104 criminal law_semester1

CRIMINAL LAW

PREPARED BY RADHIKA SETH, PLEASE VOTE , BALLOT No. 2

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These notes are prepared by Radhika

Seth, Law Centre 2. This is meant only

for personal use of students. It is not

meant for public or wholesale

distribution.

VOTE FOR MY PANEL ON 13TH

SEPTEMBER- ELECTION DAY.

RADHIKA SETH 2

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Is Also Covered in the Corresponding Clause of Section 300 But Does not Fall in Any of the Exceptions to Section 300

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....

without any excuse for incurring the risk of causing death. " The 4th clause contemplates the doing of an imminently dangerous act in general, and not

the doing of any bodily harm to any particular individual [as per illustration (d) of Section

300]. This clause cannot be applied until it is clear that clauses 1,2 and 3 of the section

each and all of them fail to suit the circumstances. Intention is not an essential ingredient

of this clause Section 300(4) is usually applied to cases where the act of the offender is not directed

against any particular person. There may even be no intention to cause harm or injury to

any particular individual. What this clause contemplates is the imminently dangerous act

which in all probabilities is done, without any intention to kill a particular person but with

the knowledge that death is very likely and that such act is done without any excuse. The Supreme Court in Ram Prasad Verses State, had held that this clause is usually

invoked in cases where there is no intention to cause death of any particular individual.

The clause is applied in cases where there is such callousness towards the result, and the

risk taken 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. The explosion of a bomb in a crowded

room must have been known to the accused that it would cause death, the fact that the

accused had no intention of killing a particular person does not take the case outside the

purview of clause (4). In Gorachand Gopee case, the court has pointed out that clause fourthly is designed for

that class of cases where the act of the accused is not directed against any one in

particular but there is that recklessenss or negligence, which places the lives of many in

jeopardy, of which the accused is well aware. For example, causing death by firing a

loaded gun into a crowd or by poisoning a well from which people are accustomed to

draw water. An act done with the knowledge of its consequences is not prima facie murder. It

becomes murder only if it can be positively affirmed that there was no excuse. When a

risk is incurred—even a risk of the gravest possible character which must normally result

in death—the taking of that risk, is not murder, unless it was inexcusable to take it

[Emperor Verses Dhirajia]

The main ingredient of this clause is that the person committing the act in question should

have had the knowledge that the act done is so imminently dangerous that it must in all

probability cause the death or such bodily injury as is likely to cause death and the act

was committed without any excuse for causing death or such bodily injury as is likely to

cause death (Sonnu Muduli Verses Emperor). Hence, this clause deals with cases where an act which is dangerous is done, without any

intention to kill a particular person, but with knowledge that death is very likely and that

such act is done without any excuse. A threat caused by incarnations or a belief in

witchcraft does not justify the causing of death. So also, 'divine influence or inspiration'

cannot be pleaded in defence to a charge of an offence [Munniswami Verses Emperor]

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In Bharat , the accused offered a child to a crocodile under a superstitious but bona fide

belief that the child would be returned unharmed but the child was killed. He was held

guilty of murder under clause fourthly of Section 300. Section 302. Punishment for Murder, "Whoever commits murder shall be punished with

death or imprisonment for life, and shall also be liable to fine." Therefore, Section 302 provides two alternative punishments for murder, viz., death

sentence or imprisonment for life. It is important to note here that death penalty should be

imposed in gravest cases of extreme culpability by taking into consideration the

circumstances of the offenders and crime. Death sentence must be imposed when life

imprisonment is inadequate punishment, after striking balance between the aggravating

and the mitigating circumstances (Bachan Singh Verses State of Punjab).

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Motive Verses intention

The distinction between Sections 299 and 300 was made clear by Melvill J. in R. Verses Govinda and by Sarkaria J. in R. Verses Punnaya It must be remembered that

as per Article 141 of the Constitution of India, the law declared by the Supreme Court is

the law of the land and binding on everyone. In this case the accused had knocked his

wife down, put one knee on her chest, and struck her two or three violent blows on the

face with the closed fist, producing extravansion of blood on the brain and she died in

consequence, either on the spot, or very shortly afterwards, there being no intention to

cause death and the bodily injury not being sufficient in the ordinary course of nature to

cause death. The accused was liable for culpable homicide not amounting to murder. For the purpose of comparison and bringing out the distinction clearly, Section 299 and

Section 300 may be put as follows, Section 299 Section 300 A person commits culpable homicide Except in the cases if the act by which the

death is caused if is done... hereinafter excepted is done. Culpable homicide is murder if the act by which death is caused is done... INTENTION (a)With the intention of causing death, [as per Illustration (a) to Section 299] (b) With the intention of causing such bodily injury as is likely to cause death, [as per

Illustration (b) to Section 299] (1) With the intention of causing death, [as per Illustration (a) to Section 300] (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. [as per Illustration (b) to

Section 300]. KNOWLEDGE (c) With the knowledge that he is (3) With the intention of causing likely by such act to

cause death. bodily injury to any person, and [as per Illustration (c) to Section the bodily

injury intended to be 299] inflicted is sufficient in the ordinary course of nature to cause death, [as per Illustration (c) to Section 300] (4) With the knowledge that the act is so imminently dangerous that it must in all

probability cause death, or such bodily injury as is likely to cause death. [as per

Illustration (d) to Section 300] The first clause of Section 300 reproduces the first part of Section 299, therefore

ordinarily if the case comes within Clause (a) of Section 299, it would ar lount to murder

[Jaya Raj Verses State of T.N.]. Clause (b) of Section 299 corresponds with Clauses (2) and (3) of Section 300. Clause (b)

of Section 299 does not postulate any such knowledge on the part of the offender. Thus, if

the assailant had no knowledge about the disease 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. A comparison of clause (b) of Section 299 with Clause (3) of Section 300 would show

that the offence is culpable homicide if the bodily injury intended to be inflicted is likely

to cause death, it is murder if such injury is sufficient in the ordinary course of nature to

cause death. The distinction is fine but appreciable. Ref The decision of most of the

