.59.
[s 498A.29] Past cruelty.—
The Supreme Court has given this observation that both section 498A, IPC, 1860 and
section 113A, Indian Evidence Act, 1872 include in their amplitude past events of
cruelty. The period of operation of section 113A, Indian Evidence Act, 1872 is seven
years. The presumption of suicide by a married woman arises when it takes place
within seven years from the date of marriage.
[s 498A.30] Section 498A and 304B.—
The two provisions are not mutually inclusive. They deal with different and distinct
offences. Persons charged under section 304B but acquitted can be convicted under
section 498A even in the absence of any charge.60. The deceased had been subjected

to cruelty by her husband and mother-in-law over the demand of a Maruti Car as dowry
and persistently pressed by them after about six months of the marriage and
continuously till her death. Accused was convicted under sections 498A and 304 IPC,
1860.61.
[s 498A.31] Sections 498A and 306.—
Distinction between sections 306 IPC and section 498A IPC is that of intention. Under
the latter, cruelty committed by the husband of his relations drag the woman concerned
to commit suicide, while under the former provision suicide is abetted and intended.62.
Offences under sections 498A and 306 of IPC, 1860. Trial court acquitted of the
offence under section 498A IPC, 1860. It was argued that the acquittal of the accused
of the offence under section 498A IPC, 1860 has bearing on the offence under section

306 IPC, 1860. The Supreme Court held that having absolved the appellants of the
charge of cruelty, which is the most basic ingredient for the offence made out under
section 498A, the third ingredient for application of section 113A of Indian Evidence
Act, 1872 is missing, namely, that the relatives, i.e., the mother-in-law and father-in-law
who are charged under section 306 had subjected the victim to cruelty.63.
[s 498A.32] Jurisdiction.—
A wife, maltreated for dowry, was sent back to her father where she became ill because
of shock and after effects of cruelty. The Court having jurisdiction at the place was held
competent to entertain a complaint both under section 498A in respect of cruelty and
also under section 181(4) of Cr PC, 1973 in respect of misappropriation of

streedhan.64. In Dukhi Ram v State of UP,65. the Court observed that the scope of
section 498A cannot be extended to co-villagers. Order summoning co-villagers for
offence under section 498A amounts to abuse of process of Court. The order of the
Magistrate was quashed.
[s 498A.33] Territorial Jurisdiction.—
Where the complaint by the aggrieved wife regarding ill-treatment by husband and in-
laws was ﬁled at a place where she was residing with her mother and the act
subjecting her to cruelty occurred at some other place, it was held that the Magistrate
at that place had no territorial jurisdiction to take cognizance of the offence under
section 498A. The plea that her husband and sister-in-law visited that place and
subjected her to cruelty was not substantiated.66. In a prosecution for criminal breach

of trust and cruelty to wife, the facts were that the marriage had taken at one place
where also all the items of dowry were handed over. Breach of trust and ill-treatment
were committed at the husband's place. Thus, the offence was committed beyond the
territorial jurisdiction of the magistrate at the place of marriage. Still it was held that he
had jurisdiction because a part of the cause of action had arisen at that place.67. In a
case, as a consequence of ill-treatment inﬂicted upon the complainant from time to
time and demand of dowry, she was thrown out of her matrimonial home at Delhi and
as a result of that she was compelled to come and reside with her father at Bharatpur.
It was held that the police station/Court situated at Bharatpur has also jurisdiction to
inquire into or try the offence allegedly committed by the petitioners. Section 179 Cr
PC, 1973 makes it clear that if anything happened as a consequence of the offence, the

same may be inquired into or tried by a Court within whose local jurisdiction such thing
has been done or such consequence has ensued.68. The Supreme Court in Sunita
Kumari Kashyap v State of Bihar,69. with almost similar set of facts came to a
conclusion that the Court situated at Gaya also has jurisdiction to proceed with the
criminal proceedings initiated on behalf of the complainant although the ill treatment
upon the complainant in connection with demand of dowry was mainly inﬂicted at her
matrimonial home situated at Ranchi because as a result of continuous torture and
unbearable treatment of her husband and in-laws the complainant had no other option,
but to come at her parental home situated at Gaya. The Supreme Court for arriving
such a conclusion relied upon the case of Sujata Mukherjee v Prashant Kumar

Mukherjee,70. and State of MP v Suresh Kaushal,71. but distinguished these cases being
based on different set of facts.
[s 498A.34] Suicide by mistress.—
If the cruelty or harassment of the kind described in the Act is meted out to a mistress
which leads her to commit suicide, the section would cover her case also.72.
[s 498A.35] Retrospective Effect of Section 498A.—
A dowry harassment which had ended in March 1983 by the husband deserting his wife
before the new provision came into force in 1983 was held to be not covered by it. This
provision does not have retrospective effect.73. Where the relationship of marriage is
still continuing, the events of cruelty taking place prior to the amendment can be taken
into account. That does not have the effect of giving a retrospective operation to the
provision.74.
[s 498A.36] Compromise.—

Where the wife had condoned the matrimonial cruelty of which she was the victim and
had resumed consortium with her husband, the Court found no obstruction in the
provisions of the section in permitting them to compound the complaint and, therefore,
ordered accordingly.75. In D Jayalakshmi v State of MP,76. it was held that in a
complaint under section 498A a compromise between husband and wife was
permissible even though the offence is non-compoundable. It added that in exceptional
circumstances only the High Court can permit compounding of a non-compoundable
offence under its inherent powers. The offence under the section cannot be
compounded by invoking inherent powers and by praying for quashing of proceedings
on the ground of amicable settlement. The remedy of the parties is to take recourse to
sections 321 or 257, Cr PC, 1973 and seek withdrawal of the case.77. The offence

cannot be compounded on the basis of consent divorce under section 13-B of the
Hindu Marriage Act, 1955. The proceedings were, however, quashed under section 482,
Cr PC, 1973 to prevent abuse of judicial process.78. During the pendency of the
prosecution, the husband and wife sorted out their differences and obtained a consent
divorce as per their compromise. The Court said that in the light of facts as they

developed, the ends of justice would be served by reducing the term of imprisonment
to the period already undergone.79.
Compromise should be accepted as a basis for withdrawal or quashing of complaint at
the instance of the complainant.80.
[s 498A.37] Explanation.—
Clause (a).—In RP Bidlan v State of Maharashtra,81. it was held that under section 498A,
Explanation (a), for proof of cruelty it is necessary to show a reasonable nexus
between cruelty and suicide. Mere proof of cruelty or suicide is not enough. There is no
vagueness or obscurity about the meaning of the word "cruelty" as spelt out in clauses
(a) and (b) of the Explanations. The deﬁnition sub-serves the object sought to be
achieved.82.
[s 498A.38] Meaning of the term 'relative of the husband'—whether include a 'girlfriend'
or 'concubine'?.—
An offence in terms of section 498A is committed by the persons speciﬁed therein.
They have to be the 'husband' or his 'relative'. Either the husband of the woman or his

relative must be subjected to her to cruelty within the aforementioned provision. In the
absence of any statutory deﬁnition, the term 'relative' must be assigned a meaning as
is commonly understood. Ordinarily it would include father, mother, husband or wife,
son, daughter, brother, sister, nephew or niece, grandson or granddaughter of an
individual or the spouse of any person. The meaning of the word 'relative' would
depend upon the nature of the statute. It principally includes a person related by blood,
marriage or adoption. By no stretch of imagination a girlfriend or even a concubine in
an etymological sense would be a 'relative'. The word 'relative' brings within its purview
a status. Such a status must be conferred by either blood or marriage or adoption. If no

marriage has taken place, the question of one being relative of another would not
arise.83. A complaint was ﬁled against the husband and his relatives because of
demand for dowry. Shia law was applicable to the parties. The husband had divorced
the complaining wife by "talak". Under the Shia law there is prohibition on marrying the
woman whom one had earlier divorced. Thus, even if they were living together, they
could not be called husband and wife. Section 498A was not applicable. The complaint
was liable to be dismissed.84.
[s 498A.39] Is Section 498A applicable to cruelty against "legally wedded wife" only?.
—
A person who enters into marital arrangement cannot be allowed to take shelter behind
the smoke screen of contention that since there was no valid marriage the question of

—
dowry does not arise. The word "husband" would apply to a person who enters into
marital relationship and under the colour of such proclaimed or feigned status of
husband subjects the woman concerned to cruelty or coerces her in any manner or for
any purposes enumerated in sections 304B and 498A, whatever be the legitimacy of
the marriage itself. A person contracting second marriage during the subsistence of
the earlier marriage can be charged under sections 304B and 498A. The Court pressed
into service the Heyden's rule of construction which means purposive construction and
mischief rule.85. Section 498A of the IPC refers to word 'woman' and not to 'wife' and by
the said section protection was contemplated to married woman and not to the legally
wedded wife only. Where accused and deceased were residing together and the

evidence proved that marriage of accused and deceased took place by 'sulagna
procedure', the contention of the accused that deceased was not his legally wedded
wife as there was no evidence of valid marriage between them to attract the provisions
of section 498A, cannot be accepted.86.

[s 498A.40] Explanation.—Clause (b).—
Where the deceased bride was subjected to cruelty and harassment and demand of
dowry and she was burnt to death within two years of her marriage, her earlier
statements about her state of affairs to her father and neighbours and her sister were
held to be admissible under clause (b) of the Explanation to section 498A and
conviction of the accused under section 498A was held to be proper.87.
The basic ingredients of section 498A are cruelty and harassment. The Supreme Court
further held that in Explanation II, which relates to harassment, there is absence of the
requirement of physical injury but it includes coercive harassment for demand of
dowry. It deals with the patent or latent acts of the husband or his family members.88.
In a case the Supreme Court held that:
unless the statement of a dead person would fall within the purview of s. 32(1) of the Indian
Evidence Act there is no other provision under which the same can be admitted in evidence.

In order to make the statement of a dead person admissible in law (written or verbal) the
statement must be as to the cause of her death or as to any of the circumstance of the
transactions which resulted in her death, in cases in which the cause of death comes into
question. By no stretch of imagination can the statements of deceased contained in the two
letters and those quoted by the witnesses be connected with any circumstance of the
transaction which resulted in her death. Even that apart, when dealing with an offence u/s.
498A IPC disjuncted from the offence u/s. 306 IPC the question of her death is not an issue
for consideration and on that premise also s. 32(1) of the Evidence Act will stand at bay so
far as these materials are concerned.89.
[s 498A.41] Punishment.—

The accused contracted second marriage. He maltreated the ﬁrst wife and denied her
diet, thus, subjecting her to mental and physical cruelty of extreme level and leading her
to suicide. He was not entitled to any sympathy. He was sentenced to undergo two
years RI for offence under section 498A and ﬁve years under section 306 and also
ﬁne.90.
The wife of the accused died of burns. Her letters indicated anguish about various
incidents and methods of harassment practised upon her. Filthiest language was used
in expressing the demand for dowry. There was oral evidence of the prosecution
witness to that effect. This section does not require harassment soon before death.
The Court said that the offence under the section was made out. The sentence of
imprisonment of three years was reduced to three months in the interest of the children

and their safety in the society.91.
[s 498A.42] Plea of leniency.—
Where there was a history of the wife being continuously subjected to harassment,
assault and torture to the point of leaving no option to committing suicide and the
accused-husband was a police oﬃcer and an educated person, it was held that he
could not be allowed to escape jail sentence.92. The deceased-wife within four months
of her marriage took the extreme step of putting an end of her life and committed
suicide. The court held that it was not a ﬁt case for reducing the quantum of sentence
of the accused as showing any leniency would be a misplaced one.93.
In the context of simple imprisonment of six months, it was pleaded before the
Supreme Court that the appellant and the victim had since remarried and were living

happily in their respective families, the Court reduced imprisonment to the period of
two months already undergone.94.
[s 498A.43] Misuse of section 498-A.—

The section was inserted in the statute with the laudable object of punishing cruelty at
the hands of husband or his relatives against a wife particularly when such cruelty had
potential to result in suicide or murder of a woman. The expression 'cruelty' therein
covers conduct which may drive the women to commit suicide or cause grave injury
(mental or physical) or danger to life or harassment with a view to coerce her to meet
unlawful demand. The Supreme Court observed that it is a matter of serious concern
that large number of cases continue to be ﬁled under this section alleging harassment
of married women. Most of such complaints are ﬁled in the heat of the moment over
trivial issues. Many of such complaints are not bona ﬁde. At the time of ﬁling of the
complaint, implications and consequences are not visualised. But at times such
complaints lead to uncalled for harassment not only to the accused but also to the
complainant.95. The provision should not be allowed to be used as a device for

achieving oblique motives.96.
[s 498A.44] Misuse of provisions to be prevented.—
The Supreme Court has observed that the section was introduced with the avowed
object of combating the menace of dowry deaths and harassment of a woman at the
hands of her in-laws. But the provision should not be allowed to be used as a device for
achieving oblique motives.97.
[s 498A.45] CASES.—
Where there is ample evidence on record to suggest that the deceased had been
suffering from psychosis/mental disorder, it was held not safe to convict the accused
under sections 306 and 498A IPC, 1860.98. Where the suicide note exonerated the
husband and his relatives, accused cannot be convicted under section 498A.99. Where
mother of deceased had admitted in her evidence that there was no demand of dowry

had been made by mother-in-law of the deceased, she is entitled to beneﬁt of
doubt.100. Where the accused mother-in-law was residing in a separate residence far
away from the place where deceased with her husband was residing and the evidence
of independent witness proved that parents of deceased's husband had never visited
their place during their stay in the said house, accused is entitled to beneﬁt of doubt.
Where a husband had strangulated his second wife to death within a short span of time
immediately after her marriage and the cruelty and harassment on the part of the
husband was proved from the evidence of the witnesses, the conviction of the husband
under section 498A was conﬁrmed.101.
A harassment shown to have taken place eight months before the suicide, was held to

be not coming within the scope of the words "soon before". The conviction under
section 304B was set aside. The evidence showed that cruelty was there. The accused
persons were not able to explain why the deceased wife committed suicide. The
conviction and sentence under section 306 (abetment of suicide), section 498A and
section 4 of the Dowry Prohibition Act, 1961 was maintained.102.
[s 498A.46] Limitation.—
For the offence of cruelty under section 498A cognizance can be taken even after the
expiry of the period of limitation by virtue of the provisions of section 473, Cr PC, 1973
since the offence is of continuing nature. There was nothing on record to show that
more than three years ago prior to the ﬁling of the complaint the accused had returned
the dowry items demanded by the complainant. The complaint under section 406 IPC,

1860 was not time-barred. The offence under section 405, IPC, 1860 was committed as
and when the accused refused to return the dowry items on demand and
misappropriate them.103.

A complaint under the section was dismissed by the trial Court on the ground that it
was belated by two years. On the same ground the High Court declined leave to appeal
against acquittal. The Supreme Court held that this was not proper. The section was
brought in to protect woman against torture. The law of limitation must not be applied
with such rigidity as to non-suit an aggrieved wife.104.
A complaint alleged cruelty by the husband and his relatives. The question was that of
limitation for ﬁling a complaint. The Court said that cruelty is a continuing offence.
With every act of cruelty a new period of limitation takes a start. The wife was harassed
and sent out of the matrimonial home. A complaint, even if time-barred, could be
entertained if otherwise it would give an unfair advantage to the accused person or
result in miscarriage of justice.105.
[s 498A.47] A re-look at the provision.—Supreme Court direction and
recommendations of Law commission of India.—

In Preeti Gupta v State of Jharkhand,106. the Supreme Court held that a serious relook of
the entire provision is warranted by the legislation. It is also a matter of common
knowledge that exaggerated versions of the incident are reﬂected in a large number of
complaints. The tendency of over implication is also reﬂected in a very large number of
cases. The criminal trials lead to immense sufferings for all concerned. Even ultimate
acquittal in the trial may also not be able to wipe out the deep scars of suffering of
ignominy. Unfortunately, a large number of these complaints have not only ﬂooded the
Courts but also have led to enormous social unrest affecting peace, harmony and
happiness of the society. It is high time that the legislature must take into
consideration the pragmatic realities and make suitable changes in the existing law. It

is imperative for the legislature to take into consideration the informed public opinion
and the pragmatic realities in consideration and make necessary changes in the
relevant provisions of law. Pursuant to the direction of the Supreme Court, Law
Commission of India in its 243rd Report gave inter alia the following suggestions:
(a) The offence under section 498A shall be made compoundable, with the
permission of Court and subject to cooling off period of three months
(b) The offence should remain non-bailable. However, the safeguard against
arbitrary and unwarranted arrests lies in strictly observing the letter and spirit of
the conditions laid down in sections 41 and 41A of Cr PC, 1973 relating to
power of arrest and sensitising the Police on the modalities to be observed in
cases of this nature

(c) There should be a monitoring mechanism in the Police Dept. to keep track of
section 498A cases and the observance of guidelines
(d) the need for expeditious disposal of cases under section 498A should be given
special attention by the prosecution and Judiciary.107.
[s 498A.48] Protection of Women from Domestic Violence Act, 2005.—
The Protection of Women from Domestic Violence Act, 2005 was enacted with a view
to provide for more effective protection of rights of women who are victims of violence
of any kind occurring within the family. Those rights are essentially of civil nature with a
mix of penal provisions. Section 3 of the Act deﬁnes domestic violence in very wide
terms. It encompasses the situations set out in the deﬁnition of 'cruelty' under section

498A. The Act has devised an elaborate machinery to safeguard the interests of
women subjected to domestic violence. The Act enjoins the appointment of Protection
Oﬃcers who will be under the control and supervision of a Judicial Magistrate of First
Class. The said oﬃcer shall send a domestic incident report to the Magistrate, the
police station and service providers. The Protection Oﬃcers are required to effectively

1.  Chapter XXA (containing section 498A) ins. by Act 46 of 1983, section 2 (w.e.f. 25 December
1983).
2.  Suvetha v State, (2009) 6 SCC 757 [LNIND 2009 SC 1156] : 2009 Cr LJ 2974 .
3.  Reema Aggarwal v Anupam, (2004) 3 SCC 199 [LNIND 2004 SC 1499] : AIR 2004 SC 1418
[LNIND 2004 SC 1499] .
4.  Gananath Pattnaik v State of Orissa, (2002) 2 SCC 619 [LNIND 2002 SC 100] .
5.  Pinakin Mahipatray Rawal v State of Gujarat, 2013 (3) Mad LJ (Crl) 700 : 2013 AIR (SCW)
5219.
6.  Rosamma Kurian v State of Kerala, 2014 Cr LJ 2666 (Ker) : 2014 (2) KHC 64 .
7.  Vajresh Venkatray Anvekar v State of Karnataka, AIR 2013 SC 329 [LNIND 2013 SC 4] : (2013)
3 SCC 462 [LNIND 2013 SC 4] .
8.  Wazir Chand v State of Haryana, AIR 1989 SC 378 [LNIND 1988 SC 569] : 1989 Cr LJ 809 :
(1989) 1 SCC 244 [LNIND 1988 SC 569] ; U Suvetha v State, (2009) 6 SCC 757 [LNIND 2009 SC
1156] : 2009 Cr LJ 2974 , ingredients re-enumerated by the Supreme Court. Bhaskar Lal Sharma

v Monica, (2009) 10 SCC 604 [LNIND 2009 SC 1432] : (2009) 161 DLT 739 , misuse of anti-dowry
law not to be allowed. A girlfriend of the husband or a concubine being in the category of
relatives of the husband are not covered by section 498-A. Narendra v State of Karnataka, (2009)
6 SCC 61 [LNIND 2009 SC 1112] : (2009) 2 SCC (Cr) 929 : AIR 2009 SC 1881 [LNIND 2009 SC
1112] , death of wife in bed room due to compression of neck, husband's alibi plea found to be
false, no two opinions, conviction. Krishna Ghose v State of WB, (2009) 12 SCC 413 [LNIND 2009
assist and guide the complainant victim and provide shelter, medical facilities, legal aid,
etc., and also act on her behalf to present an application to the Magistrate for one or
more reliefs under the Act. The Magistrate is required to hear the application ordinarily

within three days from the date of its receipt. The Magistrate may at any stage of the
proceedings direct the respondent and/or the aggrieved person to undergo counselling
with a service provider. 'Service Providers' are those who conform to the requirements
of section 10 of the Act. The Magistrate can also secure the services of a welfare
expert preferably a woman for the purpose of assisting him. Under section 18, the
Magistrate, after giving an opportunity of hearing to the Respondent and on being
prima facie satisﬁed that domestic violence has taken place or is likely to take place, is
empowered to pass a protection order prohibiting the Respondent from committing
any act of domestic violence and/or aiding or abetting all acts of domestic violence.

There are other powers vested in the Magistrate including granting residence orders
and monetary reliefs. Section 23 further empowers the Magistrate to pass such interim
order as he deems just and proper including an ex parte order. The breach of protection
order by the respondent is regarded as an offence which is cognizable and non-bailable
and punishable with imprisonment extending to one year (vide section 31). By the same
section, the Magistrate is also empowered to frame charges under section 498A of IPC,
1860 and/or Dowry Prohibition Act, 1961. The provisions of the Act are supplemental
to the provisions of any other law in force. The right to ﬁle a complaint under section
498A is speciﬁcally preserved under section 5 of the Act. An interplay of the provisions

of this Act and the proceedings under section 498A assumes some relevance on two
aspects: (1) Seeking Magistrate's expeditious intervention by way of passing a
protective interim order to prevent secondary victimisation of a complainant who has
lodged FIR under section 498A. (2) Paving the way for counselling process under the
supervision of Magistrate at the earliest opportunity.108.

SC 724] : AIR 2009 SC 2279 [LNIND 2009 SC 724] , death due to cruelty by husband and family
members in the matrimonial home, alibi false, conviction.
9.  Shobha Rani v Madhukar Reddi, (1988) 1 SCC 105 [LNIND 1987 SC 757] : AIR 1988 SC 121
[LNIND 1987 SC 757] : (1988) 1 AIR 169 : 1988 BLJR 138 . See also Akula Ravinder v State of AP,
AIR 1991 SC 1142 . For a comparative account of this section with section 304B see notes
under section 304B and the decision of the Supreme Court in Shanti v State of Haryana, AIR
1991 SC 1226 [LNIND 1990 SC 696] . For another proceeding arising out of harassment of wife
and acceptance of compromise by the Supreme Court on payment of compensation to the wife
to end all proceedings, see Mukund Martand Chitnis v Madhuri Mukund Chitnis, 1991 Supp (2)
SCC 359 . See also Suman v State of Rajasthan, (2010) 1 SCC (Cr) 770 : (2010) 1 SCC 250
[LNIND 2009 SC 1991] : AIR 2010 SC 518 [LNIND 2009 SC 1991] .

10.  Chanda v State of AP, 1996 Cr LJ 2670 (AP). RI for three years and ﬁne of Rs. 5,000. Chandra
Prakash v State, 1996 Cr LJ 3443 (Del) a proceeding was not allowed to be quashed only on the
ground that allegations in detail of dowry demand and cruelty were not made in a pending
divorce proceedings between the parties. Noorjahan v State, (2008) 11 SCC 55 [LNIND 2008 SC
950] : AIR 2008 SC 2131 [LNIND 2008 SC 950] , object restated, crimes against women and
children. There was no proof in this case of any demand for dowry.
11.  Keshab Chandra Panda v State of Orissa, (1995) 1 Cr LJ 174 (Ori). Where the mother-in-law
was convicted for the lesser offence under s 498A, it was an automatic acquittal from the
serious offence under section 304-B, no appeal by State, High Court could not convict; Prakash

Chander v State, (1995) 1 Cr LJ 368 (Del). State of Kerala v Rajayyan, (1995) 1 Cr LJ 989 (Ker)
death by falling in well, proof of dowry-related cruelty, conviction. Deepak v State of Maharashtra,
(1995) 2 Cr LJ 2219 (Bom) wife killed by strangulation, defence of injury by a falling object
unnatural, conviction held proper. Gondhan Ram v State of Rajasthan, (1995) 1 Cr LJ 273 (Raj),
married woman dying of spray poison which she consumed, within seven years, evidence of
torture, conviction of husband alone. Jai Ram v State of Rajasthan, (1995) 1 Cr LJ 1020 (Raj)
conviction of husband on evidence which was rejected in reference to all others was held to be
not proper. Chandrabhushan v State of Maharashtra, (1995) 1 Cr LJ 101 (Bom) conviction of

husband for leading wife to suicide by mental torture for dowry, but others not convicted
because the couple was living separately. Gajanansingh v State of Maharashtra, 1996 Cr LJ 2921
(Bom) no proof that the husband caused death, acquittal. Pammi Bai v State of MP, 1996 Cr LJ
2796 (MP), death by burning, the conduct of the dying woman immediately after the incident not
pointing to the husband setting her on ﬁre, dying declaration doubtful and suspicious, acquittal.
12.  Pachipala Laxmaiah v State of AP, 2001 Cr LJ 4063 (AP); another similar case Hariappari v
State of Karnataka, 2001 Cr LJ 4286 (Kant), burnt by the husband, conviction. Dasrath Sao v
State of Bihar, 2001 Cr LJ 4336 (Jhar) suicide by hanging, no proof of dowry demand or of

cruelty or abetment, acquittal. Shaik China Buda v State of AP, 2002 Cr LJ 526 , no proof of
cruelty, acquittal of husband.
13.  Kodadi Srinivasa Lingam v State of AP, 2001 Cr LJ 602 (AP). Bammidi Rajamallu v State of
AP, 2001 Cr LJ 1319 (AP), drinking husband, beating wife and consistently abusing her, cruelty
under the section. Vanamala Amaranadh v State of AP, 2001 4498, dying declaration contained
statements of cruelty, husband convicted. State of Haryana v Jai Prakash, 2000 Cr LJ 4995 (2) :
(2000) 7 JT 404 (SC), no proper evidence, acquittal, appeal by State, copy of the evidence of the
father and brother of the deceased not produced, acquittal not interfered with. Mangal Ram v
State of MP, 1999 Cr LJ 4342 (MP), suicidal death of married woman within seven years, there

was harassment for four tolas of gold and the demand being not met she was beaten up and
driven out. Offence under the section made out. Paparambaka Rosamma v State of AP, 1989 Cr
LJ 4321 : AIR 1999 SC 3455 , a mere statement in the dying declaration that she wanted to live

separately from her in-laws and that they did not like her was held to be not suﬃcient to sustain
a charge under this section.
14.  Noorjahan v State, (2008) 11 SCC 55 [LNIND 2008 SC 950] : AIR 2008 SC 2131 [LNIND 2008
SC 950] . Ran Singh v State of Haryana, (2008) 4 SCC 70 [LNIND 2008 SC 204] : AIR 2008 SC
1994 [LNIND 2008 SC 969] : 2008 Cr LJ 1941 , ﬁndings of the trial judge disapproved by the High
Court on presumptive basis. The Supreme Court restored the order of the trial judge. There was
no proof. B Venkat Swamy v Vijaya Nehru, (2008) 10 SCC 260 [LNIND 2008 SC 1682] , guilt not
proved by circumstantial evidence, the deceased was found hanging in a room which was
bolted from inside.
15.  Krishan Lal v UOI, 1994 Cr LJ 2472 (P&H).
16.  Kans Raj v State of Punjab, AIR 2000 SC 2324 [LNIND 2000 SC 735] : 2000 Cr LJ 2993 . See
also Ram Saran Varshney v State of UP, 2016 Cr LJ 1251 : 2016 (3) SCJ 39 .
17.  Raj Rani v State (Delhi) Admn, AIR 2000 SC 3559 : 2000 Cr LJ 4672 . See also Satish Shetty v

State of Karnataka, 2016 Cr LJ 3147 : 2016 (6) SCJ 14 .
18.  Krishan Lal v UOI, 1994 Cr LJ 3472 (P&H).
19.  Sushil Kumar Sharma v UOI, 2005 Cr LJ 3439 : AIR 2005 SC 3100 [LNIND 2005 SC 1208] :
(2005) 6 SCC 281 [LNIND 2005 SC 1208] . The court explained the distinction between sections
306 and 498-A, (cruelty and abetment of suicide) by saying that the difference is that of
intention.
20.  Satish Kumar Batra v State of Haryana, AIR 2009 SC 2180 [LNIND 2009 SC 754] : (2009) 12
SCC 191 .
21.  Sarojakshan v State of Maharashtra, 1995 Cr LJ 340 (Bom).
22.  At p 341. State of Karnataka v HS Srinivasa, 1996 Cr LJ 3103 (Kant) acquittal because of no
proof. Balkrishna Pandurang Moghe v State of Maharashtra, 1992 Cr LJ 4496 (Bom), husband
and his relatives treated as a class apart from other offenders with the object of dealing

effectively with cases of cruelty by in-laws to married women. Such classiﬁcation does not
result in invidious discrimination violative of Article 14 of the Constitution.
23.  State of Karnataka v Moorthy, 2002 Cr LJ 1683 (Kant); State of Maharashtra v Ashok Narayan,
2000 Cr LJ 4993 : (2000) 9 SCC 257 [LNIND 2000 SC 413] (SC), a letter of the deceased wife
was produced in evidence by her brother but it did not show any demand nor mentioned any
cruelty. The oral testimony of the brother was not considered to be suﬃcient.
24.  State of AP v Kalidindi Sahadevudu, 2012 Cr LJ 2302 (AP).
25.  Pawan Kumar v State of Haryana, AIR 1998 SC 958 [LNIND 1998 SC 176] : 1998 Cr LJ 1144
(SC); Mangal Ram v State of MP, 1999 Cr LJ 4342 (MP), persistent demand for dowry, death due

to burn injuries within seven years, conviction. Section 304B was not attracted because the
"soon before" requirement was not satisﬁed.
26.  Ushaben v Kishorbhai Chunilal Talpada, (2012) 6 SCC 353 [LNINDU 2012 SC 25] : 2012 Cr LJ
2234 .
27.  Pinakin Mahipatray Rawal v State of Gujarat, 2013 (3) Mad LJ (Crl) 700 : 2013 AIR (SCW)
5219.
28.  Siddaling v State, AIR 2018 SC 3829 [LNIND 2018 SC 355] .
29.  Laxman Ram Mane v State of Maharashtra, 2010 (13) SCC 125 : (2011) 1 SCC (Cr) 782.
30.  Chami v State, 2013 Cr LJ 3441 ; Suman v Puran Chand, 2013 Cr LJ 3703 (Raj). See also
State of HP v Pawan Kumar, 2000 Cr LJ 4889 (HP).
31.  Kantilal Martaji Pandor v State of Gujarat, 2013 Cr LJ 3866 (SC).
32.  Pashaura Singh v State of Punjab, 2010 Cr LJ 875 : AIR 2010 SC 922 [LNIND 2009 SC 1988] .

33.  State of Punjab v Dal Jit Singh, 1999 Cr LJ 2723 (P&H).

34.  Shivanand Mallappa Koti v State of Karnataka, (2007) 13 SCC 68 [LNIND 2007 SC 778] : AIR
2007 SC 2314 [LNIND 2007 SC 778] . See also M Sirinivaslu v State of AP, (2007) 12 SCC 443
[LNIND 2007 SC 1047] : AIR 2007 SC 3146 [LNIND 2007 SC 1047] ; Vipin Jaiswal v State, AIR
2013 SC 1567 [LNIND 2013 SC 205] : (2013) 3 SCC 684 [LNIND 2013 SC 205] ; Modinsab
Kasimsab Kanchagar v State of Karnataka, 2013 Cr LJ 2056 : AIR 2013 SC 1504 [LNIND 2013 SC
1276] : (2013) 4 SCC 551 [LNIND 2013 SC 1276] .
35.  State of Karnataka v Balappa, 1999 Cr LJ 3064 (Kant).
36.  Bhaskar Ramappa Madar v State of Karnataka, (2009) 11 SCC 690 [LNIND 2009 SC 723] :
2009 Cr LJ 2422 .
37.  Bharat Bhushan v State, 2013 (4) Scale 524 [LNIND 2013 SC 199] .
38.  State of Karnataka v KS Manjunathchary, 1999 Cr LJ 3949 (Kant), father-in-laws' conviction
reduced from three to two years. Fine money was enhanced and directed to be paid to the father
of the deceased.

39.  Sumangala L Hegde v Laxminarayana Anant Hegde, 2003 Cr LJ 1418 (Kant). The court noted
the ruling in Ravindra Pyarelal Bidlan v State of Maharashtra, 1993 Cr LJ 3019 (Bom) to the effect
that a cruelty is not mere harassment or mere demand for property, etc. There must be a
reasonable nexus between cruelty and suicide for proof of cruelty and also the ruling of the
Allahabad High Court in Vijay Kumar Sharma v State of UP, (1991) 1 crimes 298 (All), wherein
also a minor child was taken away by the husband and his relatives from the custody of the
mother in order to coerce her to meet their dowry demand.
40.  Manoj Kumar v State of HP, 2016 Cr LJ 5015 (MP).
41.  Nachhatar Singh v State of Punjab, 2011 Cr LJ 2292 : (2011) 11 SCC 542 [LNINDORD 2011
SC 269] .
42.  Amar Singh v State of Rajasthan, AIR 2010 SC 3391 [LNIND 2010 SC 701] : (2010) 3 SCC (Cr)

SC 269] .
1130; Rajesh Gupta v State, 2011 Cr LJ 3506 (AP).
43.  Prem Dass v State of HP, 1996 Cr LJ 951 (HP). Ashok v State, AIR 2000 SC 3444 [LNIND
2000 SC 597] : 2000 Cr LJ 2988 , evidence to the effect that the husband and mother-in-law
were regularly beating her for not getting scooter, there were marks of injuries on her body.
Conviction under the section. The brother-in-law was given the beneﬁt of doubt because there
was no evidence of his role. State of Maharashtra v Ashok Narayan, AIR 2000 SC 3568 [LNIND
2000 SC 413] : 2000 Cr LJ 4993 there was no assertion in her letters to her brother that the
husband was making any demand or assaulted her or treated her with cruelty or torture.
Conviction could not be maintained on the oral testimony of her brother. State of Karnataka v

Shivaraj, 2000 Cr LJ 2741 (Kant) second wife, death of, presumption of validity of marriage
unless the contrary is shown, allegations of torture and cruelty not made out.
44.  Ramesh Chand v State of UP, 1992 Cr LJ 1444 (All); Pyare Lal v State of Haryana, AIR 1999
SC 1563 .
45.  Diwan Singh v State of Uttarakhand, 2016 Cr LJ 1258 (Utr) : 2016 (93) ALLCC 861.
46.  Anoop Kumar v State of MP, 1999 Cr LJ 2938 (MP).
47.  Lau v DPP, (2000) 1 FLR 799 (QBD). State of AP v Madhusudhan Rao, (2008) 15 SCC 582
[LNIND 2008 SC 2124] ; Hazarilal v State of MP, (2009) 13 SCC 783 [LNIND 2007 SC 805] ,
harassment not proved.
48.  Sarla Prabhakar Waghmare v State of Maharashtra, 1990 Cr LJ 407 (Bom). Joytilal
Chakraborty v Dipak Dutta, (1995) 1 Cr LJ 930 (Cal) no complaint by the woman about torture

during her life-time, other evidence was also not reliable, complaint rejected. State of Haryana v
Rajinder Singh, 1996 Cr LJ 1875 (SC), offence not proved, acquittal proper.
49.  Tapan Pal v State of WB, 1992 Cr LJ 1017 (Cal).

50.  Tasrem Singh v Amrit Kaur, 1995 Cr LJ 3560 . Where the sufferings of the married woman
who committed suicide within seven years were not due to dowry demands but due to
incompatibility of temperament and attitudes, no conviction.
51.  U Subba Rao v State of Karnataka, 2003 AIR—Kant HCR 1062 : 2003 Cr LJ (NOC) 120 (Kant).
52.  Annupurnabal v State of MP, 1999 Cr LJ 2696 (MP); Ramesh v State of TN, 2005 Cr LJ 1732 :
AIR 2005 SC 1989 [LNIND 2005 SC 222] : (2005) 3 SCC 507 [LNIND 2005 SC 222] , allegation
that the husband's married sister stayed with her parents for a few days. The allegation against
her was she directed the complainant wife to wash WC and also made imputations against her.
Did not amount to harassment for dowry demand.
53.  Paparambaka Rosamma v State of AP, 1999 Cr LJ 4321 : AIR 1999 SC 3455 ; Lawrence v
State of Kerala, 2002 Cr LJ 3455 (Ker); Taruna v State of WB, 2001 Cr LJ 4937 (SC); State of HP v
Kewal Kumar, 2002 Cr LJ 3807 (HP).

54.  Lella Srinivasa Rao v State of AP, (2004) 9 SCC 713 [LNIND 2004 SC 1273] : AIR 2004 SC
1720 [LNIND 2004 SC 1273] .
55.  Bhaskar Lal Sharma v Monica, (2010) 1 SCC (Cr) 383 : (2009) 10 SCC 604 [LNIND 2009 SC
1432] .
56.  Ganpat Dnyanoba Garje v State of Maharashtra, 2012 Cr LJ 1874 (Bom).
57.  Ramgopal v State of MP, 2010 (13) SCC 540 [LNIND 2010 SC 690] : 2010 (7) Scale 711
[LNIND 2010 SC 690] .
58.  State v Dhruv Kumar Singh, 2002 Cr LJ 1315 .
59.  Lalmani Mahto v State of Bihar, 2003 Cr LJ (NOC) 1 (Jhar) : (2002) 3 JLJR 576 .
60.  Arun Garg v State of Punjab, (2004) 8 SCC 251 [LNIND 2004 SC 1012] .
61.  Satya Narayan Tiwari v State of UP, 2011 Cr LJ 445 : (2010) 13 SCC 689 [LNINDORD 2010 SC
188] A.
62.  Satish Kumar Batra v State of Haryana, AIR 2009 SC 2180 [LNIND 2009 SC 754] : (2009) 12
SCC 191 .
63.  Heera Lal v State of Rajasthan, 2017 (6) Scale 152 .

188] A.
SCC 191 .
64.  Vijai Ratan Sharma v State of UP, 1988 Cr LJ 1581 (All). To the same effect is the decision in
S Faisal Nabi v State of MP, 2001 Cr LJ 1598 (MP), cruelty was committed at her in-laws' place
and continued at her parents' home where she was forced to go, letters of dowry demand also
received at the latter place. The Courts at the place of parental home had jurisdiction. Mohd
Haroom v State of Rajasthan, 1999 Cr LJ 2532 (Raj), unlawful demands, held not suﬃcient in
themselves to constitute cruelty or lead to suicide.
65.  Dukhi Ram v State of UP, 1993 Cr LJ 2539 (All).
66.  Rajaram Venkatesh v State of AP, 1993 Cr LJ 707 (AP).
67.  Suman Upadhyay v State of UP, 1999 Cr LJ 4657 (All).
68.  Gulshan Kapoor v State of Rajasthan, 2011 Cr LJ 4864 (Raj).
69.  Sunita Kumari Kashyap v State of Bihar, AIR 2011 SC 1674 [LNIND 2011 SC 405] : 2011 Cr LJ

2667 .
70.  Sujata Mukherjee v Prashant Kumar Mukherjee, AIR 1997 SC 2465 : 1997 Cr LJ 2985 .
71.  State of MP v Suresh Kaushal, 2003 (11) SCC 126 : 2002 Cr LJ 217 (SC) reported in 2008
(11) SCC 103 [LNIND 2008 SC 821] : AIR 2008 SC 2666 [LNIND 2008 SC 821] .
72.  Vamgarala Yedukondala v State of AP, 1988 Cr LJ 1538 (AP).
73.  Prasanna Kumar v Dhanalaxmi, 1989 Cr LJ 1829 (Mad). Amrish Kumar Agarwal v State of UP,
2000 Cr LJ 1324 (All), offence committed before commencement of the new section,
prosecution not justiﬁed.
74.  Vasanta Tulshiram Bhoyar v State of Maharashtra, 1987 Cr LJ 901 (Bom).

75.  State of Rajasthan v Gopilal, 1992 Cr LJ 273 . A similar approach was adopted by AP High
Court in Thathapadi Venkatalakshmi v State of AP, 1991 Cr LJ 749 , the court pointing out that
the wife cannot be permitted to withdraw the charge-sheet if it is ﬁled by the police. Gursharan
Kaur v State of Rajasthan, 1993 Cr LJ 2076 (Raj), the court ordered compromise to be recorded
setting aside the Magistrate's order.
76.  D Jayalakshmi v State of MP, 1993 Cr LJ 3162 (AP).
77.  Pyare Lal Gupta v State, 2000 Cr LJ 1019 (Del).
78.  Manoj Kumar v State of Rajasthan, 1999 Cr LJ 10 (Raj).
79.  Gopal v State of TN, 1999 Cr LJ 3939 (Mad).
80.  BS Joshi v State of Haryana, AIR 2003 SC 1386 [LNIND 2003 SC 335] : 2003 Cr LJ 2028 , the
aggrieved wife settled the matter with her husband by going in for consent divorce and applied
for quashing of her complaint. Risal Singh v State of Punjab, 2012 Cr LJ 2188 (SC) : 2012 AIR
SCW 2249; Jitendra v Babita, (2013) 4 SCC 58 [LNIND 2013 SC 195] .

81.  RP Bidlan v State of Maharashtra, 1993 Cr LJ 3019 (Bom).
82.  Balkrishna Pandurang Moghe v State of Maharashtra, 1998 Cr LJ 4496 (Bom). The Court said
that the section is not invalid on the ground of absence of nexus between the provision and the
object sought to be achieved; Rajendran v Commr of Police, AIR 2009 SC 855 [LNIND 2008 SC
2339] : (2008) 17 SCC 501 [LNIND 2008 SC 2339] , evidence of torture leading to suicide.
83.  Suvetha v State, (2009) 6 SCC 757 [LNIND 2009 SC 1156] : 2009 Cr LJ 2974 ; Ranjana
Gopalrao Thorat v State of Maharashtra, 2008 Bom CR (Cr) 185 : (2007 (5) AIR Bom R 271; a
person can become a relative only by blood or marriage and not otherwise. The word relative
has been deﬁned in the Chambers Dictionary 'person who is related by blood or marriage'. A

second wife cannot assume a character as wife if there is no marriage in the eye of law. Since
she is not a relative, she does not fall within the scope of section 498A of IPC, 1860 at all. She
certainly deserves to be discharged as far as offence under section 498A of IPC, 1860 is
concerned; John Indiculla v State, 2005 Cr LJ 2925 (Ker) - the second wife is a relative of the
husband.
84.  Syed Hyder Hussain v State of AP, (2002) Cr LJ 3602 (AP).
85.  Reema Agarwal v Anupam, (2004) 3 SCC 199 [LNIND 2004 SC 1499] : AIR 2004 SC 1418
[LNIND 2004 SC 1499] : 2004 Cr LJ 892 ; A Subhash Babu v State of AP, AIR 2011 SC 3031
[LNIND 2011 SC 679] : 2011 (7) SCC 616 [LNIND 2011 SC 679] .
86.  Vasant Bhagwat Patil v State of Maharashtra, 2012 Cr LJ 65 (Bom).
87.  Chandrawati v State, 1996 Cr LJ 975 (Del).