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doubtful cases depends on a comparison of these two clauses. The word "likely" means

"probably." When the chances of a thing happening are greater than its not happening, we

say the thing will "probably" happen. When the chances of its happening are very high,

we say that it will 'most probably' happen. An injury sufficient in the ordinary course of

nature to cause death only means that "death will be the most probable result of the injury

having regard to the ordinary course of nature". The expression does not mean that death

must result. Thus the distinction between clause (b) of section 299 and clause (3) of

section 300 would depend very much upon the degree of probability or likelihood of

death in consequence of the injury. Clause (c) of Section 299 and Clause (4) of Section 300 appear to apply to cases in which

there is no intention to cause death or bodily injury but knowledge that the act is

dangerous and therefore likely to cause death. Both clauses require knowledge of the

probability of the act causing death. Clause (4) requires knowledge in a very high degree

of probability. The following factores are necessary, (1) That the act is imminently dangerous, (2) That in all probability it will cause death or such bodily injury as is likely to cause

death, and (3) That the act is done without any excuse for incurring the risk. Whether the offence is culpable homicide or murder, depends upon the degree of risk to

human life. If death is a likely result, it is culpable homicide, if it is the most probable

result, it is murder. Furious driving and firing at a mark near a public road are cases of

these description.

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Distinction between culpable homicide & murder

QUESTION 1. What do you understand by culpable homicide and what elements are necessary to constitute this offence? Discuss giving illustrations. When does culpable homicide amount to murder? Answer. Homicide, Homicide is the killing of a human being by a human being and culpable means criminal. Homicide may be lawful or unlawful. It is lawful where death is caused by accident without any criminal intention, or caused in the exercise of the right of private defence of person or property or by a person of unsound mind. Unlawful homicide includes culpable homicide not amounting to murder. Culpable Homicide, Section 299 lays down that 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. Essential Elements, Its essential elements consist of the following, viz., the causing of death by doing (1) an act with the 'intention of causing death, (2) an act with the intention of causing such bodily injury as is likely to cause death, or (in) an act with the knowledge that it was likely to cause death. A few illustrations will bring out the principles clearly, (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 caused thereby. 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 of culpable homicide, (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 cause death by doing an act that he knew was likely to cause death. The three Explanations to the Section provide, (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. (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 pre-vented. The deceased was stabbed in the abdomen by a knife and he died of gangrene and paralysis of intestines. It was held that the fact that if an operation had taken place within an hour of the infliction of the abdominal injury the life of the deceased might have been saved, could not, in view of this Explanation, remove the offence from the ambit of culpable homicide. (3) The causing of the death of a 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. Murder, Section 300, I.PC. lays down that 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 ordi-nary course of nature to cause death, or fourthly, if the person com-mitting the act knows that it is so imminently dangerous that it must, in all probability, cause death or such

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bodily injury as is likely too cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid. Illustrations, (1) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder, (2) 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 it is not murder if B had not known that Z was labouring under any disease, (3) A intentionally gives Z a swords-cut 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, (4) 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 premeditated design to kill any particular individ-ual. The Supreme Court in Virsa Singh Verses State of Punjab, has laid down that the prosecution must prove the following facts before it can bring a case under Section 300 "thirdly",— Firstly, it must establish, quite objectively, that a bodily injury is present, Secondly, the nature of the injury must be proved, these are purely objective investigations, Thirdly, 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. Fourthly, it must be proved that 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. Bose J. further observed, "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'. It does not matter that there was no intention to cause death. It does not matter that there was to intention 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). It does not even matter 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 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." In Laxman Kalu Nikalji Verses The State of Maharashtra. Where a single injury was inflicted on the deceased with a knife 2 inch below the outer 1/3 of right clavicle on the right side of the chest and penetrated to the depth of 4 inch into the chest cavity. Dealing with the question whether the offence would be covered by 'thirdly' of Section 300 of the Indian Penal Code. Hidayatullah, C.J. observed, "That section requires that the bodily injury must be intended and the bodily injury intended to be caused must be sufficient in the ordinary course of nature to cause death. This clause is in two parts, the first is a subjective one which indicates that the injury must be an intentional one and not an accidental one, the second part is objective in that looking at the injury intended to be caused, the court must be satisfied that it was sufficient in the ordinary course of nature to cause death." On the basis of the evidence it was held in the aforesaid case that the first part was complied with and the second part was not fulfilled because but for the fact that the injury caused the severing of artery, death might not have ensued and the injury which the accused in-tended to cause did not include specifically the cutting of the artery but to wound the victim in the neighbourhood of the clavicle. In these circumstances. Section 300 'thirdly' was held to be inapplicable. Having regard to the fact that the appellant had used a dangerous weapon like a rifle (being a police constable he must have known that it was a dangerous weapon) and having regard to the fact that he had fired at Kaptan Singh as many as five shots, one of which was fired after Kaptan Singh was hit by a bullet and collapsed on the ground it was impossible to

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accept the contention that the appellant had not done the act with the intention of causing his death. It was naive to argue that the intention was merely to frighten him or to cause griev-ous hurt for it overlooked the two salient features, viz., (a) as many as five shots were fired from his 303 rifle and (b) that he fired a shot even after Kaptan Singh had collapsed on the ground having been hit by one of the shots. A bare glance at Section 300 of the Indian Penal Code would show that if the act is done with the intention of causing death, culpable homicide would be murder. Under clause secondly of Section 300 if the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of he person to whom the harm is caused it would amount to murder. When the appellant, a police constable fired from his 303 rifle (he must have known that it was a deadly weapon) no other inference is possible but that he intended to cause such bodily injury as he knew to be likely to cause death of the person to whom the harm was caused. Clause thirdly of Section 300 provides that if the act 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 it would amount to murder. Again having regard to the facts narrated hereinabove no other conclusion was possible except that the appel-lant intended to inflict such bodily injuries to the deceased which were sufficient in the ordinary course of nature to cause death. In any view of the matter it would fall under clause 4thly, which provided that 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 afore-said it would amount to murder. Illustrations, (a), (c) and (d) of Section 300, I.P.C. reading as under may be flashed on the mental screen in order to reinforce this conclu-sion,— "(a) A shoots Z with the intention of killing him. Z dies in conse-quence. A commits murder, (b) 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 causeA 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."

QUESTION2. Discuss the broad guidelines as to when an offence is murder and when it is culpable homicide not amounting to murder. Answer. 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 those provisions seems to be to keep in focus the key words used in the various clauses of Sections 299 and 300. Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguished 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, notwith-standing the fact 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. Instance of causes falling under clause (2) of Section 300 can be where the assailant causes death by giving a fist blow intentionally knowing that the victim is suffering from an enlarged liver or enlarged spleen or diseased heart and such blow is likely to cause

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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 fraility 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 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' so 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. Even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death. Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons 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. From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is 'murder' or 'culpable homicide not amounting to murder' on the facts of 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 ac-cused and the death, leads 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 operation of Section 300, Indian Penal Code, 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 'mur-der' 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, Penal Code. The above are only broad guidelines and not cast-iron imperatives. In most cases, these observance will facilitate the task of 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.

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General QUESTION 1. When does culpable homicide not amount to murder? Or describe briefly giving illustrations the circumstances under which culpable homicide does not amount to murder on account of the provocation given to the accused. Answer. The following Exceptions to Section 300 provide for cases where 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 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 proviso, Firstly, That the provocation is not sought or voluntarily pro-voked 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. The above exception provides that 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. The provocation must be grave and sudden and of such a nature as to deprive the accused of the power of sett-control. Mere verbal provocation, however, even if it be by threats or gestures or by the use of abusive and insulting language, cannot induce a reasonable man to commit an act of violence of be regarded as a great provoca-tion within the meaning of Exception 1 to Section 300. The test of grave and sudden provocation is whether provocation given was in the circumstances of the case likely to cause a normal reasonable man to loose control of himself to the extent - of inflicting the injury or injuries that he did inflict. „ Illustrations, (a) It has been held that a confession of adultery by a wife to her husband, who in consequence kills her, is such a grave and sudden -provocation as will entitle the court to hold it to be culpable homicide instead of murder, but a similar confession of illicit intercourse by a woman who was not the accused's wife but only engaged to be married to him cannot, if he kills her in consequence, justify such a view, (b) A, under the influence of passion excited by a provocation given by Z. intentionally kills Y, Z's child. This is murder, inasmuch 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, (c) 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, (d) 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, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers, (e) A appears as a 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,

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(f) 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, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence, (g) 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. Illustration, Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. 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 culpatfle homicide. This exception only applies when the right of private defence is 'exceeded without any intention of doing more harm than is necessary. 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, expeeds 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. Explanation 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's 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. The most important element here is that there should be a fight— an offer of violence on both sides. The exception would not be appli-cable where, in the course of a wordy quarrel, the accused hit the deceased on the head with a lathi and killed him. To invoke Exception 4 too Section 300,1.PC. four requirements must be satisfied, namely, (1) it was a sudden fight, (2) there was no pre-meditation, (3) the act was done in a heat of passion, (4) the assailant had not taken any undue advantage or acted in a cruel manper. The cause of the quarrel is not even nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit to this excep-tion provided he has not acted cruelly. (Surinder Kumar Verses Union of India, Chandigarh). 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.

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Illustration, 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.

Takes a Lenient View in Respect of Murders Committed on the Spur of the Moment, Exception I to IV Section 300

Section 300 of the INDIAN PENAL CODE speaks of five exceptions in which, if a

murder is committed, it is treated as culpable homicide not amounting to murder. The

exceptions are justified on the ground that in such cases the deceased is equally

responsible for his death. Accordingly, the criminal liability of the accused is reduced

from murder to culpable homicide not amounting to murder punishable under Section

304, INDIAN PENAL CODE, when death is caused, (1) whilst the accused was deprived of the power of self control by grave and sudden

provocation. (2) In the exercise of the right of private defence (3) In the exercise of legal powers (4) In a sudden fight (5) With the consent of the deceased. Thus the five exceptions are,

(1) Grave and sudden provocation,

(2) Private defence,

(3) Acts of public servants,

(4) Sudden fight,

(5) Consent

Exception 1 to Section 300 (Grave and Sudden Provocation) Culpable homicide is not murder, if, the offender on accounf of grave and sudden

provocation, is deprived of his power of self-control and causes the death of a 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.

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Dist. Between 299 (1) 304A

Causing Death by Rash or Negligent Act (Section 304A) "Whoever causes the death of any person by doing any rash or negligent act not

amounting to culpable homicide, shall be punished with imprisonment of either

description for a term which may extend to two years, or with fine, or with both." Punishment for causing death by rash or negligent act is either imprisonment for 2

years, or fine, or both. This section was added by an amendment of the code 10 years after the INDIAN

PENAL CODE. was enactecl. It doesn't create a new offence. It is directed at

offences, which fall outside the range of Sections 299 and 300, where neither intention

nor knowledge to cause death is present. This section applies where there is a direct nexus between the death of a person and

the rash or negligent act. The act must be the causa causans, it is not enough that it

may have been the causa sine qua non. This section does not apply to the following cases, (1) death is caused with any intention or knowledge (voluntary commission of offence), (2) in other words, the act must not amount to culpable homicide,