88.  Undavalli Narayana Rao v State of AP, (2009) 14 SCC 588 [LNIND 2009 SC 1515] .
89.  Inderpal v State of MP, (2001) 10 SCC 736 : 2002 Cr LJ 926 (SC); Gananath Pattnaik v State
of Orissa, (2002) 2 SCC 619 [LNIND 2002 SC 100] .
90.  State of Karnataka v Siddaraju, 2000 Cr LJ 4220 (Kant); Kishangiri Mangalgiri Goswami v
State of Gujarat, (2009) 4 SCC 52 [LNIND 2009 SC 193] : AIR 2009 SC 1808 [LNIND 2009 SC 193]
: 2009 Cr LJ 1720 : (2009) 2 GLR 1074 , imprisonment for 10 years not interfered with, that
under Dowry Prohibition Act, 1961, section 3, reduced from ﬁve to three years. Balwant Singh v
State of HP, (2008) 15 SCC 497 [LNIND 2008 SC 1942] : 2008 Cr LJ 4683 , sentence for one year
maintained, that of aged parents-in-law reduced to the period already undergone. Shivcharan Lal

Verma v State of MP, (2007) 15 SCC 369 , second marriage during life-time of the ﬁrst wife,
second wife tortured by both, section 498-A not applicable, but because she committed suicide
because of the torture, conviction under section 306 maintained, but sentence of seven years
reduced to ﬁve years. Milind Bhagwanrao Godse v State of Maharashtra, (2009) 2 SCC (Cr) 182 :
AIR 2009 AC 1828 : (2009) 3 SCC 699 [LNIND 2009 SC 338] : 2009 Cr LJ 1736 , torture leading
to suicide, conviction under sections 498-A, 306, 109 read with section 34. Kailash v State of MP,

(2006) 12 SCC 667 [LNIND 2006 SC 803] : AIR 2007 SC 107 [LNIND 2006 SC 803] , the accused
had already under gone eight years of imprisonment, the court reduced the sentence to eight
years. Anand Mohan Sen v State of WB, (2007) 10 SCC 774 [LNIND 2007 SC 688] : 2007 Cr LJ
2770 , death by itself may not lead to an inference that cruelty was there, but in this case there
were speciﬁc allegations which were proved by prosecution witnesses, ingredients were
satisﬁed, no interference in the order of conviction by the High Court.
91.  Malyala Vishwanatha Rao v State of AP, 2003 Cr LJ (NOC) 11 (AP) : (2002) 1 ALT (Cr) 499.
Konidela Madhusudhan v State of AP, 2003 Cr LJ (NOC) 172 (AP) : (2003) 1 Andh LD (Cr) 823,
harassment was not complained of immediately. The sentence of imprisonment was restricted
to the period already undergone. Chandra Kala Devi v State of Bihar, 2003 Cr LJ 3146 (Pat),
evidence of witnesses showed that the in-laws of the victim demanded motorcycle from parents

and that she had to face hostile atmosphere for that reason. There was also an attempt to set
her on ﬁre. Finding of guilt and sentence imposed were conﬁrmed, but looking at their age and
the fact that they remained in custody for 52 days, their sentence was reduced to the period
already undergone.
92.  State of Maharashtra v Vasant Shankar Mhasane, 1993 Cr LJ 1134 (Bom). Raghumunda
Satya Narayana v State of AP, AIR 2000 SC 3420 : 2000 Cr LJ 2779 the accused-husband was
convicted under the section and sentenced to two years' imprisonment. The aggrieved wife ﬁled
aﬃdavit saying that they had come to terms and that their peace would elude them if the
husband had to undergo the whole sentence. The sentence was reduced to the period already
93.  Siddaling v State, AIR 2018 SC 3829 [LNIND 2018 SC 355] .

94.  BT Jayaram v State of Karnataka, (2008) 14 SCC 530 : AIR 2006 SC 1799 . Satish Kumar
Batra v State of Haryana, (2009) 12 SCC 491 [LNIND 2009 SC 754] : AIR 2009 SC 2180 [LNIND
2009 SC 754] : 2009 Cr LJ 2447 , sentence reduced to the period already undergone 13 months.
95.  Rajesh Sharma v State of UP, AIR 2017 SC 3869 [LNIND 2017 SC 351] .
96.  Onkar Nath Mishra v State (NCT) of Delhi, (2008) 2 SCC 561 [LNIND 2007 SC 1511] : 2008 Cr
LJ 1391 . See also Social Action Forum for Manav Adhikar v Union of India Ministry of Law and
Justice, AIR 2018 SC 4273 .
97.  Onkar Nath Mishra v State (NCT) of Delhi, (2008) 2 SCC 561 [LNIND 2007 SC 1511] : 2008 Cr
LJ 1391 , there was not even whisper of wilful conduct of harassment.
98.  Sunil Kumar Sambhudayal Gupta v State of Maharashtra, 2011 Cr LJ 705 : (2010) 13 SCC 657
[LNIND 2010 SC 1088] .

99.  KRJ Sarma v Surya Rao, 2013 Cr LJ 2189 (SC); State of HP v Manju Rani, 2013 Cr LJ 101
(HP); Anil Kumar Gupta v State of UP, 2011 Cr LJ 2131 : (2011) 11 SCC 24 [LNIND 2011 SC 275] ;
Atikul Islam v State of Tripura, 2013 Cr LJ 1374 (Gau) — allegation of cruelty is not proved
beyond reasonable doubt, Accused was acquitted.
100.  Maniklal Jain v State of MP, 2012 Cr LJ 613 (SC) : 2011 AIR SCW 6471.
101.  Anisetti Sivaprasada Rao v State of AP, 1994 Cr LJ 1760 (AP). Mangilal v State of Rajasthan,
AIR 2001 SC 2937 [LNIND 2001 SC 2385] , the accused administered poison to his wife,
acquittal set aside; Girdhar Shankar Tawade v State of Maharashtra, AIR 2002 SC 2078 [LNIND
2002 SC 325] : 2002 Cr LJ 2814 (SC), charges under sections 306 and 498A are independent of

each other. Acquittal under section 306 does not necessarily entail acquittal under section
498A. But there was no evidence to bring home the charge even under section 498A.
102.  Savalram v State of Maharashtra, 2003 Cr LJ 2831 (Bom).
103.  Hussan Lal v State of Punjab, 2002 Cr LJ 2436 (P&H).
104.  Vijaya v Laxmanan, 1999 Cr LJ 5012 : (1998) 8 SCC 415 .
105.  Arun Vyas v Anita Vyas, AIR 1999 SC 2071 [LNIND 1999 SC 1377] : 1999 Cr LJ 3479 .

106.  Preeti Gupta v State of Jharkhand, (2010) 7 SCC 667 [LNIND 2010 SC 752] : AIR 2010 SC
3363 [LNIND 2010 SC 752] .
107.  Law Commission of India—243rd Report, Para-9.1; Available at :
http://lawcommissionoﬁndia.nic.in/reports/report243.pdf (last accessed in July 2019).
108.  Law Commission of India- 243rd Report- Para-9.1; Available at :

CHAPTER XXI OF DEFAMATION
[s 499] Defamation.
Whoever, by words either spoken or intended to be read, or by signs or by visible
representations, makes or publishes any imputation concerning any person intending
to harm, or knowing or having reason to believe that such imputation will harm, the
reputation of such person, is said, except in the cases hereinafter expected, to
defame that person.
Explanation 1.—It may amount to defamation to impute anything to a deceased
person, if the imputation would harm the reputation of that person if living, and is
intended to be hurtful to the feelings of his family or other near relatives.
Explanation 2.—It may amount to defamation to make an imputation concerning a
company or an association or collection of persons as such.
Explanation 3.—An imputation in the form of an alternative or expressed ironically,
may amount to defamation.
Explanation 4.—No imputation is said to harm a person's reputation, unless that

imputation directly or indirectly, in the estimation of others, lowers the moral or
intellectual character of that person, or lowers the character of that person in respect
of his caste or of his calling, or lowers the credit of that person, or causes it to be
believed that the body of that person is in a loathsome state, or in a state generally
considered as disgraceful.
(a) A says—"Z is an honest man; he never stole B's watch"; intending to cause it to
be believed that Z did steal B's watch. This is defamation, unless it fall within
one of the exceptions.
(b) A is asked who stole B's watch. A points to Z, intending to cause it to be
believed that Z stole B's watch. This is defamation unless it falls within one of
the exceptions.

(c) A draws a picture of Z running away with B's watch, intending it to be believed
that Z stole B's watch. This is defamation, unless it fall within one of the
exceptions.
Imputation of truth which public good requires to be made or published.
First Exception.—It is not defamation to impute anything which is true concerning
any person, if it be for the public good that the imputation should be made or
published. Whether or not it is for the public good is a question of fact.
Public conduct of public servants.
Second Exception.—It is not defamation to express in a good faith any opinion
whatever respecting the conduct of a public servant in the discharge of his public

functions, or respecting his character, so far as his character appears in that
conduct, and no further.
Conduct of any person touching any public question.
Third Exception.—It is not defamation to express in good faith any opinion
whatever respecting the conduct of any person touching any public question, and
respecting his character, so far as his character appears in that conduct, and no
further.
It is not defamation in A to express in good faith any opinion whatever respecting Z's
conduct in petitioning Government on a public question, in signing a requisition for a
meeting on a public question, in presiding or attending a such meeting, in forming or
joining any society which invites the public support, in voting or canvassing for a
particular candidate for any situation in the eﬃcient discharges of the duties of which
the public is interested.
Publication of reports of proceedings of Courts.
Fourth Exception.—It is not defamation to publish substantially true report of the

proceedings of a Court of Justice, or of the result of any such proceedings.
Explanation.—A Justice of the Peace or other oﬃcer holding an inquiry in open
Court preliminary to a trial in a Court of Justice, is a Court within the meaning of
the above section.
Merits of a case decided in Court or conduct of witnesses and others concerned.
Fifth Exception.—It is not defamation to express in good faith any opinion
whatever respecting the merits of any case, civil or criminal, which has been
decided by a Court of Justice, or respecting the conduct of any person as a party,
witness or agent, in any such case, or respecting the character of such person, as
far as his character appears in that conduct, and no further.
(a) A says—"I think Z's evidence on that trial is so contradictory that he must be

stupid or dishonest". A is within this exception if he says this is in good faith, in
as much as the opinion which he expresses respects Z's character as it appears
in Z's conduct as a witness, and no further.
(b) But if A says—"I do not believe what Z asserted at that trial because I know him
to be a man without veracity"; A is not within this exception, in as much as the
opinion which he expresses of Z's character, is an opinion not founded on Z's
conduct as a witness.
Merits of public performance.
Sixth Exception.—It is not defamation to express in good faith any opinion
respecting the merits of any performance which its author has submitted to the
judgment of the public, or respecting the character of the author so far as his
character appears in such performance, and no further.

Explanation.—A performance may be substituted to the judgment of the public
expressly or by acts on the part of the author which imply such submission to the
judgment of the public.
(a) A person who publishes a book, submits that book to the judgment of the public.
(b) A person who makes a speech in public, submits that speech to the judgment of
the public.
(c) An actor or singer who appears on a public stage, submits his acting or singing
to the judgment of the public.
(d) A says of a book published by Z—"Z's book is foolish; Z must be a weak man. Z's
book is indecent; Z must be a man of impure mind". A is within the exception, if
he says this in good faith, in as much as the opinion which he expresses of Z
respects Z's character only so far as it appears in Z's book, and no further.
(e) But if A says—"I am not surprised that Z's book is foolish and indecent, for he is
a weak man and a libertine". A is not within this exception, inasmuch as the

opinion which he expresses of Z's character is an opinion not founded on Z's
book.
Censure passed in good faith by person having lawful authority over another.
Seventh Exception.—It is not defamation in a person having over another any
authority, either conferred by law or arising out of a lawful contract made with
that other, to pass in good faith any censure on the conduct of that other in
matters to which such lawful authority relates.
A Judge censuring in good faith the conduct of a witness, or of an oﬃcer of the Court;
a head of a department censuring in good faith those who are under his orders; a
parent censuring in good faith a child in the presence of other children; a schoolmaster,
whose authority is derived from a parent, censuring in good faith a pupil in the

presence of other pupils; a master censuring a servant in good faith for remissness in
service; a banker censuring in good faith the cashier of his bank for the conduct of
such cashier as such cashier—are within this exception.
Accusation preferred in good faith to authorised person.
Eighth Exception.—It is not defamation to prefer in good faith an accusation
against any person to any of those who have lawful authority over that person
with respect to the subject-matter of accusation.
If A in good faith accuse Z before a Magistrate; if A in good faith complains of the
conduct of Z, a servant, to Z's master; if A in good faith complains of the conduct of Z,
a child, to Z's father—A is within this exception.
Imputation made in good faith by person for protection of his or other's interests.

Ninth Exception.—It is not defamation to make an imputation on the character of
another provided that the imputation be made in good faith for the protection of
the interests of the person making it, or of any other person, or for the public
good.
(a) A, a shopkeeper, says to B, who manages his business—"Sell nothing to Z unless
he pays you ready money, for I have no opinion of his honesty". A is within the
exception, if he has made this imputation on Z in good faith for the protection of
his own interests.
(b) A, a Magistrate, in making a report of his own superior oﬃcer, casts an
imputation on the character of Z. Here, if the imputation is made in good faith,
and for the public good, A is within the exception.
Caution intended for good of person to whom conveyed or for public good.
Tenth Exception.—It is not defamation to convey a caution, in good faith, to one
person against another, provided that such caution be intended for the good of

the person to whom it is conveyed, or of some person in whom that person is
interested, or for the public good.
COMMENT.—
Section 499 Indian Penal Code (IPC, 1860) brings under the criminal law, the person
who publishes as well as the person who makes the defamatory imputation. Section
499, IPC, 1860 emphasises the words "makes or publishes". The gist of the offence of
defamation lies in the dissemination of the harmful imputation. When a defamatory
statement is published, it is not only the publisher, but also the maker who becomes
responsible and it is in that context that the word "makes" is used in section 499 IPC,
1860. It is of essence that in order to constitute the offence of defamation, it must be
communicated to a third person because what is intended by the imputation is to

arouse hostility of others. Therefore, in brief, the essentials of defamation are, ﬁrst, the
words must be defamatory; second, they must refer to the aggrieved party; third, they
must be maliciously published.1.
[s 499.1] Reputation.—
Right to reputation is a facet of right to life of a citizen under Article 21 of the
Constitution.2. The right to enjoyment of a private reputation, unassailed by malicious
slander is of ancient origin, and is necessary to human society. A good reputation is an
element of personal security, and is protected by the Constitution equally with the right
to the enjoyment of life, liberty and property.3. The term 'person' includes not only the
physical body and members but also every bodily sense and personal attribute among
which is the reputation a man has acquired. Reputation can also be deﬁned to be good

name, the credit, honour or character which is derived from a favourable public opinion
or esteem, and character by report. The right to enjoyment of a good reputation is a
valuable privilege of ancient origin and necessary to human society. 'Reputation' is an
element of personal security and is protected by Constitution equally with the right to
enjoyment of life, liberty and property. Although, 'character' and 'reputation' are often
used synonymously, these terms are distinguishable. 'Character' is what a man is and

1.  BRK Murthy v State, 2013 Cr LJ 1602 (AP).
2.  Mehmood Azam v State, AIR 2012 SC 2573 [LNIND 2012 SC 456] : (2012) 8 SCC 1 [LNIND
2012 SC 456] ; Vishwanath S/o Sitaram Agrawal v Sarla Vishwanath Agrawal, AIR 2010 SC 1974
[LNINDORD 2010 SC 207] : 2010 (7) SCC 263 [LNIND 2010 SC 438] .
3.  Smt. Kiran Bedi v Committee of Inquiry, AIR 1995 SC 117 [LNIND 1994 SC 929] : 1994 (6) SCC
565 [LNIND 1994 SC 952] : 1995 SCC (Cr) 29, quoted from D F Marion v Davis, 1989 (1) SCC 494
[LNIND 1989 SC 10] : AIR 1989 SC 714 [LNIND 1989 SC 833] .
4.  Kishore Samrite v State of UP, (2013) 2 SCC 398 [LNIND 2012 SC 657] .
5.  Subramanian Swamy v UOI, Ministry of Law, 2016 Cr LJ 3214 : 2016 (5) SCJ 643 .
'reputation' is what he is supposed to be in what people say he is. 'Character' depends
on attributes possessed and 'reputation' on attributes which others believe one to
possess. The former signiﬁes reality and the latter merely what is accepted to be reality
at present.4.
[s 499.2] Constitutional validity.—

The Constitutional validity of sections 499 and 500 of IPC, 1860 and section 199 of
Code of Criminal Procedure, (Cr PC, 1973) was assailed in Subramanian Swamy v UOI,
Ministry of Law,5. and the Supreme Court upheld it. The Court observed thus:
One cannot be unmindful that right to freedom of speech and expression is a highly valued
and cherished right but the Constitution conceives of reasonable restriction. In that context
criminal defamation which is in existence in the form of ss. 499 and 500 Indian Penal Code
is not a restriction on free speech that can be characterized as disproportionate. Right to
free speech cannot mean that a citizen can defame the other. Protection of reputation is a
fundamental right. It is also a human right. Cumulatively it serves the social interest.
The Apex Court did not accept that the provisions relating to criminal defamation are

not saved by the doctrine of proportionality, because it determines a limit which is not
impermissible within the criterion of reasonable restriction. The Court also held that the
criminal prosecution on defamation will not negate and violate the right to speech and
expression of opinion.

[s 500] Punishment for defamation.
Whoever defames another shall be punished with simple imprisonment for a term
which may extend to two years, or with ﬁne, or with both.
COMMENT.—
The essence of the offence of defamation consists in its tendency to cause that
description of pain which is felt by a person who knows himself to be the object of the
unfavourable sentiments of his fellow-creatures, and those inconveniences to which a
person who is the object of such unfavourable sentiments is exposed.6.
[s 500.1] Ingredients.—
The section requires three essentials:—
1. Making or publishing any imputation concerning any person.
2. Such imputation must have been made by
(a) words, either spoken or intended to be read; or
(b) signs; or
(c) visible representations.
3. Such imputation must have been made with the intention of harming or with
knowledge or reason to believe that it will harm the reputation of the person concerning

whom it is made.7. It is clear that intention to cause harm is the most essential sine
qua non for an offence under section 499, IPC, 1860. An offence punishable under
section 500, IPC, 1860 requires blameworthy mind and is not a statutory offence
requiring any mens rea.8.
1. 'Makes or publishes any imputation concerning any person'.—Everyone who
composes, dictates, writes or in any way contributes to the making of a libel, is the
maker of the libel. If one dictates, and another writes, both are guilty of making it, for he
shows his approbation of what he writes. So, if one repeats, another writes a libel, and
a third approved what is written they are all makers of it, as all who concur and assent
to the doing of an unlawful act are guilty; and murdering a man's reputation by a libel

may be compared to murdering a man's person, in which all who are present and
encourage the act are guilty, though the wound was given by one only.9. The mechanic
or the compositor of the Press does neither 'make nor publish' the matter that may be
impugned as defamatory.10. Intention on the part of the accused to harm the
reputation or the knowledge or reasonable belief that an imputation will harm the
reputation of the person concerned being an essential ingredient of the offence of
defamation, the Chairman of a Company owning the newspaper in which the offending
news item is published cannot be held liable unless it is shown that he was somehow

concerned with the publication of the defamatory news item. Under section 7 of the
Press and Registration of Books Act, 1867 a presumption regarding awareness of the
contents of a newspaper can be raised only against the Editor whose name appears on
the copy of the newspaper and no other Editors like the News Editor or Resident Editor
whose names do not appear in the declaration printed on the copy of the newspaper.11.
[s 500.2] 'Publishes'.—
The defamatory matter must be published, that is, communicated to some person
other than the person about whom it is addressed, e.g., dictating a letter to a clerk is
publication.12. Imputations in a charge sheet which is sent to the employee himself
does not amount to a publication.13. But where there is a duty which forms the ground
of privileged occasion, the person exercising the privilege may communicate matters
to a third person in the ordinary course of business. A solicitor who dictates to his clerk

a letter containing defamatory statements regarding a person is not liable for
defamation.14. Where the complainant's Advocate sent a notice to a party whose
Advocate dictated a reply to his steno containing defamatory remarks and the same
was sent to the complainant's Advocate, the Kerala High Court held that this did not
amount to any publication.15.
Communicating defamatory matter only to the person defamed is not publication.16.
The action of a person who sent to a public oﬃcer by post, in a closed cover, a notice
containing imputations on the character of the recipient but which was not
communicated by the accused to any third person was held to be not such a 'making'
or 'publishing' of the matter complained of as to constitute this offence.17. A notice

under a Municipal Act was issued by the President of the Municipal Committee to a
certain person, who sent a reply containing defamatory allegations against the
President. This reply was put on the oﬃcial ﬁle by the President and it was read by the
members of the Committee. It was held that there was publication of the defamation.
The placing of the reply on the oﬃcial ﬁle was not a gratuitous or voluntary act on the
part of the President but it was his duty to do so, and the accused knew or must have
known that the contents of his reply would be necessarily communicated to the
members of the Committee.18.
Where the alleged defamatory words were sent to the complainant by registered post, it
was held that there was no publication. There was absence of one of the necessary

ingredients of the offence, namely publication. The complaint was liable to be
quashed.19.
Defamatory matter written on a postcard20. or printed on papers distributed or
broadcast,21. constitutes publication. So is the ﬁling in a Court of a petition containing
defamatory matter concerning a person with the intention that it should be read by
other persons.22. When a person presents a defamatory petition to a superior public
oﬃcer, who, in the ordinary course of oﬃcial routine, sends it to some subordinate
oﬃcer for inquiry, there is a publication of the letter at the place where he may receive
it, and publication for which the original writer may prima facie be held responsible,
whether or not he expressly asks for an inquiry.23. Communication to a husband or wife

of a charge against the wife or husband is publication,24. but uttering of a libel by a
husband to his wife is not, as in England they are one in the eye of the law.25.
Where a libel is printed, the sale of each copy is a distinct publication and a fresh
offence; and conviction or acquittal on an indictment for publishing one copy will be no
bar to an indictment for publishing another copy.26.

The person who publishes the imputation need not necessarily be the author of the
imputation. The person who publishes and the person who makes an imputation are
alike guilty.27.
[s 500.3] General Statement.—
In order to constitute offence of defamation the words, signs, imputation made by
accused must either be intended to harm the reputation of a particular person or the
accused must reasonably know that his/her conduct could cause such harm. Where
the appellant's statement published in news magazine was a rather general
endorsement of pre-marital sex and her remarks were not directed at any individual or
even at a 'company or an association or collection of persons', it was held that it cannot
be construed as an attack on the reputation of anyone in particular.28. Where a
complaint was ﬁled with regard to a statement made by the Gujarat Chief Minister
published in media or newspaper or over television or through internet that ex-Prime

Minister late Hon'ble Shri Jawahar Lal Nehru did nothing for children. The High Court
upheld the rejection of complaint holding that it was only a general statement and
cannot be construed as an attack on reputation of anyone in particular.29.
[s 500.4] Repetition.—
The Code makes no exception in favour of a second or third publication as compared
with the ﬁrst. If a complaint is properly laid in respect of a publication which is prima
facie defamatory, the Magistrate is bound to take cognizance of the complaint, and
deal with it according to law.30. The publisher of a libel is strictly responsible,
irrespective of the fact whether he is the originator of the libel or is merely repeating
it.31.
[s 500.5] Publication of defamatory matter in newspaper.—
In a case of defamation, only the source of information on which the person accused

it.31.
has acted and the justiﬁcation for his so acting, are to be considered. If he has not
taken proper care and acted on gossip against the complainant hereby defamed, he
ought not to escape the consequence on the ground that he has contracted the
incorrect report. The culpability in such cases does not depend upon the
circumstances where he has tried to undo the wrong which he has committed or not
put up on fact he has acted with care or attention or has done so rashly or negligently, it
is no defence in the matter of defamation for the accused to say that he has acted on
the information given to him by another. It is for him to establish that the source on
which he acted is a proper source on which he is entitled and he did with care and
circumspection. Therefore, the editor and publisher are liable for the baseless and false

matter which was published in the journal. Such an irresponsible conduct and attitude
on the part of the editor and publisher cannot be said to be done in good faith.32. In the
matter of defamation the position of newspaper is not in any way different from that of
member of the public in general. The responsibility in either case is the same.33. The
publisher of a newspaper is responsible for defamatory matter published in such paper
whether he knows the contents of such paper or not.34. But it would be a suﬃcient
answer to a charge of defamation against the editor of a newspaper if he proved that
the libel was published in his absence and without his knowledge and he had in good
faith entrusted the temporary management of the newspaper during his absence to a

competent person.35. The owner of a journal in order to be liable under section 499 has
to have direct responsibility for the publication of the defamatory statement and he
must also have the intention to harm, or knowledge or reason to believe that the
imputation will harm the reputation of person concerned. The owner of a journal qua
has no responsibility under the section.36. The prosecution of the chairman and
managing director of a company owning the newspaper for the publication of
defamatory article in the newspaper by reason of their holding those posts would be
invalid unless their personal involvement in the publication of the article is
established.37.
Where a newspaper carried extracts from a book written on one of the former Prime
Ministers of India containing imputations of corruption, the editor of the newspaper
was liable to be prosecuted. His plea that he was only a publisher and not the author of
the extracts was held to be not tenable. It was alleged that there was a criminal

conspiracy in the matter between the managing editor, resident editor and executing
editor. All of them were liable to be prosecuted.38. A chief editor of a newspaper cannot
say that he is not responsible for selection and publication of matters in the
newspaper. A complaint against the chief editor is maintainable.39.
The sending of a newspaper, containing defamatory matter by post from Calcutta,
where it is published, addressed to a subscriber at Allahabad, is publication of such
defamatory matter at Allahabad.40.
[s 500.6] Liability of Editor.—
From the scheme of the Press and Registration of Books (PRB) Act, it is evident that it
is the Editor who controls the selection of matter that is published. A news item has the
potentiality of bringing doom's day for an individual. The Editor controls the selection of

the matter that is published. Therefore, he has to keep a careful eye on the selection.
Blue-penciling of news articles by anyone other than the Editor is not welcome in a
democratic polity. Editors have to take responsibility of everything they publish and to
maintain the integrity of published record.41.
[s 500.7] Prosecution against CEO of TV Channel.—
In order to constitute offence of defamation under criminal law, section 499, IPC, 1860
contemplates "intending to harm, or knowing or having reason to believe that such
imputation will harm reputation of such person" on the part of the accused. In the entire
complaint, the complainant/1st respondent did not allege that the accused, who is
Chief Executive Oﬃcer of TV-9 channel, telecast the news item or permitted to re-

telecast the news item with such state of mind (Mens rea). Except as Chief Executive
Oﬃcer of the TV news channel, the complainant did not allege any other connection for
the accused with telecasting of the news item. In the absence of any such connection
for the accused with this news item and in the absence of any such mens rea or state
of mind for the accused in relation to this news item, simply because the accused
happened to be Chief Executive Oﬃcer or proprietor or partner or managing director of
the TV news channel, no criminal case can lie against him for offence punishable under
section 500, IPC, 1860.42.
[s 500.8] Jurisdiction.—

Where a newspaper containing a defamatory article is printed and published at one
place and is circulated or sold at other places by or on behalf of the accused
responsible for printing and publishing the newspaper, then there would be publication
of the defamatory article in all such places and jurisdictional Magistrate can entertain
the complaint for defamation. It cannot be said that the act of publication comes to an
end as soon as the issue of the newspaper is released at one place. If that newspaper
is despatched by the printer and publisher to other places for being sold or circulated,
the defamatory article gets published at each such place. The mere fact that the
headquarter of a newspaper is based at a particular place or that it is printed and
published at one place, does not necessarily mean that there cannot be publication of
the defamatory article contained in the newspaper at another place. If the defamatory
imputation is made available to public at several places, then the offence is committed

at each such place. Though the ﬁrst offence may be committed at the place where it is
printed and ﬁrst published, it gets repeated wherever the newspaper is circulated at
other places.43.
[s 500.9] Apology.—
Where the incriminating news was not published in the newspaper by the editor
knowing or having good reason to believe that such matter was defamatory of the
complainant, the editor had no ill will against him and had expressed regret for such
publication, it was held that the editor could not be held responsible in connection with
the defamation.44.
[s 500.10] 'Imputation'.—
It is immaterial whether the imputation is conveyed obliquely or indirectly, or by way of
question, conjecture, or exclamation, or by irony.45.
The words "coward, dishonest man, and something worse than either"46. and words to

the effect that the complainant and others were preparing to bring a false charge
against the accused,47. were held to be defamatory. Calling a counsel "badmash" in the
open Court was held to be not an offence within the meaning of section 499. The Court
said that it might come under section 504. The acquittal of the accused under section
500 was held to be proper.48. The accused married the complainant by exchange of
garlands in a temple. He lived with her for a few days and then started demanding
money and described her as unchaste woman and not decent looking. The Court said
that the ingredients of section 500 were prima facie made out and, therefore, the
accused was liable to be prosecuted.49.
[s 500.11] 'Concerning any person'.—
The words must contain an imputation concerning some particular person or persons

whose identity can be established. That person need not necessarily be a single
individual. Where the accused published in a paper an account of an outrage on a
woman alleged to have been perpetrated by two constables out of four constables
stationed at a police station, it was held that, in the absence of proof that it was
intended to charge any particular and identiﬁable constables with the alleged offence,
the accused could not be convicted.50. Where a ﬁlm which was alleged to be
defamatory of lawyers as a class formed the basis of a defamation case against the

producers including artists and Chairman of the Central Board of Censors, it was held
that though the offence of defamation can be committed in regard to a company or
collection of persons in view of Explanation 2 to section 499, IPC, 1860, yet it is
necessary to show that this collection of persons is a small determinate body whose
identity can be ﬁxed. Advocates as a class are incapable of being defamed.51. In this
connection see comments under head "Explanation-2" infra.
A newspaper is not a person and therefore, it is not an offence to defame a newspaper.
Defamation of a newspaper may, in certain cases, involve defamation of those
responsible for its publication.52.
[s 500.12] Innuendo.—
Where the statement does not refer to the complainant directly, the doctrine of
innuendo may be pressed into service for the purpose of showing that the complainant
was the real target of the attack. He must bring forward additional facts showing how

the words are related to him in a manner which is defamatory. "A true innuendo is an
innuendo by which the plaintiff alleges a special defamatory meaning of the words
distinct from their ordinary meaning and arising by virtue of extrinsic facts or matters
known to the recipients."53. Applying this principle to the facts of a case before it, the
Supreme Court laid down that an innuendo cannot be established by an evidence
showing inferences of two kinds. The evidence of additional facts must be capable of
showing that the words were applicable to the complainant and the complainant
alone.54.
2. 'Such imputation should have been made by words either spoken or intended to be
read, or by signs or by visible representation'.—IPC, 1860 makes no distinction
between written and spoken defamation.55.

[s 500.13] 'By signs or by visible representations'.—
The words 'visible representation' will include every possible form of defamation which
ingenuity can devise. For instance, a statue, a caricature, and eﬃgy, chalk marks on a
wall, signs, or pictures may constitute a libel.56. The publication of a group photograph
with a false caption depicting the persons in the photograph as soldiers of a "goonda
war" was held to be defamatory.57. In another case, Complainant alleged that four
photographs of an incident were published in a newspaper, in which, one photograph
showed the complainant more or less nude and that has caused defamation and harm
to him. The photographs during a protest demonstration a protest demonstration and
depicted the sequence of events when the complainant was being pulled out of a
police jeep. It can never be stated that the publication of the photographs in the

newspaper was with the intention or with knowledge or having reason to believe that it
will harm the reputation of the complainant. Proceedings are liable to be quashed.58.
3. 'Intending to harm, or knowing or having reason to believe that such imputation will
harm'.—In this section the expression "harm" means harm to the reputation of the
aggrieved party.59. It is not necessary to prove that the complainant actually suffered
directly or indirectly from the scandalous imputation alleged; it is suﬃcient to show
that the accused intended to harm, or knew, or had reason to believe that the
imputation made by him would harm the reputation of the complainant.60. A statement
made primarily with the object that the person making it should escape from a diﬃculty

cannot be made the subject of a criminal charge merely because it contains matter
which may be harmful to the reputation of other people or hurtful to their feelings.61.
The meaning to be attached to the word 'harm' is not the ordinary sense in which it is
used. By 'harm' is meant imputation on a man's character made and expressed to
others so as to lower him in their estimation. Anything which lowers him merely in his
own estimation does not constitute defamation.62. Accusing a person in front of the
public, of having illicit relations with accuser's sister cannot be considered to have been
uttered merely as scurrilous abuse in the situation in which they were used against the
accused. The accusation took place in an open gathering when not only the members
of the Gram Panchayat were present but also the members of the general public.
Conviction of the accused under section 500 IPC, 1860 was upheld.63.
[s 500.14] 'Reputation'.—

A man's opinion of himself cannot be called his reputation.64. A man has no 'reputation'
to himself and therefore, communication of defamatory matter to the person defamed
is no publication.
[s 500.15] Explanation 1.—
A prosecution may be maintained for defamation of a deceased person, but it has been
ruled that no suit for damages will lie in such a case. Where, therefore, a suit was
brought by the heir and nearest relation of a deceased person for defamatory words
spoken of such deceased person, but alleged to have caused damage to the plaintiff as
a member of the same family, it was held that the suit was not maintainable.65.
[s 500.16] Explanation 2.—
Imputation concerning company, association or collection of persons.—An action for libel
will lie at the suit of an incorporated trading company in respect of a libel calculated to

injure its reputation in the way of its business.66. The words complained of must attack
the corporation or company in the method of conducting its affairs, must accuse it of
fraud or mismanagement or must attack its ﬁnancial position.67. A corporation has no
reputation apart from its property or trade. It cannot maintain an action for a libel
merely affecting personal reputation. The words complained of, to support a
prosecution, must reﬂect on the management of its business and must injuriously
affect the corporation, as distinct from the individuals who compose it. They must
attack the corporation in its method of conducting its affairs, must accuse it of fraud or
mismanagement or must attack its ﬁnancial position. A corporation cannot bring a
prosecution for words which merely affect its honour or dignity.68.

A prosecution lies for libelling Hindu widows as a class.69. Where the defamatory
articles, published in a newspaper, related to the habitual immoral conduct of the girls
of a particular college, but no particular girl or girls were named in or identiﬁable from
the articles, and the complaint was ﬁled by a number of girls of the college, it was held
that the author of the articles was guilty of defamation, in as much as the inevitable
effect of the articles on the mind of the reader must be to make him believe that it was
habitual with the girls of the college to misbehave in the ways mentioned so that all the
girls in the college collectively and each girl individually must suffer in reputation.70.

This Explanation covers any collection of persons but such collection of persons must
be identiﬁable in the sense that one could with certainty say that this group of
particular people has been defamed as distinguished from the rest of the community.
Public Prosecutors and Assistant Public Prosecutors at Aligarh in Uttar Pradesh were
held to be an identiﬁable group and hence, could be the subject of defamation
according to the Supreme Court.71. In this connection see para captioned "Concerning
any Person" and the cases mentioned therein.
The offending article must carry an imputation against a deﬁnite and ascertainable
body of people. A complaint was not allowed to be continued where the article
published in a magazine carried imputations against a certain community in general
and not against any particular group, nor the community was found to be a deﬁnite and
identiﬁable body of people and the imputations also did not relate to the

complainant.72. Where a news in a local daily about insuﬃciency of sandal wood
pieces at the cremation of the President of a National Political Party was published, but
no defamatory words or imputation against the said political party was used in the
news item and it did not refer to any deﬁnite or determinate person or persons, it was
held that offence of defamation was not constituted.73.
[s 500.17] Explanation 4.—
This Explanation would not apply when the words used and forming the subject-matter
of the charge are per se defamatory.74. Describing a woman that she has paramours
wherever she goes is per se defamatory.75. Wanton allegations by the accused against
the complainant who was his wife that she was not virgin at the time of marriage, that
she had a living husband at that time and had a child from him and that she had gone

to the extent of committing theft, were held to be defamatory. The burden was upon
him to show that the publication in question was necessary in good faith for the
protection of his interest. He could not do this and, therefore, the Court showed no
mercy and sentenced him to simple imprisonment for two months and a ﬁne of Rs.
3,000.76.
[s 500.18] Exceptions.—
The defamatory statement does not fall within any of the Exceptions by reason merely
of the fact that it is punishable as an offence under section 182 or any other section of
the Code.77.
[s 500.19] Members of Legislature and Parliament.—
In the absence of legislation by the Indian Parliament on the subject, the privileges,
powers and immunities of a House of State Legislature or Parliament or of its
members are the same as those of the House of Commons in England. A member of

the House of Commons has an absolute privilege in respect of what he has spoken
within the four walls of the House but there is only a qualiﬁed privilege in his favour
even in respect of what he has himself said in the House, if he causes the same to be
published in the public press. Where a member of a State Legislature got published in
the press a question which the member had sought to put in the House but which the
Speaker had disallowed and the question contained defamatory imputations regarding

the character of a person, it was held that the publication was not accepted by any of
the exceptions to section 499.78.
A minister was questioned about misappropriation of Government funds. He replied by
saying that the preliminary enquiry made by the government showed that some
misappropriation had taken place. He also disclosed the names of the persons
involved including that of the complainant as indicated in the report. This part of the
proceedings was published in the newspaper of the accused. Since the newspaper
exercised its qualiﬁed privilege in good faith, it was held that there was no intention to
cause harm to the reputation of the complainant.79.
[s 500.20] Exception 1.—
This Exception and Exception 4 require that the imputation should be true. The
remaining Exceptions do not require it to be so. They only require that it should be
made in good faith. When truth is set up as a defence, it must extend to the entire libel
and it is not suﬃcient that only a part of the libel is proved to be true.80.

The truth of the imputation complained of shall amount to defence if it was for the
public beneﬁt that the imputation should be published, but not otherwise. A Court may
ﬁnd that an imputation is true, and made for the public good, but on considering the
manner of the publication (e.g., in a newspaper) it may hold that the particular
publication is not for the public good, and is, therefore, not privileged.81. To get the
beneﬁt of this exception the accused must prove that the statement made by him is
true in its substance and effect and not in part. Whether or not the statement was
made for public good, an enquiry must be directed to the beneﬁt that the publication
has rendered or sought to render to the public or to a section of the public and whether
the matter did concern the public.82.
[s 500.21] CASE.—

C was put out of caste by a committee of his caste-fellows on the ground that there
was an improper intimacy between him and a woman of his caste. Certain persons,
members of the committee, circulated a letter to the members of their caste stating
that C and such woman had been put out of caste and requesting the members of the
caste not to receive them into their houses or to eat with them and also made
defamatory statements about them. It was held that, had such persons contented
themselves with announcing the determination of the committee and the grounds upon
which such determination was based, they would have been protected, but in as much
as they went further and made false and uncalled for statements regarding C; they had
not acted in good faith.83. If a person really was outcasted, a statement to the

members of the brotherhood that he was outcasted is the kind of statement
contemplated by the expression "public good".84. Where there exists a civil dispute
between the parties as to the property where school is situated and run by
complainant, which is admittedly pending in civil Court, mere alerting by accused to
parents to take admission of their children at their own risk in school or in summer
camp cannot be considered as defamatory or affecting the reputation or character of
complainant. The above caution notice by no stretch of imagination can be considered
as imputations actionable within the meaning of section 499 of the IPC, 1860.85.

[s 500.22] Exception 2.—
Every citizen has a right to comment on those acts of public men which concern him as
a citizen of the country, if he does not make his commentary a cloak for malice and
slander. A writer in a public paper has the same right as any other person, and it is his
privilege, if indeed it is not his duty, to comment on the act of public men which
concern not himself only but which concern the public, and the discussion of which is
for the public good. And where a person makes the public conduct of a public man the
subject of comment and it is for the public good, he is not liable to an action if the
comments are made honestly, and he honestly believes the facts to be as he states
them, and there is no wilful misrepresentation of fact or any misstatement which he
must have known to be a misstatement, if he had exercised ordinary care.86. In order
that a comment may be fair (a) it must be based on facts truly stated, (b) it must not

impute corrupt or dishonourable motives to the person whose conduct or work is
criticised except in so far as such imputations are warranted by the facts, (c) it must be
the honest expression of the writer's real opinion made in good faith, and (d) it must be
for the public good. The question to be considered in such cases is, would any fair
man, however prejudiced he might be, or however exaggerated or obstinate his views
may be, have made the criticism.87.
Any opinion expressed in good faith made by a public servant would not amount to
offence of defamation when public servant was acting in discharge of public functions.
According to section 21 of the IPC, 1860, clause ﬁfth, a member of Panchayat assisting
a Court of justice is within the scope of deﬁnition of "public servant". Hence, opinion

expressed by member of Panchayat in good faith to assist Court of Justice does not
amount to defamation.88.
Those who ﬁll a public position must not be too thin skinned in reference to comments
made upon them. Whoever ﬁlls a public position renders himself open to attack. He
must accept an attack as a necessary, though unpleasant, appendage to his oﬃce.89.
The law of defamation under the IPC, 1860 cannot be equated with that of contempt of
Court in general terms.90. The Court did not accept the proposition that a reply
submitted to a contempt notice can in no case amount to contempt of Court in the light
of the second exception to section 499.91.
[s 500.23] Exception 3.—
The conduct of publicists who take part in politics or other matters concerning the
public can be commented on in good faith. M, a medical man and the editor of a

medical journal, said in such journal of an advertisement published by H, another
medical man, in which H solicited the public to subscribe to a hospital of which he was
surgeon in charge stating the number of successful operations which had been
performed, that it was unprofessional. It was held that in as much as such
advertisement had the effect of making such hospital a "public question", M was within
the third, sixth and ninth Exceptions.92. A newspaper carried a letter to the editor
stating certain facts about a co-operative hospital to the effect that there were
embezzlements; female nurses were harassed if they refused to attend night duty and
that the President signed only convenient vouchers. It was held that this was an
assertion of facts and not an expression of opinion. The mere fact that the letter

demanded an inquiry would not convert the factual assertion into an opinion. The third
Exception was not applicable.93.

Where the published statement was that the Marwari community had no faith and love
towards India, their mother land, it was held that this was not suﬃcient to constitute
the offence of defamation. The process issued by the magistrate was liable to be
quashed.94.
[s 500.24] Comparative Advertisement.—
A commercial advertisement is a form of speech and "Commercial speech" is a part of
the freedom of speech and expression guarantee under Article 19(1)(a) of the
Constitution.95. Comparative advertising is advertisement where a party advertises his
goods or services by comparing them with goods and services of another party. This is
generally done by either projecting that the advertiser's product is of same or superior
quality to that of the compared product or by denigrating the quality of the compared
product. The advertiser has right to boast of its technological superiority in comparison
with product of the competitor. He can declare that his goods are better than that of his

competitor. However, while doing so, he cannot disparage the goods of the competitor.
Therefore, if the advertising is an insinuating campaign against the competitor's
product such a negative campaigning is not permissible.96. The allegation was that
advertisement published by petitioner along with Associated Traders at instance of
petitioner disparaging respondents business. The Associated Traders had admitted
that alleged advertisement was taken out by them on their own and Petitioner
Company had nothing to do with that. Offence under section 500 IPC, 1860 is not made
out against the petitioner.97.
[s 500.25] Exception 4.—
Where there are judicial proceedings before a properly constituted judicial tribunal
exercising its jurisdiction in open Court, then the publication, without malice, of a fair

and accurate report of what takes place before that tribunal is privileged.98. Though the
publication of such proceedings may be to the disadvantage of the particular individual
concerned, yet it is of vast importance to the public that the proceedings of Courts of
Justice should be universally known. The general advantage to the country in having
these proceedings made public more than counterbalances the inconvenience to the
private persons whose conduct may be the subject of such proceedings.99. It is
immaterial whether the proceedings were ex parte or not,100. or whether the Court had
jurisdiction or not.101. But a report of judicial proceedings cannot be published if the
Court has prohibited the publication of any such proceedings,102. or where the subject-
matter of the trial is obscene103. or blasphemous.104.
[s 500.26] CASE.—

A trustee of a temple was charged with defamation, the alleged defamatory statement
being that the complainant, who performed the worship in the temple, had been
convicted and sent to jail for the theft of idols belonging to the temple. At the time
when the statement was made, an appointment in connection with the temple was in
question. It was held that the trustee was justiﬁed in making the statement either in the
interest of the temple or because the statement was no more than a publication of the
result of proceedings in a Court of Justice.105.