(3) death has arisen from any other supervening act or intervention which could not have been anticipated,

(4) in other words, death was not the direct or proximate result of the rash or negligent act,

(5) death occurred due to an accident (that is where an accused on dark night believing a man to be a ghost killed him, Waryam Singh Verses Empero. Culpable rashness consists in hazarding a dangerous or wanton act with the nowledge

that it is so, and that it may cause injury, but without intention to cause injury, or

knowledge that it will probably be caused. In other words, a rash act is primarily an over-

hasty act and is thus opposed to a deliberate act, but it also includes an act which though

it may be said to be deliberate is yet done without due deliberation culpable and caution. Culpable 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 a particular individual, 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 (Bala Chandra Verses State of Maharashtra). Rashness and negligence are not the same things. Mere negligence cannot be construed to

mean rashness. Negligence is the genus of which rashness is a species. The words "rashly

and negligently" are distinguishable and one is exclusive of the other. The same act

cannot be rash as well as negligent. The rash or negligent act means the act which is the

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immediate cause of death and not any act or omission which can at most be said to be a

remote cause of death. In order that rashness or negligence may be criminal it must be of

such a degree as to amount to taking hazard knowing that the hazard was of such a degree

that injury was most likely to be caused thereby. The criminality lies in running the risk

or doing such an act with recklessness and indifference to the consequences. Contributory negligence, The doctrine of contributory negligence does not apply to the

criminal liability. Where there is ample proof that the accused had brought about the

accident by his own negligence and rashness, it matters not whether the deceased was

deaf, or drunk, or, in part contributed to his own death. Thus, contributory negligence is no defence to a criminal charge. A criminal charge shall

be sustainable if the accused had been at fault even though someone else may have been

equally at fault. In such cases the question is, did the accused rashly or negligently do an

act which was likely to endanger the public? If he did such an act, the fact that the actual

injury was brought about by carelessness or contribution of the victim also will be no

defence.

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Section 304B

Distinction between Section 304-B (Dowry Death) and Section 498-A (Cruelty)

The provision laid down under Section 304-B and Section 498-A are not mutually

exclusive. There is difference between these two sections. they are,

FIRST,

Under Section 304-B, the dowry death is punishable and such death should have occurred

within a period of seven years of marriage where as Under Section 498-A, the cruelty by

husband or husband's relatives is punishable but no time period of seven years has been

provided for the prosecution under this section.

SECOND,

Section 304-B is attracted When the cruelty or harassment of a married woman results in

her death where as Under Section 498-A, cruelty as such as punishable.

THIRD,

Under Section 304-B (Dowry Death), punishment may extend upto imprisonment of life

with a minimum of seven years of imprisonment where as Under Section 498-A

(Cruelty), punishment may extend upto three years of imprisonment and fine only.

FOURTH,

In Section 304-B (Dowry Death), There is no explanation which gives the meaning of

'cruelty' where as Under Section 498-A, There is an explanation clause which gives the

meaning of 'cruelty'.

However, the cruelty is a common essential ingredient to both the offences and that has to be proved before the person is convicted. Thus, the offence being of the common background, a person charged and acquitted under Section 304-B can be convicted under Section 498-A for a lesser offence without charge being there, if such a case is made out.

Further, in order to avoid technical defect it is proper to frame charges under both sections, convictions would be made under both. Separate sentence need not be awarded under Section 498-A and under Section 304-B (Pawan Kumar Verses State of Haryana).

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Sections 319 and 320

Section 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 of 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. Grievous hurt is hurt of a more serious kind. Hurt or grievous hurt to be punishable must

be caused voluntarily, as defined in sections 321 and 322 of INDIAN PENAL CODE.

The Code on the basis of the gravity of the physical assault has classified hurt into simple

and grievous so that the accused might be awarded punishment commensurate to his guilt.

Though it is very difficult and absolutely impossible to draw a fine line of distinction

between the two forms of hurts—simple and grievous—with perfect accuracy, the Code

has attempted to classify certain kinds of hurt as grievous and provided for severe

punishment depending upon the gravity of the offence in question. Thus, 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. Emasculation means depriving a male of masculine vigour. It means to render a man

impotent. This clause is confined to males only. It means unsexing a man or depriving a man of his

virility. This clause was inserted to counteract the practice common in this country for

women to squeeze men's testicles on the slightest provocation. Emasculation may be

caused in a variety of ways. To bring the case under this clause the impotency caused

must be permanent.

(1) Injury to eyesight, The second kind of grievous hurt is causing injury to eyesight.

The test of gravity is the permanency of the injury caused to one eye or both eyes. (2) Deprivation of hearing, Causing deafness is the third kind of grievous hurt. It may be

with respect to one ear or both ears. To attract this clause the deafness caused must be

permanent. (3) Loss of limb or joint, Causing loss of a limb or joint is the fourth kind of grievous

hurt. The expression used in the section is deprivation of any member, section or joint,

crippling a man with life-long misery. The term member is used to mean nothing more

than an organ or a limb.

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(4) Impairing of limb, Limbs and joints are essential parts of body that help in the

discharge of normal transactions incidental to ordinary life. Destruction or permanent

impairing of the powers of any member or joint is the fifth kind of grievous hurt. Disabling is distinguishable from disfiguring as discussed in the sixth clause. To disfigure

means to cause some external injury which detracts from a person's personal appearance.

It may not weaken him. On the other hand, to disable means to do something creating a

permanent disability and not a mere temporary injury. Disfiguration means doing some external injury to a man which detracts from his

personal appearance such as cutting of a man's nose or ears. Putting a red-hot iron on

cheeks of a girl which left permanent scars [Anta Dadoba] or cutting the bridge of nose

of girl with razor [Gangaram]. Fracture or dislocation of a bone is considered to be a grievous hurt because it causes a

great pain to the person injured. Break by cutting or spintering of the bone, rupture or

fissure in bone, partial cut of bone amounts to fracture within the meaning of this section.

The throw of wife from a window about six feet high which resulted in the fracture of the

knee-pan and in several small wounds, it was held that husband was guilty of causing

grievous hurt. Hurt which causes severe bodily pain for the period of twenty days means that person

must be unable to follow his ordinary pursuits. The provisions contained in clause 8 of section 320, INDIAN PENAL CODE. are of a

general nature. The clause is borrowed from French Penal Code. It refers to three classes

of injuries which are not covered under any one of the above clauses 1 to 7 of the section.

It labels the following hurts as grievous, viz., those (1) Which endangers life, or (2) Which causes the sufferer to be during the space of 20 days in severe bodily pain, or (3) Which causes the sufferer to be during the space of twenty days unable to follow his

ordinary pursuits.

The above three sub-clauses are independent of each other. (1) Hurt which endangers life and an injury as is likely to cause death distinguished,

An injury is said to endanger life if it may put the life of the injured in danger. A simple

injury cannot be called grievous simply because it happened to be caused on a vital part

of the body, unless the nature and dimension of the injury or its effects are such that in the

opinion of a qualified physician, it actually endangers the life of the victim. There is a very thin and subtle demarcation line between 'hurt which endangers life'

(under clause 8 to section 320,indian penal code. and 'injury as is likely to cause death',

defined in section 299,indian penal code. In fact, it is very difficult to distinguish between

the two provisons and to hold a person liable under section 325, INDIAN PENAL CODE.

for causing grievous hurt, or under section 304, INDIAN PENAL CODE. for culpable

homicide not amounting to murder when the injury results in the death of the victim. (2) Hurt which causes sufferer to be during the space of twenty days in severe bodily

pain, In view of the seriousness of the injury resulting in incapacitation of the victim for a

minimum period of twenty days the Indian Penal Code has designated such hurts as

grievous though they might not be necessarily dangerous to life. (3) Hurt which causes the sufferer to be during the space of twenty days unable to

follow his ordinary pursuits, The mere fact that a person remained in hospital for a

statutory period of twenty days, or did not attend to his normal duty for the said period, is

not in itself sufficient to convict the accused for causing grievous hurt. It must be proved

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that during that period the victim was unable to follow his ordinary pursuits. It is not

legally necessary that the injured must get himself admitted in the hospital. It is only that

hurt which causes the sufferer to be during the space of 20 days in severe bodily pain, or

unable to follow his ordinary pursuits, that will be designated as grievous. In case the

effect of the hurt does not last for twenty days, the hurt will not be designated as grievous. In Mohindar Singh Verses State of Punjab, 1980 Punj LR 639, the accused on 22nd

August, 1922 inflicted a wound on Sarwan Singh's leg with a gandasa (a sharp-edged

weapon) and gave him blows with the back of the gandasa. Tetanus set in on 31st

August, 1922 which caused his death. Held, a wound in the leg was not in itself

sufficiently dangerous to bring the case within the meaning of grievous hurt when death

resulted due to tetanus which supervened and resulted in the death of the deceased. (3) Acts neither intended nor likely to cause death may amount to grievous hurt, In

the absence of intention to cause death, or knowledge that death is likely to be caused

from the harm inflicted, but death is caused, the accused could be guilty of grievous hurt

only, if the injury caused was of a serious nature.

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Offence of Voluntarily Causing Grievous Hurt Section 321. Voluntarily causing hurt—Whoever does any act with 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 "vountarily to cause hurt".

Section 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." Explanation, 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. Illustration A, intending or knowing himself to be likely to permanently 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. Punishment for voluntarily causing hurt or grievous hurt is provided under Sections 323

and 325 of INDIAN PENAL CODE.

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Difference between Kidnapping and Abduction

FIRST, The offence of kidnapping is committed only in respect of a minor under 16 years of age,

if a male, or under 18 years of age, if a female or a person of unsound mind where as The

offence of Abduction may be committed in respect of person of any age.

SECOND,

In the offence of kidnapping the person kidnapped is removed out of lawful guardianship.

Therefore a child without guardian that is an orphan cannot be kidnapped where as The

person abducted need not be in the lawful keeping of a guardian or any body.

THIRD,

Simple taking or enticing away of a minor or a person of unsound mind constitutes

kidnapping where as In abduction force, compulsion or decietful means are used.

FOURTH,

IN kidnapping, Consent of the person taken or enticed is immaterial because they are

incompetent to make a valid consent where as In abduction, consent of a person moved, if

freely and voluntarily given condones the offence.

FIFTH,

In Kidnapping, the intent of the kidnapper is irrelevant. (Kidnapping from lawful

guardianship is a strict liability offence) where as In abduction, intent of the offender is an

important factor because abduction by itself is not an offence unless committed with

certain intent.

SIXTH,

Kidnapping is not a continuing offence because the offence is complete the moment a

person is deprived of his lawful guardianship where as Abduction is a continuing offence

and the offence of abduction continues so long as a person is moved from one place to

another. SEVENTH,

Kidnapping is a substantive offence, punishable under Section 363 OF INDIAN PENAL

CODE. Thus, Kidnapping is per se punishable where as Abduction is an auxiliary act, not

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punishable by itself but made criminal only when it is done with some criminal intent

specified in Section 364-366

EIGHTH,

Kidnapping from lawful guardianship cannot be abetted where as Abduction can be

abetted.