[s 500.27] Exception 5.—
The administration of justice is a matter of universal interest to the whole public. The
judgment of the Court, the verdict of jury, the conduct of parties and of witnesses, may
all be made subjects of free comment. But the criticism should be made in good faith
and should be fair. It must not wantonly assail the character of others or impute
criminality to them. But in commenting on such matters, a public writer, as much as a
private writer, is bound to attend to the truth, and to put forward the truth honestly and
in good faith and to the best of his knowledge and ability. It is not to be expected that in
discharging his duty of a public journalist he will always be infallible. His judgment may
be biased, one way or the other, without the slightest reﬂection upon his good faith;
and, therefore, if his comments are fair, no one has a right to complain.106.
[s 500.28] Exception 6.—
The object of this Exception is that the public should be aided by comment in its

judgment of the public performance submitted to its judgment. All kinds of
performances in public may be truly criticised provided the comments are made in
good faith and are fair. Liberty of criticism is allowed; otherwise we should neither have
purity of taste nor of morals. Good faith under this Exception requires not logical
infallibility but due care and attention.107.
[s 500.29] Exception 7.—
This Exception allows a person under whose authority others have been placed, either
by their own consent or by the law, to censure, in good faith, those who are so placed
under his authority, so far as regards the matter to which that authority relates.108. But
if this privilege is exceeded in any way the offence will be established. A man may in
good faith complain of the conduct of a servant to the master of the servant even

though the complaint amounts to defamation, but he is not protected if he publishes
the complaint in a newspaper. A spiritual superior, in pronouncing and publishing a
sentence of excommunication, may be protected by privilege so long as the publication
is not more extensive than is required to effectuate the purpose for which the privilege
is conceded to him for the censure of a member of the sect in matters appertaining to
religion or the communication of a sentence he is authorized to pronounce to those
who are to guide themselves by it.109. Where the complainant was dismissed from
service on the allegation of theft of his master's property after a full domestic enquiry
in which the complainant was given an opportunity to defend himself, the ﬁnding of
such a domestic enquiry saying that the allegation was true could not form the basis of

defamation case as it is fully protected by Exceptions 7 and 8 of section 499, IPC,
1860. To hold otherwise would amount to paralysing the administration of justice.110.
[s 500.30] CASE.—Imputation made by person in authority.—
The allegation was that accused, principal of a medical college made compliant
against complainant, doctor that she was not taking interest in teaching or attending
hospital, etc., and that she was more worried about her income from nursing home. It
was held that words mentioned in complaint were not with intention to defame the
complaint or harm her reputation. Compliant was made within idea to bring about

betterment in college. Proceedings under section 500 IPC, 1860 is liable to be set
aside.111.
[s 500.31] Exception 8.—
Eighth Exception to section 499 provides that it is not defamation to prefer in good
faith an accusation against any person to any of those who have lawful authority over
that person with respect to the subject matter of accusation. In the present case, the
accused No. 1 and other members of Society approached the police because
admittedly, the letter received by them contained some obscene material and
defamatory statement against the daughter of the accused No. 1 and they expected
guidance, which could include appropriate action against the culprit. It is clear that the
case is clearly covered by Exception 8 and no case under section 500 IPC, 1860 could
be made out.112. In order to establish a defence under this exception the accused
would have to prove that the person to whom the complaint was made had lawful

authority over the person complained against, in respect of the subject-matter of the
accusation.113. To obtain the protection given by this Exception (1) the accusation
must be made to a person in authority over the party accused, and (2) the accusation
must be preferred in good faith.114. Defamatory averments made in a plaint are not
absolutely protected in a criminal proceeding for defamation.115.
[s 500.32] CASES.—
The accused had lodged a report with the police contending that the complainant had
poured acid on the coconut trees and had damaged the same and he had asked the
police to take action against the said complaint. According to the complainant the said
complaint damaged his reputation. It was contended that the case would be covered
by Exceptions 8 and 9 of section 499 and the accused sought to quash the

proceedings under section 500 IPC, 1860. The High Court found the petition meritless
and had dismissed it. The Supreme Court held that:
for the purpose of bringing his case within the purview of the Exceptions 8 and 9 appended
to section 499 of the Penal Code, it would be necessary for the appellant to prove good faith
for the protection of the interests of the person making it or of any other person or for the
public good. It is now a well-settled principle of law that those who plead exception must
prove it. The burden of proof that his action was bona ﬁde would, thus, be on the appellant
alone. At this stage, in our opinion, it would have been premature for the High Court to
consider the materials placed by the, appellant before it so as to arrive at a deﬁnite
conclusion that there was no element of bad faith on the part of the appellant in making the

said complaint before the police authorities.116.
[s 500.33] Exception 9.—Good faith, individual interest or public good.—
This Exception posits that the person to whom the communication is made has an
interest in protecting the person making the accusation. Besides the bona ﬁdes of the
person making the imputation, the person to whom the imputation is conveyed must
have a common interest with the person making it which is served by the
communication.117. The interest of the person referred to in this Exception has to be
real and legitimate when communication is made in protection of the interest of the
person making it. The privilege extends only to a communication upon the subject with
respect to which the privilege extends and the privilege can be claimed in exercise of

the right or safeguarding of the interest which creates the privilege.118. The regional

manager of a bank issued conﬁdential circular to branch managers of his region
advising them to be vigilant while dealing with persons included in the list including the
complainant. The circular was issued in his oﬃcial capacity in public interest and under
instructions of the Central oﬃce. The Court said that the circular was covered by
Exception 9. Therefore, even if the allegations made in the complaint were true, no
offence would be made out under section 500.119.
This exception relates to private communication which a person makes in good faith
for the protection of his own interest. This exception covers not only such allegations
of facts as can be proved true but also expression of opinions and personal inferences.
It has been incorporated to protect the interests of the parties in their business
transaction which are generally done bona ﬁde and, therefore, the rule of public good on
which this principle is based is, that honest transaction of business and social

intercourse would otherwise be deprived of the protection which they should enjoy.
Whether any imputation made is with a motive or mala ﬁde intention to lower the
reputation or is made in good faith is to be determined from the facts and
circumstances of the case. Undisputedly, the requirement of good faith and public
good, both, are to be satisﬁed and the failure to prove good faith would exclude the
application of Exception 9 in favour of the accused even if the requirement of public
good is satisﬁed. The words 'good faith' as appearing in exception 9th not only require
logical infallibility but also due care and attention.120.
This Exception refers to any imputation made in good faith, whereas the ﬁrst Exception
applies only to true imputation made for the public good. That he acted in good faith

must be proved by the accused.121. Question of good faith is a question of fact and
has to be decided in course of the trial and at the initial stage. The journalists do not
enjoy any special privilege.122.
In determining the question of good faith, regard should be to the intellectual capacity
of the accused, his predilections and the surrounding facts.123.
Where a rustic villager objected to the appointment of the complainant as a village
munsiff in the bona ﬁde belief that he was a rowdy and as such undesirable for a public
post like this, it was held that he acted in good faith and was protected by this
Exception.124.
In order to establish good faith and bona ﬁdes it has to be seen ﬁrst the circumstances
under which the defamatory matter was written or uttered; secondly, whether there was

any malice; thirdly, whether the accused made any inquiry before he made the
allegations; fourthly, whether there are reasons to accept the version that he acted with
care and caution and ﬁnally whether there is preponderance of probability that the
accused acted in good faith.125.
The burden lies on the person accused to prove the bona ﬁde aspect of his publication.
Cross-examination of the complainant can be used as a device for establishing good-
faith. An imputation was made in a newspaper item that the complainant lady doctor
had duped the Government by presenting false transfer allowance bills. The lady
doctor's sole testimony that the publication harmed her reputation was held to be not
suﬃcient to sustain her complaint. The accused showed that the publication was in
good faith and in public interest.126.

Where the agreement for selling their properties for settling their dues was signed by
the accused persons and registered before the Sub-Registrar in the presence of the
accused but subsequently a publication in the newspaper was made by the accused
after about two and a half months that the agreement was executed under compulsion,
it was held that the publication was not made in 'good faith' and could not be brought
under Exception 9 of section 499.127.

The ninth Exception to section 499 provides that it is not defamation to make an
imputation on the character of another provided that the imputation be made in good
faith for the protection of the interests of the person making it, or of any other person,
or for the public good. Even if it is assumed that the accused No. 1 and other accused
made the imputation against the respondent No. 1 that he had written the letters and
thus, that imputation was made against his character, still that was made in good faith
because they wanted protection of the interest of the members of the family of
accused No. 1 and particularly his daughter. They did not approach any unconnected
person, but police who could protect the interest of the accused No. 1 and his family
members. In view of the legal position and the facts, which are clear from the
complaint and the documents submitted with the complaint, it is clear that the case is
clearly covered by Exceptions 8 and 9 and no case under section 500 IPC, 1860 could

be made out.128.
[s 500.34] Club committee.—
The committee members of a social club, even if wrong, are given protection under this
Exception, without which it would be impossible for such a body to function. Where the
respondent, who was the wife of a member of a social club and was privileged to use
the club, preferred a complaint against the members of the committee for defaming
her in a letter addressed by them to her husband, it was held that as the committee had
acted in good faith, even if they were mistaken they were protected by this
Exception.129.
[s 500.35] Communication by member of caste.—
There is a dividing line between the passing of a resolution at a caste meeting and its
communication by the authorities of the caste to its members in the discharge of their

social duty. If any member of a caste publishes to all its members a caste resolution in
such discharge of duty the law will hold the occasion of the publication to be privileged.
But there must be good faith on the part of the member who publishes, that is, it must
be proved that the publication was made with due care and attention.130. There must
not be excessive publication, e.g., publication in a newspaper.131. Where a libellous
communication is made regarding a member of a caste, the mere fact that the person
making such communication is a member of a caste will not of itself suﬃce to make
the communication privileged.132. A person making defamatory expressions for the
protection of his son's interest is not privileged, unless the imputation is made in good
faith.133.
[s 500.36] Privileges of Judges, etc.—

The privileges of parties, counsel, attorney, pleader and witnesses come under this
Exception. So also, statements made in pleadings and reports to superior oﬃcers are
protected by it. (As to civil actions, see the author's Law of Torts, 19th Edn; Chapter
XIII).
In India the law regarding defamatory statements, made in the course of judicial
proceeding, by judges, counsel or pleaders, witnesses and parties is lacking in
uniformity. The High Court of Madras in earlier cases adopted the English rule of
absolute immunity in all cases. The Bombay High Court has not followed the English

rule in cases of criminal prosecution on the ground that English law could not be
resorted to where it went beyond the terms of section 499: but in civil actions it has
followed the dictum of the Privy Council in Baboo Gunnesh Dutt Singh v Mugneeram
Chowdhry.134. The Allahabad High Court has gone a step further and held that cases of
defamation under the Code as well as civil suits for damages must be decided in
accordance with the provisions embodied in the IPC, 1860 and the Indian Evidence Act.
The Calcutta High Court has held that the liability of a person prosecuted for
defamation must be determined by the application of the provisions of the IPC, 1860
and not otherwise.135. The Patna High Court has adopted the view of the Calcutta High
Court.136.
[s 500.37] Counsel, pleader, etc.—
Where the accused, father of the complainant, denied through a lawyer's notice that the
complainant was his son imputing unchastity to his mother and as such was not

entitled to any family property, it was held that the communication was protected under
the 9th Exception to section 499, IPC, 1860, and the typing of that notice by the lawyer's
clerk also did not constitute publicity.137.
The Kerala High Court has held that counsel who has signed the pleading of his client
can rely on this Exception.138.
[s 500.38] Witness.—
The Bombay High Court has in a Full Bench case laid down that relevant statements
made by a witness on oath or solemn aﬃrmation in a judicial proceeding are not
absolutely privileged on a prosecution for defamation, but are governed by the
provisions of section 499.139.
The Allahabad High Court in a Full Bench case held that a witness could be prosecuted
for defamatory statements concerning a person unless he showed that the statements
fell under one of the Exceptions to this section.140.

The Nagpur High Court had followed the Bombay, the Calcutta and the Allahabad High
Courts and held that a person giving evidence in a Court of law is not entitled to an
absolute privilege in respect of statements which he makes and is consequently not
immune from a complaint of defamation by reason of words uttered on oath in the
witness-box.141.
The Madhya Pradesh High Court followed the Bombay, the Calcutta and the Nagpur
High Courts.142.
[s 500.39] Pleadings.—
Authority is strongly against the absolute immunity from prosecution for defamatory
statements contained in applications, pleadings and aﬃdavits. The Bombay High Court
has held that statements made in a written statement ﬁled by the accused are not
absolutely privileged but are governed by the provisions of this section.143. The
allegation was that the averments contained in the pleadings and oral evidence in a

suit ﬁled by the accused constituted defamatory statements. The Court held that on

reading of Exception 9 to section 499 of the IPC, 1860 the alleged imputations
contained in pleadings and evidence in civil suit OS No. 966 of 1998 and AS No. 155 of
2004 are covered by Exception 9 of section 499 of the IPC, 1860, even assuming that
the imputations are prima facie defamatory in nature.144.
The Madras High Court has held in a Full Bench case that a defamatory statement in a
complaint to a Magistrate is not absolutely privileged.145.
The Patna High Court had held, that a defamatory statement, whether on oath or
otherwise, falls within section 499 and is not absolutely privileged. Where in a plaint the
accused described the complainant (defendant No. 3) as the "kept woman" of
defendant No. 1 without any foundation, it was held that he was guilty of
defamation.146.
[s 500.40] Vicarious liability.—
A defamatory letter was issued on the pad of a partnership ﬁrm. The letter was signed
by one of the partners. The complainant in his examination before the Court did not say

on oath anything against the rest of the partners who had not signed the letter. The
Court said that such other partners who had not signed could not be vicariously held
liable with the signing partner.147.
[s 500.41] Communications with counsel.—
Communication with one's counsel for legal advice is not a publication. The Court
distinguished the case from the Supreme Court decision in MC Vergheese v TJ
Poonan.148. In this case, a husband's letters to his wife contained defamatory remarks
about her father. The father's proceedings against the husband were allowed because
those letters amounted to a publication. But a communication between a client and his
counsel is not a publication because of the intimate relationship between them. The
counsel has no separate existence from the client in matters relating to legal duties.

Communication to the council is communication to the client.149.
[s 500.42] Reports.—
The report of an oﬃcer, in the execution of his duty, under his superior's orders, which
contains defamatory imputations against others, but which does not appear to have
been made recklessly or unjustiﬁably is covered by this Exception. But a totally false
report will not be protected.150.
[s 500.43] Complaint through power of attorney.—
The aggrieved person was employed in a foreign country. A complaint ﬁled through a
power of attorney was held as not offending the provisions of section 199(1), Cr PC,
1973 as the complainant suffered from the inﬁrmity of being away in a foreign
country.151.

[s 500.44] Exception 10.—
This Exception protects a person giving caution in good faith to another for the good of
that other, or of some person in whom that other is interested or for the public good.
[s 500.45] Complaint by aggrieved person necessary.—
No Court shall take cognizance of this offence except upon a complaint made by the
person aggrieved (section 199 Cr PC, 1973). The words "person aggrieved" does not
mean "person defamed". The words "person aggrieved" has a wider connotation than
the words "person defamed".152.
A complaint for defamation by the person aggrieved by it can be entertained by a Court
notwithstanding that the accused could have been prosecuted on the same facts under
section 182 on the complaint of a public servant. The two offences are fundamentally
distinct in nature, although they may arise out of one and the same statement of the
accused. The defamatory statement does not fall within any of the Exception to section

499 by reason merely of the fact that it is punishable as an offence under section 182,
or any other section of the Code; nor is this section included in the list of sections
contained in section 195(1)(b) of the Cr PC, 1973.153. Where the imputations were
against the managing director of a society, the society was held to be not an aggrieved
person and, therefore, had no locus standi to ﬁle a complaint.154.
A newspaper published extracts from books written on a former Prime Minister,
imputing charges of corruption against him and also his family members including his
sons, daughter and wife. It was held that his sons could be said to be aggrieved
persons. A complaint ﬁled by one of the sons was not to be quashed.155.
The continuation of the proceedings even after the death of the complainant has been

held to be not proper.156. Where the allegation in the complaint was that the Kerala
Police had been defamed, the Court said that Kerala Police was not a deﬁnite and
determinable body and, therefore, a member of the Kerala Police was not a person
affected by the defamatory statement and his complaint was not maintainable.157.
When the statements in question are not directed against any person or against an
identiﬁable group of individuals, the complainants cannot be said to be an aggrieved
persons. The complainants have alleged defamation in respect of imputations against
the character of Tamil-speaking women, which could be viewed as a class of persons.
However, the appellant's remarks did not suggest that all women in Tamil Nadu have
engaged in pre-marital sex. In fact her statement in News Magazine did not refer to any

speciﬁc individual or group at all.158.
[s 500.46] Complaint by director of company.—
Locus standi.—The words "some person aggrieved" do not make it necessary that the
complaint should be made by the very person who has been defamed. In the case of an
imputation against a company, a director of the company would fall within the words
"some person aggrieved". He can ﬁle a complaint.159.
[s 500.47] Complaint by advocate.—

False allegations were made in a newspaper against the Commissioner of
Endowments. A complaint ﬁled by an Advocate was held to be non-maintainable being
not an aggrieved person.160.
[s 500.48] Employer—
Labour.—Defamatory statements were made against retrenched workmen in the
counter ﬁled by the management. Some of the statements were repeated on different
dates before the labour Court and labour oﬃcer. The Court said that the question of
limitation could not be decided until the starting point of the offence was known and
that had to be decided at the trial.161. The Court further said that aspects of good faith
in the utterances could also be decided only after evidence.162.
[s 500.49] President of Municipality.—
The President of a Municipality is not a 'person aggrieved', within the meaning of
section 199 of the Cr PC, 1973, by the defamations of his subordinate oﬃcers.163.
[s 500.50] Complaint against Juristic person.—
Simply because the accused is a corporate body, it cannot be said that it cannot

commit an offence of defamation as deﬁned under section 499 IPC, 1860.164.
Section 499, IPC, 1860, is an offence involving personal malicious intent, which is
evident from the fact that one of the essential ingredients is either intention to harm or
knowledge or reasons to believe that such imputation will harm the reputation of the
other. An artiﬁcial/juristic person cannot be prosecuted for offence under section 500,
IPC, 1860, for such an artiﬁcial/juristic person cannot be attributed with any malicious
intention which can be attributed only to a living person. Chief Educational Oﬃcer being
an artiﬁcial/ juristic person prosecution against him for offence under section 500, IPC,
1860 would not be maintainable.165.
[s 500.51] Punishment.—
The accused, an editor of a weekly, published an article in his paper making defamatory

allegation against the petitioner, who was a Class I Oﬃcer and belonged to a
respectable business family. The editor made no amends till conviction. Sentence of
simple ﬁne was enhanced to RI of two months and ﬁne of Rs. 2,000.166.
In a case of defamation, the revision petition for enhancement of the sentence was
ﬁled seven years after the commission of the offence. It was held that delay in ﬁling the
revision cannot be a ground for not to enhance the sentence when the accused had not
made any amends for his criminal act.167. Where the utterances of the accused in a
meeting were proved to harm the reputation of the complainant, his conviction under
section 500 was held to be proper.168.
For the publication of defamatory matter in a newspaper the sentence awarded was
that of imprisonment till the rising of the Court and ﬁne of Rs. 500. It was held to be too

low and inadequate considering the damage caused to the reputation of the
complainant. The ﬁne amount was accordingly enhanced to Rs. 10,000.
[s 500.52] Quashing of complaint.—
There were allegations in a private complaint that the respondents made imputations
against the complainant in applications made under section 436, Cr PC, 1973. The
sworn statements and documents produced showed that the imputations were made
with the intention or knowledge or having reason to believe that they will harm
reputation. Thus, a prima facie was made out. The High Court could not at that stage
say that there was no reasonable prospect of conviction at the trial. Questions of good
faith and of intention could be examined on the basis of evidence at the trial. The trial
must go on. The quashing of the complaint was not proper.169.
[s 500.53] Application of exceptions in pre-trial stage.—
The Supreme Court in Rajendra Kumar Sitaram Pande, v Uttam,170. held that issuing of

process against the accused for the offence punishable under section 499 punishable
under section 500 of the IPC, 1860 can be questioned in higher Courts. Ultimately, the
Supreme Court quashed proceedings relating to prosecution of such a case in that
reported decision by applying Exception 8 to section 499 of the IPC, 1860. Therefore, it
cannot be said that application of exception cannot be considered at pre-trial stage and
by invoking section 482 of the Cr PC, 1973.171. In Vedurumudi Rama Rao v Chennuri
Venkat Rao,172. Court considered applicability of Exception 9 to section 499 of the IPC,
1860 and held that truth of imputation need not be probed by such accused while
claiming privilege under Exception 9; and ﬁnally quashed proceedings in criminal case
relating to the offence punishable under section 500 of the IPC, 1860. The Gujarat High

Court in Darusing Durgasing v State of Gujarat,173. followed the above said reported
decision of the Supreme Court and quashed criminal proceedings for the offence
punishable under section 500 of the IPC, 1860 in view of Exceptions 7, 8 and 9 to
section 499 of the IPC, 1860. In an examination fact situation, the Bombay High Court
in Valmiki Faleiro v Mrs. Lauriana Fernandes,174. went to the extent of holding a paper
publication containing certain imputations as one saved by Exception 9 because
intention of the accused was predominantly to protect his rights in the property and not
to harm reputation of the complainant. In Jeffrey J Diermeier v State of WB,175. it was
pleaded that in the light of Explanation 4 as well as Tenth Exception to section 499 IPC,
1860, the allegations in the complaint did not constitute an offence of defamation

punishable under section 500 IPC, 1860. But the Supreme Court held that the mere plea
that the accused believed that what he had stated was in "good faith" is not suﬃcient to
accept his defence and he must justify the same by adducing evidence. Court found it
diﬃcult to hold that a case for quashing of the complaint under section 482 of the
Code has been made out.
[s 500.54] Jurisdiction.—
The Courts at the place of printing and publication of a newspaper as well as those at
the place of distribution have jurisdiction to entertain a complaint.176. The respondent
is said to have given an interview to the Newspaper "Economic Times" intending it to be
published and to be read by public. Therefore, though the act of making the defamatory
statement during the interview was done at a place outside the jurisdiction of the

Court, prosecution can be launched in Courts exercising jurisdiction over any one of the
places wherein circulation of the paper is made.177.
[s 500.55] Cognizance on Police report.—
In Shiv Kumar Agarwal v State of Meghalaya,178. Gauhati High Court examined the
question whether a Magistrate can take cognizance of a non-cognizable offence
punishable under section 500, IPC, 1860 on the basis of the police report submitted by
the police under section 173(2), Cr PC, 1973 while investigating both a cognizable
offence and a non-cognizable offence under section 155(4), Cr PC, 1973 even after the
accused is discharged from the cognizable case. It is held that as one of the offences
alleged against the petitioner was a cognizable offence, namely, section 505(2), IPC,
1860, by virtue of the legal ﬁction introduced in section 155(4), Cr PC, 1973, the case
was deemed to be a cognizable offence. Once the case was deemed to be a
cognizable offence, there was no legal impediment in investigating the case by the

police. After the case was investigated by the police, the charge-sheet was submitted
by them to the learned Magistrate under section 173, Cr PC, 1973 for trying the
petitioner under section 505 (2)/500, IPC, 1860. However, the charge made against the
petitioner under section 505(2), IPC, 1860 was quashed by this Court on the ground
that no prosecution sanction under section 196 (1A), Cr PC, 1973 was obtained by the
police. The net result is that the trial Court had to proceed with consideration of the
charge under section 500, IPC, 1860 and, after hearing the parties, framed the charge
accordingly by rejecting the prayer of the petitioner for dropping the charge against
him.179.
In the defamation matter, issuance of process after having examination of defamatory
material with reaction of the public, would certainly be suﬃcient to satisfy the test of

him.179.
holding the enquiry under Section 202, Cr PC, 1973.180.
[s 500.56] Section 211 and Section 500.—
Section 211 imposes a punishment in case of a false charge or offence made with the
intent to injure someone before any Court of law, whereas section 500 provides for
punishment in case of a defamation of a person by any one. Defamation has been
deﬁned under section 499 which provides inter alia whoever, by words either spoken or
intended to be read, or by signs or by visible representations, makes or publishes any
imputation concerning any person intending to harm, or knowing or having reason to
believe that such imputation will harm, the reputation of such person, is said, except in
the cases hereinafter excepted, to defame that person. Making a false complaint

before a Court of law would amount to committing fraud on Court. It is for the Court to
proceed against the erring person. The provision has been made to preserve the
sanctity of the Court. Section 500 gives right to sue to a person who is defamed within
the meaning of section 499 by the conduct of the accused. These two provisions are
totally distinct and can be tried in absence of each other.181.

6.  Note R, p 175.
7.  It is not necessary to incorporate the whole of the published matter in a complaint. A
complaint was not dismissed only on the ground that the matter under complaint was
presented not in the body of the complaint, but in an attached document. T Kunhambu v A
Sojath, 1989 Cr LJ 1022 (Ker), following Balraj Khanna v Motiram, 1971 Cr LJ 1110 (SC). The
complaint must be made by the party aggrieved. His wife is not an aggrieved person and,
therefore, her complaint is not maintainable. Nazeem Bavakunju v State of Kerala, 1988 Cr LJ
487 (Ker). MN Meera v AC Mathew, 2002 Cr LJ 3845 (Ker), the name of the complainant was not
mentioned by the accused while making the alleged defamatory statement. The complaint
should not have been thrown overboard on that ground alone. KM Selvaraj v A Amarlal, 2002 Cr
LJ 3811 (Mad), defamatory statements in a circular against members and president of an
association regarding manipulation of accounts and misappropriation of funds. One of the

signatories was a chartered accountant who had checked the accounts. The CA applied for
dropping of his name because he was only a signatory. His request was accepted. It was held
that the order discharging him was not proper. All accused persons had to face the
consequences of the defamatory statement in the circular.
8.  Standard Chartered Bank v Vinay Kumar Sood, 2010 Cr LJ 1277 (Del).
9.  Bacon's Abrid, vol IV, p 457.
10.  Sunilakhya v HM Jadwet, AIR 1968 Cal 266 [LNIND 1967 CAL 167] .
11.  S Nihal Singh v Arjan Das, 1983 Cr LJ 777 (Del); see also DN Rao v RD Bhagvandas, 1986 Cr
LJ 888 (AP). M Chandran v F Fanthome, 2003 Cr LJ 2173 (Sik), complainant had full knowledge
of the document which was quite old, no witness cited, failure to make out defamatory nature of

the remarks, the accused discharged. Period of limitation had also expired and no condonation
was sought.
12.  Varnakote Illath v Kotalmana Keshavan, (1900) 1 Weir 579.
13.  SS Sanyal v KVR Nair, 1987 Cr LJ 2074 (Cal), relying on TJ Ponnel v MU Verghese, AIR 1967
Ker 228 [LNIND 1966 KER 242] : 1968 Cr LJ 1511 . It is different if the employee himself goes
round showing the notice to others. Such notice comes under 9th exception being necessary to
protect the employer's interest.
14.  Boxsius v Goblet Freres, (1894) 1 QB 842 . Other matters of the same kind, Pullman v Walter
Hill, (1891) 1 QB 524 , dictation by the managing director of a company to his short-hand steno,
and after being transcribed, sent to the plaintiff, held to be a publication, but not followed in

subsequent cases. See Edmondson v Birch, (1907) 1 KB 371 and Sukhdeo Vithal v Prabhakar
Sukhdeo, 1974 Cr LJ 1435 (Bom).
15.  PR Ramakrishnan v Subbaramma, AIR 1988 Ker 18 [LNIND 1986 KER 395] : 1988 Cr LJ 124 .
But see Rev Fr Bernad Thaltil v Ramchandran Pillai, 1987 Cr LJ 739 (Ker), notice containing
libellous imputations of misappropriation.
16.  Sadashiv Atmaram, (1893) 18 Bom 205. In BP Bhaskar v BP Shiva, 1993 Cr LJ 2685 (Mad), it
was held that scurrilous allegations or imputations contained in notices exchanged between
parties do not amount to 'publication' under section 499. The court also held that a reply to the
notice sent to the party's advocate containing defamatory statements of the party is not
publication. It is a communication to the party himself.
17.  Taki Husain, (1884) 7 All 205 (FB).

18.  Sukhdeo v State, (1932) 55 All 253 .
19.  Nagrathimam (Dr.) v M Kalirajan, 2001 Cr LJ 3007 (Mad).
20.  Sankara v State, (1883) 6 Mad 381.
21.  Thiagaraya v Krishnasami, (1892) 15 Mad 214.
22.  Greene v Delanney, (1870) 14 WR (Cr) 27; Abdul Hakim v Tej Chandar, (1881) 3 All 815 .

23.  Raja Shah, (1889) PR No. 14 of 1889.
24.  Wenman v Ash, (1853) 13 CD 836.
25.  Wennhak v Morgan, (1888) 20 QBD 635 ; Dr. Jaikishen Das v Sher Singh, (1910) PR No. 10 of
1910.
26.  Pundit Mokand Ram, (1883) PR No. 12 of 1883.
27.  Janardhan Damodhar Dikshit, (1894) 19 Bom 703. PM Abubacker v PJ Alexander, 2000 Cr LJ
1168 (Ker) the source of information regarding published defamatory statement is not a
consideration for prosecution for defamation. M Malle Reddy v T Venkatarama, 2000 Cr LJ 1086
(AP), a complaint against an alleged defamatory statement published in a newspaper was not
allowed to be quashed in the exercise of writ jurisdiction.
28.  S Khushboo v Kanniammal, 2010 Cr LJ 2828 (SC) : AIR 2010 SC 3196 [LNIND 2010 SC 411] :
2010 (5) SCC 600 [LNIND 2010 SC 411] .
29.  Charmesh Sharma v State Of Rajasthan, 2012 Cr LJ 2115 (Raj).
30.  Howard, (1887) 12 Bom 167.
31.  Harbhajan Singh, AIR 1961 Punj 215 .
32.  BRK Murthy v State, 2013 Cr LJ 1602 (AP); Tankasala Ashok v State of AP, 2010 Cr LJ 2074

(AP) where there was nothing to show that editor had control over selection of publication,
proceedings against accused editor is liable to be quashed.
33.  Dongar Singh v Krishna Kant, AIR 1958 MP 216 [LNIND 1958 MP 58] .
34.  McLeod, (1880) 3 All 342 .
35.  Ramasami v Lokanada, (1886) 9 Mad 387.
36.  Bhagat Singh v Lachman Singh, AIR 1968 Cal 296 [LNIND 1967 CAL 189] . The chairman of a
company which is publishing a newspaper is not liable merely by virtue of his position as such.
Udayam Telugu Daily v State of AP, 1987 Cr LJ 143 (AP).
37.  AK Jain v State of Sikkim, 1992 Cr LJ 843 (Sikkim).
38.  KV Ramesh v HC Ramesh, 2001 Cr LJ 3556 .
39.  KM Mathew v KA Abraham, 1998 Cr LJ 327 (Ker). CB Solanki v Srikanta Parashar, 1997 Cr LJ
3050 (Kant), "editor" for the purposes of the section does not include a person described as

chief editor or managing director, particularly when there were no speciﬁc allegations against
them in the complaint. The Court also explained the scope of ﬁrst and ninth exception and the
burden of proof as to publication.
40.  McLeod, supra; Girjashankar Kashiram, (1890) 15 Bom 286. The fact that the accused did
not know the person defamed through his newspaper is no defence. Sumatibai Vinayak Deo v
Nandkumar Deshpande, 1990 Cr LJ 2136 (Bom). Defamation in 1977. Appeal against acquittal
allowed in 1990. No further prosecution allowed. Fine of Rs. 2,000 with a direction that Rs. 1,800
should be handed over to the aggrieved person imposed.
41.  Gambhirsinh R Dekare v Falgunbhai Chimanbhai Patel, (2013) 3 SCC 697 [LNIND 2013 SC
175] : 2013 Cr LJ 1757 : AIR 2013 SC 1590 [LNIND 2013 SC 175] .

42.  Ravi Prakash v J C Diwakar Reddy, 2010 Cr LJ 2558 (AP).
43.  P Lankesh v H Shivappa, 1994 Cr LJ 3510 (Kant).
44.  Radhanath Rath v Birja Prasad Ray, 1992 Cr LJ 938 (Ori).
45.  Archbold, 35th Edn, p 3633.
46.  McCarthy, (1887) 9 All 420 .
47.  Shibo Prosad Pandah, (1878) 4 Cal 124 .
48.  Sirajuddin Ali v Mujtaba Ali, 2001 Cr LJ NOC 125 (AP).
49.  Gautam Sahu v State of Orissa, 1999 Cr LJ 838 .

50.  Government Advocate, B & O v Gopabandhu Das, (1922) 1 Pat 414. CL Sagar v Mayawati,
2003 Cr LJ 690 (All), the complaint was that the vice president of a political party defamed the
complainant by stating in a public meeting that the person with long moustache in the party was
a corrupt person. The complainant could not show that he was the only member of the party
with long moustache. The newspaper report of the meeting did not carry any such remark. No
offence made out.
51.  Asha Parekh v State of Bihar, 1977 Cr LJ 21 (Pat); see also Narottamdas v Maganbhai, 1984
Cr LJ 1790 (Guj); Aruna Asafali v Purna Narayan, 1984 Cr LJ 1121 (Gau).
52.  Maung Sein, (1926) 4 Ran 462.
53.  Clerk & Lindsell on TORTS, 1701 (14th Edn 1975).
54.  Manmohan Kalia v Yash, (1984) 3 SCC 499 [LNIND 1984 SC 101] : AIR 1984 SC 1161 [LNIND
1984 SC 101] . See also Sumatibai Vinayak Deo v Nandkumar Deshpande, 1990 Cr LJ 2136
(Bom), where the veiled expression that only "S" knew what happened to the bowls brought by

children to the school was held to be not defamatory; Lalliani v R L Rina, 1987 Cr LJ 1295 (Gau),
a biographical account of the life of a poet mentioning a named girl as his source of inspiration
and depicting their love affairs, a woman by that name was not able to convince the court that
she was the object of the attack. But see V Subair v PK Sudhakaran (Dr), 1987 Cr LJ 736 (Ker),
where a medical practitioner was described as a "professional debauch" and of "low moral
character", the accused was held liable because the complainant was able to prove that he was
meant to be attacked.
55.  Parvathi v Mannar, (1884) 8 Mad 175.
56.  Monson v Tussauds Ltd, (1894) 1 QB 671 , 692.
57.  Chellappan Pillai v Karanjia, (1962) 2 Cr LJ 142 .
58.  Jacob Mathew v Manikantan, 2013 Cr LJ (NOC) 62 : 2012 (3) KLT 824 .

59.  Veeda Menezes v Yusuf Khan, (1966) 68 Bom LR 629 (SC).
60.  Gobinda Pershad Pandey v Garth, (1900) 28 Cal 63 ; Pimento, (1920) 22 Bom LR 1224
[LNIND 1920 BOM 117] ; U Aung Pe, (1938) Ran 404 (FB).
61.  Parwari, (1919) 41 All 311 .
62.  Taki Husain, (1884) 7 All 205 , 220 (FB); J Jayalalitha v Arcot N Veerasamy, 1997 Cr LJ 4585
(Mad), absence of averment in the complaint that because of the imputation the complainant's
reputation had been lowered in the estimation of others, dismissal of the complaint was proper.
63.  Mohan Lal v State of HP, 2011 Cr LJ 2413 (HP).
64.  Ibid.
65.  Luckumsey Rowji v Hurban Nursey, (1881) 5 Bom 580.
66.  South Hetton Coal Co v NE News Association, (1894) 1 QB 133 .
67.  Ibid, p 141.
68.  Maung Chit Tay v Maung Tun Nyun, (1935) 13 Ran 297.
69.  Mahim Chandra Roy v Watson, (1928) 55 Cal 1280 .

70.  Wahid Ullah Ahrari, (1935) 57 All 1012 .
71.  Sahib Singh, AIR 1965 SC 1451 [LNIND 1965 SC 15] .
72.  Vishwa Nath v Shambhu Nath, (1995) 1 Cr LJ 277 (All). The complainant had died and the
proceedings were not allowed to be continued by others. The court distinguished Ashwin
Nanubhai Vyas v State of Maharashtra, 1967 Cr LJ 943 : AIR 1967 SC 963 where the mother of
the deceased complainant was allowed to continue the proceedings. The court cited Raj Kapoor
v Narendra Noranbhai Nagardas, (1974) 15 Guj LJ 125 where the contemptuous remarks against
Bhangi community uttered by caste Hindus were held to be not defamatory. The court said that
if a person were to say that all lawyers were thieves, no particular lawyer could sue him unless

there is something to point out to a particular individual, Eastwood v Holmes, (1858) 1 F&F 347.
The court also relied upon Narottamdas L Shah v Maganibhai, 1984 Cr LJ 1790 (Guj) where the
agitating lawyers were described as "Kazia dalals" (dispute brokers) and it was held that the use
of such words in reference to the lawyers as a class could not be taken to refer to a determinate
or identiﬁable class of lawyers, namely, the lawyers who were participating in the agitation. MP
Narayana Pillai v MP Chacko, 1986 Cr LJ 2002 (Ker) remarks in general about Christian girls
being used for prostitution to enable them to earn livelihood because their parents were not able
to support them were held to be too general to be defamatory of any body. The court said that
identity of the collection of the people will have to be established in relation to the defamatory
imputation. KM Mathew v TU Balan, 1985 Cr LJ 1039 (Ker) imputation against some leaders of
teachers who were on strike was held to be not actionable.

73.  P Karunakaran v C Jayasooryan, 1992 Cr LJ 3540 (Ker).
74.  Amar Singh v KS Badalia, (1965) 2 Cr LJ 693 ; Shamsher Singh v State, 1982 Cr LJ NOC 167
(Del).
75.  J Chelliah v Rajeswari, 1969 Cr LJ 571 .
76.  Madhuri Mukund Chitnis v Mukund Martand Chitnis, 1990 Cr LJ 2084 . The court referred to
Sukhdeo v State of Maharashtra, 1974 (Bom) LJ 777 : 1974 Cr LJ 1435 and Baburao Shankarrao v
Shaikh Biban Pahelwan, 1984 Cr LJ 350 , burden as to good faith.
77.  U Aung Pe, (1938) Ran 404 (FB).
78.  Jatish Chandra v Hari Sadhan, AIR 1961 SC 613 [LNIND 1961 SC 19] .
79.  Jawaharlal Darda v Manoharao Ganpatrao, AIR 1998 SC 2117 [LNIND 1998 SC 361] : 1998 Cr
LJ 2928
80.  Chandrasekhara v Karthikeyan, AIR 1964 Ker 277 [LNIND 1964 KER 90] . Neelakantan
Kamalasanan v Achutan, 1988 Cr LJ 1212 (Ker).
81.  Janardhan Damodhar Dikshit, (1894) 19 Bom 703.

LJ 2928
82.  Deivasigamani, 1977 Cr LJ NOC 110 (Mad).
83.  Ramanand v State, (1881) 3 All 664 .
84.  Umed Singh, (1923) 46 All 64 . Dissented in Sukhdayal v Saraswati, (936) Nag 217.
85.  Rajendra Vishwanath Chaudhary v Nayantara Durgadas Vasudeo, 2012 Cr LJ 1363 (Bom).
86.  E I Howard v M Mull, (1866) 1 BHC (Appx) 1xxxv, xci. Thus, the truth of the matter has not to
be proved literally. It is suﬃcient if the imputation is proved to be substantially true. 1989 Cr LJ
1022 . Following Murlidhar v Narayandas, AIR 1914 Sind 85 : 1915-16 Cr LJ 141 ; Surajmal Mehta
v Horniman, AIR 1917 Bom 62 . Where it is stressed that even an exaggeration will not by itself
defeat this defence; Purushottam Vijay v State of MP, AIR 1961 MP 205 [LNIND 1960 MP 59] DB :
1961 (2) Cr LJ 114 where it is observed :

The statement of fact need only be substantially correct and need not be microscopically or
photographically true : nor can the prosecutor fasten himself on to an inaccuracy in the detail unless
the detail itself is such as to make substantial difference to the case.
87.  Khare v Massani, (1943) Nag 347.
88.  Radhelal Mangalal Jaiswal v Sheshrao Anandrao Lad, 2011 Cr LJ 2233 (Bom).
89.  Kartar Singh, (1956) SCR 476 [LNIND 1956 SC 39] . Relying upon and citing the
observations of Lord Cockburn in Saymour v Butterworth, (1862) 3 F&F 372 and dicta of judges
in R. v Sir R Garden, (1879) 5 QBD 1 . Followed in Radhanath Rath (Dr) v Biraja Prasad Rai, 1992 Cr
LJ 938 (Ori), where the editor and publisher of a newspaper were held not liable as they
happened to include a defamatory matter relying upon their reporter who had been a
trustworthy journalist.

90.  Arundhati Roy Re, 2002 Cr LJ 1792 : AIR 2002 SC 1375 [LNIND 2002 SC 174] (para 24).

91.  Ibid.
92.  McLeod, (1880) 3 All 342 .
93.  T Kunhambu v A Sojath, 1989 Cr LJ 1022 (Ker). See also Dagar Singh v Shobha Gupta, 1998
Cr LJ 1541 (P&H).
94.  Shatrughna Pd Sinha v Rajbhan Surajmal Rathi, 1997 Cr LJ 212 : (1996) 6 SCC 263 (SC).
95.  Tata Press Ltd v Mahanagar Telephone Nigam Ltd, (1995) 5 SCC 139) [LNIND 1995 SC 755] :
AIR 1995 SC 2438 [LNIND 1995 SC 755] .
96.  Godrej Sara Lee Ltd v Reckitt Benckiser (I) Ltd, (2006 (32) PTC 307) : ( 2006 CLC 1105 ).
97.  Nippon Sheet Glass Co Ltd v Raman Fibre Sciences Pvt Ltd, 2011 Cr LJ 2702 (Kar).
98.  Kimber v The Press Association, (1893) 1 QB 65 , 68.
99.  J Wright, (1799) 8 TR 293, 298.
100.  Kimber v The Press Association, supra.
101.  Usill v Hales, (1878) 3 CPD 319 .
102.  Clement, (1821) 4 B & Ald. 218.
103.  Hicklin, (1868) LR 3 QB 360.
104.  Carlile, (1819) 3 B & Ald. 167.
105.  Singaraju Nagabhushanam, (1902) 26 Mad 464; Maksud Saiyed v State of Gujarat, (2005) 5
SCC 668 : (2007) 140 COMP CASES 590.

106.  Woodgate v Ridout, (1865) 4 F&F 202, 216. See also Harbans Singh v State of Rajasthan,
1998 Cr LJ 433 (Raj), the word "shatir" might be of offending nature and objectionable but not
necessarily defamatory. The order dropping the proceedings was not interfered with.
107.  Abdool Wadood, (1907) 9 Bom LR 230 [LNIND 1907 BOM 6] , 31 Bom 293. See
Ranganayakamma v K Venugopala Rao, 1987 Cr LJ 2000 (AP), the complainant's foreword to a
book was criticised by imputing words to the complainant himself which lacked good faith and
showed malice.
108.  Note R, p 183.
109.  Sankara v State, (1883) 6 Mad 381, 395, 396.
110.  ADM Stubbings v Shella Muthu, 1972 Cr LJ 968 (Ker).
111.  Dr. Vishnu Dutt Agarwal v State of UP, 2012 Cr LJ 3595 (All).
112.  Yadav Motiram Patil v Rajiv G Ghodankar, 2011 Cr LJ 528 (Bom).

113.  Kanwal Lal, AIR 1963 SC 1317 [LNIND 1962 SC 322] .
114.  See Damodra Shenoi v PP Ernakulam, 1989 Cr LJ 2398 where it is stressed that the
accused must prove by preponderance of probability that he laboured under good faith as
deﬁned in section 52, IPC.
115.  J Sudershan v R Sankaran, 1992 Cr LJ 2427 (Mad). The court referred to MC Verugheese v
TJ Ponnan, AIR 1970 SC 1876 [LNIND 1968 SC 339] .
116.  MA Rumugam v Kittu alias Krishnamoorthy, (2009) 1 SCC (Cr) 245 : AIR 2009 SC 341
[LNIND 2008 SC 2186] ; Rallis India Ltd v K T Vijay Kumar, 2010 Cr LJ 2485 (AP); Nayana Jaikisan
Tekwani v State of Maharashtra, 2010 Cr LJ 4094 (Bom).
117.  Kanwal Lal, AIR 1963 SC 1317 [LNIND 1962 SC 322] .
118.  Chamanlal, (1970) 3 SCR 913 [LNIND 1970 SC 106] .
119.  Vedurumudi Rama Rao v Chennuri Venkat Rao, 1997 Cr LJ 3851 (AP).

120.  Standard Chartered Bank v Vinay Kumar Sood, 2010 Cr LJ 1277 (Del).
121.  Mrs. Jinnat Ara Borbora, 1980 Cr LJ NOC (Gau).
122.  Sewakram v RK Karanjia, 1981 Cr LJ 894 (SC) : AIR 1981 SC 514 : 1514 : (1981) 3 SCC 208
[LNIND 1981 SC 265] .
123.  Muhammad Gul v Haji Fazley Karim, (1929) 56 Cal 1013 .

124.  Karuppusamy, 1974 Cr LJ 33 (Mad).
125.  Chamanlal, supra; see also Sukra Mahato v Basudeo Kumar, 1971 Cr LJ 1168 (SC);
Prayagdutt, 1977 Cr LJ 1258 (MP).
126.  Pratibha (Dr.) v State of Maharashtra, (1995) 1 Cr LJ 997 (Bom).
127.  P Swaminathan v Lakshmanan, 1992 Cr LJ 990 (Mad).
128.  Yadav Motiram Patil v Rajiv G Ghodankar, 2011 Cr LJ 528 (Bom).
129.  Beckett v Norris, (1945) Mad 749.
130.  Virji Bhagwan, (1909) 11 Bom LR 638 .
131.  Vinayak Atmaram v Shantaram Janardan, (1941) 43 Bom LR 737 .
132.  Cooppoosami Chetty v Duraisami Chetty, (1909) 33 Mad 67.
133.  Abdul Hakim v Tej Chandar Mukarji, (1881) 3 All 815 .
134.  Baboo Gunnesh Dutt Singh v Mugneeram Chowdhry, (1872) 11 Beng LR 321 (PC).
135.  Satish Chandra Chakravarti v Ram Doyal De, (1920) 48 Cal 388 (SB).
136.  Karu Singh, (1926) 7 PLT 587 .
137.  Sukhdeo Vithal Pansare, 1974 Cr LJ 1435 (Bom); see also Jiban Krishna Das, 1983 Cr LJ
NOC 39 (Cal).
138.  Parameswara v Krishna Pillai, AIR 1966 Ker 264 [LNIND 1966 KER 11] .