Ingredients of the Offence of Theft

QUESTION 1. Define and illustrate "theft". Point out the essential ingredients. Answer. Theft, Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent moves that property in order to such taking is said to commit theft. (Section 378). The punishment provided for it is three years and/or fine. In order to constitute theft the following five ingredients are necessary, (1) Dishonest intention to take property, It is initially for the prosecution to prove that the accused had acted dishonestly and where circumstances show that the property has been removed in the assertion of a bona fide claim or right, it is not theft. A person can, however, be convicted of stealing his own property, as where 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, and though the watch is his own property, A commits theft as he takes it dishonestly. Similarly, if A owes money to Z for repairing the watch, and if Z retains the watch lawfully as a security of 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. But if A having not owed to Z any debt for which Z could detain the watch as security, enters the shop openly and takes his watch by force out of Z's hand. A is not guilty of theft as he did not act dishonestly although he may have committed criminal trespass and assault. Similarly if A, in good faith, believing a property, belonging to Z to be A's own property, takes that property out of B's possession A, as he does not take it dishonestly, does not commit theft. But if 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, A having taken the article dishonestly has committed theft. A servant is, however, not guilty of theft when what he does is at his master's bidding unless he participates in his master's knowledge of the dishonest nature of the acts. But if the servant entrusted by his master with the care of a certain movable property runs away with it without his master's consent the servant is guilty of theft. (2) The property must be movable, A thing so long as it is attached to the earth, not being movable property, is not the subject of theft, it becomes capable of being the subject of theft when it is severed from the earth. (3) It should be taken out of possession of another person, The property must be in the. possession of another person from where it is removed. There is no theft of wild animals, birds or fish while at large, but there is a theft of tamed animals. A finds a ring lying on the high road not in the possession of any person. A, by taking it commits no theft, though he may commit criminal misappropriation of property.

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(4) It should be taken without consent of that person, The consent may be express or implied and may be .given either of the person in possession, or by any person having for that purpose express or implied authority. 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 of merely 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. 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 authorized to give away alms. If this was A's impression. A has not committed theft. The position is not the same if A is the paramour of Z's wife and she gives A's valuable property, which A knows to belong to her husband Z, and to be such property as she has not authority from Z to give. If A takes the property dishonestly, he commits theft. (5) There must be some removal of the property in order to accomplish the taking of it,— A puts a bait for dogs, in his pocket, and 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. Again 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. Similarly, 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.

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Distinction Between ‘Theft’, Distinction Between ‘Extortion’.

FIRST,

In theft, Offender takes the property without consent of owner where as in extortion,

Offences committed by obtaining THE consent wrongfully. SECOND,

Theft can be committed in respect of movable property only. Where as extortion can be

committed in respect of both movable and immovable property.

THIRD,

In theft, the element of force does not exist where as extortion Committed by

intentionally putting a person in fear of injury to that person and thus inducing him to part with his property

FOURTH,

In theft, fear doesn't exist where as in extortion, fear exist.

FIFTH,

In theft, Property is not delivered by the victim himself where as in extortion; Property is

delivered by the victim himself.

SIMILARITIES between Theft & Extortion

There is one similarity also between Theft & Extortion that is they can be committed by

one person

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Extortion

QUESTION 2. Define and illustrate extortion. Answer. Extortion, Whoever intentionally puts any person in fear of any injury to that person, or to any

other, and thereby dishonestly induces the person so put in fear to deliver any person any property or valuable security or anything signed or sealed which may be converted into a valuable security, commits "extortion". (Section 383)—Punishment up to three years and/or fine]. The chief elements of extortion are the intentional putting of a person in fear of injury to himself or another and dishonestly inducing the person so put in fear to deliver to any person any property or valuable security.

(a) A threatens to publish a defamatory libel concerning Z unless he 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 money to A. Z

signs and delivers the note. A has committed extortion, (c) A, by putting Z in fear of grievous hurt, dishonestly

induces Z to sign or affix his seat to a blank paper and deliver it to A. Z signs and delivers 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.

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Distinction between Theft and Criminal Misappropriation

FIRST,

In Theft, the offender dishonestly takes the property which is in the possession of another

person by moving it where as Criminal Misappropriation takes place even when the

possession has been innocently come, but by a subsequent change of intention or from the

knowledge of some new fact.

SECOND,

In Theft, dishonest intention is manifested by a moving of property where as In Criminal

Misappropriation, dishonest intention is carried into action by an actual misappropriation

or conversion. THIRD,

In Theft, The object of offender is to take property which is in possession of another

person by moving the property without consent of such person where as In Criminal

Misappropriation, the offender is already in possession of the property and he is not

punishable by finding or retention of the property, further intention or knowledge is

required.

FOURTH,

In Theft, Dishonest intention is sufficiently manifested by a moving of the property or the

act of taking where as Criminal Misappropriation is the subsequent dishonest intention to

misappropriate or convert to his own use, that constitutes the offence.

FIFTH,

In Theft, The moving of the property itself is an offence where as In Criminal

Misappropriation, The moving of the property may be lawful but it is subsequent intention

or knowledge that makes it an offence.

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Criminal Misappropriation and Criminal Breach of Trust

Distinction between Criminal Misappropriation and Criminal Breach of Trust

FIRST, In Criminal Misappropriation, the property comes into the possession of the offender by

some casualty or otherwise and it is misappropriated afterwards where as In Criminal

Breach of trust, offender is lawfully entrusted with the property and he dishonestly

misappropriates it. SECOND,

In Criminal Misappropriation, there is no contractual relationship where as there is a

contractual relationship In Criminal Breach of trust. THIRD,

Criminal Misappropriation may or may not include criminal breach of trust where as

Criminal Breach of trust includes criminal misappropriation.

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Criminal Breach of Trust & cheating

Distinction between Theft and Criminal Breach of Trust

FIRST, In Theft, there is wrongful taking of a movable property without the consent of the owner

where as in Criminal breach of trust, the property is lawfully acquired with the owner's

consent but dishonestly misappropriated by the person to whom it is entrusted.

SECOND,

In Theft, property is movable property where as in Criminal breach of trust, property may

be any property.