139.  Bai Shanta v Umrao Amir, (1925) 50 Bom 162 : 28 Bom LR 1 (FB), overruling Babaji, (1892)
17 Bom 127, and Balkrishna Vithal, (1893) 17 Bom 573.
140.  Ganga Prasad, (1907) 29 All 685 (FB); Isuri Prasad Singh v Umrao Singh, (1900) 22 All 234 .
141.  Chotelal v Phulchand, (1937) Nag 425.
142.  Hemraj v Babulal, AIR 1962 MP 241 [LNIND 1961 MP 92] .
143.  Bai Shanta v Umrao Amir, (1925) 50 Bom 162 : 28 Bom LR 1 (FB). Denial of the relationship
of husband and wife in an eviction proceeding between the tenant and complainant was held to
be not defamatory, Girish Kakkar v Dr. (Mrs.) Dhanwantri, 1991 Cr LJ 5 (Del). If the words are
defamatory, the proceedings cannot be stayed because it is for the court to decide whether a
privilege is available or not. Pravinchand v Ibrahim Md, 1987 Cr LJ 1795 (Bom).

144.  G Janardhana Reddy v A Narayana Reddy, 2010 Cr LJ 2660 (AP).
145.  Tiruvengada Mudali v Tripurasundari Ammal, (1926) 49 Mad 728, FB overruling Venkata
Reddy, (1912) 36 Mad 216 (FB).
146.  Karu Singh, (1926) 7 PLT 587 : 27 Cr LJ 1320, following Kari Singh, (1912) 40 Cal 433 .
147.  Narendra Kapoor v Ramesh C Bansal, 1998 Cr LJ 1863 (Del).
148.  MC Vergheese v TJ Poonan, AIR 1970 SC 1876 [LNIND 1968 SC 339] : 1970 Cr LJ 1651 .
149.  The court also distinguished the present case from its earlier decision in Rev Fr Bernard v
Ramachandran Pillai, 1986 Ker LT 1240 : 1987 Cr LJ 739 where in addition to the reply to the
complainant's counsel, the accused spread the rumour in the locality about his alleged pilferage
as an employee.
150.  Rajnarain Sein, (1870) 6 Beng LR (Appx) 42 : 14 WR (Cr) 22.

151.  Fr. Thomas Maniankerikalam v Thomas J Padiyath, 2003 Cr LJ 945 .
152.  Pat Sharpe Mrs. v Dwijendra Nath, (1964) 1 Cr LJ 367 . M S Jayaraj v Commissioner of
Excise, Kerala, (2000) 7 SCC 552 [LNIND 2000 SC 2302] : AIR 2000 SC 3266 [LNIND 2000 KER
461] - 'person aggrieved'- meaning
153.  U Aung Pe, (1938) Ran 404 (FB).
154.  Homen Boroghain v Brahmaputra Valley Regional Handloom Weavers' Co-op Society, (1995)
2 Cr LJ 2357 (Gau). Viswanath v Shambhu Nath, 1995 Cr LJ 277 (All) a complaint by a member
of the community which was defamed in general, not maintainable. The complainant was not
personally hurt. MP Narayna Pillai v MP Chacko, 1986 Cr LJ 2002 (Ker) a member of the

Christian community could not complain of a general remark against the community KM
Mathew v TU Balan, 1985 Cr LJ 1039 (Ker), remarks about teachers on strike, a leader could not
complain.
155.  KV Ramesh v HC Ramesh, 2001 Cr LJ 3556 (Kant).
156.  Ratan Singh v Chain Singh, 2000 Cr LJ 2736 (Raj).
157.  Sasikurnar B Menon v S Vijayan, 1998 Cr LJ 3973 (Ker).
158.  S Khushboo v Kanniammal, 2010 Cr LJ 2828 (SC) : AIR 2010 SC 3196 [LNIND 2010 SC 411]
: 2010 (5) SCC 600 [LNIND 2010 SC 411] ; Charmesh Sharma v State Of Rajasthan, 2012 Cr LJ
2115 (Raj).
159.  John Thomas v Dr. K Jagdeesan, AIR 2001 SC 2651 [LNIND 2001 SC 1323] .
160.  Swamy Anoopananda v Bagmisri, 2000 Cr LJ 4296 (Ori).
161.  Beem Singh v S Ramayajam, 2003 Cr LJ NOC 61 (Mad) : 2002 Mad LJ (Ori) 351.
162.  Ibid.
163.  Beauchamp v Moore, (1902) 26 Mad 43.
164.  Rallis India Ltd v K T Vijay Kumar, 2010 Cr LJ 2485 (AP).
165.  Chief Education Oﬃcer, Salem v K S Palanichamy, 2012 Cr LJ 2543 (Mad). See other view in

Rallis India Ltd v K T Vijay Kumar, 2010 Cr LJ 2485 (AP) discussed above.
166.  Subhash K Shah v K Shankar Bhat, 1993 Cr LJ 1296 (Kant).
167.  Subhash K Shah v K Shankar Bhat, 1993 Cr LJ 1296 .
168.  Pyarelal Maganlal Jaiswal v State of Maharashtra, 1996 Cr LJ 989 (Bom).
169.  MN Damani v SK Sinha, AIR 2001 SC 2037 [LNIND 2001 SC 1149] . Rajesh Rangarajan v
Crop Care Fed. of India, 2010 (9) Scale 23 [LNIND 2010 SC 626] -Proceedings quashed.
170.  Rajendra Kumar Sitaram Pande, v Uttam, 1999 Cr LJ 1620 : AIR 1999 SC 1028 [LNIND 1999
SC 136] .
171.  G Janardhana Reddy v A Narayana Reddy, 2010 Cr LJ 2660 ; AP Ramoji Rao, Chairman
Ramoji Group of Companies v State of AP, AIR 2006 SC 3384 [LNIND 2006 SC 820] : (2006) 8
SCC 321) [LNIND 2006 SC 820] - proceedings quashed since the accused agreed to give a

clariﬁcation in the TV channel as the news item was not the intended in any manner to defame
or harm the reputation of the Chief Minister or his entourage of ministers and oﬃcials.
172.  Vedurumudi Rama Rao v Chennuri Venkat Rao, 1997 Cr LJ 3851 .
173.  Darusing Durgasing v State of Gujarat, 1999 Cr LJ 1620 : AIR 1999 SC 1028 [LNIND 1999 SC
136] .
174.  Valmiki Faleiro v Mrs. Lauriana Fernandes, 2005 Cr LJ 2498 .
175.  Jeffrey J Diermeier v State of WB, (2010) 6 SCC 243 [LNIND 2010 SC 512] : (2010) 3
SCC(Cr) 138.
176.  KM Mathew v KA Abraham, 1998 Cr LJ 327 (Ker).
177.  Subhiksha Trading Services Ltd v Azim H Premji, 2011 Cr LJ 2769 (Mad).
178.  Shiv Kumar Agarwal v State of Meghalaya, 2013 Cr LJ 421 .
179.  Shiv Kumar Agarwal v State of Meghalaya, 2013 Cr LJ 421 .

180.  Abhijit Pawar v Hemant Madhukar Nimbalkar, AIR 2017 SC 299 [LNIND 2016 SC 614] :
(2017)3 SCC 528 [LNIND 2016 SC 614] .
181.  Bir Chandra Das v Anil Kumar Sarkar, 2011 Cr LJ 3422 (Cal).

[s 501] Printing or engraving matter known to be defamatory.
Whoever prints 1 or engraves any matter, knowing or having good reason to believe
that such matter is defamatory of any person, shall be punished with simple
imprisonment for a term which may extend to two years, or with ﬁne, or with both.
182.  Mohammed Abdulla Khan v Prakash K, AIR 2017 SC 5608 .
183.  Ramesh Chander, AIR 1966 Punj 93 .
184.  B R K Murthy v State Of AP, 2013 Cr LJ 1602 (AP). See also Editor, Deccan Herald v M S
Ramaraju, 2005 Cr LJ 2672 (Kar).
COMMENT.—
The offence under this section is a distinct offence from the one under section 500.
The person printing or engraving defamatory matter abets the offence. This section
makes such abetment a distinct offence. Where the content of any news item carried in
a newspaper is defamatory as deﬁned under section 499 IPC, 1860, the mere printing
of such material ' knowing or having good reason to believe that such matter is

defamatory' itself constitutes a distinct offence under section 501 IPC, 1860.182.
[s 501.1] Ingredients.—
1. Printing or engraving any matter.
2. Knowledge or reason to believe that such matter is defamatory.
1. 'Prints'.—The publisher of a newspaper in which defamatory matter is printed is
liable under section 500. If he is also the printer of the newspaper, the case would be
covered by this section. But his liability under section 500 would in no way be
affected.183. In a case, where the Editor/owner of magazine published defamatory
statements containing imputations without due care and attention and without making
any attempt of veriﬁcation before publication and the same was not published in good
faith. The court held that the charges framed against the accused under section 500,

501 and 502 read with section 34 IPC, 1860, stand proved.184.

[s 502] Sale of printed or engraved substance containing defamatory matter.
Whoever sells or offers for sale any printed or engraved substance containing
defamatory matter, knowing that it contains such matter, shall be punished with
simple imprisonment for a term which may extend to two years, or with ﬁne, or with
both.
COMMENT.—
This section supplements the provisions of the previous section by making the seller of
defamatory matter punishable under it.
[s 502.1] Ingredients.—
1. Selling or offering for sale any printed or engraved substance.
2. Knowledge that such substance contains defamatory matter.

CHAPTER XXII OF CRIMINAL INTIMIDATION, INSULT AND ANNOYANCE
[s 503] Criminal intimidation.
Whoever threatens another with any injury1. to his person, reputation or property, or to
cause alarm to that person, or to cause that person to do any act which he is not
legally bound to do, or to omit to do any act which that person is legally entitled to do,
as the means of avoiding the execution of such threat, commits criminal intimidation.
E x p l a n a t i o n . —A threat to injure the reputation of any deceased person in whom the
person threatened is interested, is within this section.
A, for the purpose of inducing B to desist from prosecuting a civil suit, threatens to burn
B's house. A is guilty of criminal intimidation.
COMMENT.—
The offence of criminal intimidation requires either a person or another in whom he is

COMMENT.—
specially interested to be threatened. There must be an intent to cause alarm to the
former by a threat to him of injury to himself or to the latter. The intent itself might be
complete, though it could not be effected. But the existence of the interest seems
essential to the offence, as also and equally to the attempt to commit the offence,
since otherwise the attempt would be to do something not constituting the offence.1
[s 503.1] Ingredients.—
(1) Threatening a person with any injury.
(a) to his person, reputation or property or;
(b) to the person or reputation of any one in whom that person is interested.
(2) The threat must be with intent;
(a) to cause alarm to that person, or
(b) to cause that person to do any Act which he is not legally bound to do as
means of avoiding execution of such threat; or

(c) to cause that person to omit to do any act which that person is legally
entitled to do as means of avoiding execution of such threat.
Therefore, intention must be to cause alarm to the victim and whether he is alarmed or
not is really of no consequence. But material has to be brought on record to show that
intention was to cause alarm to that person.2.
1. 'Threatens another with any injury'.—The gist of the offence is the effect which the
threat is intended to have upon the mind of the person threatened, and it is clear that

1.  Mangesh Jivaji, (1887) 11 Bom 376, 379, 380.
2.  Amulya Kumar Behera v Nabaghana Behera, 1995 Cr LJ 355 (Ori).
before it can have any effect upon his mind it must be either made to him by the person
threatening or communicated to him in some way. The threat referred to in this section
must be a threat communicated or uttered with the intention of its being
communicated to the person threatened for the purpose of inﬂuencing his mind.3. The
threat must be one which can be put into execution by the person threatening. It is not
necessary that the injury should be one to be inﬂicted by the offender; it is suﬃcient if
he can cause it to be inﬂicted by another; and the inﬂiction of it could be avoided by
some act or omission that the person threatening desires. Punishment by God is not
one which a person could cause to be inﬂicted or the execution of which he could
avoid.4.
A threat, in order to be indictable, must be made with intent to cause alarm to the

avoid.4.
complainant. Mere vague allegation by the accused that he is going to take revenge by
false complaints cannot amount to criminal intimidation.5.
[s 503.2] Criminal intimidation and Extortion.—
Criminal intimidation is analogous to extortion. In extortion the immediate purpose is
obtaining money or money's worth; in criminal intimidation, the immediate purpose is
to induce the person threatened to do, or abstain from doing, something which he was
not legally bound to do or omit.
[s 503.3] Threat of injury to reputation.—
The accused took indecent photographs of a girl and threatened her father, in letters
written to him with publication of the photographs unless "hush money" was paid to
him. The Supreme Court held that the accused was guilty of criminal intimidation and

not of attempt to commit extortion.6. Where the head master of a school threatened a
lady-teacher that until she signed certain papers in blank he would spoil her modesty,
the Supreme Court held that this offence as well as that of extortion were made out.7.
Mere expression of any words without any intention to cause alarm would not be
suﬃcient to bring in the application of this section.8.
[s 503.4] Person informed about threatened injury to another must be
interested in him.—
A threat to commit suicide is not within the section unless the other person be
interested in the person giving the threat.9.

3.  Gunga Chunder sen v Gour Chunder Banikya, (1888) 15 Cal 671 , 673. See SS Sanyal v KVR.
Nair, 1987 Cr LJ 2074 , when the charge-sheeted employee met the chairman of the company,
the latter remarked to him : "your days are numbered," it was not an intimidation in the context
because the purpose must have been to tell him that his service was not going to last beyond
numbered days.
4.  Doraiswamy Ayyar, (1924) 48 Mad 774.
5.  Govind, (1900) 2 Bom LR 55 .
6.  Romesh Chandra Arora, (1960) 1 SCR 924 [LNIND 1959 SC 177] .
7.  Chander Kala v Ram Kishan, AIR 1985 SC 1268 [LNIND 1985 SC 166] : 1985 Cr LJ 1490 :
(1985) 4 SCC 212 [LNIND 1985 SC 166] . See also Anuradha v State of Maharashtra, 1991 Cr LJ
410 .
8.  Manik Taneja v State of Karnataka, (2015) 7 SCC 423 [LNIND 2015 SC 35] .
9.  Nubi Buksh v Must. Oomra, (1866) PR No. 109 of 1866. See also Kolla Srinivas v State of AP,
2005 Cr LJ 2440 (AP).

[s 504] Intentional insult with intent to provoke breach of the peace.
Whoever intentionally insults, and thereby gives provocation to any person, intending
or knowing it to be likely that such provocation will cause him to break the public
peace, or to commit any other offence, shall be punished with imprisonment of either
COMMENT.—
This section provides a remedy for using abusive and insulting language. Abusive
language which may lead to a breach of the public peace is not an offence. There must
be an intentional insult. Insult may be offered by words or conduct. If it is by words, the
words must amount to something more than mere vulgar abuse.10. Mere breach of
good manners does not constitute an offence under this section.11. If the insult is of
such a nature that it may give provocation which might rouse a man to act either to

break the public peace or to commit any other offence, the offence is committed.12.
In judging whether a particular abusive language comes within the mischief of section
504, Indian Penal Code, 1860 (IPC, 1860), the Court has to see what would be the effect
of the language used in ordinary course of events and not how the complainant
actually behaved on being abused. Merely because a man of cool temperament did not
react violently or break the peace it does not follow that no offence was committed by
the accused.13. In the absence of actual words used by the accused or even a gist of it
in the complaint it is not possible to say if the case falls within the ambit of section 504
(IPC, 1960), and as such the charge has to be quashed.14. Thus where the only
allegation in the complaint was that when the complainant resisted the attempts by the

accused to evict her forcibly from the land in her tenancy, the accused persons abused
her in ﬁlthy words, the complainant not disclosing the actual words used by the
accused or that she was provoked by the insulting abuse, the accused were not
summoned.15.
[s 504.1] Ingredients.—
1. Intentionally insulting a person and thereby giving provocation to him.
2. The person insulting must intend or know it to be likely that such provocation will
cause him to break the public peace or to commit any other offence.16.
Mere hurling of abuses in absence of any allegation that such abuses were given
intending or knowingly that such an action would provoke the aggrieved person to
break public peace or to commit an offence does not fall within the deﬁnition of the

offence as prescribed under section 504, (IPC, 1860). A bare reading of the section
does not leave any room for doubt that the intentional insult which is given by the
accused should be clothed with the intention or knowledge that such an insult would
provoke the aggrieved person to commit breach of public peace or to commit an

10.  Pukh Raj v State, (1953) 3 Raj 983 .
11.  Abraham v State, AIR 1960 Ker 236 [LNIND 1960 KER 34] .
12.  Mohammed Sabad Ali v Thuleswar Borah, (1954) 6 Ass 274.
13.  K Veerangaiah, 1976 Cr LJ 1690 (AP).
14.  Prem Pal Singh, 1981 Cr LJ 1208 (HP).
15.  Jodh Singh v State of UP, 1991 Cr LJ 3226 (All).
16.  Restated in Jodh Singh v State of UP, 1991 Cr LJ 3226 (All). Sanction to prosecute a public
servant under this section would be needed only when his act in question is a part of his oﬃcial
duty, and not when he abuses or insults a person who is in police lock-up. Abani Ch Biswal v
State of Orissa, 1988 Cr LJ 1038 (Ori).
17.  Abdul Majid v State of Rajasthan, 2012 Cr LJ 4392 (Raj); Prakash Chandra Bafna v Oba Ram,
2011 Cr LJ 416 (Raj)-using vulgar and ﬁlthy language against complainant when he went to his
oﬃce to ask reason for not permitting him to mark his presence in register- held, not part of
oﬃcial duty and sanction is not necessary to prosecute him.

18.  Shiv Sundar Bharti v State of Bihar, 2017(1) Crimes 351 (Pat) : 2016 Cr LJ 4761 (Pat).
offence.17. Section 504 refers to intentional insult with intent to provoke breach of
peace.
In order to attract the ingredients of an offence under section 504 of the (IPC, 1860), it
would be necessary that actual words used or supposed to have been used should be
mentioned in the complaint/written report, otherwise it would be extremely diﬃcult for
the Court to decide whether or not the words used amounted to an intentional insult.18.
[s 504.2] Sections 499 and 504.—
The difference between an offence under this section and defamation lies in the fact
that in defamation, publication to the prosecutor alone is not suﬃcient, as such an
imputation could not be said to harm the reputation of the person; but under this
section this would complete the offence.

[s 505] Statements conducing to public mischief.
19.(1) Whoever makes, publishes or circulates any statement, rumour or report,—
(a) with intent to cause, or which is likely to cause, any oﬃcer, soldier, 20.
[sailor or airman] in the Army, 21.[Navy or Air Force] 22.of India to
mutiny or otherwise disregard or fail in his duty as such; or
(b) with intent to cause, or which is likely to cause, fear or alarm to the
public, or to any section of the public whereby any person may be
induced to commit an offence against the State or against the public
tranquillity; or
(c) with intent to incite, or which is likely to incite, any class or
community of persons to commit any offence against any other class
or community,
shall be punished with imprisonment which may extend to [three years], or
23.(2) Statements creating or promoting enmity, hatred or ill-will between classess.

Whoever makes, publishes or circulates any statement or report containing
rumour or alarming news with intent to create or promote, or which is likely
to create or promote, on grounds of religion, race, place of birth, residence,
language, caste or community or any other ground whatsoever, feelings of
regional groups or castes or communities, shall be punished with
imprisonment which may extend to 24.[three years], or with ﬁne, or with both.
25.(3) Offence under sub-section (2) committed in place of worship, etc.
Whoever commits an offence speciﬁed in sub-section (2) in any place of
worship or in any assembly engaged in the performance of religious worship
or religious ceremonies, shall be punished with imprisonment which may

extend to ﬁve years and shall also be liable to ﬁne.
Exception.—It does not amount to an offence, within the meaning of this
section, when the person making, publishing or circulating any such
statement, rumour or report, has reasonable grounds for believing that such
statement, rumour or report is true and makes, publishes or circulates [it in
good faith] and without any such intent as aforesaid.
Andhra Pradesh.—In Andhra Pradesh the offence is cognizable vide G.O. Ms. No. 732,
dated 5-12-1991.

19.  Section 505 renumbered as sub-section (1) of that section by Act 35 of 1969, section 3
(w.e.f. 4 September 1969).
20.  Subs. by Act 10 of 1927, section 2 and Sch I, for or sailor.
21.  Subs. by Act 10 of 1927, section 2 and Sch I, for or Navy.
22.  Subs. by A.O. 1950 for of Her Majesty or in the Imperial Service Troops. The words or in the
Royal Indian Marine occurring after the words Majesty were omitted by Act 35 of 1934, section
2 and Sch.
23.  Ins. by Act 35 of 1969, section 3(i) (w.e.f. 4 September 1969).
24.  Subs. by Act 41 of 1961, section 4, for two years (w.e.f. 12 September 1961).
25.  Ins. by Act 35 of 1969, section 3(i) (w.e.f. 4 September 1969).
26.  Kedar Nath, AIR 1962 SC 955 [LNIND 1962 SC 21] .
27.  Amitabh Adhar v NCT of Delhi, 2000 Cr LJ 4772 (Del).
COMMENT.—
This section is aimed at reports calculated to produce mutiny or to induce one section
of the population to commit offences against another and to prevent and remove

COMMENT.—
communal and religious tensions. The Supreme Court has held that the provisions of
this section are not unconstitutional as being violative of the fundamental right of
freedom of speech and expression under Article 19(1)(a) of the Constitution.26. Sub-
sections (2) and (3) of this section have now been made cognizable offences under the
Code of Criminal Procedure, 1973 (Cr PC, 1973). Of course, offences under this section
and sections 506 and 507, (IPC, 1860), can be made cognizable offences in speciﬁed
areas by the State Government by a notiﬁcation in the oﬃcial Gazette under section 10
of the Criminal Law Amendment Act, 1932.
A mere threat which causes no alarm to the complainant does not constitute an
offence under the section.27.
[s 505.1] Sections 153A and 505.—

It is necessary under section 505 that there should be a publication of words or
representation intended for promoting feelings of enmity or hatred, but this is not
necessary under section 153A. Inciting of the feelings of one group merely without any
reference to another group does not attract section 153A or section 505.28. The Court
referred to the decision in Balwant Singh v State of Punjab,29. where the ruling was that
mens rea is a necessary ingredient for the offence under section 153A. Mens rea is an
equally necessary postulate for the offence under section 505(2) also as could be
discerned from the words "with intent to create or promote or which is likely to create
or promote" as used in that sub-section. The Court also referred to the decision in

Sunilakhya Chowdhury v HM Jadwet,30. wherein it was held that the words "makes or
publishes any imputation" should be interpreted as words supplementing each other. A
maker of imputation without publication is not liable to be punished under section 499.
The same interpretation is warranted in respect of the words "makes, publishes or
circulates" in section 505 (IPC, 1860) also.

28.  Bilal Ahmed Kaloo v State of AP, AIR 1997 SC 3483 [LNIND 1997 SC 1060] : 1997 Cr LJ 4091
.
29.  Balwant Singh v State of Punjab, AIR 1995 SC 1785 [LNIND 1995 SC 1420] : 1995 AIR SCW
2803 : (1995) 3 SCC 214 [LNIND 1995 SC 1420] .
30.  Sunilakhya Chowdhury v HM Jadwet, AIR 1968 Cal 266 [LNIND 1967 CAL 167] .

[s 506] Punishment for criminal intimidation.
Whoever commits, the offence of criminal intimidation shall be punished with
ﬁne, or with both;
If threat be to cause death or grievous hurt, etc.
and if the threat be to cause death or grievous hurt, or to cause the destruction of
any property by ﬁre, or to cause an offence punishable with death or 31.
[imprisonment for life], or with imprisonment for a term which may extend to
seven years, or to impute, unchastity to a woman, shall be punished with
imprisonment of either description for a term which may extend to seven years,
STATE AMENDMENTS
Uttar Pradesh.—The following amendments were made by Notiﬁcation No. 777/VIII 9-
4(2)-87, dated 31-7-1989, published in U.P. Gazette, Extra, Part-4, Section (Kha) dated 2-8-
1989.

1989.
"Any offence punishable under section 506, (IPC, 1860), when committed in any district
of Uttar Pradesh, shall be notwithstanding anything contained in the Code of Criminal
Procedure, 1973 (Cr PC, 1973) be cognizable and non-bailable."
Andhra Pradesh.—In Andhra Pradesh the offence is non-bailable if committed in A.P. vide
G.O. Ms. No. 732, dated 5-12-1991.
COMMENT.—
Where a person entered the victim's house during midnight armed with a knife and
threatened with death anyone who came between himself and the victim, the offence
under this section was held to have been made out.32. The threat must be real in the
sense that the accused means what he says and the victim of the threat should feel
threatened actually.33. Where the accused made his outburst on a public servant when

he was on the way to attend his oﬃce saying that he was going to kill him, it was held
that it was suﬃcient to hold that the act will fall under section 506.34.
[s 506.1] Mere words.—
In order to attract the ingredients of section 506, (IPC, 1860) the intention of the
accused must be to cause alarm to the victim. Mere expression of words, without any
intention to cause alarm, would not suﬃce.35. In Amulya Kumar Behera v Nabaghana
Behera,36. it was held that intention of the accused must be to cause alarm to the
victim and whether he is alarmed or not is of no consequence. However, mere
expression of any words without any intention to cause alarm would not be suﬃcient to
bring in the application of section 506.

31.  Subs. by Act 26 of 1955, section 117 and Sch, for transportation for life (w.e.f. 1 January
1956).
32.  Ghanshyam v State of MP, 1990 Cr LJ 1017 (MP).
33.  Noble Mohandas v State of TN, 1989 Cr LJ 669 (Mad). Threatening and giving ﬁst blow to a
surgeon of a Government hospital, held offence under the section, Siyasaran v State of MP, 1995
Cr LJ 2126 (SC).
34.  Rajendra Datt v State of Haryana, 1993 Cr LJ 1025 (P&H).
35.  Tammineedi Bhaskara Rao v State of AP, 2007 Cr LJ 1204 (AP).
36.  Amulya Kumar Behera v Nabaghana Behera, 1995 Cr LJ 3559 (Ori).
37.  Gorige Pentaiah v State of AP, 2009 Cr LJ 350 : 2008 (12) SCC 531 [LNINDORD 2008 SC 247]
.
38.  State of Maharashtra v Tatyaba Bajirao Jadhav, 2011 Cr LJ 2717 (Bom); State of HP v Vijay
Kumar 2010 Cr LJ 475 .
39.  Mohinder Singh v State of Haryana, 1993 Cr LJ 85 (P&H). Dimpey Gujral v Union Territory
2013, AIR 2013 SC 518 : Cr LJ 520; Surat Singh v State, 2013 (1) Scale 1 [LNIND 2012 SC 837] .

40.  Saraswathi v State of TN, 2002 Cr LJ 1420 (Mad). Sanjay Pandey v Chhaganlal J Jain, 2001
Cr LJ 2127 (Bom).
41.  D Vijay Kumar v State of AP, 2010 Cr LJ 968 (AP).
42.  Narendra Bhojram Patil v State of Maharashtra, 2010 Cr LJ 2762 (Bom). See also Vishwajit P
Rane v State of Goa, 2011 Cr LJ 1289 (Bom), Government of Goa issued a notiﬁcation declaring
offence punishable under section 506 of the (IPC, 1860) committed within State of Goa, as
In absence of basic ingredients of the section in the complaint, no case under section
506 (IPC, 1860) can be sustained.37. Where all the witnesses have stated in speciﬁc
terms that the accused came prepared and intimidated the complainant and also other
witnesses. All the respondents are liable to be convicted for the offence punishable
under section 506 of the (IPC, 1860).38.

Where it was found that that the accused issued no threats to the complainant so as to
cause death or grievous hurt, it was held that mere exhortation to his co-accused to
ﬁnish him, did not amount to threat. His conviction under section 506 was set aside.39.
Asking a person not to work in a private garden and threatening him to go away form
the garden would not satisfy the requirements of the section.40.
The statements said to have been made against accused six months prior to the death
of the deceased with regard to the offence under section 506. (IPC, 1860) cannot be
treated as admissible under section 32(1) of the Indian Evidence Act, 1872.41.
[s 506.2] Part-I Non-cognizable.—
Since the part 1 of section 506 is not cognizable, the permission of the Magistrate
would be required to try the applicants under said section.42.

cognizable and non-bailable. Held, there is no power vesting in the State Government to amend
the First Schedule to the Criminal Procedure Code, 1973 (2 of 1974) by issuing a notiﬁcation.

[s 507] Criminal intimidation by an anonymous communication.
Whoever commits the offence of criminal intimidation by an anonymous
communication, or having taken precaution to conceal the name or abode of the
person from whom the threat comes, shall be punished with imprisonment of either
description for a term which may extend to two years, in addition to the punishment
provided for the offence by the last preceding section.
43.  Doraiswamy Ayyar, (1924) 48 Mad 774.
COMMENT.—
For a conviction under this section it must be shown that the accused committed
criminal intimidation by an anonymous communication.43.

[s 508] Act caused by inducing person to believe that he will be rendered an
object of Divine displeasure.
Whoever voluntarily causes or attempts to cause any person to do anything which that
person is not legally bound to do, or to omit to do anything which he is legally entitled
to do, by inducing or attempting to induce that person to believe that he or any person
in whom he is interested will become or will be rendered by some act of the offender
an object of Divine displeasure if he does not do the thing which it is the object of the
offender to cause him to do, or if he does the thing which it is the object of the
offender to cause him to omit, shall be punished with imprisonment of either
(a) A sits d h a r n a  at Z's door with the intention of causing it to be believed that, by so

sitting, he renders Z an object of Divine displeasure. A has committed the
(b) A threatens Z that, unless Z performs a certain act, A will kill one of A's own
children, under such circumstances that the killing would be believed to render Z
an object of Divine displeasure. A has committed the offence deﬁned in this
section.
COMMENT.—
This section is intended to prevent such practices as d h a r n a  and t r a g a .

[s 509] Word, gesture or act intended to insult the modesty of a woman.
Whoever, intending to insult the modesty of any woman, utters any word, makes any
sound or gesture, or exhibits any object, intending that such word or sound shall be
heard, or that such gesture or object shall be seen, by such woman, or intrudes upon
the privacy of such woman, 44.[shall be punished with simple imprisonment for a term
which may extend to three years, and also with ﬁne].
COMMENT.—
If a man intending to outrage the modesty of a woman exposes his person indecently
to her or uses obscene words intending that she should hear them or exhibits to her
obscene drawing, he commits this offence.
[s 509.1] Ingredients.—
1. Intention to insult the modesty of a woman.
2. The insult must be caused
(i) by uttering any word or making any sound or gesture, or exhibiting any object

intending that such word or sound shall be heard or that the gesture or object
shall be seen by such woman, or
(ii) by intruding upon the privacy of such woman.
The burden is on the prosecution to prove that the accused had uttered the words or
made the sound or gesture and that such word, sound or gesture was intended by the
accused to be heard or seen by some woman. Normally, it is diﬃcult to establish this
and, seldom, a woman ﬁles complaint and often the wrong doers are left unpunished
even if complaint is ﬁled since there is no effective mechanism to monitor and follow
up such acts.45.
[s 509.2] Indecent overtures.—
Section 509 (IPC, 1860) criminalises a 'word, gesture or act intended to insult the
modesty of a woman' and in order to establish this offence it is necessary to show that

the modesty of a particular woman or a readily identiﬁable group of women has been
insulted by a spoken word, gesture or physical act. Clearly, this offence cannot be made
out when the complainants' grievance is with the publication of what the appellant had
stated in a written form.46.

44.  Subs. by the Criminal Law (Amendment) Act, 2013 (13 of 2013), section 10 (w.e.f. 3
February 2013) for the words "shall be punished with simple imprisonment for a term which may
extend to one year, or with ﬁne, or with both."
45.  Deputy Inspector General of Police v S Samuthiram, AIR 2013 SC 14 [LNIND 2012 SC 755] :
(2013) 1 SCC 598 [LNIND 2012 SC 755] .
46.  S Khushboo v Kanniammal, AIR 2010 SC 3196 [LNIND 2010 SC 411] : 2010 Cr LJ 2828 (SC) :
47.  Aloshia Joseph v Joseph Kollamparambil, 2009 Cr LJ 2190 ; Maloji Patil v State of Goa, 2009
Cr LJ 903 (Bom); Santha v State, 2006 (1) Ker LT 249 - whether a lady, can be convicted for an
offence under section 509 (IPC, 1860)
The modesty contemplated under section 509 is to be understood as the "womanly
propriety of behaviour".47.

[s 510] Misconduct in public by a drunken person.
Whoever, in a state of intoxication, appears in any public place, or in any place which it
is a trespass in him to enter, and there conducts himself in such a manner as to cause
annoyance to any person, shall be punished with simple imprisonment for a term
which may extend to twenty-four hours, or with ﬁne which may extend to ten rupees,
or with both.
COMMENT.—
Ingredients.—This section requires two things:—
1. Appearance of a person in a state of intoxication in
(i) any public place, or
(ii) any place which it is a trespass in him to enter.
2. The person so appearing must have conducted himself in such a manner as to
cause annoyance to any person.

CHAPTER XXIII OF ATTEMPTS TO COMMIT OFFENCES
[s 511] Punishment for attempting to commit offences punishable with
imprisonment for life or other imprisonment.
Whoever attempts to commit an offence punishable by this Code1. with 1
[imprisonment for life] or imprisonment, or to cause such an offence to be committed,
and in such attempt does any act towards the commission of the offence, shall, where
no express provision is made by this Code2. for the punishment of such attempt, be
punished with 2 [imprisonment of any description provided for the offence, for a term
which may extend to one-half of the imprisonment for life or, as the case may be, one-
half of the longest term of imprisonment provided for that offence], or with such ﬁne
(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 is
guilty under this section.
COMMENT.—
Before completion of crime, human mind has to pass four steps as under:—
(1) Intention to commit;
(2) Preparation to commit it;
(3) Attempt to commit it; and
(4) If the attempt is successful, then crime is complete.
Section 511 Indian Penal Code, 1860 (IPC, 1860) is a general provision dealing with the
attempts to commit offences and not made punishable by other speciﬁc section. It
makes punishable all attempts to commit offences punishable with imprisonment and
not only those punishable for life or death.3.

A person commits the offence of 'attempt to commit a particular offence' when (i) he
intends to commit that particular offence; and (ii) he, having made preparations and
with the intention to commit the offence, does an act towards its commission; such an
act need not be the penultimate act towards the commission of that offence, but must
be an act during the course of committing that offence, section 511, IPC, 1860 is
attracted.4. An attempt to commit an offence is an act, or a series of acts, which leads
inevitably to the commission of the offence, unless something, which the doer of the

act neither foresaw nor intended, happens to prevent this. An attempt may be
described to be an act done in part execution of a criminal design, amounting to more
than mere preparation, but falling short of actual consummation, and, possessing,
except for failure to consummate, all the elements of the substantive crime. In other
words, an attempt consists in it the intent to commit a crime, falling short of, its actual
commission or consummation/completion. It may consequently be deﬁned as that
which if not prevented would have resulted in the full consummation of the act
attempted. The illustrations given in section 511 clearly show the legislative intention
to make a difference between the cases of a mere preparation and an attempt.5.
In Om Prakash's case6. the Supreme Court has clearly held that like section 511, IPC,
1860 in section 307, IPC, 1860 to the act need not be the penultimate act.
[s 511.1] Essentials.—
In every crime, there is ﬁrst intention to commit it; second, preparation to commit it;

third, attempt to commit it. If the third stage, that is attempt is successful, then the
crime is complete. If the attempt fails, the crime is not complete but the law punishes
the person attempting the act. An 'attempt' is made punishable, because every attempt,
although it fails of success, must create alarm, which, of itself, is an injury, and the
moral guilt of the offender is the same as if he had succeeded.
committed the offence, if it fails due to reasons beyond his control, he is said to have

the offence. The moment he commences to do an act with the necessary intention, he
commences his attempt to commit the offence—the act need not be the penultimate
act towards the commission of the offence but it must be an act during the course of
committing that offence.7.
(1) Intention.—Intention is the direction of conduct towards the object chosen upon
considering the motives which suggest the choice.8. The will is not to be taken for the
deed, unless there be some external act which shows that progress has been made in
the direction of it, or towards maturing and affecting it. In an attempt to commit an
offence, there must be intention to commit the crime combined with doing of some act
adopted to, but falling short of its actual commission.9.

(2) Preparation.—Preparation consists in devising or arranging the means or measures
necessary for the commission of an offence.10.
[s 511.2] Removal of rice bags from g o d o w n  in order to sell them.—
A Government stockist removed 80 bags of rice from a godown in his charge and
concealed them in a room with a view to sell them and appropriate the sale proceeds. It
was held that the act of the stockist amounted only to preparation and therefore, he
was not guilty of any offence.11.
[s 511.3] Running towards well for committing suicide.—

A woman ran to a well stating she would jump into it, and she was caught before she
could reach it. It was held that she could not be convicted of an attempt to commit
suicide as she might have changed her mind before jumping into the well.12.
(3) Attempt.—Attempt is the direct movement towards the commission after the
preparations are made.13. In State of Maharashtra v Mohd. Yakub,14. reported in the
Apex Court considered the deﬁnition of 'attempt to commit crime' as the last proximate
act which a person does towards the commission of an offence, the consummation of
the offence being hindered by circumstances beyond his control. It was observed by
the Apex Court that what constitutes an "attempt" is a mixed question of law and fact,
depending largely on the circumstances of the particular case. "Attempt" deﬁes a
precise and exact deﬁnition. Broadly speaking, all crimes which consist of the
commission of aﬃrmative acts are preceded by some covert or overt conduct which

may be divided into three stages. The ﬁrst stage exists when the culprit ﬁrst entertains
the idea or intention to commit an offence. In the second stage, he makes preparations
to commit it. The third stage is reached when the culprit takes deliberate overt steps to
commit the offence. Such overt act or step in order to be 'criminal' need not be the
penultimate act towards the commission of the offence. It is suﬃcient if such act or
acts were deliberately done, and manifest a clear intention to commit the offence
aimed, being reasonably proximate to the consummation of the offence.
The test for determining whether the acts constitute attempt or preparation is whether
the overt acts already done are such that if the offender changes his mind and does not
proceed further in its progress, the acts already done would be completely harmless.

But where the thing done is such as, if not prevented by any extraneous cause, would
fructify into commission of an offence, it would amount to an attempt to commit that
offence.15. An attempt to commit an offence does not cease to be an attempt merely
because after the attempt is made and before the actual completion of the offence the
offender may be able to prevent its completion by doing some other act in pursuance
of a changed intention.16.
An accused is liable for attempt where his failure to commit an offence is not due to
any act or omission of his own, but to the intervention of some factor independent of
his own volition.17. Where misrepresentations had been made and money obtained
from the persons sought to be cheated by misrepresentations, there is an attempt to

cheat and not merely a preparation for committing that offence.18.
[s 511.4] Distinction between 'preparation' and 'attempt'.—
There is a distinction between 'preparation' and 'attempt'. Attempt begins where
preparation ends. A person commits the offence of attempt to commit a particular
offence when accused (i) intends to commit a particular offence, (ii) he having made
preparation and with the intention to commit an offence, (iii) does an act towards its
commission, such an act need not be the penultimate act towards the commission of
that offence but must be an act during the course of committing that offence.19.
1. 'Offence punishable by this Code'.—No criminal liability can be incurred under the
Code by an attempt to do an act, which if done will not be an offence against the
Code.20.

Code.20.
The expression "whoever attempts to commit an offence" in this section can only mean
"whoever intends to do a certain act with the intent or knowledge necessary for the
commission of that offence".21.

[s 511.5] Impossible offence.—
An attempt is possible, even when the offence attempted cannot be committed; as
when a person, intending to pick another person's pocket, thrusts his hand into the
pocket, but ﬁnds it empty. That such an act would amount to a criminal attempt
appears from the illustrations to this section. But in doing such an act, the offender's
intention is to commit a complete offence, and his act only falls short of the offence by
reason of an accidental circumstance which has prevented the completion of the
offence. It is possible to attempt to commit an impossible theft and so offend against
the Code because theft is itself an offence against the Code, and may therefore, be
attempted within the meaning of the Code. At the same time it is necessary to show
that the means adopted are apparently suitable for the fulﬁlment of the design.22. Thus
where a man threatens the life of another with a child's pop gun using a cork as a

projectile23. or tries to pick the pocket of a man who is well beyond the reach of his
hand, no attempt either to commit murder or to steal can be said to have been
committed as the means adopted are impossible of achieving the designed purpose.
Similar would be the case in regard to absolutely impossible acts. Thus where the act
is such that it is incapable of commission, e.g., trying to steal from an empty room or
an empty pocket or trying to kill a person by shooting at a bulge in a bed thinking it to
be the enemy, no criminal attempt can be said to have been committed.24. In the IPC,
1860, however, trying to steal from an empty pocket would still constitute an attempt
as Illustration (b) to section 511, IPC, 1860 speciﬁcally says so. Though in England too

this happened to be the law previously25. the position has materially changed after the
decision of the House of Lords in Haughtons case.26. It is felt that the law in India
should be changed on this score at least to bring about a uniformity of approach to this
question of attempt so far sections 307 and 511, IPC, 1860 are concerned especially,
after the decision of the Supreme Court in the case of Om Prakash's case,27. has held
that under both these sections the act need not be the last proximate act.
[s 511.6] Attempt to cheat.—
The accused applied to the Patna University for permission to appear at the MA
Examination in English as a private candidate representing that he was a graduate
having obtained his BA degree three years earlier and that he had been teaching in a

certain school. In support of his application, he attached certain certiﬁcates purporting
to be from the Headmaster of the School and the Inspector of Schools. The University
authorities gave the accused permission to appear at the examination. Later on, ﬁnding
that the certiﬁcates were false and that the accused was not a graduate and was not a
teacher, the University authorities withdrew the permission. The Supreme Court held
that the accused was guilty of attempting to cheat and that the moment the accused
dispatched his application to the University, he entered the realm of attempting to
commit the offence of cheating.28. Where the accused made an alteration in his own
aﬃdavit under the honest belief that it was necessary for customs' clearance, the
Supreme Court set aside the conviction under section 420 read with this section.29.

The offence of attempting to cheat may be committed even though the person
attempted to be cheated does not believe in the representations made to him and is
not misled by them but only feigns belief in order to trap the offender.30.
[s 511.7] Outraging Modesty of a Woman and attempt to Rape (sections 354
and 511 read with section 376).—

1.  Subs. by Act 26 of 1955, section 117 and Sch, for transportation for life (w.e.f. 1 January
1956).
2.  Subs. by Act 26 of 1955, section 117 and Sch, for certain words (w.e.f. 1 January 1956).
3.  Pawan Kumar v State of Haryana, 2010 Cr LJ 2077 (P&H).
4.  I K Narayana v State of Karnataka, 2013 Cr LJ 874 (Kant).
5.  Koppula Venkat Rao v State of AP, AIR 2004 SC 1874 [LNIND 2004 SC 301] : 2004 Cr LJ 1804
(SC).
In between complete rape and attempt to commit rape there is a rare area covered by
section 354 of IPC, 1860, i.e., assault or criminal force to woman with intent to outrage
her modesty or indecent assault. The dividing line between attempt to commit rape and
indecent assault is not only thin but also is practically invisible. For an offence of
attempt to commit rape, prosecution is required to establish that the act of the accused
went beyond the stage of preparation. In a given case, where the prosecutrix was made
naked and her cries attracted her uncle who came to the spot and then the accused

ﬂed away, it was held that it was not a case of attempt to commit rape but was one
under section 354 of IPC, 1860.31.
[s 511.8] 'Attempt could be a minor offence'.—
It is true that there was no charge under section 376 read with section 511, IPC, 1860.
However, under section 222 of the Code of Criminal Procedure, 1973 (Cr PC, 1973)
when a person is charged for an offence he may be convicted of an attempt to commit
such offence although the attempt is not separately charged.32.
2. 'Where no express provision is made by this Code'.—The section does not apply to
cases of attempts made punishable by some speciﬁc sections of the Code. The
attempts speciﬁcally provided for are:—
Section 121, attempt to wage war against the Government of India. Section 124,
attempt wrongfully to restrain the President and other high oﬃcials with intent to

induce or compel them to exercise or refrain from exercising any of their lawful powers.
Section 125, attempt to wage war against the Government of any Asiatic Power in
alliance or at peace with the Government of India. Section 130, attempt to rescue State
prisoners or prisoners of war. Section 196, attempt to use as the evidence known to be
false. Sections 198, 200, attempt to use as true a certiﬁcate or declaration known to be
false in a material point. Section 213, attempt to obtain a gratiﬁcation to screen an
offender from punishment. Sections 239 and 240, attempt to induce a person to
receive a counterfeit coin. Section 241, attempt to induce a person to receive as
genuine counterfeit coin which, when the offender took it, he did not know to be
counterfeit. Sections 307 and 308, attempts to commit murder and culpable homicide.