THIRD,

In Theft, as soon as the property is taken away dishonestly, the offence is completed

where as in Criminal breach of trust, when the offender dishonestly converts the property

to his own use, the offence is completed.

Distinction between Theft, Criminal Misappropriation and Cheating

FIRST ON THE BASIS OF INTENTION,

In theft, the intention is to take dishonestly a movable property out of the possession of another

person where as in criminal misappropriation, the intention is to dishonestly misappropriate or convert

the movable property to his own use while Cheating is fraudulently or dishonestly inducing the

deceived person to deliver any property. SECOND ON THE BASIS OF PROPERTY, Movable property is involved in case of theft and criminal misappropriation where as in cheating,

property can be any property. THIRD ON THE BASIS OF POSSESSION,

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In Theft, The property is taken out of the possession of another where As in criminal misappropriation

The property is already in possession of the offender and in cheating, the victim is induced to deliver

the property.

Like criminal breach of trust and misappropriation, there is wrongful gain or loss in

cheating. However, in cheating, dishonest intention starts with very inception of

transaction, and in breach of trust, the person receives property legally but retain or

convert it unlawfully.

Distinction between Cheating and Extortion

FIRST,

In Cheating, consent is obtained by deception where as In Extortion, consent is

obtained by intimidation. SECOND,

In Cheating, the person is induced by fraudulent or dishonest means to deliver the

property where as In extortion, offence is committed by putting a person in fear of

injury to part with his property by threats. Cheating Ingredients

QUESTION 1. Explain criminal misappropriation. Distinguish it from theft. Answer. Criminal Misappropriation, The offence of criminal misappropriation consists in dishonest misappropriation or conversion to his own use any movable property. [Section 403]. It takes place when the possession has been innocently come by, but 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. 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 Section 403 of dishonest misappropriation of property. Similarly 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 and appropriates the whole proceeds to his own use, he is guilty of an offence t under Section 403, I.P.C. Explanation 1 to Section 403 provides that a dishonest misappropriation fora time only is misappropriation within the meaning of this section. For example, A finds 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. Explanation 2 to this section provides that 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 defined above, if he appropriates it to his own use, when he knows or has the means to discovering the owner, or before he has used reasonable means to discover and give notice to the owner and has kept the property for 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

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does not believe it to be his own property, or in good faith believes that the real owner cannot be found. The charge against the accused related to preparation of false documents because even though no work had been done and no amount had been disbursed, they prepared documents showing the doing of that work and payment of that amount. It would be no answer to that charge that after the matter had been reported to the higher authorities, the accused got the rectification work done. It would also be no answer to a charge of criminal misappropriation that the money was subsequently, after the matter had been reported to the higher authorities, disbursed for the purpose for which it had been entrusted. According to Explanation 1 to Section 403, INDIAN PENAL CODE. at dishonest misappropriation for a time only is "misappropriation" within the meaning of that section. [Kandu Sonu Dhobi v.The State of Maharashtra]. Illustrations, (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 Section 403. (b) A finds a letter on the road containing a bank note. 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 of dishonest misappropriation of property under the section, (c) 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 of dishonest misappropriation, (d) 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 the above section, (e) A finds valuable ring, not knowing to whom it belongs. A sells immediately without attempting to discover the owner. A is guilty of an offence under this Section. It would thus appear from the above illustrations that the two main ingredients of the offence are dishonest misappropriation or conversion of property for a person's own use and such property must be movable. The punishment prescribed for the offence is imprisonment for a term which may extend to two years, or with fine, or with both.

DIFFERENCE BETWEEN THEFT AND CRIMINAL MISAPPROPRIATION FIRST,

In theft, The object of offender is to take property from another person's possession, and the offence is completed as soon as the offender has moved the property dishonestly where as in criminal misappropriation, The offender is already in possession of the property and his possession is not punishable either because he has lawfully obtained it, or because he has found it, or it is a joint owner of it or has acquired it under some mistaken notion. SECOND, In theft, The moving of property itself is an offence where as in criminal misappropriation, The moving of property may be perfectly lawful, it is the subsequent intention to dishonestly misappropriate or convert it to his own use which is an offence. THIRD, In theft, the moving of property takes place without the consent of the owner where as in criminal misappropriation, the possession may even be with the consent of the owner, for example, may be a joint owner.

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FOURTH, In theft, the dishonest intention proceeds the act of taking where as criminal misappropriation is the subsequent intention to misappropriate or convert to his own use that constitutes the offence.

QUESTION 2. Explain criminal breach of trust. Distinguish it from (a) theft and (b) criminal misappropriation. Answer. Criminal Breach of Trust, A person commits criminal

breach of trust if he (1) being in any manner entrusted with property or with any dominion over property, (2) dishonestly misappropriates or converts to his own use that property, or (3) dishonestly uses or disposes of that property in violation (1) of any direction of law prescribing the mode in which such trust is to be discharged or (2) 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. (Section 405)—Punishment three years, fine or both. In order to constitute legal entrustment within the meaning of Section 405, I.P.C. the following ingredients are necessary, viz., (1) the complainant must be the owner of the property alleged to have been entrusted, (2) there must be a transfer of possession, (3) such transfer must be made by somebody who has no right, excepting that of a custodian, and (4) such entrustment must be made to a person, not to a company or a firm. To constitute the offence of criminal breach of trust there has to be the entrustment and also dishonest misappropriation or conversion to his own use or dishonest use or disposal of the property by the accused in violation of any direction of law or of any legal contract express or implied. Where under a contract the accused was required by the complainant to print and hand over certain number of books without entrustment of manuscript, papers or any other material with the accused and the accused in breach of the contract did not make available certain number of books, there was no criminal breach of trust. At the best there was a breach of contract which is a dispute civil in nature. (KL. Sachdeva, New Delhi Verses Rakesh Kumar Jain, Varanasi). The prosecution in cases of criminal breach of trust has to prove three things, (1) that the accused was a public servant, (2) that he in such capacity was entrusted with the property in question or dominion over it and (3) that he committed the criminal breach of trust. In the case of criminal breach of trust, once it is shown that money was entrusted to the accused or was received by him for a particular purpose was not used for that purpose, and the same was not returned by him in accordance with his duty or if he failed to account for it, he will be presumed to have misappropriated the same. In every case, the prosecution is not under obligation to prove the manner of misappropriation or conversion to his own use by the accused, the property entrusted to him. When the accused does not discharge the trust, in consequence of which he comes to have dominion over the property, then the misappropriation can legitimately be inferred against him. (State of Punjab Verses Rattan Chand) The word "entrustment" connotes that the person holds the property, in a fiduciary capacity. There can be no breach of trust when there has been no entrustment or dominion of the property on trust. There must be dishonest misappropriation or conversion to his own use of dishonest using or disposing of that property. If it is done in good faith there is no criminal breach of trust