Section 309, attempt to commit suicide. Sections 385, 387 and 389, attempt to put a
person in fear of injury or accusation in order to commit extortion. Section 391,
conjoint attempt of ﬁve or more persons to commit dacoity. Sections 393, 394 and 398,
attempts to commit robbery. Section 460, attempt by one of many joint house-breakers
by night to cause death or grievous hurt.

6.  Om Prakash, 1961 (2) Cr LJ 848 (SC).
7.  Abhayanand, AIR 1961 SC 1698 [LNIND 1961 SC 202] ; Om Prakash, 1961 (2) Cr LJ 848 (SC).
8.  James Fitzjames Stephen, General View of the Criminal Law of England, 2nd Edn, p 69;
Koppula Venkat Rao v State of AP, AIR 2004 SC 1874 [LNIND 2004 SC 301] : 2004 Cr LJ 1804 :
(2004) 3 sCC 602, the Supreme Court explained why attempt has been characterized as crime.
9.  Damodar Behera v State of Orissa, 1996 Cr LJ 344 (Ori).
10.  Quoted with approval from Mayne's Criminal Law in Peterson's case, (1876) 1 All 316 , 317
and in Padala Venkatasami, (1881) 3 Mad 4, 5; Ashaq Hussain, (1948) Pak LR 155.
11.  Bhagwat v State, (1948) 28 Pat 92.
12.  Ramakka, (1884) 8 Mad 5.
13.  Quoted with approval from Mayne's Criminal Law in Peterson, (1876) 1 All 316 , and in
Padala Venkatasami, (1881) 3 Mad 4.
14.  State of Maharashtra v Mohd. Yakub, AIR 1980 SC 1111 [LNIND 1980 SC 99] : (1980) 3 SCC
57 [LNIND 1980 SC 99] .
15.  Tustipada Mandal, (1950) Cut 75.

16.  Haricharan v State, AIR 1950 Ori 114 [LNIND 1949 ORI 25] (SB).
17.  Mangeram v Lal Chhatramohansingh, (1950) Nag 908.
18.  Bashirbhai, (1960) 3 SCR 554 [LNIND 1960 SC 126] : 62 Bom LR 908.
19.  State of Maharashtra v Mohd. Yakub, AIR 1980 SC 1111 [LNIND 1980 SC 99] : (1980) 3 SCC
20.  Mangesh Jivaji, (1887) 11 Bom 376, 381; Ram Charit Ram Bhakat v Chairman, Rajshahi
District Board, (1938) 1 Cal 420 .
21.  Om Prakash, AIR 1962 SC 1782 .
22.  Mohinder Singh, 1960 Cr LJ 393 (Punj).
23.  Ibid.
24.  Haughton v Smith, (1975) AC 476 Per House of Lords : (1973) 3 All ER 1109 : (1974) 2 WLR
607 ; see also Neilson (1978) RTR 232 .
25.  Ring, (1892) 61 LJ MC 116.
26.  Haughton, supra.
27.  Om Prakash, 1961 (2) Cr LJ 848 (SC).

28.  Abhayanand, AIR 1961 SC 1698 [LNIND 1961 SC 202] ; see also Sudhir Kumar, 1973 Cr LJ
1798 (SC); State of Maharashtra v Mohd. Yakub, 1980 Cr LJ 793 (SC).
29.  Kapoor Chand Maganlal Chanderia v State (Delhi Admn), 1985 SCC (Cr) 441 : (1985) Supp
SCC 268 .
30.  Bashirbhai, 62 Bom LR 908 : (1960) 3 SCR 554 [LNIND 1960 SC 126] .
31.  Tukaram Govind Yadav v State of Maharashtra, 2011 Cr LJ 1501 (Bom); State of MP v Babulal,
AIR 1960 MP 155 [LNIND 1959 MP 49] ; Rajesh Vishwakarma v State of Jharkhand, 2011 Cr LJ
2753 (Jha); Pawan Kumar v State of Haryana, 2010 Cr LJ 2077 (P&H).
32.  Pandharinath v State of Maharashtra, (2009) 14 SCC 537 [LNIND 2009 SC 1378] .

SUMMARY
THE draft of the Indian Penal Code was prepared by the First Indian Law Commission
when Macaulay was the President of that body. Its basis is the law of England freed
from superﬂuities, technicalities and local peculiarities. Suggestions were also derived
from the French Penal Code and from Livingstone's Code of Louisiana. The draft
underwent a very careful revision at the hands of Sir Barnes Peacock, Chief Justice,
and puisne Judges of the Calcutta Supreme Court who were members of the
Legislative Council, and was passed into law in 1860. Though it is principally the work
of a man who had hardly held a brief, and whose time was devoted to politics and
literature, yet it is universally acknowledged to be a monument of codiﬁcation and an
everlasting memorial to the high juristic attainments of its distinguished author.
Objects of penal legislation.
The legitimate objects of penal legislation are the selection of those violations of right

which are suﬃciently dangerous to the good order of society to justify and require the
inﬂiction of punishment to repress them, and the adaptation of the degree of
punishment to the purpose of repressing such violations.
Crime.
A crime is an act of commission or omission, contrary to municipal law, tending to the
prejudice of the community, for which punishment can be inﬂicted as the result of
judicial proceedings taken in the name of the State. It tends directly to the prejudice of
the community, while a civil injury tends more directly and immediately to the prejudice
of a private right. The true test between a crime and a civil injury is that the latter is
compensated by damages, while the former is punished. The State is supposed to be
injured by any wrong to the community and is, therefore, the proper prosecutor. Many

crimes include a tort or civil injury; but every tort does not amount to a crime, nor does
every crime include a tort. Conspiracy, conversion, private nuisance, wrongful distress,
etc., are merely torts. Assault, false imprisonment, false charge, defamation, etc., are all
crimes as well as torts. Forgery, perjury, bigamy, homicide, etc., are crimes but not torts.
The great difference between the legal and the popular meanings of the word crime is
that whereas the only perfectly deﬁnite meaning which a lawyer can attach to the word
is that of an act or omission punishable by law, the popular or moral conception adds
to this the notion of moral guilt of a specially deep and degrading kind. By a criminal,
people in general understand a person who is liable to be punished, because he has

done something at once wicked and obviously injurious in a high degree to the
common interest of society. Criminal law is, however, conﬁned within very narrow limits
and can be applied only to deﬁnite overt acts or omissions capable of being distinctly
proved, which acts or omissions inﬂict deﬁnite evils, either on speciﬁc persons or on
the community at large.1.
By criminal law is now understood the law as to the deﬁnition, trial and punishment of
crimes, i.e., of acts or omissions forbidden by law which affect injuriously public rights,
or constitute a breach of duties due to the whole community. Criminal law includes the

rules as to the prevention, investigation, prosecution and punishment of crimes. It lays
down what constitutes an offence, what proof is necessary to prove it, what procedure
should be followed in a court, and what punishment should be imposed.
In criminal law the general principle is that there must be some guilty condition of mind
in every offence. This is designated by the expression mens rea. It is however in the
power of the Legislature to enact that a man may be convicted of an offence although
there was no guilty mind. Where a statute requires a mental state to be proved as an
essential element of a crime, the burden is on the prosecution to prove it. The absence
of mens rea really consists in an honest and reasonable belief entertained by the
accused of the existence of facts, which, if true, would make the act charged against
him innocent.
The authors of the Code observe:—"We cannot admit that a Penal Code is by any
means to be considered as a body of ethics, that the Legislature ought to punish acts

merely because those acts are immoral, or that, because an act is not punished at all, it
follows that the Legislature considers that act as innocent. Many things which are not
punishable are morally worse than many things which are punishable. The man who
treats a generous benefactor with gross ingratitude and insolence deserves more
severe reprehension than the man who aims a blow in a passion, or breaks a window in
a frolic; yet we have punishments for assault and mischief, and none for ingratitude.
The rich man who refuses a mouthful of rice to save a fellow-creature from death may
be a far worse man than the starving wretch who snatches and devours the rice; yet we
punish the latter for theft, and we do not punish the former for hard-heartedness."2.

Criminal law forms generally a part of the public law not variable in any one of its parts
by the volition of private individuals and it is not necessarily deprived of its effect
merely by the possible culpability of the individuals who may be the sufferers by the
breach. The maxim ex turpicausa non orituractio is not a suﬃcient excuse for a man
who acts in opposition to the provisions of a penal statute. If a man, for instance, gives
a spurious sovereign to a person for losing a bet, and the latter sues the former, he
cannot succeed for a breach of contract.
Presumption of innocence.
In criminal cases the presumption of law is that the accused is innocent. The burden of
proving every fact essential to bring the charge home to the accused lies on the
prosecution. The evidence must be such as to exclude every reasonable doubt of the

guilt of the accused. The evidence of guilt must not be a mere balance of probabilities,
but must satisfy the Court beyond all shadow of reasonable doubt that the accused is
guilty. In matters of doubt it is safer to acquit than to condemn, since it is better that
several guilty persons should escape than one innocent person suffer. Unbiased moral
conviction is no suﬃcient foundation for a verdict of guilty, unless it is based on
substantial facts leading to no other reasonable conclusion than that of guilt of the
accused. No man can be convicted of an offence where the theory of his guilt is no
more likely than the theory of his innocence.
Under section 105 of the Indian Evidence Act, 1872, it is incumbent on the accused to
prove the existence of circumstances (if any) which bring the offence charged within

any exception or proviso contained in the Indian Penal Code, 1860 (IPC, 1860), and the
court shall presume the absence of such circumstances. But if it is apparent from the
evidence on record whether produced by the prosecution or defence, that a general
exception would apply, then the presumption is removed and it is duty of the court to
consider whether the evidence proves to the satisfaction of the court that the accused
comes within the exception.

Limitation.
Previously there was no limitation to prosecute a person for an offence as "Nullum
tempus occuritregi" (lapse of time does not bar the right of the Crown) was the rule.
And as a criminal trial was regarded as an action by the government, it could be
brought at any time. It would be odious and fatal, says Bentham, to allow wickedness,
after a certain time, to triumph over innocence. No treaty should be made with
malefactors of that character. Let the avenging sword remain always hanging over their
heads. The sight of a criminal in peaceful enjoyment of the fruit of his crimes,
protected by the laws he has violated, is a consolation to evil-doers, an object of grief
to men of virtue, a public insult to justice and to morals. The Roman law, however, laid
down a prescription of 20 years for criminal offences as a rule. There is no period of
limitation for offences which fall within the four corners of IPC.
An entire Chapter captioned "Limitation For Taking Cognizance of Certain Offences"

(Chapter XXXVI) has been added to the Criminal Procedure Code, 1973 (Cr PC, 1973) to
prevent taking of cognizance after certain periods in offences not punishable with
imprisonment for a term exceeding three years. Thus, section 468 of Cr PC, 1973 lays
down:
(1) Except as otherwise provided elsewhere in this Code no Court shall take
cognizance of an offence of the category speciﬁed in sub-section (2), after the
expiry of the period of limitation.
(2) The period of limitation shall be—
(a) six months, if the offence is punishable with ﬁne only;
(b) one year, if the offence is punishable with imprisonment for a term not
exceeding one year;
(c) Three years, if the offence is punishable with imprisonment for a term
exceeding one year but not exceeding three years.
(3) ********
A Constitution Bench of the Supreme Court in Mrs. Sarah Mathew v The Institute of

Cardio Vascular Diseases,3. held that the period of Limitation starts from the date of
Complaint, not from date of Cognizance.
As opposed to the Benthamian concept of no limitation to criminal prosecutions, the
modern concept is that the accused shall not be kept under a perpetual threat for any
length of time and right to have a speedy trial should be regarded as one of his basic
human rights. In keeping with this spirit the new Criminal Procedure Code has further
made provisions in sub-section (5) of section 167, Cr PC, 1973, for the stoppage of
investigation in Summons Cases, if the investigation is not concluded within six
months from the date on which the accused was arrested.
Master's liability for servant's act.
The master is liable for the tortious acts of his servants done in the course of his

employment and for the master's beneﬁt, but in criminal law he who does the act is
liable except where a person who is not the doer, abets or authorizes the act. There are,
however, certain exceptions to this principle.
1. Statutory liability.—A statute may impose criminal liability upon the master as regards
the acts or omission of his servants. Licence cases form a class by themselves in

which the master is generally held responsible.
2. Public nuisance.—The owner of works carried on for his proﬁt by his agents is liable
to be indicted for a public nuisance caused by acts of his agents in carrying on the
works.
3. Neglect of duty.—If a person neglects the performance of an act which is likely to
cause danger to others, and entrusts it to unskilful hands he will in certain cases be
criminally liable.
1. Vicarious liability.—Indian Penal Code, 1860, save and except some matters does
not contemplate any vicarious liability on the part a person. (Exceptions to this rule
include section 34, 149, etc.)
2. Corporate Criminal Liability.—A company is liable to be prosecuted and punished for
criminal offences. Although there are earlier authorities to the fact that the corporation
cannot commit a crime, the generally accepted modern rule is that a corporation may
be subject to indictment and other criminal process although the criminal act may be

committed through its agent. The majority in the Constitution bench held that there is
no immunity to the companies from prosecution merely because the prosecution is in
respect of offences for which the punishment is mandatory imprisonment and ﬁne. The
corporations can no longer claim immunity from criminal prosecution on the ground
that they are incapable of possessing the necessary mens rea for the commission of
criminal offences.4.
Scheme.
The following tabular statement gives an outline of the scheme of IPC, 1860.—
General Provisions
1. Territorial operation of the Code (c. I).
2. General Explanations (c. II).
3. Punishments (c. III).
4. General Exceptions (c. IV).
5. Abetment (c. V).
6. Conspiracy (c. VA).
7. Attempts (c. XXIII).
Speciﬁc Offences
1. Affecting the State .. State (c. VI).
Army, Navy and Air Force (c.
VIII).

VIII).
Public tranquillity (c. VIII).
Public servants conduct of (c.
IX).
Contempt of authority of (c. X).
Public Justice (c. XI).

Public health, safety, decency,
and morals (c. XIV).
2. Affecting the common
wealth
.. Elections (c. IXA).
Coin and Government Stamps
(c. XII).
Weights and Measures (c. XIII).
Religion (c. XV).
Contract of Service (c. XIX).
Marriage (c. XX).
Homicide, murder, abetment of
suicide, causing miscarriage,
injuries to unborn children,
exposure of infants, hurt
(simple and grievous), wrongful
restraint
3. Affecting the human body .. and conﬁnement, criminal
force, assault, kidnapping,
abduction, slavery, selling or
buying minor for prostitution,
unlawful labour, rape, unnatural
offence (c. XVI).
Theft, extortion, robbery,
dacoity, criminal
misappropriation, criminal
breach of trust, receiving stolen
property, cheating, fraudulent
deeds and dispositions of
mischief, criminal
4. Affecting corporeal or
incorporeal
trespass (c. XVII), documents
(forgery), property property
marks, currency and bank
notes (c. XVIII).
Defamation (c. XXI).
5. Affecting reputation Intimidation, insult and
annoyance (c. XXII).

Date and extent of operation. Chapter 1.
The IPC, 1860, came into operation on 1 January 1862. It takes effect throughout India
except the State of Jammu and Kashmir. For every act or omission contrary to the
provisions of the Code a person is liable to punishment under it (sections 1 and 2).
Every person is made liable to punishment under the Code without distinction of nation
or rank. A foreigner, who enters the Indian territories and accepts the protection of
Indian laws, virtually submits himself to their operation. The Penal Code does not
exempt anyone from the jurisdiction of criminal Courts, but the following are
exceptions to this principle:—
(1) The Sovereign.
(2) Foreign Sovereigns.

(3) Ambassadors.
(4) Alien enemies
(5) Foreign army.
(6) Men-of-war.
The courts in India are prohibited from issuing a process against the President of India
or the Governor of a State. (Article 361 of Constitution)
Territorial jurisdiction.
The territorial jurisdiction of criminal courts will extend into the sea as far as 12
nautical miles.
Leading case:—R v Kastya Rama
Extra-territorial operation.
An offence committed outside India may, however, be tried as an offence committed in
India under the following circumstances:—
1. By virtue of any Indian law (section 3).
2. When such offence is 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 (section 4).
within its limits he may be (I) extradited; or (II) tried in India.
Extradition.
(I) Extradition is the surrender by one State to another of a person desired to be dealt

with for crimes of which he has been accused or convicted and which are justiciable in
the courts of the other State. Whether an offender should be handed over pursuant to a
requisition is determined by the domestic law of the State on which requisition is
made. In India, the procedure is to be found laid down in the Extradition Act, 1962.5.
Intra-territorial trial.
(II) The Courts in India are empowered to try offences committed out of India either on
(A) Land or (B) High Seas or (C) Aircraft.
Land.

(A) By virtue of sections 3 and 4 of IPC, 1860, and section 188 of Cr PC, 1973, local
courts can try offences committed outside India.
When the consequence of an act committed by a foreigner outside India if ensued in
India, he can be tried in India.6.
High seas: Admiralty Jurisdiction.
(B) The jurisdiction to try offences committed on the high seas is known as Admiralty
jurisdiction. It is founded on the principle that a ship on the high seas is a ﬂoating
island belonging to the nation whose ﬂag she is ﬂying.
The jurisdiction extends over—
(1) Offences committed on Indian ships. Such offences may be committed:
(a) on the high seas or in rivers, below the bridges, where the tide ebbs and
ﬂows, and where great ships go; or
(b) at a spot where the municipal authorities of a foreign country might
exercise concurrent jurisdiction.
(3) Pirates.
Section 18 of IPC, 1860, deﬁnes India as the territory of India excluding the state of

Jammu and Kashmir. These territorial limits would include the territorial waters of
India.7. By The Territorial Waters, Continental Shelf, Exclusive Economic Zone and Other
Maritime Zones Act 80 of 1976, extend of India's Territorial waters was statutorily ﬁxed
at 12 nautical miles.
All the High Courts in India have inherent admiralty jurisdiction and can invoke the
same for the enforcement of a maritime claim.8. Admiralty jurisdiction was vested in
the mofussil courts by 12 & 13 Vic. c. 96, and section 686 of the Merchant Shipping
Act, 1958. The investigation/enquiry under Part XII of the Merchant Shipping Act, 1958,
cannot be held to be a substitute for a proper investigation into an alleged crime if the
same has been committed.
Aircraft.
(C) The provisions of IPC, 1860, are made applicable to any offence committed by any

Aircraft.
person on any aircraft registered in India, wherever it may be.
Indian courts cannot try foreigners who are in India for offences committed by them
outside India.
Laws not affected by the Code.
The IPC, 1860, does not affect the provisions of (1) any act for punishing mutiny and
desertion by oﬃcers, soldiers, sailors or airmen, in the service of the Government of
India;

(2) any special or local law (section 5).
An offence expressly made punishable by a special or local law will be punishable
under the Code. But if the Legislature in framing the special or local law intended to
exclude the operation of the Code, no prosecution under the Code would lie. However, a
person cannot be punished both under the Code and the special law for the same
offence.
General Explanations. Chapter II.
In chapter II, the leading terms used in the Code are deﬁned and explained and the
meanings, thus, announced are steadily adhered to throughout the subsequent
chapters.
General exceptions are part of the deﬁnition of every offence contained in IPC, 1860,
section 6, but the burden to prove their existence lies on the accused.
The Supreme Court has explained some of the categories of "public servants" (section
21).
The deﬁnition is not exhaustive. A person may be a public servant under some other
statute. Naresh Kumar Madan v State of MP, Leader of opposition in the Assembly is not

21).
a public servant. Sushil Modi v Mohan Guruswamy.
Leading cases:—K Veeraswami v UOI Lakshmiman Singh v Naresh Ashok Marketing Ltd
v PNB.
Imitation of foreign currency is an offence within the meaning of "counterfeit" (section
28).
Leading case:—State of Kerala v Mathai Verghese
An act includes an illegal omission save where the contrary appears from the context.
Where the causing of an effect in an offence if it is caused either by an act or by an
omission, the causing of that effect partly by an act and partly by an omission is the
same offence (section 36). When an offence is committed by several persons
committing different acts, each person intentionally committing one of those acts,
either singly or jointly with others, commits the offence (section 37).
Joint offenders.

Where a criminal act is committed jointly by several persons the following principles
will apply:—
1. When the act is done in furtherance of the common intention of all, each of such
persons is liable for it in the same manner as if it were done by him alone (section 34).
Mere presence does not create a presumption of complicity. A person not cognizant of
the intention of his companion to commit murder is not liable for murder, though he
has joined his companion to do an unlawful act. There must be (i) a pre-arranged plan
or a preconcert and (ii) in offences involving physical violence participation if section
34 is to apply; both these factors must be established against the accused before he
can be held liable under the section. Common intention or meeting of minds to bring

about a particular result may well develop on the spot itself as between a number of
persons. Joint responsibility was inﬂicted upon the sub-inspector (SI) in charge of a

police station where two police constables beat a person to death, though the SI
himself had done no beating. Amar Singh v HP. It is not necessary that all must come
together. State of MP v Mansingh. The Supreme Court examined the effect of mere
presence at the place of occurrence. State of UP v Sohruntia.
Leading cases:—Barendra Kumar Ghose v Mahbub Shah; Hari Om v State of UP; Suresh v
State of UP.
The Supreme Court has reiterated that there could rarely be direct evidence of common
intention. Jhinku Nai.
2. When the act is only criminal by reason of its being done with a criminal knowledge
or intention, each is liable only to the extent of his own knowledge or intention (section
35).
A person assisting the accused who actually performs the act must be shown to have
the particular intent or knowledge. If an act which is an offence, without reference to
any criminal knowledge or intention on the part of the doer, is done by several persons,
each of them is liable for the offence.

3. 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 (section 38). Yunus v
State, 1995 Cr LJ 3205 (Del), where common intention was found only up to the stage
of causing hurt, though the end result of the crime was murder.
Section 34 deals with acts done with a common intention, section 38, with acts done
with different intentions.
An act done under compulsions of survival, such as putting up huts on public-
footpaths, cannot be regarded as voluntary. (section 39)
Leading case:—Olga Tellis v Bombay MC
Punishment. Chapter III.
The punishments to which offenders are liable are:—
1. Death.
2. Imprisonment for life.
3. Imprisonment :
(i) Rigorous (i.e., with hard labour);
(ii) Simple;
(iii) Solitary.
4. Forfeiture of property.
5. Fine (section 63).

1. Death.
Imposition of proper and appropriate sentence is a bounded obligation and duty of the
court. The endeavour of the court must be to ensure that the accused received
appropriate sentence. The sentence must be accorded to the gravity of the offence
(section 53) Gurumukh Singh v State of Haryana, AIR 2009 SC 2697 [LNIND 2009 SC

847] . The Supreme Court explained guidelines for sentencing policy in State of MP v
Babu Nath, AIR 2009 SC 1810 [LNIND 2008 SC 2471] .
Labour taken from prisoners must not be of obnoxious nature and payment must not
be less than the applicable minimum wage. Gurdev v HP, 1992 Cr LJ 2542 (HP).
In addition to these there is punishment of detention in reformatories or Borstal
Schools in the case of juvenile offenders (Act VIII of 1897 and other local Acts).
Death.
1. Sentence of death may be commuted without the consent of the offender by the
appropriate Government for any other punishment (section 54). The punishment of
death may be awarded in the following cases:—
(4) Murder (section 302).
Capital punishment should be conﬁned to rarest of rare cases.

Leading cases:—Bachan Singh. Machhi Singh. Munwar Harun Shah. Triveniben v State
of Gujarat Madhu Mehta v UOI.
Swamy Shraddananda (2) v State of Karnataka; Santosh Kumar Bariyar v State
(5) Abetment of suicide of a minor, or an insane or an intoxicated person (section 305).
(6) Attempt to murder by a person under sentence of imprisonment for life, if hurt is
caused (section 307).
(7) Dacoity accompanied with murder (section 396).
Sentence of death may be awarded where a person who is under sentence of
imprisonment for life commits murder (section 302).
Section 303 has been struck down by the Supreme Court as void and unconstitutional
being violative of both Articles 14 and 21 of the Constitution. R Rathinam v UOI. This
decision was subsequently reversed in Gain Kaur v State of Punjab.

Leading cases:—Mithu. Bhagwan Bax Singh.
Causing death in custody by third degree methods should merit deterrent punishment.
Leading case:—Gauri Shanker Sharma v State of UP.
Imprisonment for life.
2. The appropriate Government may commute, without the consent of the offender, a
sentence of imprisonment for life to imprisonment not exceeding 14 years (section 55).

In calculating fractions, imprisonment for life is reckoned as equivalent to 20 years
(section 57).
Leading case:—Gopal Vinayak Godse v State of Maharashtra.
Imprisonment for life must be inﬂicted for being a 'thug' (section 311).
Imprisonment.
3. In every case in which sentence of imprisonment for life shall have been passed, the
appropriate government may, without the consent of the offender, commute the
punishment for imprisonment of either description for a term not exceeding 14 years
(section 55);
The lowest term of imprisonment actually named for a given offence, viz., misconduct
by a drunken person, is 24 hours (section 510); but the minimum is unlimited except in
two cases:—
(1) If at the time of committing robbery or dacoity the offender uses a deadly weapon
or causes grievous hurt, or
(2) If while committing this offence he is armed with a deadly weapon, he is punished
with imprisonment for not less than seven years (sections 397 and 398).

Sentence of imprisonment may be, in certain cases, wholly or partly rigorous or simple
(section 60). But in two cases the imprisonment must be rigorous:—
(1) Giving or fabricating false evidence with intent to procure conviction for a capital
offence (section 194).
(2) House-trespass to commit an offence punishable with death (section 449).
There are 12 offences that are punishable with simple imprisonment only.
The courts are expected to properly operate the sentencing system. The court should
impose such sentence for proved offences as will serve as a deterrent for their
commission by others. The socio-economic status, prestige, race, caste of the accused
or victim are irrelevant considerations in the policy of sentencing. State of Karnataka v
Krishnappa (section 53).
Solitary conﬁnement.

Solitary conﬁnement may be inﬂicted for offences punishable with rigorous
imprisonment. The offender may be kept in solitary conﬁnement for any portion or
portions of his term of imprisonment, not exceeding three months in the whole. But the
solitary conﬁnement must not exceed—
one month, if the term of imprisonment does not exceed six months;
two months, if the term of imprisonment exceeds six months but does not exceed one
year;
three months, if the term of imprisonment exceeds one year (section 73).

In executing a sentence of solitary conﬁnement, such conﬁnement must not exceed 14
days at a time, with intervals between the periods of solitary conﬁnement of not less
duration than such period; and when the imprisonment awarded exceeds three months,
the solitary conﬁnement must not exceed seven days in any one month of the whole
imprisonment awarded with intervals between the periods of solitary conﬁnement of
not less duration than such period (section 74).
A sentence of solitary conﬁnement for more than three months cannot be passed even
if a person is convicted at one trial of more than one offence. Such conﬁnement is
awarded for offences under the Code only. Even then it cannot be awarded where
imprisonment is not part of the sentence or where the imprisonment is in lieu of ﬁne. It
may be awarded in a summary trial. Solitary conﬁnement must be imposed at intervals.
A sentence inﬂicting solitary conﬁnement for the whole imprisonment is illegal, though
not more than 14 days are awarded.
Forfeiture.

4. The punishment of forfeiture of the property of the offender has been abolished
except in the following cases:—
(1) Where a person commits depredation on the territories of any power at peace with
the Government of India, he is liable, in addition to other punishments, to forfeiture of
any property used, or intended to be used, in committing such depredation, or acquired
thereby (section 126).
(2) Where a person receives property taken as above mentioned or in waging war
against any Asiatic Power at peace with the Government of India, he is liable to forfeit
such property (section 127).
(3) A public servant, who improperly purchases property, which, by virtue of his oﬃce,
he is legally prohibited from purchasing, forfeits such property (section 169).
5. Fine is awarded as a sentence by itself in the following cases:—
Fine.

Fine.
(1) A person, in charge of a merchant vessel, negligently allowing a deserter from the
Army, Navy or Air Force to obtain concealment in such vessels is liable to a ﬁne not
(2) The owner or occupier of land, on which a riot takes place or an unlawful assembly
lawful means to prevent such riot or unlawful assembly, is punishable with ﬁne not
(5) Illegal payments in connection with an election (section 171-H).
(6) Failure to keep election accounts (section 171-I).

(7) Voluntarily vitiating the atmosphere so as to render it noxious to the public health is
punishable with ﬁne of Rs. 500 (section 278).
(8) Obstructing a public way or line of navigation is punishable with ﬁne not exceeding
Rs. 200 (section 283).
(9) Committing of public nuisance not otherwise punishable is punishable with ﬁne not
exceeding Rs. 200 (section 290).
(10) Whoever publishes any proposal to pay any sum, or to deliver any goods, or to do
or forbear from doing anything for the beneﬁt of any person, on any event or
contingency relative or applicable to the drawing of a ticket, lot, number, or ﬁgure, in any
such lottery, not being a State lottery or a lottery authorised by the State Government, is
punished with ﬁne not exceeding Rs. 1,000 (section 294A).
The general principal of law running through sections 63–70 is that the amount of ﬁne
should not be harsh or excessive. Shantilal v State of MP, (2007) 11 SCC 243 [LNIND
2007 SC 1171] .
Imprisonment in default of ﬁne.

The following provisions regulate the character and duration of the sentence of
imprisonment in default of payment of ﬁne:—
Where an offender is sentenced to a ﬁne, the court may direct that the offender shall in
default of payment suffer a term of imprisonment, which imprisonment may be in
excess of any other imprisonment to which he may have been sentenced for the
offence, or to which he may be liable under a commutation of sentence (section 64).
If the offence be punishable with imprisonment as well as ﬁne such imprisonment must
not exceed one-fourth of the term of imprisonment which is the maximum ﬁxed for the
offence (section 65); such extra imprisonment may be of any description to which the
offender might have been sentenced for the offence (section 66).
Leading case:—Ramjas v State of UP.
If such imprisonment is within the prescribed limits, it is not to be added to the

substantive punishment.
Leading case:—P Balaraman v State of TN.
When the offence is punishable with ﬁne only such imprisonment must not exceed
two months when the amount of the ﬁne does not exceed Rs. 50;
four months when the amount does not exceed Rs. 100, and for
any term not exceeding six months in any other case (section 67).
The imprisonment in such cases must be simple only.
Such imprisonment terminates—
(1) upon payment of the ﬁne (section 68); or
(2) before the expiration of the term of imprisonment ﬁxed in default of payment, if
such a proportion of the ﬁne be paid, or levied, that the term of imprisonment suffered

in default of payment is not less than proportional to the part of the ﬁne still unpaid
(section 69).
Fine may be levied within six years, or at any time during the term of imprisonment if it
be longer than six years; the death of the offender does not discharge from the liability
any property which would, after his death, be legally liable for his debts (section 70).
The limitation starts from the date of sentence of conviction by the trial Court:
Palakdhari Singh.
An offender who has undergone full term of imprisonment inﬂicted in default of
payment of ﬁne is still liable for the amount of ﬁne. The Bombay High Court has laid
down that movable property of the offender can alone be distrained and sold for the
recovery of ﬁne. But the Calcutta High Court has held that a suit can be brought to
recover ﬁne by the sale of immovable property of the offender.
The Government may commute a sentence of
Commutation of sentence.
(1) death, for any other punishment;

(2) imprisonment for life, for imprisonment for not more than 14 years (sections 54,
55).
The Government may commute without the offender's consent sentence in cases of
death and imprisonment for life.
Limit of punishment of offence made up of several offences.
(1) Where an offence is made up of parts, each of which constitutes an offence, the
offender is not punished for more than one offence unless expressly provided.
(2) Where an offence falls within two or more separate deﬁnitions of offences; or where
several acts of which one or more than one would, by itself or themselves, constitute
an offence, constitute when combined a different offence, the offender is not punished
with a more severe punishment than the court which tries him could award for any one
of such offences (section 71).
Leading cases:—Roshan Lal; Puranmal.

The results of combination of section 220, Cr PC, 1973, with this section have been
enumerated at p 48.
Doubt as to nature of offence.
Where it is doubtful as to of which of the several offences a person is guilty, he is
punished for the offence for which the lowest imprisonment is provided (section 72).
Previous conviction.

A person convicted by a Court in India of any offence
(a) relating to Coin and Government Stamps (Chapter XII), or
(b) against property (Chapter XVII)
punishable with imprisonment for a term of three years or upwards shall be subject to
imprisonment for life, or to imprisonment for 10 years, if he is again guilty of any
offence punishable under either of those Chapters with like imprisonment for the like
term (section 75).
The offender is subject to increased punishment on the ground that the punishment
undergone has had no effect in preventing a repetition of the crime. The subsequent
offence must also be punishable with not less than three years' imprisonment. If the
subsequent offence is committed by a person previously to his being convicted of the
ﬁrst offence he cannot be subjected to enhanced punishment. Attempts not
speciﬁcally made offences within Chapters XII and XVII are not governed by this
provision. The previous conviction of an accused for an offence under these Chapters

cannot be taken into consideration at a subsequent conviction for abetment of an
offence under those Chapters.
3. Overlapping provisions.—The fact of overlapping provisions about one or more
offence, does not rule out trial under any one of them. The case did not fall within the
Custom Act, 1962. It could not prevent trial under applicable provision of IPC, 1860. M
Natarajan v State, (2008) 8 SCC 413 [LNIND 2008 SC 1093] .
General Exceptions. Chapter IV.
The following acts are not offence under the Code:—
3. Act done pursuant to an order or a judgment of a court (section 78).

6. Act likely to cause harm done without criminal intent to prevent other harm (section
81).
8. Act of a child above seven and under 12 years but of immature understanding
10. Act of an intoxicated person (section 85).
11. Act not known to be likely to cause death or grievous hurt done by consent of the
sufferer (section 87).
12. Act not intended to cause death done by consent of the sufferer (section 88).

13. Act done in good faith for the beneﬁt of a child or an insane person or by the
consent of the guardian (section 89).
17. Acts causing slight harm (section 95).
18. Acts done in private defence (sections 96–106).
1. Act done by a person bound, or by mistake of fact believing himself bound, by law
(section 76).
The general exception contained in section. 76–106 have the effect of converting an
offence into a non-offence. They are of universal nature. They apply to the deﬁnition of
every offence. Shankar Narayan Bhadolkar v State of Maharashtra, AIR 2004 SC 1966
[LNIND 2004 SC 1370] .
The maxim respondent superior has no application to cases where an offence is
committed by a subordinate oﬃcial acting under the orders of his superior. The oﬃcial

is bound to exercise his own judgment and unless the actual circumstances are of
such a character that he may have reasonably entertained the belief that the order was
one which he was bound to obey, he will be responsible for his act.
Leading cases:—State of WB v Shew Mangal Singh. R v Latifkhan.
2. Act of a Judge when acting judicially in the exercise of any power which is, or which
in good faith he believes to be, given to him by law (section 77).
A Judge will be protected where he is acting judicially and not ministerially. If he acts
without jurisdiction and without good faith, he would be responsible.
3. Act done pursuant to the judgment or order of a Court of Justice while such
judgment or order remains in force, and the person doing the act in good faith believes

that the Court has jurisdiction although it has not (section 78). This section differs
from the preceding section on the question of jurisdiction. It protects oﬃcers acting
under the authority of a judgment or order of a court even though the court has no
jurisdiction, provided the oﬃcer believed in good faith that the Court had jurisdiction.
4. Act done by a person justiﬁed by law, or who by reason of a mistake of fact, and not
by reason of a mistake of law, in good faith, believes himself to be justiﬁed by law to do
it (section 79).
Mistake is a slip made by chance. It is not mere forgetfulness. Under sections 76 and
79 the mistake should be one of fact and not of law. An honest and reasonable belief in
the existence of circumstances, which, if true, would make the act for which a prisoner

is indicted an innocent act, is a good defence. An alleged offender is deemed to have
acted under that state of facts which he, in good faith and on reasonable grounds,
believed to exist when he did the act alleged to be an offence. Iqnorantia facti doth
excusat, for such an ignorance many times makes the act itself morally involuntary. But
if an act is clearly a wrong in itself, and a person, under a mistaken impression as to
facts which render it criminal, commits the act, then he is guilty of an offence.
Mistake of law is no defence because every person of the age of discretion is bound to
know the law, and presumed to do so. If a person infringes the statute law of the
country through ignorance or carelessness he abides by the consequences of his error.

The maxim ignorantiajuris non excusat admits of no exception in its application to
criminal offences. Even a foreigner who cannot reasonably be supposed in fact to
know the law of the land is not exempted. Similarly, ignorance of a statute newly
passed will not save a person from punishment.
Leading cases:—R v Prince. R v Tolson. R v Esop. Bhawoo v Mulji. Mayer Hans George.
Rajkapoor v Laxman.
Mayne deduces the following ﬁve rules, showing the extent to which ignorance of an
essential fact may be pleaded as a defence, from the judgments in Prince's case.
(a) Where an act is in itself plainly criminal, and is more severely punishable if certain
circumstances co-exist, ignorance of the existence of such circumstances is no answer
to a charge for the aggravated offence.
(b) Where an act is prima facie innocent and proper, unless certain circumstances
coexist, then ignorance of such circumstances is an answer to the charge.
(c) Even in the last named case, the state of the defendant's mind must amount to

absolute ignorance of the existence of the circumstance which alters the character of
the act, or to a belief in its non-existence.
(d) Where an act which is itself wrong is, under certain circumstances, criminal, a
person who does the wrong act cannot set up as a defence that he was ignorant of the
facts which turned the wrong into a crime.
(e) Where a statute makes it penal to do an act under certain circumstances, it is a
question upon the wording and object of the particular statute whether the
responsibility of ascertaining that the circumstances exist is thrown upon the person
who does the act or not. In the former case his knowledge is immaterial.
5. Accident. This must have been caused—
(1) without criminal knowledge or intention,
(2) in the doing of a lawful act,
(i) in a lawful manner,
(ii) by lawful means, and

(iii) with proper care and caution (section 80).
An 'accident' is something that happens out of the ordinary course of things.
6. Act done with the knowledge that it is likely to cause harm but done in good faith and
without any criminal intention to cause harm, for the purpose of preventing, or avoiding,
other harm to person or property (section 81).
Mens rea
It is a maxim of English law that actus non facitreum, nisi mens sit rea (the intent and
act must both concur to constitute a crime). A crime is not committed if the mind of
the person doing the act in question be innocent. The above maxim has undergone a
modiﬁcation owing to the greater precision of modern statutes. Crimes are now more
accurately deﬁned by statutes than before. It has become necessary to look at the

object of each Act that is under consideration to see whether and how far knowledge is

of the essence of the offences created. In three cases mens rea is not an essential
ingredient in an offence:
(1) cases not criminal in real sense, but which, in the public interest, are prohibited
under a penalty;
(2) public nuisances; and
(3) cases criminal in form but which are only a summary mode of enforcing a civil right.
The above maxim has little application to offences under IPC, 1860, in its purely
technical sense because the deﬁnitions of various offences expressly contain an
ingredient as to the state of mind of the accused. Under the Code, therefore, mens rea
will mean one thing or another according to a particular offence. The guilty mind may
be a dishonest mind, or a fraudulent mind, or a rash or negligent mind, and so forth.
It may be observed that criminal law has nothing to do with motives of offenders.
Intention is quite different from motive. A person may do an act with a very high and
laudable motive but if his act amounts to a crime he will be guilty. Where some Hindus

removed cows from the possession of some Mohammedans to prevent the cows from
being slaughtered, they were held guilty of theft.
Whether a person can for self-preservation inﬂict harm on others is discussed at p 64.
Such acts will not exempt the offender from the full severity of law. It is murder to kill
another to save one's own life.
Leading cases:—R v Dudley (or Mignonette case). South Wark London Borough Council v
Williams.
7. Act done by a child under seven years (section 82); or by a child above seven and
under 12 years, who has not attained suﬃcient maturity of understanding to judge of
the nature and consequences of his conduct (section 83).
Leading case:—Hiralal.
8. Act done by a person who, at the time of doing it, by reason of unsoundness of mind,
is

is
(2) that he is doing what is either wrong or contrary to law (section 84).
The 'unsoundness of mind' may be temporary or permanent, natural or supervening.
But it must affect the cognitive faculties of the mind. If the offender is conscious that
the act was contrary to law and one which he ought not to do, he is punishable. The act
to be not punishable must be such as would have been excused by law, if the facts had
been as the person of unsound mind supposed. Distinction has to be made between
legal insanity and medical insanity. Bapu v State of Rajasthan, (2007) 8 SCC 66 [LNIND
2007 SC 774] .
Leading cases:—R v M'Naughton. R v Lakshman. R v Sakharam. Dahyabhai. S W
Mohammad. Ahamadulla.
The doctrine of irresistible criminal impulse was not accepted by the Calcutta High
Court.

Court.
9. Act done by a person who, at the time of doing it, by reason of intoxication, is
(1) incapable of knowing the nature of the act; or

(2) that he is doing what is either wrong or contrary to law:
provided that the thing which intoxicated him was administered to him without his
knowledge or against his will (section 85).
If an intoxicated person commits an offence requiring a particular intent or knowledge,
he is dealt with as if he had that intent or knowledge, unless the thing which intoxicated
him was administered to him without his knowledge or against his will (section 86).
Drunkenness is one thing and the disease to which it may lead is a different thing. If a
man by drunkenness, brings on a state of disease which causes such a degree of
madness, even for a time, which would relieve him of responsibility if it had been
caused in any other way, then he would not be criminally responsible.
Leading cases:—Basdev. Director of Public Prosecutions v Beard. Davis.
10. Act not intended, and not known, to be likely to cause death or grievous hurt, done
by consent of the person, above 18 years to whom harm is caused (section 87).

Ordinary games, such as fencing, boxing, football and the like are protected by this
section.
11. Act not intended, and not known to be likely to cause death, done in good faith by
consent of the person to whom harm is caused for his beneﬁt (section 88).
Surgical operations are protected under this section.
12. Act done in good faith for the beneﬁt of a person under 12 years, or of an insane
person, by or by the consent of his guardian. This exception does not extend to:—
(1) Intentional causing, or attempting to cause, death.
(2) The doing of anything which the doer knows to be likely to cause death, except to
prevent death or grievous hurt, or to cure any grievous disease or inﬁrmity.
(3) Voluntary causing, or attempting to cause, grievous hurt (except as above).
(4) The abetment of any offence, to the committing of which it would not extend

(section 89).
A consent to be a true one must not have been given—
(1) by a person under fear of injury;
(3) by a person of unsound mind, and the person obtaining the consent knows or
has reason to believe this;
(4) by a person who is intoxicated, and who is unable to understand the nature and
consequence of that to which he gives his consent;
(5) by a person under 12 years of age (section 90).
An honest misconception by both the parties, however, does not invalidate the consent.
Leading case:—Williams.
Sections 87, 88 and 89 do not extend to acts which are offences independently of any
harm which they may cause to the person giving the consent (section 91), e.g., causing

miscarriage, public nuisance, offences against public safety, etc.
13. Act done in good faith for the beneﬁt of a person, even without consent, if it is
impossible for him to give consent, or is incapable of giving it, and there is no guardian
from whom it is possible to obtain it in time for the thing to be done with beneﬁt
(section 92). This exception is subject to the same provisos as section 89, with the
difference that it will not extend to causing hurt except to prevent death or hurt.
14. A communication made in good faith, although causing harm to the person to
whom it is made, if it is for his beneﬁt (section 94), e.g., communication in good faith
by a surgeon to a patient that in his opinion he cannot live.
15. Act [except (a) murder, and (b) offence against the State punishable with death]
done under threats which, at the time of doing it, reasonably cause the apprehension of
instant death; provided the doer did not of his own accord, or from an apprehension of

harm short of death, place himself in the situation by which he became subject to such
constraint (section 94). Fear of grievous hurt is not a suﬃcient justiﬁcation. Mere
menace of future death will not be suﬃcient.
No one can plead the excuse of necessity or compulsion as a defence to an act
otherwise penal except as provided by this section.
Leading cases:—R v Deoji. R v Latifkhan. R v Maganlal.
16. Act causing such a slight harm that no person of ordinary sense and temper would
complain of it (section 95).
This section deals with those cases which come within the letter of the penal law but
not within its spirit. It is based on the maxim de minimis non curatlex (the law does not
take account of triﬂes).
Private defence.
17. Act done in exercise of the right of private defence (section 96). Every person has a

right, subject to certain restrictions, to defend,
(1) his own body and the body of any other person against any offence affecting the
human body;
(2) the property, whether movable or immovable, of himself or of any other person,
against any act, which is an offence falling under the deﬁnition of theft, robbery,
mischief, or criminal trespass, or which is an attempt to commit any of such offences
(section 97).
(3) against an act, which would otherwise be a certain offence, but is not that offence,
by reason of the doer being of unsound mind, a minor, an intoxicated person, or a
person acting under a misconception of fact (section 98).
The right of private defence is a defence right. It is neither a right of aggression nor of
reprisal. Thankachan v State of Kerala, (2008) 17 SCC 760 . The right is available not

only to the person put in danger but also to any member of the society who rises to the
occasion with a spirit of rescue. Such a samaritan gets no legal right against the
person rescued. Kashi Ram v State of Rajasthan, (2008) 3 SCC 55 [LNIND 2008 SC 187]
.

Exceptions to the right of private defence.
There is no right of private defence against the following acts:—
(1) An act which does not reasonably cause apprehension of death or of grievous hurt,
if done, or attempted to be done, by a public servant acting in good faith under colour
of his oﬃce, though that act may not be strictly justiﬁable by law.
(2) Same as above if done by the direction of a public servant.
(3) Cases in which there is time to have recourse to the protection of public authorities
(section 99).
Leading Cases:—Amjadkhan. Jaidev.
The right of private defence does not extend to the inﬂicting of more harm than it is
necessary to inﬂict for the purpose of defence (ibid).
Defence of body.
The right of private defence of the body extends to the causing of death or any other
harm to the assailant under the following circumstances:—
(1) An assault causing reasonable apprehension of death.
In this case if the defender be so situated that he cannot exercise the right without risk

of harm to an innocent person, he may even run that risk (section 106).
(2) An assault causing reasonable apprehension of grievous hurt.
(3) An assault with the intention of committing rape.
(4) An assault with intention of gratifying unnatural lust.
(5) An assault with intention of kidnapping or abducting.
(6) An assault with the intention of wrongfully conﬁning a person under circumstances
which may cause him to apprehend that he will be unable to have recourse to the public
authorities for his release.
(7) "Seventhly.—An act of throwing or administering acid or an attempt to throw or
otherwise be the consequence of such act" (section 100).
Leading case:—Vishwanath.
Subject to the above restrictions, the right of private defence of body extends to the

causing of any harm short of death (section 101).
It commences as soon as a reasonable apprehension of danger to the body arises
from an attempt or threat to commit the offence, though the offence may not have
been committed; and it continues as long as such apprehension of danger to the body
continues (section 102).
Defence of property.

The right of private defence of property extends to the causing of death or any other
(1) Robbery.
(2) House-breaking by night.
(3) Mischief by ﬁre to building, tent, or vessel, used as human dwelling or for custody of
property.
(4) Theft, mischief, or house-trespass, reasonably causing the apprehension of death or
grievous hurt (section 103).
Subject to the above restrictions, the right of private defence of property extends to the
causing of any harm short of death (section 104). It commences when a reasonable
apprehension of danger to the property commences and continues against—
(1) Theft, till
(a) the offender has affected his retreat with the property, or
(b) the assistance of the public authorities is obtained, or
(c) the property has been recovered.
(2) Robbery, as long as
(a) the offender causes or attempts to cause to any person death, or hurt, or
wrongful restraint, or

(b) the fear of instant death, or of instant hurt, or of instant personal restraint
(3) Criminal trespass or mischief as long as the offender continues in the commission
of criminal trespass, or mischief.
(4) House-breaking by night, as long as the house-trespass, which has been begun by
such house-breaking, continues (section 105).
All the provisions relating to private defence from section 96 to section 106 have to be
Leading case:—Munney Khan v State.
Excessive use of the right of private defence is a matter which can be determined only
on the facts of each case. It necessitates a combined view of subjective and objective
factors.
Leading case:—Yogendra Morarji.
Mere verbal exchanges, however hot or abusive, do not create the right of private

factors.
defence.
Leading case:—Jai Chand v State.
There is no right of private defence in a free ﬁght.
Leading case:—Sikhar Bahera v State of Orissa.
An aggressor has no right of private defence.

Leading case:—Dhananjai v State of UP, AIR 1996 SC 556 .
Abetment, Chapter V.
There are three kinds of abetment dealt with in the Code. A person abets the doing of a
thing, who
(1) instigates any person to do that thing; or
(2) engages with one or more other person or persons, in any conspiracy for the doing
of that thing, if an act or illegal omission takes place in pursuance of the conspiracy
and in order to the doing of that thing; or
(3) intentionally aids, by any act or illegal omission, the doing of that thing.
An abettor can be convicted, except in some cases, even where the principal culprit
stands acquitted.
Leading cases:—Hardhan Chakrabarty v UOI Faguna Kedar Nath v State of Bihar Jamuna
Singh v State of Bihar.
Abetment is separate and independent offence. Kishori Lal v State of MP, (2007) 10 SCC
297 .
The law of abetment is adapting itself to the social malaise of dowry which leads to
suicides by married women.
Leading cases:—Gurbachan Singh v Satpal Singh. Brij Lal v Prem Chand.

297 .
A person who, by wilful misrepresentation, or by wilful concealment of a material fact
which he is bound to disclose, voluntarily causes or procures, or attempts to cause or
procure, a thing to be done, is said to instigate the doing of that thing (section 107).
Leading Cases:—Pratima Datta. Shri Ram.
It is not necessary that the person incited should have a mens rea corresponding to
that of the inciter DPP v Armstrong.
An abettor is a person who abets
(a) the commission of an offence, or
(b) the 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 (section 108).
It should be noted that—
(1) Abetment of an illegal omission may amount to an offence (ib.,Explanation 1).

(2) It is not necessary that the act abetted should be committed (ib.,Explanation 2).
(3) The person abetted need not be capable of committing an offence, nor have any
guilty intention or knowledge (ib.,Explanation 3).
(4) The abetment of an abetment is an offence (ib.,Explanation 4).

(5) It is not necessary in abetment by conspiracy that the abettor should concert the
offence with the person abetted (ib., Explanation 5).
(6) A person will be guilty of abetment who abets the commission of any act without
and beyond India which would constitute an offence if committed in India (section
108A).
If the act abetted is committed but no express provision is made for its punishment,
then it shall be punished with the punishment provided for the offence abetted (section
109).
If a person abetted does the act with a different intention or knowledge from that of the
abettor, the latter will be punished as if the act had been done with his intention or
knowledge (section 110). The liability of the person abetted is not affected by this
section.
If the act done is different from the one abetted, the abettor is still liable for it, if it is a
probable consequence of the abetment, and committed under the inﬂuence of the

section.
abetment (section 111). The liability is the same where the effect produced is different
from that intended by the abettor (section 113).
The abettor is liable to cumulative punishment for the act abetted and for the act done
if the latter is a distinct offence (section 112).
If the abettor is present when the offence abetted is committed, he is deemed to have
committed such act or offence (section 114).
Mere presence will not render a person liable. He must be suﬃciently near to give
assistance, and he must participate in the act, no matter whether he is an eye-witness
to the transaction or not. Presence during the whole transaction is not necessary (ibid).
Lending encouragement and assistance would amount to abetment even if the abettor
was not present at the place where the killing took place. R v Cook. A constable who

kept watch while the head constable was committing rape inside their police station,
was held liable as an abettor. Ram Kumar v State of HP.
If an offence punishable with death or imprisonment for life is abetted and no express
provision is made for the punishment of such abetment, then the offender will be
punished with imprisonment extending to seven years if the offence is not committed;
but if an act causing harm is done in consequence, the imprisonment shall be extended
to 14 years (section 115). If in such a case the offence is punishable with
imprisonment, then the offender is punishable with imprisonment which may extend to
one-fourth part of the longest term provided for that offence (section 116). If in the
above case the abettor or person abetted be a public servant whose duty it is to

prevent such offence, the imprisonment may extend to one-half of the longest term
provided for the offence (ibid).
Abetting commission of an offence by the public or by more than ten persons is
punishable with imprisonment extending to three years (section 117).
There are three sections which punish concealment of a design to commit offences by
persons other than the accused, viz., sections 118, 119 and 120.
Criminal conspiracy. Chapter VA.
Criminal conspiracy is now a substantive offence under the Code. It was formerly
punishable only as a species of abetment. It arises when two or more persons agree to
do or cause to be done—

(a) an illegal act; or
(b) an act which is not illegal, by illegal means.
Such an agreement may be to commit an offence. But if it is not so, it is necessary that
some overt act besides the agreement is done by one or more parties to such
agreement in pursuance thereof (section 120A) SC Bahri v State of Bihar, (Supreme
Court). It is diﬃcult to prove conspiracy by direct evidence, Hina Lal Harilal. If the
offence conspired to is punishable with death, imprisonment for life or rigorous
imprisonment for two years or upwards, the offender is punishable in the same manner
as an abettor: but in any other case, he is liable to be punished with rigorous
imprisonment for six months, or ﬁne, or both (section 120B). Conspiracy has to be
treated as a continuing offence.
A single person can be tried and convicted for the offence. It is not necessary that
conspirators must be known to each other or that every one of them should have taken
part in each and every act done in pursuance of the conspiracy. A wife joining her

husband with knowledge that he was involved in a conspiracy with others was held to
be equally guilty. R v Charstny.
Leading cases:—Mirza Akbar. Bhagat Ram. Bhagwandas. V C Shukla. Kehar Singh
Krishan Lal Pradhan Vinayak
Offences against the State. Chapter VI.
Offences against the State may be classiﬁed as follows:—
I. Waging war against the Government of India.
II. Assaulting high oﬃcers.
III. Sedition.
IV. Waging war against a Power at peace with the Government of India.
V. Permitting or aiding the escape of a State prisoner.
1. Waging or attempting to wage war, or abetting waging of war (section 121).
2. Conspiring to commit, within or without India, offences punishable by section 121
(section 121A).
3. Collecting men, arms, or ammunition, or making any other preparation with a view to

waging such war (section 122).
4. Concealing a design to wage war with intent to facilitate waging of such war by any
act or illegal omission (section 123).
II. Assaulting the President, or the Governor of any State, with intent to compel or
restrain the exercise of any lawful power (section 124).
Sedition.
III. A person commits sedition who,

(1) by words (spoken or written), or by visible representation,
(2) brings or attempts to bring into hatred or contempt, or excites or attempts to excite
disaffection towards,
(3) the Government established by law in India (section 124A).
(1) 'Disaffection' includes disloyalty and feeling of enmity (ibid.,Explanation 1).
(2) Comments expressing disapprobation of the measures of Government to obtain
their alteration, without exciting hatred, contempt, or disaffection, do not constitute this
offence (ibid., Explanation 2).
(3) Comments expressing disapprobation of the administrative actions of Government,
without exciting hatred, contempt, or disaffection, do not constitute this offence (ibid.,
Explanation 3).
Under the Constitution, criticism of the Government exciting disaffection or bad
feelings towards it is not to be regarded as a justifying ground for restricting the
freedom of expression and of the press unless it is such as to undermine the security

of or tend to overthrow the Government. This section is not ultra vires the Constitution.
Anyone who uses in any way words or printed matter for the purpose of exciting
disaffection, be he the writer of those words or not, is liable. Publication of some kind
is necessary. The successful exciting of feelings of disaffection is placed on the same
footing as the unsuccessful attempt to excite them.
The law does not excuse the publication in newspapers of seditious writing copied
from other papers. The editor of a paper is liable for seditious letters appearing in the
paper.
Leading cases:—R v Bal Gangadhar Tilak. R v Jogendra Chandra Bose (or Bangobasi
case). Romesh Thappar. Kedar Nath.
1. Waging, attempting to wage, or abetting the waging of such war against the

Government of any Asiatic Power at peace with the Government of India (section 125).
2. Committing, or preparing to commit, depredation on the territories of any Power at
peace with the Government of India (section 126).
3. Receiving any property, knowing the same to have been taken in the commission of
any of the offences mentioned in the two last preceding sections (section 127).
1. Public servant voluntarily allowing a prisoner of State or war, in his custody, to
escape (section 128).
2. Public servant negligently suffering a prisoner of State or war in his custody, to
escape (section 129).
3. Aiding the escape, or rescuing, or attempting to rescue or harbouring, or concealing
or resisting the recapture, of such prisoner (section 130).

Army, Navy & Air Force offences. Chapter VII.
No person, subject to Articles of War, is subject to punishment under this Code for any
offence relating to the Army, Navy and Air Force deﬁned in this Chapter (section 139).
This Chapter is framed in order that persons, not military, who abet a breach of military
discipline, should not be liable under the military penal law but under the Code.
The following offences relating to the Army, Navy and Air Force ﬁnd place in the Code:
—
1. Abetting mutiny, or attempting to seduce any oﬃcer, soldier, sailor, or airman, from
his allegiance or duty (section 131).
2. Abetment of mutiny, if mutiny is committed in consequence (section 132).
3. Abetment of an assault by an oﬃcer, soldier, sailor or airman, on his superior oﬃcer,
when in the execution of his oﬃce (section 133).
4. Abetment of such an assault if the assault is committed (section 134).
5. Abetment of the desertion of an oﬃcer, soldier, sailor, or airman (section 135).

6. Knowingly harbouring deserter (section 136).
7. Concealment of deserter from Army, Navy or Air Force of the Government of India
concealed on board a merchant vessel through negligence of master or person in
charge of the vessel though he is ignorant of such concealment (section 137).
8. Abetment of act of insubordination by an oﬃcer, soldier, sailor, or airman, the act
abetted being actually committed in consequence of the abetment (section 138).
9. Wearing the garb, or carrying any token resembling any garb or token used by a
soldier, sailor or airman with the intention that it may be believed that the wearer is a
soldier, sailor or airman (section 140). The gist of the offence is the intention of the
accused. Merely wearing a soldier's dress without the speciﬁc intention is no offence,
e.g., actors put on soldier's garb while acting on the stage.

There are six sections in the Code dealing with false personation—
1. Personation of a soldier (section 140).
2. Personation of a public servant (section 170).
3. Wearing the garb or carrying the token used by a public servant (section 171).
4. Personation of a voter at an election (section 171D).
5. Personation for the purpose of an act or proceeding in a suit or prosecution (section
205).
6. Personation of a juror or assessor (section 229).
Public tranquillity. Chapter VIII.
Offences against public tranquillity hold a middle place between the State offences on
the one hand and crimes against person and property on the other. They are four:

I. Unlawful Assembly. different
II. Rioting.
III. Promoting enmity between classes.
IV. Affray.
Unlawful assembly.
I. An 'unlawful assembly' is an assembly of ﬁve or more persons, if their common
object is
1. To overawe by criminal force—
(a) the Central or any State Government, or
(b) the Parliament, or
(c) the Legislature of any State, or
(d) any public servant in the exercise of his lawful power.
2. To resist the execution of law or legal process.
3. To commit mischief, criminal trespass, or other offences.
4. By criminal force—
(c) to enforce any right or supposed right.
5. By criminal force to compel any person—
(b) to omit what he is legally entitled to do (section 141).
[Six months, or ﬁne, or both. If armed with a deadly weapon, two years, or ﬁne, or both
(sections 143, 144).]

The assembly must consist of ﬁve or more persons. It is immaterial whether the
common object is in their minds when they come together, or whether it occurs to them
afterwards. There must be some present and immediate purpose of carrying into effect
the common object. A meeting for deliberation only is not an unlawful assembly.
Persons maintaining their own right or supposed right against the aggression of other
people do not commit this offence. Common object means same or similar object; it is
not necessary to have a preconcert or prior meeting of minds.
An assembly not unlawful when it assembled may subsequently become an unlawful
one (section 143, Explanation). Illegal acts of one or two members do not change the
lawful character of an assembly. Similarly, a lawful assembly does not become

unlawful merely because the members know that their assembly would be opposed
and a breach of the peace would be committed.
Whoever, being aware of facts which render an assembly an unlawful one, intentionally
joins it, or continues in it, is a member of that assembly (section 142). Persons may
have associated themselves with a mob from perfectly innocent motives, but if the

mob becomes an unlawful assembly, and they take part in its proceedings, they will be
liable. Every such member is deemed guilty of an offence committed in prosecution of
the common object. There must be nexus between the common object and the offence
Leading case:—Allauddin Mia.
of the committing of that offence, is a member of the said assembly, is guilty of that
offence (section 149). This section prevents the accused from putting forth the
defence that he did not with his own hand commit the offence committed in
prosecution of the common object. Common object does not mean common intention.
All will be guilty of any offence done in prosecution of the common object, though there

was no common intention to commit the offence as a means to the end. But members
of an unlawful assembly may have a community of object only up to a certain point and
beyond that they may differ in their objects.
Leading cases:—R v Sabedali; Dalip Singh; Khudiram; Mushakhan; Beatty v Gillbanks.
The common object may develop at the spot itself.
Leading case:—Vithal Bhimshah Kali.
Other cognate offences—
1. Joining an unlawful assembly armed with a deadly weapon (section 144).
2. Joining or continuing in an unlawful assembly knowing it has been commanded to
disperse (section 145).
3. Hiring of persons to join an unlawful assembly (section 150).
4. Harbouring persons hired for an unlawful assembly (section 157).
5. Being hired to take part in an unlawful assembly (section 158).

Persons, who are engaged or hired to do any of the acts which make an assembly
unlawful, are likewise punished (ibid).
Riot.
II. When (1) force of violence is used, (2) by an unlawful assembly or by any member
thereof, (3) in prosecution of the common object, every member is guilty of rioting
(section 146). [Two years or ﬁne, or both. If armed with a deadly weapon, Three years,
or ﬁne, or both (section 148).]
Riot is an unlawful assembly in a particular state of activity. To constitute the offence
of rioting it must be proved:
(1) that the accused, being ﬁve or more in number, formed an unlawful assembly;
(2) that they were animated by a common unlawful object;
(3) that force or violence was used by the unlawful assembly or any member of it;
and

(4) that such force was used in prosecution of the common object.
If the common object of an assembly is not illegal, it is not rioting even if force is used
by a member of it. If persons lawfully assembled for any purpose suddenly quarrel they
do not commit riot.
1. Rioting with deadly weapons (section 148).
2. Hiring or conniving at hiring of persons to join unlawful assembly (section. 150).
3. Assaulting or obstructing a public servant in the suppression of a riot (section.
152).
4. Malignantly or wantonly giving provocation with intent to cause riot (section.
153).
Liability of persons who provide space
Liability of persons who own, occupy, or have an interest in land, is governed by the
following provisions:
(1) The owner, or any person having or claiming an interest in land upon which an
unlawful assembly is held, or riot is committed, is punishable with Rs. 1,000 ﬁne, if he
or his agent (a) knowing of the offence do not give the earliest notice thereof at the

nearest police station; or (b) believing the offence likely to be committed do not use
any lawful means to prevent it; or (c) in the event of the offence taking place do not use
all lawful means to disperse the unlawful assembly or suppress the riot (section 154).
(2) Where a riot is committed on behalf of a person who is the owner or occupier of
land respecting which such riot takes place, or who claims any interest in such land, or
in the subject of any dispute which caused the riot, such person is liable to a ﬁne, if he
or his agent having reason to believe that the riot is likely to be committed, or the
unlawful assembly causing the riot is likely to be held, fails to use all lawful means for
preventing the riot, or for suppressing and dispersing the same (section 155).

Under similar circumstances, the agent or manager is punishable likewise (section
156).
Promoting enmity, etc.
III. (a) Promoting disharmony or enmity or hatred or ill-will between different religious,
racial, language, caste or community groups on grounds of religion, race, language,
caste or community, or
(b) Committing act which is prejudicial to the maintenance of harmony or disturbing
public tranquillity,
by words or signs, or visible representations, or otherwise [Three years, or ﬁne, or both].
(c) Committing offence as stated in paras (a) and (b) in a place of worship or in any
assembly engaged in religious worship or ceremonies (section 153A). [Five years and
ﬁne].
(d) Knowingly carrying arms in any procession or organizing, or holding taking part in
ant mass drill mort mass training with (section 153AA) [Six months and ﬁne.]

Leading cases:—Babu Rao Patel. Varsha Publications Pvt Ltd. Nand Kishore Singh.
Chandanmal Chopra.
Affray.
IV. When (1) two or more persons, (2) by ﬁghting in a public place, (3) disturb the public
peace, they commit an affray (section 159). [One month or Rs. 100, or both (section
160).]
The word 'affray' is derived from the French word affraier, to terrify. An 'affray' is an
offence against the public peace because it is committed in a public place and is likely
to cause general alarm and disturbance. 'Public place' is a place where the public go,
no matter whether they have a right to go or not. No quarrelsome or threatening words
will amount to an affray.
An 'affray' differs from a 'riot'.
(2) An affray is committed by two or more persons, a riot by ﬁve or more.
(3) A riot is more severely punishable than an affray.
Persons other than the actual rioters are punishable in respect of riot in the following
cases:—

cases:—
(1) Owner or occupier of land on which an unlawful assembly is held (section 154).
(2) The person for whose beneﬁt a riot is committed (section 155).
(3) The agent of owner or occupier for whose beneﬁt a riot is committed(section 156).
(4) One who knowingly harbours, in any house or premises under his control, any
persons being or about to be hired or employed as members of an unlawful assembly
(section 157).
(5) One who is engaged, or hired, or offers to be hired, to do or assist in doing any of
the acts speciﬁed in s. 141, as making an assembly unlawful (section 158).
Offences by or relating to public servants. Chapter IX.
Chapter IX deals with offences by or relating to public servants. They are as follows:—
Note:Sections 161 to 165A have been repealed by the Prevention of Corruption Act
(vide, amendment of 1988).

1. Whoever being, or expecting to be, a public servant
(i) accepts or obtains, or agrees to accept, or attempts to obtain, any
gratiﬁcation other than legal remuneration,
(ii) as a reward for
(a) doing or forbearing to do any oﬃcial act, or
(b) showing or forbearing to show favour or disfavour to any person in

the exercise of his oﬃcial functions, or
(c) rendering or attempting to render any service or dis-service to any
person, with the Central or any State Government or Parliament or
the Legislature of any State, or a public servant,
is guilty of taking illegal gratiﬁcation (section 161). [Three years, or ﬁne or both.] It is
essential that the gratiﬁcation should be obtained "as a motive or reward".
Leading cases:—Mahesh. Maha Singh. R S Nayak v A R Antulay.
2. Taking a gratiﬁcation in order by corrupt or illegal means to inﬂuence a public
servant (section 162). [Three years, or ﬁne or both.]
3. Taking a gratiﬁcation for the exercise of personal inﬂuence with a public servant
(section 163). [One year's simple imprisonment, or ﬁne, or both.]
4. Public servant abetting either of the two last mentioned offences (section 164).
5. Public servant obtaining any valuable thing, without consideration, from a person
concerned in any proceeding or business transacted by such public servant (section
165).

165).
6. Abetting a public servant in committing an offence under section 161 or section 165
(section 165A).
7. Public servant knowingly disobeying law with intent to cause injury to any person
(section 166).
9. Public servant disobeying direction under law (section 166A).
10. Punishment for non-treatment of victim (166B).
8. Public servant framing or translating a document in a way which he knows or
believes to be incorrect, intending to cause injury to any person (section 167).
9. Public servant unlawfully engaging in trade (section 168).
10. Public servant unlawfully buying or bidding for property (section 169).
11. Personating a public servant, and doing or attempting to do an act in such assumed
character under colour of oﬃce (section 170).
12. Wearing a garb or carrying a token used by a public servant with fraudulent intent

(section 171).
Offences relating to elections. Chapter IXA.
Chapter IXA deals with offences relating to elections. It seeks to make punishable,
under the ordinary penal law, bribing, undue inﬂuence, and personation, and certain
other malpractices at elections. It applies to membership of any public body where the
law prescribes a method of election. Persons guilty of malpractices are debarred from
holding positions of public responsibility for a speciﬁed period. The following are
deemed to be offences under this chapter:—
1. Giving or accepting gratiﬁcation with the object of exercising any electoral right
(section 171B). Gratiﬁcation includes treating, i.e., giving of food, drink, entertainment
or provisions (section 171E).

2. Interfering with the free exercise of any electoral right (clause 1), threatening any
candidate or voter, or any person in whom he is interested, with injury of any kind; or
inducing any candidate or voter to believe that he or any person in whom he is
interested will become an object of Divine displeasure or of spiritual censure (clause 2)
(section 171C).
Something more than a mere act of canvassing would be necessary: Charan Lal Sahu v
Giani Zail Singh.
3. Personation at an election (section 171D).
4. Publishing false statements in relation to the personal character or conduct of any
candidate (section 171G).
5. Illegal payments in connection with an election (section 171H).
6. Failure to keep election accounts (section 171I).
Contempt of the authority of public servants. Chapter X.
Chapter X deals with contempt of the lawful authority of public servants. It contains
those provisions which are intended to enforce obedience to the lawful authority of
public servants.

The following provisions relate to wilful omission or evasion of the performance of a
public duty:—
1. Absconding to avoid service of a summons, notice, order or other proceeding from a
public servant (section 172).
'Absconding' here means simply hiding. The section does not speak of a warrant.
2. Preventing service of summons or other proceeding, or removing the same from any
place to which it is lawfully aﬃxed, or preventing the making of any proclamation under
due authority of publication thereof (section 173).
3. Non-attendance, in obedience to a summons, notice, order, or proclamation
proceeding from a public servant in person or by agent, or having attended, departing
before it is lawful to depart (section 174).
4. Non-appearance in response to a proclamation under section 82 of Act 2 of 1974
(section 174A)

[Failure by person released on bail or bond to appear in court is an offence under
section 229A.]
The attendance must be in a place in India. The summons should be speciﬁc in its
terms as to the title of the Court, the place at which, the day, and the time of the day
when the attendance is required. A verbal order is quite suﬃcient. Mere aﬃxing of
summons to a house is not enough; personal service must be attempted.
4. Intentional omission to produce or deliver up any document to a public servant by
person legally bound to produce such document (section 175).
5. Intentional omission to give, or furnish, at the time and in the manner aforesaid by
law, any notice or information to a public servant (section 176).

6. Section 202, though not appearing in this Chapter, punishes intentional omission to
give information of offence by person bound to inform.
7. Intentional omission to assist public servant in the execution of his duty when bound
by law to give assistance (section 187).
A person refusing to give true information to a public servant will be liable under the
following circumstances:—
1. Refusing on oath or aﬃrmation to state the truth when required by a public servant
legally competent to require it (section 178).
The penalty of the section would not be attracted where the refusal to take oath would
be justiﬁable: Kiran Bedi and Inder Singh v Commission of Inquiry.
2. Refusing by a person legally bound to state the truth, to answer any question,
demanded of him by a public servant authorized to question (section 179).
A person examined under section 161 of Cr PC is now legally bound to state the truth.
Leading case:—Nandini Sathpathy.

3. Refusing to sign any statement made by the party when required by a public servant
legally competent to require that he shall sign it (section 180).
A person giving false information to a public servant is liable in the following cases:—
1. Furnishing, as true, information which the person furnishing same, being legally
bound to furnish, knows or has reason to believe to be false [six months simple
imprisonment, Rs. 1,000 ﬁne]. If the information respects the commission of an
offence, or prevention of it, or the apprehension of an offender—two years'
imprisonment or ﬁne (section 177).
2. False statement on oath to a public servant, or person authorised to administer oath,
by a person legally bound to state the truth on the subject in question (section 181).

This section refers to cases in which the false statements are made to any public
servant in proceedings other than judicial.Section 191 refers to judicial proceedings.
3. Whoever gives to any public servant any information which he knows or believes to
be false, intending thereby to cause, or knowing it to be likely that he will thereby cause,
such public servant—
(a) to do or omit to do anything which such public servant ought not to do or omit if
the true state of facts respecting which such information is given were known by
him, or
person (section 182).
4. Section 203, though not appearing in this chapter, punishes the giving of false
information respecting an offence.
The following provisions deal with obstructing or disobeying a public servant:—

1. Resistance to the taking of property by the lawful authority of a public servant
(section 183).

2. Obstructing the sale of property offered for sale by the lawful authority of a public
servant (section 184).
3. Illegal purchase or bid for property, offered for sale by the authority of a public
servant, on account of any person, whether himself or any other, who is under a legal
incapacity to purchase that property at such sale, or bid for such property not intending
to perform the obligation thereby, incurred (section 185).
4. Obstructing a public servant in the discharge of his public functions (section 186).
5. Intentional omission to assist public servant in the execution of his duty when bound
6. Knowingly disobeying an order 'promulgated by a public servant lawfully empowered
to promulgate it' (section 188). [If such disobedience tends to cause obstruction or
injury to any person lawfully employed, then the punishment is simple imprisonment for
one month, or Rs. 200 ﬁne, or both. If it causes riot or affray, or danger to human life,

health or safety, then with imprisonment of either description for six months, or Rs.
1,000 ﬁne, or both].
For violation of a curfew order under section 144 Cr PC, 1973, only a prosecution under
section 188, IPC, 1860, can be launched in an appropriate case but no "shoot to kill"
order is justiﬁed merely on that account.
Three things are necessary—
(1) A lawful order promulgated by a public servant,
(2) knowledge of the order and disobedience of it, and
(3) the adverse result that is likely to follow from such disobedience.
Disobedience per se of an order promulgated under section 144 Cr PC, 1973, is not an
offence and that it is necessary to prove that the disobedience would have tended to
have certain results mentioned in section 188 IPC, 1860.
Leading cases:—Saroj Hazra. Jayantilal.

7. Threat of injury to a public servant, or to any person in whom such public servant is
believed to be interested in order to induce such public servant to do or refrain from
doing an oﬃcial act (section 189).
8. Threat of injury to induce any person to refrain from applying for protection to a
public servant (section 190).
Chapter XI treats offences relating to false evidence and public justice.
A person is said to give 'false evidence', if he
False evidence. Chapter XI.
(1) being legally bound by an oath, or by an express provision of law to state the truth;
or
(2) being bound by law to make a declaration upon any subject;
(3) makes any statement which is false; and

(4) which he either knows or believes to be false, or does not believe to be true (section
191).
If the Court has no authority to administer an oath, or if it has no jurisdiction at all, the
proceedings will be without jurisdiction. Oath or solemn aﬃrmation is not a condition
precedent to this offence. The false statement need not be material to the case. It is
not limited to evidence before a Court of Justice, but covers any statement made,
under oath or otherwise, in pursuance of a legal duty to make it. A false allegation in a
written statement amounts to this offence. Illegality of a trial does not purge perjury
committed in that trial. An accused is not liable if he gives false answers to questions
put by the Court.
A person is said to 'fabricate false evidence' if he
Fabricating false evidence.
(1) causes any circumstance to exist; or
(2) makes any false entry in any book or record; or
(3) makes any document containing a false statement;

(4) intending that such circumstance, false entry or false statement may appear in
evidence in (a) a judicial proceeding, or (b) a proceeding taken by law before a public
servant or an arbitrator; and
(5) may cause any person, who in such proceeding is to form an opinion upon the
evidence, to entertain an erroneous opinion;
(6) touching any point material to the result of such proceeding (section 192). [If
evidence is given or fabricated for the purpose of being used in any stage of a judicial
proceeding, seven years and ﬁne; in any other case, three years and ﬁne (section 193).]
This section refers to judicial proceedings. Section 181 refers to any proceeding before
a public servant. The deﬁnition of 'judicial proceeding' in Cr PC, 1973, is not applicable
to sections 192 and 193.

Intention is the gist of the offence of fabricating false evidence.
The false evidence must be material to the case, though it may not be so under section
191. If no erroneous opinion could be formed touching any point material to the result
of a proceeding there is no fabrication.
As soon as the false evidence is fabricated the offence is complete. Actual use of such
evidence is not necessary. Such use is punishable under section 196. The fabricated
evidence must, however, be admissible evidence. The offence cannot be committed
before a public servant not authorized to hold an investigation.
Where a person makes two contradictory statements he can be charged in the
proved which of those contradictory statements is false. KTMS Mohd v UOI, (Supreme
Court).

Court).
Persons accused of giving or fabricating false evidence should be tried separately and
not jointly.

An accused person who fabricates evidence to escape punishment is not liable under
this section, unless he contemplates injury to someone else.
The aggravated forms of these two offences are—
1. Giving or fabricating false evidence with intent to procure conviction of a capital
2. Giving or fabricating false evidence with intent to procure conviction of an offence
punishable with imprisonment for life or imprisonment (section 195).
3. Threatening or inducing any person to give false evidence (section 195A).
The following offences are punishable in the same manner as the giving of false
evidence:—
1. Issuing or signing any certiﬁcate required by law to be given or signed or by law
made evidence of any fact knowing or believing that such certiﬁcate is false in any
material point (section 197).
2. Using as true a certiﬁcate known to be false in a material point (section 198).
3. False statement made in any declaration which touches any material point and

which is by law receivable as evidence (section 199).
4. Using as true any such declaration known to be false in any material point (section
200).
5. Causing disappearance of evidence of the offence or giving false information to
screen offender. The punishment is linked with the type of offence of which the
evidence is destroyed. (section 201).
6. Intentional omission to give information by the person who is bound to inform
(section 202).
7. Giving false information in respect of an offence which has been committed (section
203).
Destruction or secreting or obliteration of a document to prevent its production in
evidence in a court is punishable (section 204).
There are two offences in this chapter dealing with false personation.
Personation

1. Falsely personating another, and in such assumed character making any admission
or statement, or confessing judgment or causing any process to be issued or becoming
bail or security, or doing any other act in any suit or prosecution (section 205).
Any fraudulent gain or beneﬁt to the offender is not necessary.
The Calcutta High Court has held that a person commits this offence even if he
personates a purely imaginary person. The Madras High Court, following English
precedents, has held to the contrary.
2. Personating a juror or assessor. (section 229).
The following provisions deal with the abuse of process of court:—

Abuse of process of Court.
1. Fraudulent removal or concealment of property to prevent its seizure as forfeiture or
in execution of a decree (section 206).
2. Fraudulent claim to property to prevent its seizure as forfeiture or in execution
(section 207).
3. Fraudulently suffering a decree for a sum not due (section 208).
4. Fraudulently or dishonestly making a false claim in court (section 209).
5. Fraudulently obtaining a decree for a sum not due or causing a decree or order to be
executed against any person after it has been satisﬁed (section 210).
The fact that the satisfaction of a decree is of such a nature that the court executing
the decree cannot recognize it, does not prevent the decree-holder from being
convicted of this offence.
6. False charge of an offence.
This has four ingredients:—
(1) Instituting or causing to be instituted any criminal proceedings, or
(2) Falsely charging any person with having committed an offence,
(3) Knowledge that there is no just or lawful ground for it,

(4) Doing as above with intent to cause injury to any person (section 211). [Two years,
or ﬁne, or both. If criminal proceedings, be instituted on a false charge of an offence
punishable with death, imprisonment for life, or imprisonment for seven years or
upwards, then the punishment is seven years and ﬁne.]
Criminal law may be put in motion—
(1) by giving information to the police, or
(2) by lodging a complaint before a Magistrate.
A false charge to the police in respect of a cognizable offence amounts to institution of
criminal proceedings. But as the police have no power to take any proceedings in non-
cognizable cases without orders from a Magistrate, a false charge of such offence
made to the police is not an institution of criminal proceedings but merely a false

charge. No such distinction exists when a false charge of any offence is made before a
Magistrate.
Leading cases:—R v Karim Buksh. R v Jijibhai. Santosh Singh.
For a false charge of offence of a serious nature severe punishment is provided.
According to the Calcutta and the Madras High Courts, in such cases it is not
necessary that criminal proceedings should be instituted, the charge should merely
relate to a serious offence; whereas the Allahabad High Court has held that criminal
proceedings should have been actually instituted.
Leading cases:—R v Karim Buksh(Cal). R v Nanjunda Row(Mad). R v Bisheshar(All).
The bringing of a vexatious charge is not an offence under this section. The
compounding of the offence alleged to have been committed is no bar to a prosecution

under this section. The person aggrieved may sue in a civil suit for damages for
malicious prosecution instead of instituting criminal proceedings.
There is a difference between section 182 and section 211.
Bombay High Court.—Under section 182 proof of (1) malice, and (2) want of reasonable
and probable cause, except so far as they are implied in the act of giving false
information, is not necessary; under section 211 such proof is absolutely required
(Raghavendra v Kashinathbhat).
Calcutta High Court.—Prosecution for a false charge may be under either of these
sections. But if the false charge is of a serious nature, section 211 should be applied
(Sarada Prosad Chatterjee).
Allahabad High Court.—Where a speciﬁc false charge is made, the proper section to
apply is section 211. An offence under section 182 is complete when false information
is given to a public servant although the latter takes no steps towards the institution of
criminal proceedings (Jugal Kishore; Raghu Tiwari).

Patna High Court.—It follows the view of the Calcutta High Court.
Punjab.—The former Chief Court of the Punjab followed the view of the Bombay High
Court.
Screening an offender.
1. Causing disappearance of evidence of an offence or giving false information to
screen the offender (section 201).
An offence should have been actually committed to render a person liable. An offender
himself causing the disappearance of evidence can be held liable under this section.
2. Taking gift to screen an offender from punishment (section 213).
3. Offering gift or restoration of property in consideration of screening an offender
(section 214).
Taking any gratiﬁcation on account of helping any person to recover any moveable
property of which he has been deprived by any offence under this Code is punished

unless the person taking gift uses all means in his power to cause the offender to be
apprehended (section 215).
Harbouring an offender.
1. Harbouring or concealing a person knowing him to be an offender with the intention
of screening him from legal punishment (section 212).
2. Harbouring or concealing an offender who has escaped from custody, or whose
apprehension has been ordered (section 216).
3. Knowingly harbouring any persons who are about to commit, or have committed,
robbery or dacoity (section 216A).
The following provisions deal with offences against public justice committed by public
servants:—

Offences by public servants.
1. Public servant knowingly disobeying a direction of law with an intent to save any
person from punishment or any property from forfeiture (section 217).
2. Public servant, charged as such with the preparation of a record or other writing,
framing it incorrectly with intent to cause loss or injury to the public or any person, or to
save any person from punishment or property from forfeiture (section 218).
3. Public servant in a judicial proceeding corruptly or maliciously making any report,
order, verdict, or decision, knowing that it is contrary to law (section 219).
4. Public servant corruptly or maliciously committing any person for trial, or keeping
any person in conﬁnement knowing that he is acting contrary to law (section 220).
The Supreme Court analysed the requirements of this section in Suryamoorthy v
Govindaswami.
5. Public servant intentionally omitting to apprehend, or suffering to escape, any person

when legally bound to apprehend or keep him in conﬁnement (section 221).
6. Same as above, when such person is under sentence or lawfully committed to
custody (section 222).
7. Public servant legally bound to keep in conﬁnement a person charged with, or
convicted of, any offence, negligently suffering him to escape (section 223).
8. Public servant omitting to apprehend or suffering to escape from conﬁnement any
person in cases not otherwise provided for (section 225A).
Resisting the law is punishable in the following cases:—
1. A person resisting or obstructing the lawful apprehension of himself for any offence
with which he is charged or of which he has been convicted; or escaping or attempting
to escape from legal custody (section 224).
2. Resisting or obstructing lawful apprehension of another person for an offence, or

rescuing or attempting to rescue him from legal custody (section 225).
3. Resistance or obstruction to lawful apprehension, or escaping or rescuing from legal
custody in cases not otherwise provided for (section 225B). Violation of condition of
remission of punishment (section 227).
Contempt of Court.
A person is guilty of contempt of Court if he intentionally offers any insult or causes
any interruption to any public servant, while he is sitting in any stage of a judicial
proceeding (section 228). [Six months' simple imprisonment, or Rs. 1,000, or both.]
A person who prints or publishes the name or discloses the identity of the victim of a
rape case and other sexual offences under sections 376A, 376B, 376C or 376D without
due authorisation or permission of the court shall be punishable with imprisonment of

either description for a term which may extend to two years and shall also be liable to
ﬁne (section 228A).
This section, however, does not apply to the publication of the judgment of any High
Court or the Supreme Court (Explanation to section 228A).

Coin and Stamps. Chapter XII.
Coin is metal used for the time being as money, and stamped and issued by the
authority of some State or Sovereign power in order to be so used. Old coins not used
as money are not coins under this deﬁnition.
Indian coin is—
(1) metal stamped and issued—
(a) by the authority of the Government of India,
(b) in order to be used as money;
(2) Metal which has been so stamped or issued shall continue to be Indian coin
notwithstanding that it may have ceased to be used as money (section 230).
Following are the various offences relating to coin:—
1. Counterfeiting coin or Indian coin (sections 231, 232).
2. Making, mending, buying, or selling, or disposing of any die or instrument for
counterfeiting coin or Indian coin (sections 233, 234).
3. Being in possession of any instrument or material for the purpose of using the same
for counterfeiting of coin or Indian coin (section 235).
4. Abetting in India, counterfeiting of coin out of India (section 236).

Abetment must be completed in India.
5. Importing or exporting of a counterfeit coin or Indian coin (sections 237, 238).
6. Delivery to another of a coin or Indian coin possessed with the knowledge that it is
counterfeit (sections 239, 240).
7. Delivery to another of a counterfeit coin as genuine, which, when ﬁrst possessed, the
deliverer did not know to be counterfeit (section 241).
8. Possession of a counterfeit coin or Indian coin by a person who knew it to be
counterfeit when he became possessed thereof (sections 242, 243).
Possession must be with intent to defraud.
9. Any person employed in a mint causing a coin to be of different weight or
10. Unlawfully taking from a mint any coining instrument or tool (section 245).
11. Fraudulently or dishonestly diminishing the weight or altering the composition of

any coin or Indian coin (sections 246, 247).
12. Altering appearance of any coin or Indian coin with intent that it shall pass as a coin
of different description (sections 248, 249).
13. Delivery to another of a coin or Indian coin possessed with the knowledge that it is
altered (sections 250, 251).
There must be both possession with knowledge and fraudulent delivery.

14. Possession of an altered coin or Indian coin by a person who knew it to be altered
when he became possessed thereof (sections 252, 253).
15. Delivery to another of an altered coin as genuine, which, when ﬁrst possessed, the
deliverer did not know to be altered (section 254).
The following offences relate to Government stamps:—
1. Counterfeiting or performing any part of the process of counterfeiting a government
stamp (section 255).
2. Possession of an instrument or material for the purpose of counterfeiting a
government stamp (section 256).
3. Making, buying, or selling any instrument for the purpose of counterfeiting a
government stamp (section 257).
4. Sale of a counterfeit government stamp (section 258).
5. Possession of a counterfeit government stamp (section 259).
6. Using as genuine a government stamp known to be counterfeit (section 260).
7. Fraudulently affecting any writing from a substance bearing a Government stamp or

removing from a document the stamp used for it, with intent to cause loss to the
Government (section 261).
8. Using a government stamp known to have been before used (section 262).
9. Fraudulently erasing from a government stamp any mark denoting that the same has
been used, or selling or disposing of a stamp from which such a mark has been erased
(section 263).
10. Possession of a ﬁctitious stamp or of any die, plate or instrument for making any
ﬁctitious stamp (section 263A).
Weights and measures. Chapter XIII.
The following offences relate to weights and measures:—
1. Fraudulent use of false instruments for weighing (section. 264).
2. Fraudulent use of a false weight or measure or using any weight or measure of
length or capacity, as a different weight or measure from what it is (section 265).

3. Possession of any instrument for weighing, or of any weight or measure of length or
capacity, knowing it to be false, intending that the same may be fraudulently used
(section 266).
4. Making, selling, or disposing of any false instrument for weighing or any false weight
or measure of any length or capacity in order that the same may be used or knowing
that it is likely to be used as true (section 267).
Nuisance. Chapter XIV.

A person is guilty of public nuisance who does
(1) any act, or is guilty of an illegal omission; and
(2) such act or omission causes
(a) any common injury, danger, or annoyance (i) to the public, or (ii) to the people in
general who dwell or occupy property in the vicinity; or
(b) any injury, obstruction, danger, or annoyance to persons who may have occasion to
use any public right (section 268).
Nuisance is either (1) public, or (2) private. The former is an offence against the public
as it affects the public at large, or some considerable portion of public. It depends in a
great measure upon the number of houses and the concourse of people in the vicinity;
and the annoyance or neglect must be of a real and substantial nature. Public nuisance
cannot be excused on the ground that the act complained of is inconvenient to a large
number of the public. Acts which seriously interfere with the health, safety, comfort, or
convenience of the public generally, or which tend to degrade public morals, have

always been considered public nuisance. A brew-house, glass-house, or swine-yard,
may be a public nuisance if it is shown that the trade is such as to render enjoyment of
life and property uncomfortable. Public nuisance can only be the subject of one
indictment, otherwise a party might be ruined by a million prosecutions. No prescriptive
right can be acquired to maintain a public nuisance.
Private nuisance is anything done to the hurt or annoyance of the lands, tenements, or
hereditaments of another, and not amounting to trespass. It is an act affecting some
particular individual or individuals as distinguished from the public at large. It is in the
quantum of annoyance that public nuisance differs from private. Private nuisance
cannot be a subject of indictment but a ground of a civil action for damages, or
injunction, or both.