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Before criminal breach of trust by a partner is established it must be shown that the person charged has been entrusted with property or with dominion over the property. In other words the offence of criminal breach of trust under Section. 406 of the Penal Code is not in respect of property belonging to the partnership but is an offence committed by the person in respect of property which has been specially entrusted to such a person and which he holds in a fiduciary capacity. [Debabrata Gupta Verses S.K. Ghosh]. Illustrations, (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 appropriates 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 an 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 lac of rupees to A, with directions to A to invest the same in Company's paper. A dishonestly disobeys the directions 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 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, 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 breach of trust. (a) Theft and Criminal Breach of Trust, In the former there is a wrongful taking of a movable property out of the possession of the owner, I.e., without the owner's knowledge, but in the latter the property is given on trust or received on one's behalf and instead of discharging the trust, it is dishonestly misappropriated or used or disposed of in violation of the law. The owner here parts with something in good faith but the person who takes it keeps the thing for himself. In theft there is no prior lawful possession, the offences is completed as soon as the property is dishonestly taken away, but in criminal breach of trust the offender prior to the offence is himself in possession of the property and the offence is completed when he dishonestly converted the same to his own use. In theft the property involved is a movable property, but in criminal breach of trust it may be any property Criminal breach of trust is ordinarily punished with the same severity as theft, but where there is a greater degree of trust as in the case of a carrier, or a clerk or a servant entrusted with his master's property or in the case of a public servant or banker, heavier punishment is provided under Sections 407, 408 and 409,indian penal code. (b) Criminal misappropriation and Criminal Breach of Trust, 1. 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 to do so, instead of discharging the trust attached to it. 2 In criminal misappropriation there is no contractual relationship, but there is such a relationship in criminal breach of trust. 3. In criminal misappropriation there is the conversion of property coming into possession of the offender anyhow, but in criminal breach of trust there is the conversion of property held in a fiduciary character. 4. A breach of trust includes criminal misappropriation, but the converse is not always true.

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QUESTION 3. (1) What is "cheating"? Illustrate your answer, (2) A takes money from various persons, who are applicants for motor driving licences, and procures licences without the necessity of their undergoing any test by attaching forged certificates to their applications. What offence has been committed by A? (Hi) A debtor sent to his creditor a postai cover insured for Rs. 70. The creditor took delivery after signing the postal receipt but the cover when opened contained seven one rupee notes and four blank sheets. The debtor also called upon the creditor to give credit for Rs. 70 sent by insured cover. What offence has the debtor committed? (4) A, an auditor, represented to B that he (A) wanted Rs. 7,000 to be given as bribe to the Income-tax Officer for avoiding assessment of B to Excess Profits Tax. B paid the amount to A. He was not assessed to the tax. Subsequently, he found that A had not paid the money to the Income-Tax Officer. Answer. (1) Cheating, Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to deliver any property to any person, or to consent that any person shall retain any property, or intentionally induces the person so deceived to do or omit to do anything which he would not do or omit if he was 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, is said to "cheat". (Section 415). Explanation, dishonest concealment of facts is a deception within the meaning of this section (Section 415) (one year with or without fine). The essential ingredients of the offence are, (1) deception of any person and (2)(a) fraudulently or dishonestly inducing that person (1) to deliver any property to any person, or (2) to consent that any person shall retain any property, or (b) intentionally inducing person to do or omit to do anything which he would not do, etc. To constitute the offence of cheating it is not necessary that the act which the person deceived is induced to do should actually cause harm to him. It is enough that the act which the person deceived has been induced to perform is likely to cause damage or harm to him. The ingredients required to constitute the offence of cheating are, (1) There should be fraudulen^or dishonest inducement of a person by deceiving him, (2)(a) The person so deceived should be induced to deliver any property to any person or to consent that any person shall retain any property, or (b) The person so deceived should be intentionally induced to do or omit to do anything which he would not do or omit if he were not so deceived, and (3) In cases covered by (2)(b) the act or omission should be one which causes or likely to cause damage or harm to the person induced in body, mind, reputation or property. (Ram Jus Verses State of U.P.). Illustrations, (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 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, (c) A, by pledging as diamonds articles which he knows are not diamonds, intentionally deceives Z, and hereby dishonestly induces Z to lend money. A cheat, (d) A intentionally deceive 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, (e) 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,

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(f) 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. (2) A is guilty of the offence of cheating. The licence is property within the meaning of Section 420 of the Indian PenaJ Code. (3) It has been held in Rex Verses Narain Rao, that the debtor was guilty of cheating and not merely of an attempt to cheat. (4) A is guilty of the offence of cheating. He induced B to part with property (Rs. 1,000) on a false representation that he would pay the same as bribe to the Income-Tax Officer, while he had no intention of doing the same.

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