The following offences affect public health:—
1. Negligent or malignant act likely to spread infection of any disease dangerous to life
(sections 269, 270). The Supreme Court considered under this section the position of a
person suffering from HIV (AIDS) X v Z.
2. Wilful disobedience to a quarantine rule (section 271).
3. Adulteration of food or drink intended for sale so as to make it noxious (section
272).
4. Selling, offering or exposing for sale, as food or drink, any article which has been
rendered or has become noxious or unﬁt for food or drink (section 273).
5. Adulteration of drug so as to lessen its eﬃcacy, change its operation or render it
noxious (section 274).
6. Knowingly selling or causing to be used for medicinal purposes any adulterated drug
(section 275).

7. Selling, or offering or exposing for sale, or issuing from a dispensary for medicinal
purposes, any drug or medical preparation as a different drug or medical preparation
(section 276). Possession has been taken to be evidence of intention (sabapathee).
In the States of West Bengal and Uttar Pradesh offences under sections 272, 273, 274,
275 and 276 IPC, 1860, have by virtue of local amendments been made cognizable,

non-bailable and punishable with imprisonment for life (see COMMENT under section
272).
8. Voluntarily corrupting or fouling the water of a public spring or reservoir so as to
render it less ﬁt for the purpose for which it is ordinarily used (section 277).
9. Voluntarily vitiating the atmosphere so as to make it noxious to the public health
(section 278). Carrying such material without proper protection and dumping it at
some place, though temporarily, constituted offences. Durham County Council v Peter
Connors Industrial Services and R v Metropolitan S Magistrate.
The following offences relate to public safety:—
1. Rash or negligent driving or riding on a public way so as to endanger human life, or to
cause hurt or injury to any other person (section 279).
Negligence is the breach of a duty caused by the omission to do something which a
of human affairs, would do, or the doing of something which a prudent and reasonable

man would not do.
There is a distinction between a rash act and a negligent act. Culpable rashness is
acting with the consciousness that the mischievous and illegal consequences may
follow but with the hope that they will not. Culpable negligence is acting without the
consciousness that the illegal and mischievous effect will follow. As between rashness
and negligence, rashness is a graver offence.
Leading cases:—Bhalchandra. Padmacharan Naik.
2. Rash or negligent navigation of a vessel (section 280).
3. Exhibiting any false light, mark, or buoy, intending or knowing it to be likely to mislead
any navigator (section 281).
4. Conveying a person by water for hire in a vessel overloaded or unsafe (section 282).
Hijacking and threat to blow up an aircraft have been considered under this section (R v
Mason).

Mason).
5. Causing danger, obstruction, or injury to any person in a public way or public line of
navigation (section 283).
6. Rash or negligent conduct with respect to any poisonous substance so as to
endanger human life, or to be likely to cause hurt or injury to any person (section 284).
7. Rash or negligent conduct with respect to any ﬁre or combustible matter (section.
285).
8. Rash or negligent conduct with respect to any explosive substance (section. 286).
9. Rash or negligent conduct with respect to any machinery in the possession or under
the charge of the offender (section. 287).
10. Negligence with respect to pulling down or repairing buildings (section. 288).
11. Negligence with respect to any animal (section. 289).
Acts of public nuisance other than those mentioned above are punishable under the

general section (section. 290). A person cannot continue a public nuisance after
injunction to discontinue (section. 291).

Offences against public morals and decency are:—
1. (a) Selling, letting to hire, distributing, or publicly exhibiting or circulating any
obscene book, pamphlet, paper, drawing, painting, representation or ﬁgure or any
obscene object; or
(b) importing, exporting, or conveying any obscene object for any of the above
purposes; or
(c) taking part in or receiving proﬁts from any business conducted for the
abovementioned purposes; or
(d) advertising that any person is engaged in any of the abovementioned acts, or
that any obscene object can be got from that person; or
(e) attempting to do any act which is an offence under this section (section. 292).
Leading cases:—Ranjit Udeshi. Samaresh Basu v Amal Mitra. Rajkapoor v Laxman.
Mahajan Singh v Commr. of Police.
2. Selling, letting to hire, distributing, exhibiting, or circulating to any person under the
age of 20 years any obscene object referred to above, or attempting to do so (section.
293).

293).
A book, pamphlet, paper, writing, drawing, painting, representation, ﬁgure or any other
object is deemed obscene if it is lascivious or appeals to the prurient interest or if its
effect taken as a whole is such as tends to deprave and corrupt persons who are likely
to see, read or hear the matter.
3. Causing annoyance to others by—
(a) doing any obscene act in any public place; or
(b) singing, reciting, or uttering any obscene song, ballad or words, in or near any
public place (section 294).
(4) Keeping any oﬃce, or place, for the purpose of drawing any lottery not being a state
lottery or a lottery authorised by the State Government (section 294A).
Whoever publishes any proposal to pay any sum, or to deliver any goods, on drawing of
any ticket, lot or number, in a lottery is also punished (ibid). [Fine up to Rs. 100.]

An agreement for contributions to be paid by lot, or a transaction requiring skill for
winning prizes is not a lottery. Transactions in which prizes are decided by chance
amount to lottery.
Offences relating to religion. Chapter XV.
Chapter XV treats of offences relating to religion. They are as follows:—
1. Injuring or deﬁling a place of worship, or any object held sacred by any class of
persons, with intent to insult the religion of any class of persons (section 295).
2. Deliberate and malicious acts intended to outrage religious feelings of any class, by
insulting its religion or religious belief irrespective of the fact whether the religious
belief in question is rational or irrational. (section 295A).

Leading cases:—Shalibhadra Shah. Nandkishore Singh. Chandanmal Chopra. T
Parameswaran v District Collector.
3. Voluntarily disturbing a religious assembly lawfully engaged in the performance of
religious worship or religious ceremonies (section 296).
4. Trespassing in a place of worship or burial place, offering any indignity to corpse, or
disturbing persons performing funeral ceremonies, with intent to wound the feelings, or
insult the religion of any person or with the knowledge that the feelings of any person
are likely to be wounded (section 297).
5. Uttering any word or making any sound in the hearing of that person, or making any
gesture in the sight of that person, or placing any object in the sight of that person
(section 298).
Offences affecting human body. Chapter XVI.
Offences against the person are—
(1) Unlawful homicide.
(a) Culpable homicide.
(b) Murder.
(c) Homicide by rash or negligent act.
(d) Suicide.
(e) Being a Thug.
(2) Causing miscarriage.

(3) Exposure of infants and concealment of births of children.
(4) Hurt and grievous hurt.
(5) Wrongful restraint.
(6) Wrongful conﬁnement.
(7) Criminal force.
(8) Assault. prostitution.
(9) Kidnapping.
(10) Abduction.
(11) Slavery.
(12) Selling or buying a minor for prostitution.
(13) Forced labour.
(14) Rape and other sexual offences.
(15) Unnatural offence.
Culpable homicide, the genus, and murder, the species, are deﬁned in very close
resembling terms.

Culpable homicide.
A person commits murder (section 300) culpable homicide if he causes death by doing
an act— (section 299) if he causes death by doing an act—
(1) with the intention of causing death; or (1) with the intention of causing death; or
injury as is likely to cause death;
cause death of the person to whom the harm is
caused; or
any person, and the bodily injury intended to be
(3) with the knowledge that he is likely by such
act to cause death.
(4) with the knowledge that it is so imminently
dangerous that it must in all probability cause
death, or such bodily injury as is likely to cause
death.
[Imprisonment for life; or 10 years and ﬁne, if
the offence comes under clause 2. If it comes
under clause 3, then 10 years, or ﬁne, or both—

death.
(section 304).]
Capital punishment, or imprisonment for life,
and ﬁne—(section. 302).
homicide; but it may amount to culpable homicide without amounting to murder. All
acts of killing done with the intention to kill, or to inﬂict bodily injury suﬃcient to cause
death, or with the knowledge that death must be the most probable result are prima
facie murder; while those committed with the knowledge that death will be a likely
result are culpable homicide not amounting to murder. Where the act is not done "with
the intention of causing death" (clause 4, section 300) the difference between culpable
homicide and murder is merely a question of different degrees of probability that death

would ensue. It is culpable homicide where death must have been known to be a
probable result. It is murder where it must have been known to be the most probable
result. If an injury is deliberately inﬂicted, in the sense that it is not accidental or
unintentional, and the injury, objectively speaking, is suﬃcient to cause death in the
ordinary course of nature and death results, the offence is murder (clause 3, section
300).
Leading cases:—State of AP v R Punnayya. R v Govinda. R v Idu Beg. R v Gora Chand
Gopee. Virsa Singh.
English case.—"Likely".—The accused was convicted of an offence of behaving in a
manner likely to endanger the safety of an air craft by the persistent use of his mobile
telephone in mid-ﬂight. His appeal against conviction failed because the word "likely"

was correctly construed in its statutory context as meaning "a real risk not to be
ignored." (R v White house).
Death caused by an act, for example, setting a house on ﬁre, done with foresight that
someone may die, but without any intention of that kind, has been held by an English
Court to be not murder but only culpable homicide. Foresight is not the same thing as
an intention. Foresight may only be an evidence of intention.
Leading case:—R v Nadrick.
Other circumstances may also prove intention. For example, a married woman burning
in the kitchen and her husband and others not at all coming up to her, held by the

Supreme Court to be evidence of intention. Subedar Tewari v State of UP.
Where death is caused by poison, the earlier legal propositions, one of which required
that the accused must be shown to have possessed poison of the kind in question,
have now been revised.
Death in police custody is not capable by itself of creating an inference of murder. State
v Balkrishna.
Leading case:—Bhupinder Singh v State of Punjab.
Death caused by the effect of words on the imagination or the passions of a person
amounts to culpable homicide. If a person engaged in the commission of an offence
causes death by pure accident, he shall suffer only the punishment provided for the
offence, without any addition on account of the accidental death. Culpable homicide
presupposes an intention, or knowledge of likelihood, of causing death. In the absence
of these elements, even if death be caused, the offence will be that of hurt or grievous
hurt, e.g., death caused by kicking a person suffering from a diseased spleen.

A person who causes bodily injury to another who is labouring under a disease or
bodily inﬁrmity, and thereby accelerates the death of that other is guilty of homicide
(Explanation 1). Similarly, where death is caused by bodily injury, the person who
causes such injury is guilty of this offence, although by resorting to proper remedies
and skilful treatment death might have been prevented (Explanation 2). The causing of
the death of a child in the mother's womb is not homicide. But it is homicide to cause
the death of a living child, if any part of that child has been brought forth, though the
child may not have breathed or been completely born (Explanation 3).
If death is caused by the voluntary act of the deceased resulting from fear of violence
on the part of the offender, the offence will be murder. For instance, if four or ﬁve

persons were to stand round a man, and so threaten him and frighten him as to make
him believe that his life was in danger, and he were to back away from them and tumble
over a precipice to avoid them, the persons threatening him will be guilty of murder.
Where the attack was aimed at one person but it fell upon another resulting in the
latter's death, it was held that under the doctrine of transfer of malice, the attacker
would be guilty of murder. Nagaraj v State, (2006) Cr LJ 3724 (Mad—FB); Rahimbux v
State of MP, (2008) 12 SCC 270 [LNIND 2008 SC 2798] .
The punishment for murder is either death or imprisonment for life and also ﬁne. The
Supreme Court has, in a long course of decisions, made it an established principle that
the normal punishment for murder is life imprisonment and that "death" should be

awarded in "rarest of rare cases". Examples of such rarest of rare cases are:
Leading cases:—Kehar Singh v State (Delhi Administration). Lichhmadevi v State of
Rajasthan.
An abnormal delay in executing a death sentence has been recognised as a ground for
converting death sentence into life imprisonment.
Leading cases:—Bachan Singh v State of Punjab Triveniben v State of Gujarat Madhu
Mehta v UOI.
The Supreme Court has noted serious changes which have taken place in the state of
the society since the categories for award of death sentence were laid down. Because
of such changes, there should be some ﬂexibility in the application of the categories.
Swami Shraddananda v State of Karnataka, (2008) 13 SCC 767 [LNIND 2008 SC 1488] .

The Supreme Court has also taken opportunities to explain the impact of the special
State-wise enactments for punishment of children vis-a-visIPC, 1860: Bhoop Ram v
There is no difference in the liability of the offender if the injury intended for one falls
on another by accident (section 301).
Exceptions.
Culpable homicide is not murder in the following cases:—
Provocation.
1. Grave and sudden provocation depriving the offender of the power of self-control,
provided that the provocation is not—
(a) sought or voluntarily provoked by the offender as an excuse;
(b) given by anything done in obedience to the law or by a public servant in the lawful
exercise of his powers;
(c) given by anything done in the lawful exercise of the right of private defence.
Provocation resulting from abusive language has been considered to be grave enough.
Female inﬁdelity is a common cause of provocation.
An English decision allowed even a self-induced provocation to be taken into account

for recording a ﬁnding of manslaughter: R v Johnson.
The longer the gap between the provoking incidents, less likely the defence of
provocation is to succeed. The loss of self-control need not be immediate. The mental
state of accused at the time of the incident may be taken into account for determining
whether the response was the result of the loss of self-control: R v Ahluwalia;
Dhandayuthan v State.
2. If the offender, in the exercise in good faith of the right of private defence of person
or property, exceeds it, and causes death without premeditation and without intending
more harm than is necessary.
Public servant.
3. If the offender being a public servant or aiding a public servant exceeds his legal
powers and causes death by an act which he, in good faith, believes to be lawful and

necessary for the due discharge of his duty, and without ill-will towards the deceased.
Sudden ﬁght.

4. If it is committed, without premeditation, in a sudden ﬁght, in the heat of passion,
upon a sudden quarrel, and without the offender having taken undue advantage, or
acted in a cruel or unusual manner.
The ﬁght should not have been pre-arranged.
Consent.
5. When the deceased, being above the age of 18 years, suffers death or takes the
risk of harm with his own consent.
Where any of the ﬁve exceptions applies, the offence will be punishable under the ﬁrst
part of section 304.
The special category of murder enshrined in section 303 under the heading
"punishment for murder by life-convict" has been declared by the Supreme Court to be
Leading case:—Mithu
The result is that all murders are now punishable under section 302.
Culpable homicide which does not amount to murder is punishable under section 304
for a term extending to 10 years, if the act by which death is caused is done with the
intention of causing death or by causing such bodily injury as is likely to cause death.

The same section in its second paragraph, popularly known as Part II, provides that the
accused causing death may be punished with imprisonment extending to 10 years or
ﬁne or both, if the act is done without intention to cause death or such bodily injury as
is likely to cause death, but with only knowledge that it is likely to cause death (section
304).
The nature of the intention has to be gathered from the kind of weapon used, the part
of the body hit, the amount of force employed, and attending circumstances. Manubhai
Atabhai v State of Gujarat, (2007) 10 SCC 358 [LNIND 2007 SC 822] .
For distinction between section 304 and section 304-A, see Supreme Court decision
noted of p 615.
Death by negligence.
Causing the death of any person by doing any rash or negligent act not amounting to

culpable homicide is punishable (section 304A). [Two years and ﬁne.]
Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is
so, and that it may cause injury, or knowledge that injury will probably be caused.
Criminal negligence is acting without the consciousness that the illegal and
mischievous effect will follow but in circumstances which show that the actor has not
exercised the caution incumbent upon him and that if he had he would have had the
consciousness.
If death results from injury intentionally inﬂicted this section does not apply. Death
should have been the direct result of the rash and negligent act and that act must be
the proximate and eﬃcient cause without the intervention of another's negligence. It
must be the causacausans; it is not enough if it is causa sine qua non.

Dowry death.
An unnatural death of a woman within seven years of marriage, whether by burns or
injury or otherwise, taking place in the background of cruelty or harassment for dowry,
is called a "dowry death". Whoever is guilty of causing such death is punishable for a
term not less than seven years and which may extend to imprisonment for life. The
ingredients of section 304-B offence have been stated by the Supreme Court in Shanti v
State of Haryana (section 304-B).
Leading cases:—R v Nidamarti Nagabhushanam. R v Ketabdi Mundal. Bhalchandra. Syed
Akbar.
The expression "soon before" as occurring in the section has been construed by the
Orissa High Court in Keshab Chand Pandit v State, (1995) Cr LJ 175 (Ori), and also by
the Supreme Court in Yashoda v State of MP, (2004) 3 SCC 98 [LNIND 2004 SC 155] .
Deen Dayal v State of Up, (2009) 11 SCC 157 [LNIND 2009 SC 19] .
The Supreme Court has observed that death "otherwise than in normal circumstances"

would mean that the death was not in the usual course but apparently under suspicious
circumstances if it was not caused by burn or bodily injury. Death of a woman by
suicide occurring within seven years of marriage cannot be described as occurring in
normal circumstances. (Rajayyan). The court has to analyse the facts and
circumstances leading to the victim's death to see whether there is proximate
connection between the cruelty or harassment for dowry demand and death. State of
Rajasthan v Jaggu Ram, (2008) 12 SCC 51 [LNIND 2007 SC 1514] . Kailash v State of MP,
(2006) 12 SCC 667 [LNIND 2006 SC 803] ; Dhian Singh v State of Punjab, (2004) 7 SCC
759 .
Suicide.—There are two provisions regarding abetment of suicide:—
(1) Abetment of suicide of a child or an idiot or an insane or a delirious or an
intoxicated person (section 305).

759 .
(2) Abetment of suicide by any person (section 306). There can be abetment of suicide
through dowry demand.
Attempts.
Attempts to destroy life are of three kinds:—
1. Attempt to murder, i.e., doing an act with such intention or knowledge, and under
such circumstances that if the doer by that act caused death he would be guilty of
murder (section 307). [Ten years and ﬁne. If hurt is caused, then imprisonment for life
or 10 years. If the offender is under sentence of imprisonment for life, then death.]
The Bombay High Court held that there may be an attempt under section 511 which
does not come under this section. It is not intended to exhaust all attempts to commit
murder which can be punished under the Code (R v Cassidy). But the Allahabad High
Court has laid down that section 511 does not apply to attempts to commit murder

which are fully and exclusively provided for by this section (R v Niddha).
The Supreme Court held that a person commits an offence under this section when he
has an intention to commit murder and in pursuance of that intention he does an act
towards its commission irrespective of the fact whether that act is the penultimate act
or not (Om Prakash); Samersimbh Umedsinh Rajput v State of Gujarat, (2007) 13 SCC 83
[LNIND 2007 SC 1450] .

Leading case:—State of Maharashtra v Balaram Bama Patil.
In the matter of suicide by a married woman in the circumstances speciﬁed in the
amendments, the burden of proving that her in-laws had not abetted the suicide has
been put upon them.
Leading case:—Gurbachan Singh v Satpal Singh. Brij Lal v Prem Chand.
There must be proof of the fact that the death in question was due to suicide.
Leading case:—Wazir Chand v State of Haryana.
2. Attempt to commit culpable homicide, i.e., doing an act with such intention or
knowledge, and under such circumstances, that, if the doer by that act caused death,
he would be guilty of culpable homicide not amounting to murder (section 308). [If hurt
is caused, then seven years, or ﬁne, or both; in other cases three years, or ﬁne, or both.]
3. Attempt to commit suicide.— An act towards the commission of this offence should
have been done (section 309). [One year, or ﬁne, or both.] The act must have been done
in the course of the attempt, otherwise no offence is committed.

Criminologists feel that an attempt to commit suicide being the manifestation of a
diseased condition of mind, this section should be deleted from the Code; as such a
person requires sympathy and treatment rather than condemnation and punishment.
The Supreme Court ruled that the section was unconstitutional and, therefore, void P
Rathinam v UOI. This decision was subsequently reversed by another Supreme Court
decision Gian Kaur v State of Punjab. The section is thus back to its honourable position
in the Code as a measure to dissuade people from horrifying the society by attempting
self-demolition. See also section 115 of the Mental Healthcare Act, 2017, which lays
down that notwithstanding anything contained in section 309 of IPC, 1860, any person
who attempts to commit suicide shall be presumed, unless proved otherwise, to have

severe stress and shall not be tried and punished under the said Code.
Thug.
A 'thug' is a person who has been
(1) habitually associated with any other or others for the purpose of committing—
(a) robbery, or
(b) child stealing,
(2) by means of, or accompanies with, murder (section 310). [Imprisonment for life and
ﬁne (section 311).]
Miscarriage, exposure of children, etc.
The following offences relate to birth and exposure of children:—
1. Voluntarily causing a woman with child or quick with child to miscarry, otherwise
than in good faith for the purpose of saving the life of the woman (section 312) and
without her consent (section 313).

The Medical Termination of Pregnancy Act, 1971, provides for the termination of
pregnancy under several other circumstances mentioned in that Act and these sections
should now be read subject to those provisions.
2. Causing the death of a woman by an act done with intent to cause miscarriage
(section 314). Jacob George v State of Kerala.
3. Doing an act without good faith with intent to prevent a child being born or to cause
it to die after birth (section 315).
4. Causing the death of a quick unborn child by an act amounting to culpable homicide
(section 316).
5. Exposure and abandonment of a child under 12 years by parent or persons having
care of it (section 317).
6. Concealment of birth by secret disposal of dead body (section 318).
Whoever causes (1) bodily pain, (2) disease, or (3) inﬁrmity, to any person is said to
cause hurt (section 319).
Hurt.
A person voluntarily causes hurt, if he does any act
(a) with the intention of thereby causing hurt to any person, or

Hurt.
(b) with knowledge that he is likely thereby to cause hurt (section 321). [One year, or
ﬁne up to Rs. 1,000, or both (section 323).]
Acts which will amount to hurt may amount to assault. But hurt may be caused by
many acts which are not assaults, for instance, a person who mixes poison and places
it on the table of another, or conceals a scythe in the grass on which another is in the
habit of walking, or digs a pit in a road intending that another may fall into it, will be
guilty of hurt and not assault.
Grievous hurt.
The following kinds of hurt are designated as 'grievous':—
1. Emasculation.
2. Permanent privation of the sight of either eye.
3. Permanent privation of the hearing of either ear.
4. Privation of any member or joint.
5. Destruction or permanent impairing of the powers of any member or joint.
6. Permanent disﬁguration of the head or face.

7. Fracture or dislocation of a bone or tooth.
8. Any hurt which endangers life, or which causes the sufferer to be, during the space
of 20 days, in severe bodily pain, or unable to follow his ordinary pursuits (section 320).

A seller of arrack who mixed with it a dangerous substance was awarded maximum
punishment which was possible under the section. EK Chandrasenan v State of Kerala,
AIR 1995 SC 1066 [LNIND 1995 SC 88] .
Voluntarily causing grievous hurt is voluntarily causing hurt, intending it or knowing it
likely to be grievous (section 322). [Imprisonment for seven years and ﬁne (section
325).]
The following are aggravated forms of the above two offences:—
1. Voluntarily causing hurt (section 325), or grievous hurt (section 326), by an
instrument used for shooting, stabbing, or cutting or which used as a weapon of
offence is likely to cause death; or by ﬁre or any heated substance or poison, or any
explosive or deleterious substance, or by means of any animal, Voluntarily causing
grievous hurt by use of acid (section 326A). [Voluntarily throwing or attempting to
throw acid is also made an offence by introducing section 326B.]
2. Voluntarily causing hurt (section 327), or grievous hurt (section 329), to extort from

the sufferer or anyone interested in him, property or valuable security; or to constrain
him to do anything illegal; or to facilitate the commission of an offence.
3. Causing hurt by administering poison or any stupefying, intoxicating, or
unwholesome drug, with intent to commit or facilitate the commission of an offence
(section 328).
4. Voluntarily causing hurt (section 330), or grievous hurt (section 331), to extort from
the sufferer or anyone interested in him, a confession or any information which may
lead to the detection of an offence; or to constrain the restoration of property, or the
satisfaction of any claim.
5. Voluntarily causing hurt (section 332), or grievous hurt (section 333), to a public
servant in the discharge of his duty, or to prevent or deter him from so discharging it.

Humiliation and abuse of the head master and other teachers of a Government school
after entering the premises was held to be covered by the section. Madhudas v State of
Hurt or grievous hurt caused on grave and sudden provocation is not severely punished
(sections 334 and 335). Rash or negligent acts which endanger human life or the
personal safety of others are made punishable even though no harm follows (section
336); and if hurt or grievous hurt is caused by such acts the punishment will be more
severe (sections 337 and 338).
Wrongful restraint.
Wrongful restraint is (1) voluntarily obstructing a person, (2) so as to prevent him from
proceeding in any direction, (3) in which he has a right to proceed. There must be the
right to proceed Vijay Kumari v SM Rao, (SC). The word "voluntarily" connotes direct

physical restraint. There should be a restriction on the normal movement of a person.
Keki Harmusji Gharda v Mehervan Rustom Irani, (2009) 6 SCC 475 [LNIND 2009 SC
1276] (section 339). [One month, or Rs. 500, or both (section 341).]
The slightest unlawful obstruction to the liberty of a person to go lawfully when and
where he likes to go is punishable.

Wrongful conﬁnement.
Wrongful conﬁnement is (1) wrongfully restraining a person, (2) in such a manner as to
prevent him from proceeding beyond certain circumscribing limits (section 340). [One
year, or Rs. 1,000 or both (section 342).]
Wrongful conﬁnement is a form of wrongful restraint. Wrongful restraint keeps a man
out of a place where he wishes to be. Wrongful conﬁnement keeps a man within limits
out of which he wishes to go, and has a right to go.
In wrongful conﬁnement there must be a total restraint, not a partial one. If a man
merely obstructs the passage of another in a particular direction, leaving him at liberty
to stay where he is or to go in any other direction if he pleases, he cannot be said
thereby to conﬁne him wrongfully. Detention through the exercise of moral force,
without the accompaniment of physical force or actual conﬂict, is suﬃcient. But there
must be voluntary obstruction to the person alleged to be conﬁned so as to prevent him

from proceeding in any direction. Malice is not necessary. The period of conﬁnement is
immaterial except with reference to punishment.
Leading cases:—Bird v Jones. Dhania v Clifford. Austin v Dowling.
The Court can award compensation for false imprisonment in cases where the victim
gains his freedom through Court order. Poonam v SI of Police; Paothing v State of
Nagaland.
The following are aggravated forms of this offence:—
1. Wrongful conﬁnement for three or more days (section 343).
2. Wrongful conﬁnement for ten or more days (section 344).
3. Wrongful conﬁnement of a person knowing that a writ for his liberation has been
issued (section 345).
4. Wrongful conﬁnement is secret so as to indicate an intention that the conﬁnement of
such person may not be known to any person interested in that person or to any public
servant (section 346).

5. Wrongful conﬁnement for the purpose of extorting any property or valuable security,
or constraining person to do anything illegal or to give any information which may
facilitate the commission of an offence (section 347).
6. Wrongful conﬁnement for the purpose of extorting confession or information which
may lead to the detection of an offence, or compelling restoration of any property or
valuable security or the satisfaction of any claim or demand (section 348).
Force.
A person is said to use force to another,
(1) if he causes motion, change of motion, or cessation of motion to that other, or
(2) if he causes to any substance such motion, or change of motion or cessation of
motion as brings that substance into contact (a) with any part of that other's body, or

(b) with anything which that other is wearing or carrying, or (c) with anything so
situated that such contact affects that other's sense of feeling; provided that he does
so in any of the three following ways:—

(i) By his own bodily power.
(ii) By disposing any substance in such a manner that the motion or change of
motion, or cessation of motion takes place without any further act on his part, or
on the part of any other person.
(iii) By inducing any animal to move, to change its motion, or to cease to move
(section 349).
Criminal force.
A person uses 'criminal force' to another if
(1) he intentionally uses force to any person,
(2) without that person's consent,
(3) in order to the committing of any offence, or
(4) intending by the use of such force to cause, or knowing it to be likely that by the use
of such force he will cause, injury, fear, or annoyance to the person to whom the force is
used (section 350). [Three months, or Rs. 500, or both.]
Assault.
A person commits an 'assault', if he
(1) makes any gesture or any preparation,
(2) intending or knowing it to be likely,
(3) that such gesture or preparation will cause any person present to apprehend,

(4) that he is about to use criminal force to that person (section 351). [Three months,
Rs. 500, or both (section 352).]
An assault is something less than the use of criminal force, the force being cut short
before the blow actually falls. An assault is included in every use of criminal force.
uses at the time may give his gestures such a meaning as may make them amount to
an assault (Explanation).
Assault or criminal force on grave provocation is not severely punishable. [One month,
or Rs. 200 ﬁne, or both (section 358).] The provocation should not be voluntarily
sought, or it should not have been given by anything done in obedience to the law or
done by a public servant in the lawful exercise of his powers, or done in the lawful

exercise of the right of private defence.
Leading cases:—Cama v Morgan. Stephen v Myres. Awadesh Mahato.
An 'assault' differs from an 'affray'—
(1) An 'assault' may take place anywhere, whereas an 'affray' must be committed in a
public place.

(2) An 'assault' is regarded as an offence against the person of an individual, whereas
an 'affray' is regarded as an offence against the public peace.
The following are aggravated forms of the offence of 'assault' and 'use of criminal
force':—
1. Assaulting or using criminal force to deter a public servant from the discharge of his
duty (section 353).
2. Assaulting or using criminal force to a woman with intent to outrage her modesty
(section 354). The Criminal Law Amendment Act introduced some new offences
against women;
(a) Sexual harassment (section 354A)
(b) Assault or use of criminal force to woman with intent to disrobe (section 354B)
(c) Voyeurism (section 354C)
(d) Stalking (section 354D)
constitute the offence without any deliberate intention to do so. Raju Pandurang Mohale
v State of Maharashtra, (2004) 4 SCC 371 [LNIND 2004 SC 194] . Police oﬃcers

committing cruelty upon a woman-worker who came into the police station along with
other workers have been held liable to pay her compensation. The Government was
ordered to pay out of their salary.
Leading cases:—People's Union of Democratic Rights v Police Commissioner, Delhi
Police; Rupan Deol Bajaj v Kanwar Pal Singh Gill
3. Assaulting or using criminal force with intent to dishonour a person otherwise than
on grave provocation (section 355).
4. Assaulting or using criminal force in attempting to commit theft of property carried
by a person (section 356).
5. Assaulting or using criminal force to any person, in attempting wrongfully to conﬁne
that person (section 357).
Kidnapping.
Kidnapping is of two kinds:
(I) Kidnapping from India, and
(II) Kidnapping from lawful guardianship (section 359). [Seven years and ﬁne.]
I. Whoever

I. Whoever
(1) conveys any person beyond the limits of India,
(2) without the consent (a) of that person, or (b) of some person legally authorised to
consent on behalf of that person,
is said to kidnap that person from India (section 360).
II. Whoever (a) takes, or (b) entices

(1) any minor (a) under 16 years of age, if a male, or (b) under 18 years of age, if a
female, or
(2) any person of unsound mind,
(3) out of the keeping of the lawful guardian of such minor or person of unsound mind,
(4) without the consent of such guardian,
is said to kidnap such minor or person from lawful guardianship (section 361).
These sections protect children of tender age from being kidnapped or seduced for
immoral purposes, as well as protect the rights of parents and guardians having the
custody of minors or insane persons.
The persons kidnapped must be taken out of the possession of the parent by any
means, forcible or otherwise: and the consent of the person kidnapped does not lessen
The offence of kidnapping is complete when the minor is actually taken from lawful
guardianship (R v Nemai Chattoraj; R v Ram Dei; Nanhak Sao v King-Emperor).
Kidnapping from guardianship is not a continuing offence.
It is no defence that the accused did not know that the person kidnapped was under 18

or believed that she had no guardian. Anyone dealing with such person does so at his
peril. The period of detention is immaterial.
The circumstance that the act of the accused was not immediate cause of the girl
leaving her father's place is no defence if he had at an earlier stage solicited her or
induced her to take this step (Varadrajan).
Leading cases:—T D Vadgama. Sachindra Nath.
Abducting.
A person is said to 'abduct' another if he
(1) by force compels, or
(2) by any deceitful means induces,
any person to go from any place (section 362).
'Abduction' differs from 'kidnapping'—
(1) In 'abduction' the removal of the person need not be from the protection of the
lawful guardian.
(2) The element of force or fraud existing in 'abduction' is absent in kidnapping.
(3) In 'abduction' the age of the person abducted is immaterial, in 'kidnapping', the

person must be under 16, if a male, and under 18, if a female.
(4) Abduction is a continuing offence. Kidnapping is not a continuing offence.
The following are aggravated forms of the offence of 'kidnapping' or 'abducting':—
1. Kidnapping or maiming a minor for purposes of begging (section 363A).

2. Kidnapping or abducting in order to murder (section 364). Badshan v State of UP,
(2008) 3 SCC 681 [LNIND 2008 SC 310] .
2a. Kidnapping for ransom, etc., (section 364-A) Suman Sood v State of Rajasthan,
(2007) 5 SCC 634 [LNIND 2007 SC 647] , statement of ingredients.
3. Kidnapping or abducting with intent secretly and wrongfully to conﬁne a person
(section 365).
4. Kidnapping or abducting a woman to compel her to marry any person against her
will, or to force or seduce her to illicit intercourse (section 366).
Leading case:—Ramesh.
Punishment followed where the offence was established by other evidence, though the
body of the young widow who was subjected to gang rape was not traceable.
Leading case:—Arun Kumar v State of UP.
5. Inducing a woman to go from any place, by means of criminal intimidation or abuse
of authority or any method of compulsion, in order that she may be forced or seduced
to illicit intercourse (ibid).

6. Inducing a minor girl under the age of 18 years to go from any place or to do any act
with the intention or knowledge that she will be forced or seduced to illicit intercourse
(section 366A).
7. Importing a girl under 21 years of age from a foreign country or from the State of
Jammu and Kashmir with intent or knowledge that she will be forced or seduced to
illicit intercourse (section 366B).
8. Kidnapping in order to subject a person to grievous hurt, slavery, or unnatural lust
(section 367).
9. Wrongfully concealing or conﬁning a kidnapped or abducted person (section 368).
10. Kidnapping or abducting a child under 10 years with intent to steal movable
property from the person of such child (section 369).
Offences dealing with traﬃcking
1. Traﬃcking of person (section 370)
2. Exploitation of a traﬃcked person (section 370A)

3. Habitually importing, exporting, removing, buying, selling, traﬃcking or dealing in
slaves (section 371).
Sale of minor for immoral purposes.
Two provisions relate to selling or buying of persons under 18 years of age for immoral
purposes:—
1. Selling, letting to hire, or otherwise disposing of any person under the age of 18 years
for the purpose of (a) prostitution, or (b) illicit intercourse, or (c) for any unlawful and
immoral purpose, or (d) knowing it to be likely that such person will at any age be used
for such a purpose (section 372).

2. Buying, hiring, or otherwise obtaining possession of such person for a like purpose
(section 373).
When a girl under 18 years is disposed of to, or is obtained possession of by, a
prostitute or a brothel-keeper, the person disposing of or obtaining possession of such
girl shall be presumed to have disposed of her or obtained possession of her, for
prostitution (Explanation 1, sections 372 and 373).
"Illicit intercourse" means sexual intercourse between persons not united by marriage,
or by any union or tie which, though not amounting to a marriage, is recognized by the
personal law or custom of the community to which they belong or, where they belong to
different communities, of both such communities, as constituting between them a
quasimarital relation (Explanation 2, sections 372 and 373).
Unlawful labour.
Unlawfully compelling any person to labour against his will [One year or ﬁne, or both
(section 374).]
Sexual offences
As introduced by the Criminal law (Amendment Act), 2013—A man is said to commit

"rape" if he—
(b) inserts, to any extent, any object or a part of the body, not being the penis, into the
vagina, the urethra or anus of a woman or makes her to do so with him or any other
person; or
(c) manipulates any part of the body of a woman so as to cause penetration into the
vagina, urethra, anus or any part of body of such woman or makes her to do so with
him or any other person; or
(d) applies his mouth to the vagina, anus, urethra of a woman or makes her to do so
with him or any other person,
under the circumstances falling under any of the following seven descriptions:—
Second.—Without her consent.

Third.—With her consent, when her consent has been obtained by putting her or any
person in whom she is interested, in fear of death or of hurt.
Fourth.—With her consent, when the man knows that he is not her husband and that
her consent is given because she believes that he is another roan to whom she is or
believes herself to be lawfully married.
Fifth.—With her consent when, at the time of giving such consent, by reason of
unsoundness of mind or intoxication or the administration by him personally or through
another of any stupefying or unwholesome substance, she is unable to understand the
nature and consequences of that to which she gives consent.

Sixth.—With or without her consent, when she is under 18 years of age.
Seventh.—When she is unable to communicate consent.
Leading cases:—Rameswar. Bhoginbhai. Raﬁque.
It is a crime against basic human rights violative of Article 21 of the Constitution. The
courts should deal with such offence sternly and severely. The victim's testimony can
be acted upon without corroboration in material particulars. Aman Kumar v State of
Haryana, (2004) 4 SCC 379 [LNIND 2004 SC 184] .
For the purposes of this section, "vagina" shall also include labia majora (Explanation-
1). Consent means an unequivocal voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal communication, communicates
willingness to participate in the speciﬁc sexual act (Explanation-2).
A medical procedure or intervention shall not constitute rape (Excep.1).
Sexual intercourse or sexual acts by a man with his own wife, the wife not being under

15 years of age, is not rape (Excep. 2). See Independent Thought v UOI, where the
Supreme Court held that sexual intercourse with girl below 18 years of age is rape
regardless of whether she is married or not. The Supreme Court held that Exception 2
to section 375, IPC, 1860, is to read down as, "Sexual intercourse or sexual acts by man
with his own wife, wife not being 18 years, is not rape".
Leading cases:—Balwant Singh v State of Punjab Arun Kumar v State of UP. Promod
Mehta v State of Bihar.
Indecent assault upon a woman does not amount to an attempt to commit rape unless
the Court is satisﬁed that the accused was determined to gratify his passion at all
events, and in spite of all resistance.
Leading case:—Rameshwar(see comments under section 354).
Other Rape related offences

Causing death or resulting in persistent vegetative state of victim (section 376A)
Sexual intercourse by husband upon his wife during separation (section 376B)
Sexual intercourse by a person in authority (section 376C)
Gang rape (section 376D)
Punishment for repeat offenders (section 376E)
The circumstances in which the corroboration of the testimony of the victim of a rape
would be necessary have been explained by the Supreme Court in State of Maharashtra
v CK Jain.
The mitigating circumstances which would enable the Court to award less than 10
years' imprisonment have been explained by the Supreme Court in State of Haryana v
Prem Chand, with this caution that though the conduct of the prosecutrix in the facts
and circumstances of the case may be taken into account, her general character or
reputation would neither be an aggravating factor, if good, nor a mitigating factor, if
bad.

bad.
The need for proper identiﬁcation of the offender and that of promptitude in ﬁling FIR
have also been explained.

Leading cases:—Harpal Singh v State of HP; R v Chance.
Unnatural offence.
Unnatural offence is having (1) carnal intercourse, (2) against the order of nature, (3)
with any man, woman or animal (section 377).
Leading case:—Navtej Singh Johar v UOI (holding that consensual carnal intercourse
among adults in private space, does not in any way harm public decency or morality).
Offences against property. Chapter XVII.
The following are the offences against property dealt with in Chapter XVII:—
1. Theft.
2. Extortion.
3. Robbery.
4. Dacoity.
5. Criminal misappropriation of Property.
6. Criminal Breach of Trust.
7. Receiving stolen property.
8. Cheating.
9. Fraudulent deeds and dispositions of Property.
10. Mischief.
11. Criminal trespass.
The above offences may be grouped in three classes:—
(1) Offences dealing with deprivation of property (sections 378–424).
(2) Offences dealing with injury to property (sections 125–440).
(3) Offences dealing with violation of rights of property in order to the commission of

some other offence (sections 441–462).
Theft.
A person is said to commit theft who
(1) intending to take dishonestly,
(2) any movable property,
(3) out of the possession of any person,
(4) without that person's consent,

(5) moves that property, in order to such taking (section 378). [Three years, or ﬁne, or
both (section 379).]
A thing attached to the earth can be the subject of theft when separated from the
earth. A person moving an obstacle which prevented a thing from moving is said to
cause it to move. A person causing an animal to move is said to move whatever is
thereby moved by the animal. The owner's consent may be express or implied
(Explanations).
The intention to take dishonestly must exist at the time of the moving of the property. If
the act is not done animofurandi, it will not amount to theft. The test is: Is the taking
warranted by law? It is not necessary that the taking should be of a permanent
character, or that the accused should have derived any proﬁt. Property removed in the
assertion of a contested claim does not constitute theft. A bona ﬁde claim of right
rebuts the presumption of dishonesty. But a creditor removing a debtor's property to

enforce payment is liable. A person taking dishonestly his own property out of the
possession of another is guilty of this offence. Thus, the person from whose
possession the property is taken may not be the owner. If one of the joint owners takes
exclusive possession of joint property dishonestly he would be guilty of theft. The least
removal of the thing from its place is suﬃcient for the offence. It does not matter
whether the property remains within its owner's reach or not.
Leading cases:—Ramratan, K N Mehra, Chandi Kumar v Abanidhar Roy, R v Nagappa, R v
Shri Churn Chungo, Ram Ekbal.
The following are aggravated forms of the offence:—
1. Theft in any building, tent, or vessel, used as a human dwelling or for the custody of
property (section 380).
2. Theft by a clerk or a servant, of property in possession of his master (section 381).

3. Theft after preparation made for causing death, hurt, or restraint, or fear of death,
hurt, or restraint to any person, in order to the committing of such theft or the effecting
of such escape afterwards, or the retaining of property taken by such theft (section
382). Knowledge acquired by those who forced their entry into a house that there was
only one old man inside and he suffered from a weak heart would be suﬃcient for
conviction, though they left without taking away anything and the man died behind
them, his heart giving way.
Leading case:—R v Watson.
Extortion
A person commits 'extortion' if he
(1) intentionally puts any person in fear of any injury
(a) to that person, or
(b) to any other, and thereby
(2) dishonestly induces the person so put in fear
(3) to deliver to any person any
(a) property, or

(b) valuable security, or
(c) anything signed or sealed, which may be converted into a valuable
security (section 383). [Three years, or ﬁne, or both (section 384).]
Putting any person in fear of injury in order to commit extortion [Two
years, or ﬁne, or both (section 385).]
The inducement to part with the property should be dishonest, i.e., with intent to cause
wrongful gain or loss.
The 'fear' in extortion must be such as to unsettle the mind of the person on whom it
operates and to take away from his acts that element of free voluntary action which
alone constitutes consent. The terror of a criminal charge or of loss of an appointment
amounts to a fear of injury. 'Fear' must precede the delivery of property. Thus, wrongful
retention of property obtained without threat will not amount to extortion, even though
subsequent threats are used to retain it.
'Theft' differs from 'extortion':—
(1) In 'theft' the property is taken without the owner's consent; in 'extortion' the consent

is obtained by putting a person in fear of any injury to him or any other. In theft element
of force does not arise.
(2) 'Theft' can only be committed of movable property; 'extortion' may be committed of
immovable property as well.
The following are aggravated forms of extortion:—
1. Extortion by putting a person in fear of death, or grievous hurt to that person or to
any other (section 386).
2. Putting or attempting to put any person in fear of death, or grievous hurt to himself
or any other in order to commit extortion (section 387).
3. Extortion by threat of accusation of an offence, punishable with death or
imprisonment for life, or 10 years' imprisonment, or of having attempted to induce any
other person to commit such offence (section 388).
4. Putting or attempting to put any person in fear of such accusation as is mentioned

above in order to commit extortion (section 389).
Robbery. 'Robbery' is an aggravated form of either theft or extortion. In all 'robbery'
there is either theft or extortion.
Theft is 'robbery' if—
(1) in order to the committing of the theft, or in committing the theft, or
(2) in carrying away, or attempting to carry away, property obtained by the theft,
(3) the offender, for that end, voluntarily causes, or attempts to cause, to any person
(a) death, hurt, or wrongful restraint, or
(b) fear of instant death, instant hurt, or instant wrongful restraint.
Extortion is 'robbery' if the offender, at the time of committing the extortion, is
(1) in the presence of the person put in fear, and

(2) commits the extortion by putting that person in fear of instant death, instant hurt, or
instant wrongful restraint to that person, or to some other person, and
(3) by so putting in fear, induces the person so put in fear then and there to deliver up
the thing extorted (section 390). [Ten years and ﬁne. If the robbery is committed on the
highway between sunset and sunrise, then 14 years (section 392). Attempt, seven
years and ﬁne (section 393). If hurt is caused, imprisonment for life, or 10 years and
ﬁne (section 394).] The offender is said to be present if he is near enough to put the
other in fear.
An accidental injury by a thief will not convert his offence into robbery. Similarly, if hurt
is caused to avoid capture, while retreating without any property, the offence will not
amount to robbery, e.g., throwing stones to avoid pursuit.
Belonging to a wandering gang of persons associated for the purpose of habitually
committing theft or robbery is made punishable (section 401).
Dacoity.

Dacoity.
When (1) ﬁve or more persons conjointly commit, or attempt to commit, a robbery, or
(2) where the whole number of persons conjointly committing or attempting to commit,
a robbery, and persons present and aiding such commission or attempt amount to ﬁve
or more, every person so committing, attempting or aiding, is said to commit 'dacoity'
(section 391). [Imprisonment for life or 10 years (section 395).]
If any one of the dacoits commits murder in committing dacoity, every one of them
shall be punished with death, or imprisonment for life, or rigorous imprisonment
extending to 10 years and ﬁne (section 396). It does not matter whether a particular
dacoit was inside the house where the dacoity was committed, or outside the house, so
long as the murder is committed in the commission of the dacoity. It is not necessary

that the murder should be committed in the presence of all. It is, however, necessary
that murder should be committed in course of the commission of dacoity. Thus, while
the dacoits were returning after an attempt to commit dacoity without any booty due to
stiff opposition of the villagers and one of the dacoits to facilitate retreat killed one of
the villagers by shooting, it was held that as dacoity had ended the moment the dacoits
took to their heels without any booty the murder was an individual act of the dacoit
who ﬁred the fatal shot and other dacoits could only be held liable for an offence under
section 395, IPC, 1860, and not under section 396.
Leading case:—Shyam Behari.
Preparation to commit dacoity is punishable (section 399). and so is either belonging

to a gang of dacoits (section 400), or assembling for the purpose of committing
dacoity (section 402).
Aggravated forms of robbery and dacoity are—
(1) Offender using any deadly weapon at the time of committing robbery or dacoity or
causing or attempting to cause death or grievous hurt to any person (section 397).
For the purpose of this section it is not necessary that the weapon should be actually
used. Mere carrying of the weapon causes a psychological sense of insecurity and fear
and this would constitute enough use within the meaning of this section.
Leading case:—Phool Kumar.

This section only applies to the offender who actually uses a deadly weapon, or causes
(2) Attempt to commit robbery or dacoity when armed with a deadly weapon (s 398).
Criminal misappropriation.
A person commits 'criminal misappropriation' if he
(1) dishonestly misappropriates or converts to his own use
(2) any movable property (section 403). [Two years, or ﬁne, or both.]
The offence is committed though the misappropriation be only temporary. The ﬁnder of
property is not guilty if he takes it to protect it or to ﬁnd the owner; but he is guilty, if he
appropriates it knowing the owner, or having the means of discovering him, or before
using reasonable means to discover him, or not believing it to be his own property, or
not believing in good faith that the owner cannot be found (Explanations 1 and 2).
This offence takes place when the possession has been innocently come by, but where
by a subsequent change of intention, or from the knowledge of some new fact with

which the party was not previously acquainted, the retaining becomes wrongful and
fraudulent. Thus, retention of money by a servant authorized to collect it from a person
may be criminal misappropriation even though he retains it on account of wages due to
him.
A person retaining money paid by mistake will be guilty of criminal misappropriation.
But there can be no criminal misappropriation of things which have actually been
abandoned.
Leading cases:—Bhagiram v Abar Dome. R v Sita. Romesh Chunder v Hiru Mondal.
'Theft' is distinguished from 'criminal misappropriation'—
(1) In 'theft' the property is taken out of the possession of another person and the
offence is complete as soon as the offender moves the property. In 'criminal
misappropriation' there is no invasion of another's possession. The property is often
innocently got into possession.

(2) In 'theft' the dishonest intention must precede the act of taking; in 'criminal
misappropriation' it is the subsequent intention to convert or misappropriate the
property that constitutes the offence.
There is a difference between 'criminal misappropriation' and 'cheating'. In 'criminal
misappropriation' as in 'criminal breach of trust', the original reception of property is
legal, the dishonest conversion takes place subsequently. In 'cheating' deception is
practised to get possession of the thing.
Dishonest misappropriation of property possessed by a deceased person at the time of
his death is an offence (section 404).
Criminal breach of trust.
A person commits 'criminal breach of trust', if he

(1) being in any manner entrusted with (a) property, or (b) any dominion over property;
(2) dishonestly (a) misappropriates, or (b) converts to his own use, that property; or
(3) dishonestly (a) uses, or (b) disposes of, that property;
(4) in violation (a) of any direction of law prescribing the mode in which such trust is to
be discharged, or (b) of any legal contract, express or implied, which he has made
touching the discharge of such trust; or
(5) wilfully suffers any other person so to do (section 405). [Three years, or ﬁne, or both
(section 406).]
The property may be movable or immovable.
'Criminal misappropriation' differs from 'criminal breach of trust'—
(1) In the former the property comes into the possession of the offender by some
casualty, and he afterwards misappropriates it; in the latter the offender is lawfully
entrusted with property and he dishonestly misappropriates it or wilfully suffers any
other person to do so.

(2) 'Criminal breach of trust' only applies to conversion of property held by a person in a
ﬁduciary capacity; 'criminal misappropriation', to property coming into possession of
the offender anyhow.
(3) 'Criminal misappropriation' can only be of movable property. 'Criminal breach of
trust' can be of any property, movable or immovable.
The following are aggravated forms of criminal breach of trust:—
1. Criminal breach of trust by a carrier, wharﬁnger, or warehouse-keeper (section 407).
2. Criminal breach of trust by a clerk or servant (section 408).
3. Criminal breach of trust by a public servant, banker, merchant, factor, broker, attorney
or agent (section 409).
The Supreme Court has laid down that the offence is not wiped off by reason of the
fact that the money in question has been returned or accounted for.

Leading case:—Viswanath v State of J&K.
Stolen property.
'Stolen property' is—
(1) property the possession whereof has been transferred by (a) theft, (b) extortion, or
(c) robbery;
(2) property criminally misappropriated;
(3) property in respect of which criminal breach of trust has been committed.
It is immaterial whether the transfer has been made, or the misappropriation or breach
of trust has been committed, within or without India. But if such property subsequently
comes into the possession of a person legally entitled to the possession thereof, it
ceases to be stolen property (section 410). [Receiving or obtaining stolen property

knowing it to be such is punishable with three years, or ﬁne, or both (section 411).] A
person who is found to be in the possession of property shortly after an offence, is
presumed to be criminally mixed up with the transaction. The Supreme Court has
explained the meaning of the term "recent possession" in this connection.
Leading case:—Earabhadrappa v State of Karnataka.
This section does not apply to the actual thief when theft is committed in India.
If stolen goods are restored to the possession of the owner and he returns them to the
thief for the purpose of enabling him to sell them to a third person, they are no longer
stolen goods; and the third person cannot be convicted of receiving them although he
received them knowing them to be stolen.
'Dishonest retention' of property is distinguished from 'dishonest reception' of it. In the
former offence the dishonesty supervenes after the act of acquisition of possession,
while in the latter dishonesty is contemporaneous with such act. Thus a person cannot

be convicted of 'receiving' if he has no guilty knowledge at the time of receipt. But he is
guilty of 'retaining' if he subsequently knows or has reason to believe that the property
was stolen. Neither the thief, nor the receiver of stolen property, commits the offence of
retaining such property dishonestly merely by continuing to keep possession of it.
Property into or for which the stolen property has been converted or exchanged is not
stolen property, e.g., proceeds of a stolen cheque, or the change given for a stolen
currency-note. But an ingot made out of stolen ornaments still retains it character as
stolen property.
Res nullius cannot be the subject of receiving, e.g., a bull let loose as a part of religious
ceremony and belonging to no one is not the subject of theft.

If articles belonging to different persons are received at one time, the conviction will be
only for one act of receiving and not separate convictions.
1. Dishonestly receiving property stolen in the commission of a dacoity (section 412).
2. Habitually dealing in stolen property (section 413).
3. Voluntarily assisting in concealing or disposing of, or making away with, stolen
property (section 414).
Cheating.
A person is said to 'cheat' if he
(1) by deceiving any person;
(2) fraudulently or dishonestly induces the person so deceived;
(3) to deliver any property to any person; or
(4) to consent that any person shall retain any property; or
(5) intentionally induces the person so deceived to do or omit to do anything which he
would not do or omit if he were not deceived; and which

(6) act or omission causes, or is likely to cause, damage or harm to that person in body,
mind, reputation, or property (section 415).
Dishonest concealment of facts is a deception (Explanation).
[One year, or ﬁne, or both (section 416).]
Like 'extortion', cheating is committed by the wrongful obtaining of a consent. The
difference is that, in the former the consent is obtained by intimidation, in the latter, by
deception.
'Cheating' also differs from 'theft'
(1) In the former the property obtained by deception may be movable or immovable, in
the latter, it must be movable.
(2) In 'theft' the property is taken without the consent of the owner, in 'cheating' the
owner's consent is obtained by deception.
It is not necessary that cheating should be committed in express words if it can be
inferred from all the circumstances attending the obtaining of property. But it is
necessary that a person should be deceived. If a person knows what the deception is

and acts on it, the person practising deception will be guilty of attempt to cheat but not
of cheating. The offence will be committed even if the person deceived is other than
the one on whom the deception is practised. Similarly, it is not necessary that there
should be an intent to deceive any particular individual. If a false prospectus or
balance-sheet is issued to the public, or to a section of the public, the persons issuing it
will be guilty of cheating although there was no intent to deceive any one in particular
(R v Ross).
The person to whom the property is delivered may not be participescriminis. Property
obtained by cheating does not fall within the deﬁnition of stolen property.
Mere puﬃng will not amount to this offence (R v Bryan, the Elkington spoon case).
Leading cases:—R v Abbas Ali. R v Appasami. R v Soshi Bhushan. Bashirbhai.

If the deception is in regard to a future event, then there must be evidence of an
intention to cheat when the deception was made. Mere failure to carry out a promise is
not enough. A man may intend to fulﬁl his promise, but subsequently he may change
his mind.
The following are aggravated forms of cheating:—
1. Cheating with knowledge that wrongful loss may thereby be caused to a person
whose interest the offender is bound to protect (section 418).
2. Cheating by personation (sections 416, 419).
3. Cheating and thereby dishonestly inducing the person deceived to deliver any
property to any person, or to make, alter, or destroy a valuable security, or anything
which is signed or sealed, and which is capable of being converted into a valuable
security (section 420). Provisions of the section.
A person is said to 'cheat by personation' if he cheats

Cheating by personation.

(1) by pretending to be some other person, or
(2) by knowingly substituting one person for another, or
(3) by representing that he or any other person is a person other than he or such other
person really is (section 416).
It is immaterial whether the individual personated is a real or imaginary person
(Explanation). [Three years, or ﬁne or both (section 417).]
As soon as a man by words, act, or sign, holds himself out as a particular person with
the object of passing himself off as that person, and exercising the right which that
person has, he has personated him. For instance, if A represents himself to be B at an
examination, or represents himself to be of a particular caste which he is not, or gives a
false description of his position in life, he commits this offence.
Fraudulent deeds and dispositions.
The following provisions relate to fraudulent deeds and dispositions of property:—
1. Dishonest or fraudulent removal or concealment or transfer of property to prevent

distribution among creditors (section 421).
2. Dishonestly or fraudulently preventing from being made available for creditors a debt
or demand due to the offender or to any other person (section 422).
3. Dishonestly or fraudulently signing, executing or becoming a party to any instrument
which purports to transfer or charge any property and which contains any false
statement as to the consideration for such transfer or charge or as to the person or
persons for whose beneﬁt it is intended to operate (section 423).
4. Dishonestly or fraudulently concealing or removing any property of the offender or of
any other person or assisting in the concealment, or removal thereof, or dishonestly
releasing any demand or claim to which the offender is entitled (section 424).
A person commits 'mischief' if he
Mischief.

Mischief.
(1) with intent to cause, or knowing that he is likely to cause, wrongful loss or damage
to (a) the public or (b) any person;
(2) causes (a) the destruction of any property, or (b) any such change in any property,
or in the situation thereof, as destroys or diminishes its value or utility, or affects it
injuriously (section 425).
The offender need not intend loss or damage to the owner. The property may belong to
the offender, or to him jointly with others (Explanation). [Three months, or ﬁne or both
(section 426).]
A man may commit mischief on his own property to cause wrongful loss to some
person. If a person does any act amounting to mischief in the exercise of a bona ﬁde
claim or right he cannot be convicted of this offence. An act done through negligence
will never amount to mischief. Mischief cannot be committed in respect of a res nullius,
e.g., killing a bull which was set free.

The aggravated forms of mischief are as follows:—
1. Committing mischief, and thereby causing damage to the amount of Rs. 50 (section
427).
2. Mischief by killing, poisoning, rendering useless, or maiming any animal of the value
of Rs. 10 (section 428).
3. Mischief by killing, poisoning, maiming or rendering useless any elephant, camel,
horse, mule, buffalo, bull, cow or ox or any other animal of the value of Rs. 50 or
upwards (section 429).
This offence is similar to that created under section 50 of the Wild Life Protection Act,
1972. The two enactments are, therefore, not likely to attract the doctrine of double
jeopardy.
Leading case:—State of Bihar v Murad Ali Khan.
4. Mischief by injury to works of irrigation or by wrongfully diminishing the supply of
water for agricultural purposes or for food, or drink, or cleanliness (section 430).
5. Mischief by injury to public road, bridge, river or channel, so as to render it
impassable or less safe for travelling or conveying property (section 431).

6. Mischief by causing inundation or obstruction to public drainage attended with
damage (section 432).
7. Mischief by destroying, or moving or rendering less useful a light house or sea-mark
or by exhibiting false lights (section 433).
8. Mischief by destroying, moving, or rendering less useful any land-mark ﬁxed by the
authority of a public servant (section 434).
9. Mischief by ﬁre or explosive substance with intent to cause damage to the amount
of Rs. 100 or upwards or where the property is agricultural produce—Rs. 10 or upwards
(section 435).
10. Mischief by ﬁre or explosive substance with intent to destroy any building used as a
place of worship, or human dwelling, or as a place for the custody of property (s. 436).
What is a new development under the section, the Madras High Court allowed public

interest litigation under the section and compelled the State to pay compensation to
the victims of a riot to whom the State did not provide any protection at the material
time nor prosecuted the offenders afterwards.
Leading case:—R Gandhi v UOI.
11. Mischief with intent to destroy or make unsafe a decked vessel or a vessel of 20
tons burden (section 437).
12. Mischief or attempt to commit mischief with ﬁre or any explosive substance
(section 438).
13. Intentionally running a vessel aground or ashore with intent to commit theft or
misappropriation of property (section 439).
14. Mischief committed after preparation made for causing to any person death, hurt,
or wrongfully restraint, or fear of death, hurt, or wrongful restraint (section 440).
A person commits 'criminal trespass' if he

Criminal trespass.
(1) enters into or upon property in the possession of another;
(2) with intent to commit an offence; or
(3) to intimidate, insult, or annoy any person in possession of such property; or
(4) having lawfully entered into or upon such property unlawfully remains there;
(a)with intent to intimidate, insult, or annoy any such person, or
(b)with intent to commit an offence (section 441). [Three months or Rs. 500, or both
(section 447).]
Trespass can only be committed in respect of corporeal property. The essence of the
offence is the intention with which it is committed. The causing of such annoyance,
intimidation or insult must be the main aim of the entry (Mathri). It is not necessary that
the intention must be to annoy a person who is actually present at the time of the
trespass (Rash Behari). A person entering on the land of another in the exercise of a
bona ﬁde claim of right will not be guilty though the claim is unfounded. But if the entry

is made with intent to annoy it does not matter whether it was made under a claim of
right. The annoyance must be such as would affect an ordinary man, not what would
specially and exclusively annoy a particular individual of a queer temperament.
The property must be in the actual possession of a person other than the trespasser. It
is de facto and not de jure possession that is necessary. The person in possession may
be an individual or a corporate person.
The entry must be to commit an offence as deﬁned in section 40, and not any unlawful
act. Thus entering an exhibition building without a ticket does not amount to criminal
trespass. Slum dwellers upon public land cannot be equated with a trespasser under
these sections. Their action has been described by the Supreme Court to be not

voluntary, but one due to compulsion of circumstances.
Leading case:—Olga Tellis v Bombay MC.
House-trespass.
A person commits 'house-trespass' if he
(1) commits criminal trespass
(2) by entering into, or remaining in
(a) any building, tent, or vessel used as a human dwelling, or
(b) any building
(i) used as a place of worship, or
(ii) as a place for the custody of property (section 442).
Introduction of any part of the trespasser's body is suﬃcient (Explanation). [One year,
or Rs. 1,000, or both (section 448).]

1. House-trespass in order to the commission of an offence punishable with death
2. House-trespass in order to the commission of an offence punishable with
imprisonment for life (section 450).
3. House-trespass in order to the commission of an offence punishable with
imprisonment (section 451).
4. House-trespass after preparation made for causing hurt, assault, or wrongful
restraint to any person, or for putting any person in fear of hurt, assault, or wrongful
restraint (section 452).
Lurking house-trespass.
'Lurking house-trespass' is house-trespass, after taking precautions to conceal such
house-trespass from some person who has a right to exclude or eject the trespasser
from the building, tent, or vessel which is the subject of the trespass (section 443).
[Two years and ﬁne (s. 453).]
Whoever commits lurking house-trespass after sunset and before sunrise is said to
commit 'lurking house-trespass' by night (section 444). [Three years and ﬁne (section
456).]
House-breaking.

456).]
A person is said to commit 'house-breaking' if he
(a) commits house-trespass, and effects his entrance into the house, or
(b) if being in the house for committing an offence, or after committing an offence,
quits it in any of the following ways—
(1) Through a passage made by himself, or by any abettor of the house-trespass, in
order to the committing of the house-trespass.
(2) Through any passage not intended by any person other than himself, or an abettor
of the offence, for human entrance, or through any passage to which he has obtained
access by scaling or climbing over any wall or building.
(3) Through any passage which he, or any abettor of the house-trespass, has opened, in
order to the committing of the house-trespass by any means by which that passage
was not intended by the occupier of the house to be opened.

(4) By opening any lock.
(5) By using criminal force, or committing an assault, or by threatening any person with
assault.
(6) By any passage which he knows to have been fastened against such entrance or
departure, and to have been unfastened by himself, or by an abettor of the house-
trespass (section 445). [Two years and ﬁne (section 453).]
House-breaking after sunset and before sunrise is said to be 'house-breaking by night'
(section 466). [Three years and ﬁne (section 456).]

The following are aggravated forms of the offence of lurking house-trespass and
housebreaking:—
1. Lurking house-trespass or house-breaking in order to the commission of an offence
punishable with imprisonment (section 454).
2. Lurking house-trespass or house-breaking after preparation made for causing hurt to
any person (section 455).
3. Causing grievous hurt or attempting to cause death or grievous hurt to any person
whilst committing lurking house-trespass or house-breaking (section 459).
The following are aggravated forms of the offence of 'lurking house-trespass by night'
and 'house-breaking by night':—
1. Lurking house-trespass or house-breaking by night in order to the commission of an
offence punishable with imprisonment (section 457).
2. Lurking house-trespass or house-breaking by night, after preparation made for
causing hurt to any person (section 458).
All persons jointly concerned in lurking house- trespass or house-breaking by night are

punishable where death or grievous hurt is caused by one of them (section 460).
Dishonestly breaking open a receptacle containing property is punishable (section
461). The punishment is much more severe when such act is committed by a person
who is entrusted with its custody (section 462).
Chapter XVIII deals with offences relating to documents and to property marks.
A person commits forgery if he
Forgery. Chapter XVIII.
(1) makes any false document, or part of a document,
(2) with intent
(a) to cause damage or injury to the public or to any person, or
(b) to support any claim or title, or
(c) to cause any person to part with property, or
(d) to enter into any express or implied contract, or
(e) to commit fraud, or that fraud may be committed (section 463).
[Three years, or ﬁne or both (section 465).] Using as genuine a forged document is
punishable likewise (section 471).

A person is said to make a false document—
I. If he dishonestly or fraudulently (a) makes, signs, seals, or executes a document,
(b) with the intention of causing it to be believed that such document or part of a
document was made, signed, sealed or executed

(i) by, or by the authority of a person by whom, or by whose authority he knows that
it was not made, signed, sealed, or executed, or
(ii) at the time at which he knows that it was not made, signed, sealed, or executed.
Or
II. If he dishonestly, or fraudulently, without lawful authority by cancellation or
otherwise,
(a) alters a document in any material part thereof,
(b) after it has been made or executed either by himself, or by any other person,
whether such person be living, or dead at the time of such alteration. Or
III. If he dishonestly or fraudulently causes any person to sign, seal, execute, or alter a
document, knowing that such person
(a) by reason of unsoundness of mind, or intoxication cannot, or
(b) by reason of deception practised upon him, does not, know the contents of the
document, or the nature of the alteration (section 464).
A man's signature of his own name may amount to forgery (Explanation 1). But this
must have been done in order that it may be mistaken for the signature of another

person of the same name. Making a false document in the name of a ﬁctitious person
intending it to be believed that the document was made by a real person, or in the name
of a deceased person intending it to be believed that the document was made by that
person in his lifetime may amount to forgery (Explanation 2). A false document made
wholly or in part by forgery is designated 'a forged document' (section 470).
It is not an essential quality of the fraud mentioned in the section that it should result in
or aim at deprivation of property. The offence is complete as soon as a document is
made with intent to commit a fraud. But the false document must appear on its face to
be one which, if true, would possess some legal validity or must be legally capable of
effecting the fraud intended. A writing, though not legal evidence of the matter

expressed, may yet be a document if the parties framing it believed and intended it to
be evidence of such matter. It is not necessary that the document should be made in
the name of a really existing person.
Counterfeiting a document to support a legal claim will amount to forgery. Antedating a
document or inserting a false date in it constitutes forgery.
A general intention to defraud, without the intention of causing wrongful gain or loss to
any particular person, is suﬃcient. There must, however, be a possibility of some
person being defrauded. A man may have an intent to defraud and yet there may not be
any person who could be defrauded by his act.
If several persons combine to forge an instrument and each takes a distinct part in it,
they are nevertheless all guilty.

It will amount to forgery even though the fabricated document purports to be a copy of
another document.
Personation at an examination will amount to forgery as well as cheating.
Leading cases:—R v Abbas Ali. R v Lalit Mohan. R v Shoshi Bhushan. R v Kotamraju.
Harnam Singh.

A document made to conceal a previous fraudulent or dishonest act amounts to
forgery. But such falsiﬁcation is not forgery if it is only for the purpose of concealing a
previous negligent act.
The following are aggravated forms of the offence of forgery:—
1. Forgery of a record of a Court of Justice or of a register of births, baptism, marriage
or burial, or a certiﬁcate or authority to institute or defend a suit or a power of attorney
(section 464).
2. Forgery of a valuable security or will (section 467).
3. Forgery for the purpose of cheating (section 468).
4. Forgery for the purpose of harming the reputation of any person (section 469).
Other offences relating to documents are:—
1. Making or possessing a counterfeit seal, plate, etc., with intent to commit forgery
punishable under section 467 (section 472).
2. Same as above when punishable otherwise (section 473).
3. Possession of a valuable security or will, known to be forged, with intent to use it as
genuine (section 474).

4. Counterfeiting a device or mark used for authenticating any document described in
section 467, or possessing counterfeit marked material (section 475).
5. Same as above when the documents are other than those described in section 467
(section 476).
6. Fraudulent cancellation, destruction, defacement or secreting, etc., of a will or an
authority, to adopt, or a valuable security (section 477).
7. Falsiﬁcation of accounts by a clerk or oﬃcer or servant with intent to defraud
(section 477A).
Property-mark.
A mark used for denoting that movable property belongs to a particular person is called
a 'property-mark' (section 479).
A person uses a false property-mark
(1) if he marks any movable property or goods, or any case, package, or other
receptacle containing movable property or goods; or

(2) uses any case, package or other receptacle, having any marks thereon;
(3) in a manner reasonably calculated to cause it to be believed that the property or
goods contained in any such receptacle so marked, belong to a person to whom they
do not belong (section 481). [One year, or ﬁne, or both (section 482).]
The function of a property-mark to denote certain ownership is not destroyed because
any particular property on which it is impressed ceases to be of that ownership.

While trade-mark denotes the manufacture of quality of the goods to which it is
attached, property-mark, the ownership of them.
The following offences relate to counterfeiting any property-mark used by a person:—
1. Counterfeiting any property-mark used by another (section 483).
2. Counterfeiting a mark used by a public servant to denote that any property has been
manufactured by a particular person or at a particular time or place or that property is
of a particular quality or has passed through a particular oﬃce or that it is entitled to
any exemption (section 484).
3. Making or possession of any instrument for counterfeiting a property-mark (section
485).
4. Selling or exposing or possessing for sale or any purpose of trade or manufacture
any goods or things with a counterfeit property-mark (section 486).
5. Making a false mark upon any receptacle containing goods (unless without intent to
defraud) (section 487).
6. Making use of any false mark (unless without intent to defraud) (section 488).

7. Tampering with property-mark with intent to cause injury (section 489).
There are ﬁve offences relating to currency-notes and bank-notes.—
Currency-notes and bank-notes.
1. Counterfeiting currency-notes or bank-notes (section 489A)
2. Selling, buying, or using as genuine forged or counterfeit currency-notes or bank-
notes knowing the same to be forged or counterfeit (section 489B).
3. Possession of forged or counterfeit currency-notes or bank-notes, knowing or having
reason to believe the same to be forged or counterfeit and intending to use the same
as genuine (section 489C). Possession and knowledge that the currency notes in
question were counterfeit are both necessary. The section is not conﬁned to Indian
currency notes alone. K Hashim v State of TN, (2005) 1 SCC 237 [LNIND 2004 SC 1142]
.

.
4. Making or possessing instruments or materials for forging or counterfeiting
currency-notes or bank-notes (section 489D). It is not necessary that the machinery for
counterfeiting found in possession of the accused should be the whole set required for
counterfeiting. K Hashim v State of TN, (2005) 1 SCC 237 [LNIND 2004 SC 1142] .
5. Making or using documents resembling currency-notes or bank-notes (section
489E).
The expression "currency-notes" or "bank-notes" would include such notes of a foreign
country. In other words, foreign currency would also be within the mischief of these
provisions.
Leading case:—State of Kerala v Mathai Verghese, (1986) 4 SCC 746 [LNIND 1986 SC
461] .

Contract of service. Chapter XIX.
Chapter XIX treats of criminal breach of contracts of service.
The only case in which the Code now punishes a breach of contract is the following:—
Voluntarily omitting to perform a lawful contract to attend on or supply the wants of a
child, or an insane or a sick person, who is incapable of providing for his own safety or
of supplying his own wants (section 491). [Three months, or Rs. 200, or both.]
Ordinary servants, such as cooks, do not come within the purview of this section.
Marriage. Chapter XX.
Chapter XX deals with offences relating to marriage.
The following two provisions relate to mock or invalid marriages:—
1. Cohabitation caused by a man deceitfully inducing a belief of lawful marriage
(section 493). [Ten years and ﬁne.]
2. Dishonestly or fraudulently going through a marriage ceremony knowing that no
lawful marriage is thereby created (section 496). [Seven years and ﬁne.]
The latter offence differs from the former in the fact that in it the ceremony is gone

through, which is valid on the face of it but invalid for some reason known to one party,
or the other. The former section applies to deception practised by a man on a woman;
the latter applies to an offence by a man as well as by a woman.
Bigamy.
A person commits 'bigamy' if that person
(1) having a husband or a wife living,
(2) marries in any case in which such marriage is void,
(3) by reason of its taking place during the life of such husband or wife (section 494).
[Seven years and ﬁne.] If the former marriage is concealed from the person with whom
the subsequent marriage is contracted, the punishment is ten years and ﬁne (section
495).
There are two exceptions in which the second marriage is not an offence—
(1) When the ﬁrst marriage has been declared void by a Court of competent

495).
(2) When the husband or wife has been continually absent or not heard of for seven
years, provided that this fact be disclosed to the person with whom the second
marriage is contracted.
This section applies to Mohammedan women but not to men of that community and to
Hindus, Christians and Parsis of either sex.

The ﬁrst marriage must be a valid marriage. But a Mohammedan girl has the option, if
Shia, to ratify, or if Sunni, to cancel, her marriage on reaching the age of puberty if a
person other than her father or grand-father had given her in marriage.
If the marriage is not a valid marriage according to the law applicable to the parties, no
question of its being void by reason of its taking place during the life time of the
husband or the wife of the person arises and this section does not apply. Admission of
marriage by the accused is not evidence of it in a bigamy case; the second marriage as
a fact and the essential ceremonies constituting it, must be proved. The Courts are not
now so emphatic about proof of ceremonies. Indu Bhagya Natekar v BP Natekar.
Conversion of a Hindu wife to Mohammedanism or Christianity does not dissolve her
marriage with her Hindu husband and if she marries a Mohammedan or a Christian she
commits bigamy.

Leading cases:—R v Ram Kumari, R v Ganga; R v Millard; Bhaurao Shankar, Kanwal Ram.
It appears, however, that a Christian cannot by embracing Mohammedanism marry a
second time during the lifetime of his ﬁrst wife. He cannot cast off to the winds a
contractual obligation by his own act.
The rigour of the second exception was somewhat modiﬁed in Tolson's case, which
lays down that if the second marriage takes place within seven years under a bona ﬁde
belief based on reasonable grounds that the former consort was dead, no offence
would be committed.
Adultery.
A person commits adultery, if he
(1) has sexual intercourse with a person,
(2) whom he knows or has reason to believe to be the wife of another man,
(3) without the consent or connivance of that man,

(4) such sexual intercourse not amounting to the offence of rape (section 497). [Five
years, or ﬁne, or both.]
Leading case:—Joseph Shine v UOI (holding section 497 unconstitutional).
Taking or enticing away or concealing or detaining a woman, knowing or having reason
to believe her to be married, from her husband, in order that she may have illicit
intercourse with any man is punishable (section 498). [Two years, or ﬁne, or both.]
Cruelty to married woman.—Husband or relative of husband of a woman subjecting her
to cruelty is liable to be punished with imprisonment for a term which may extend to
three years and shall also be liable to ﬁne (section 498A). This Chapter [Chapter XX-A]
and the section have given a new dimension to the concept of cruelty for the purposes

of matrimonial remedies and the type of conduct described in the section will be
relevant for proving cruelty. Consequence of cruelty which was likely to drive a woman
to commit suicide or to cause grave injury or danger to life or limb or health, whether
mental or physical, have to be shown for attracting the section. Noorjahan v State,
(2008) 11 SCC 55 [LNIND 2008 SC 950] . The basic ingredients of section 498A are
cruelty and harassment. Undavalli Narayana Rao v State of AP, (2009) 14 SCC 588
[LNIND 2009 SC 1515] .

This section has been introduced by Criminal Law (Amendment) Act, 1983 (Act 46 of
1983) to combat the vice of dowry deaths. By the same Act section 113A has been
added to the Indian Evidence Act, 1872, which enables the Court to draw a presumption
regarding abetment of suicide by a married woman if she commits suicide within seven
years of her marriage and it is shown that her husband or relative had subjected her to
cruelty. A mere demand for dowry is an offence.
Illustrations on the meaning of harassment have been brought in from cases decided
under the [English] Protection From Harassment Act, 1997. The various types of
conduct which may constitute cruelty has been judicially construed.
Defamation. Chapter XXI.
A person is guilty of 'defamation' if he,
(1) by words, either (a) spoken, or (b) intended to be read; or
(2) by signs or visible representations;
(3) makes or publishes any imputation concerning any person;

(4) intending to harm, or knowing or having reason to believe that such imputation will
harm, the reputation of such person (section 499). [Two years simple, or ﬁne, both
(section 500).]
Defamation may be of a deceased person (Explanation 1). It may be concerning a
company, an association, or collection of persons (Explanation 2). It may be by ironical
expressions. It is however necessary to show that this collection of persons is a small
determinate body whose identity can be ﬁxed. Advocates as a class cannot therefore
be defamed.
The fact of reference to a particular person may be proved by means of the technique
of "innuendo".
Leading cases:—Manmohan Kalia v Yash. Asha Parekh v State of Bihar.
An imputation harms a person's reputation which, in the estimation of others, directly or
indirectly, either

(1) lowers his moral or intellectual character; or
(2) lowers his character in respect of his caste or calling, or his credit; or
(3) causes it to be believed that his body is in a loathsome state, or in a state generally
considered disgraceful (Explanation 4).
The deﬁnition in the Code applies to words as well as writings.
The IPC, 1860, makes no distinction between spoken and written defamation.
The defamatory matter must be published, i.e., communicated to a person other than
the one defamed. The person who makes the imputation intending to harm the
reputation of another, as well as the person who publishes it are alike guilty. The
publisher need not be the maker of the defamatory matter.

The publisher of a newspaper is responsible for defamatory matter appearing in the
newspaper whether he knows it or not. But it will be a good justiﬁcation to plead if such
matter is published in his absence and without his knowledge and the temporary
management of the paper was in competent hands. A newspaper published at one
place and sent to a subscriber at another will be considered to have been published at
the latter place.
Any of the following defences may be set up against a charge of defamation:—
1. Imputation of any truth which the public good requires to be made or published.
2. Opinion expressed in good faith respecting the conduct of a public servant in the
discharge of his duties, or his character so far as it appears in that conduct.
3. Opinion expressed in good faith respecting the conduct of any person touching a
public question, or his character so far as it appears in that conduct.
4. Publication of a substantially true report of the proceedings of a court.

Such report cannot be published if the court has prohibited it, or where the subject-
matter of the trial is obscene or blasphemous.
5. Opinion expressed in good faith respecting the merits of a case decided in a court; or
the conduct of a party, witness or agent concerned therein; or the character of such
person so far as it appears in such conduct.
6. Opinion expressed in good faith respecting the merits of a performance submitted
by the author to public judgment; or respecting the author's character so far as it
appears in such a performance.
7. Censure passed in good faith by a person having lawful authority over another.
8. Accusation preferred in good faith to a duly authorized person.
9. Imputation made in good faith by a person for the protection of his interest, or of any
other person, or for the public good.

The privilege of judges, counsels, pleaders, witnesses, and parties comes under this
exception. So also, as to statements made in pleadings and reports to superior oﬃcers.
JUDGE.—A Judge cannot be prosecuted for defamation for words used by him whilst
trying a case in court even though such words are alleged to be false, malicious, and
without reasonable cause (Rama v Subramanya).
COUNSEL OR PLEADER.—The Madras High Court held in Sullivan v Norton that no
proceedings can be instituted against a counsel or pleader for uttering words that are
defamatory, or are calculated to hurt the feelings of others, or are absolutely devoid of
all solid foundation. This case has been doubted in a much later decision in which it
was held that in the case of a lawyer good faith is to be presumed until bad faith is

proved by proof of private malice when the Court will interfere (Mir Anwarrudin v Fathim
Bai).
The Bombay High Court has held that so long as an advocate acts on his client's
instructions, he has the fullest liberty of speech provided that he did not know or could

not know that they were false. (Bhaishankar v Wadia). Where express malice is absent
the advocate or pleader is protected (Re Nagarji; Purshottamdas).
The Calcutta High Court has held that advocates have no absolute privilege. But unless
a counsel or pleader is actuated by improper motives he is protected. If bad faith is
proved in putting questions to witnesses he is liable. There must be evidence that he
was actuated by improper motives and not by a desire to further his client's interest.
The Patna High Court has held that the privilege is not absolute but qualiﬁed and the
burden is on the prosecution to prove absence of good faith.
WITNESS.—The Bombay High Court has held in a Full Bench case that relevant
statements made by a witness on oath or solemn aﬃrmation in a judicial proceeding
are not absolutely privileged on a prosecution for defamation, but are governed by the
provisions of this section (Bai Shanta v Umrao).
The Calcutta High Court has laid down that such statements should be relevant to the

inquiry (Woolfun Bibi v Jerasat Sheikh). If a witness voluntarily makes defamatory
statements he will be guilty (Haider Ali v Abru Mia).
The Madras High Court is of opinion that statements of a witness made in the witness-
box are absolutely privileged. If they are false the remedy is by indictment for perjury,
and not for defamation (Manjaya v Shesha Shetti).
The Allahabad High Court has held in a Full Bench case that a witness can be
prosecuted for defamatory statements concerning a person unless he shows that the
statements fall under one of the exceptions to this section (Ganga Prasad).
The former Chief Court of the Punjab had adopted the view of the Calcutta and the
Allahabad High Courts.
The former Nagpur High Court had followed the Bombay, the Calcutta and the
Allahabad High Courts and held that a witness is not entitled to absolute privilege
(Chotelal's case).

PARTY.—The Bombay High Court has held that relevant statements made by an
accused are not absolutely protected, but are governed by the provisions of section
499(Bai Shanta v Umrao).
The Madras High Court has held that if an accused puts any question while defending
himself, the question cannot be made the subject of a prosecution for defamation
(Hayes v Christian). Statement in answer to a question by the Court is not absolutely
privileged (Tiruvengada Mudali's case). If a defamatory statement is made before an
oﬃcer who is neither a judicial oﬃcer nor a court, e.g., a Registration Oﬃcer, such a
statement is not absolutely privileged. (Krishnammal's case).
The Calcutta High Court has ruled in a Full Bench case that a defamatory statement on
oath by a party falls within section 499 and is not absolutely privileged (Satish Chandra

Chakravarti v Ram Doyal De).
The Allahabad High Court holds the view that a suitor is not absolutely privileged.
PLEADING.—Defamatory statements in applications, pleadings and aﬃdavits are not
absolutely privileged.
The Bombay High Court has held that statements made in a written statement ﬁled by
the accused are not absolutely privileged. According to the Allahabad High Court any
statement made in an application in good faith is protected.

The Calcutta and the Patna High Courts have held that defamatory statements in a
plaint or an aﬃdavit are not absolutely privileged. But the decisions of the Calcutta
High Court are not unanimous on the point whether statements in a complaint to a
Magistrate are absolutely privileged or not.
The Madras High Court has in a Full Bench case held that a defamatory statement in a
complaint to a Magistrate is not absolutely privileged. (Triuvengada Mudali's case).
The former Chief Court of the Punjab had laid down that such statements were not
10. Caution intended in good faith for the good of the person to whom it is conveyed or
of some person in whom he is interested, or for public good.
Other offences.
The following acts also are made punishable:—
1. Printing or engraving matter known to be defamatory (section 501).
2. Sale of printed or engraved substance containing defamatory matter (section 502).
Criminal intimidation. Chapter XXII.
A person commits 'criminal intimidation' if he

(1) threatens another with any injury
(a) to his person, reputation or property, or
(b) to the person, or reputation of any one in whom that person is interested,
(b) to cause that person to do any act which he is not legally bound to do, or omit to do
any act which that person is legally entitled to do,
(3) as the means of avoiding the execution of such threat (section 503). [Two years, or
ﬁne, or both.]
If the threat be to cause (1) death or grievous hurt, (2) the destruction of any property
by ﬁre, (3) an offence punishable with death, imprisonment for life, or seven years'
imprisonment, then seven years, or ﬁne, or both (section 506). [If intimidation is caused
by an anonymous communication, then additional imprisonment for two years (section
507).]

507).]
'Criminal intimidation' is closely analogous to 'extortion.' In the former the immediate
purpose is to induce the person threatened to do, or abstain from doing, something
which he was not legally bound to do or omit; in the latter, the purpose is getting ﬁlthy
lucre by obtaining property. In 'criminal intimidation' the threat need not produce the
effect aimed at nor should it be addressed directly to the person intended to be
inﬂuenced. If it reaches his ears anyhow the offence is complete.

The following two provisions relate to insult offered to persons other than public
servants—
Insult.
(1) Intentional insult with intent to provoke a breach of the peace, or to cause the
commission of any offence. (section 504).
(2) Uttering any word, or making any sound or gesture, or exhibiting any object,
intending to insult the modesty of a woman or intruding upon the privacy of a woman
(section 509).
Statement conducing to public mischief.
Making, publishing or circulating, any statement, rumour, or report
(1) with intent to cause any oﬃcer, soldier, sailor or airman in the Army, Navy or Air
Force, to mutiny, or to disregard or fail in his duty, or
(2) with intent to cause fear or alarm to the public whereby any person may be induced
to commit an offence against the State or public tranquillity, or
(3) with intent to incite any class of persons to commit any offence against any other
class is made punishable (section 505). [Three years, or ﬁne, or both.] The offence is

not committed if such statement, etc., is true and there is no such intent as aforesaid.
Making, publishing or circulating, any statement or report containing alarming news
(1) with intent to create or promote feelings of enmity, hatred or ill will between
different groups or communities on grounds of religion, race, place of birth, residence,
language, caste or community (section 505). [Three years, or ﬁne, or both.]
(2) Aggravated form of the same offence when committed in any place of worship or in
any assembly engaged in religious ceremonies (section 505). [Five years and ﬁne.]
Divine displeasure.
Act or omission caused by inducing a person to believe that he will be rendered an
object of Divine displeasure if he does not do or omit to do the things which it is the

object of the offender to cause him to do or omit, is punishable (section 508). [One
year, or ﬁne, or both.]
Intoxication.
Intoxication alone is not made punishable by the Code. But a person who in a state of
intoxication appears in any public place, or in any place which it is a trespass in him to
enter, and there conducts himself in such a manner as to cause annoyance to any
person is liable to punishment (section 510). [24 hours, or Rs. 10, or both.]

1.  Stephen's History of Criminal Law of England, vol I.
Attempts. Chapter XXVIII.
The last chapter deals with attempts to commit offences. Attempting to commit or
causing to be committed an offence, punishable by the Code with imprisonment for life
or imprisonment, and in such attempt doing any act towards the commission of the
offence is—where there is no express provision for the punishment of such attempt—
punishable with imprisonment provided for the offence, for a term which may extend to
one-half of the imprisonment for life or one-half of the longest term of imprisonment
provided for that offence, or with such ﬁne as is provided for the offence, or with both
(section 511).
Every commission of a crime has three stages—
(1) intention to commit it;
(2) preparation for its commission; and
(3) a successful attempt.
Mere intention to commit a crime, not followed by any act, does not constitute an
offence. The will is not to be taken for the deed unless there be some external act

which shows that progress has been made in the direction of it or towards maturing
and effecting it.
Preparation consists in devising means for the commission of an offence. The section
does not punish acts done in the mere stage of preparation. Mere preparation is
punishable only when the preparation is to wage war against the Government of India
(section 122), to commit depredations on the territories of any power at peace with the
Government of India (section 126), or to commit dacoity (section 399).
Attempt is the direct movement towards the commission after the preparations are
made. To constitute the offence of attempt there must be an act done with the
intention of committing an offence, and for the purpose of committing that offence,
and it must be done in attempting the commission of the offence.

It is, however, not necessary to show that it is the last proximate act. It is enough if it is
one in a series.
An attempt can only be manifested by acts which would end in the consummation of
the offence, but for intervention of circumstances independent of the will of the party.
An attempt is punishable even when the offence attempted cannot be committed; as
when a person intending to pick another's pocket thrusts his hand into the pocket but
ﬁnds it empty.
If the attempt to commit a crime is successful, then the crime itself is committed; but
where the attempt is not followed by the intended consequences, section 511 applies.
Leading cases:—Abhayanand. Om Prakash. R v Ramsarun. R v Mac Crea. R v Mangesh. R
v Peterson. R v Baku.

2.  Note Q, p 174.
3.  Mrs. Sarah Mathew v The Institute of Cardio Vascular Diseases, (2014) 2 SCC 62 [LNIND 2013
SC 997] .
4.  Standard Chartered Bank v Directorate of Enforcement, (2005) 4 SCC 530 [LNIND 2005 SC
476] ; Iridium India Telecom Ltd v Motorola Incorporated, (2011) 1 SCC 74 [LNIND 2010 SC 1012]
.
5.  Abu Salem Abdul Qayoom Ansari v State of Maharashtra, (2011) 11 SCC 214 [LNIND 2010 SC
858] .
6.  Lee Kun Hee v State of UP, (2012) 3 SCC 132 [LNIND 2012 SC 89] ; Mobarik Ali v State of
Bombay, AIR 1957 SC 857 [LNIND 1957 SC 81] .
7.  BK Wadeyar v Daulatram Rameshwarlal, AIR 1961 SC 311 [LNIND 1960 SC 493] .
8.  M V Elisabeth v Harwan Investment and Trading, AIR 1993 SC 1014 [LNIND 1992 SC 194] .