The Indian Penal Code

GENERAL PRICIPLES, MENS REA

• Sherras v. De Rutzen (1895) 1 QB 918

There is a presumption that mens rea is an essential element of every offence. But this presumption is liable to be displaced either by the words of the statute creating the offence or by the subject matter with which it deals.

PUNISHMENTS

• Baehan Singh v. State of Punjab, AIR 1980 SC

Supreme Court held that death sentence should not be passed except in ‘rarest of the rare case’.

GENERAL EXCEPTIONS

• K. M. Nanawati v. State of Maharashtra AIR 1962 SC 605

Supreme Court observed that if an accused pleads exceptions contained in Indian Penal Code, then there is a presumption against him and the burden to rebut that presumption is on him.

• McNaughten’s case 8 ER 718, Volume 8

The court laid down the following propositions regarding insanity:

1. Every man is presumed to be sane and possess a sufficient degree of reason to be responsible for his crimes until the contrary is proved.

2. To establish the defense of insanity it must be clearly shown that at the time of committing the act, the party accused was laboring under such defect of reason as not to know the nature and quality of the act he was doing or if he did know this, that he did not know that what he was doing was wrong.

3. If the accused was conscious that the act was one which he ought not to do and if that act was at the same time contrary to the law of the land, he is punishable.

4. Where a person is under an insane delusion as to the existing facts commits an offence in consequence thereof, the answer must depend on the nature of the delusion, but making the assumption that he labours under partial delusion only and is not in other respects insane, he must be considered in the same situation as to the responsibility as if the facts with respect to which the delusion exists were real.

• Queen Empress v. K.N. Shah, (1896) ILR 23 Cal 604

Not every form of unsoundness of mind would exempt one from criminal responsibility. It is only that unsoundness of mind which materially impairs the cognitive faculties of the mind that can form the ground of exemptionfrom criminal liability.

• Director of Public Prosecutions v. Beard, (1920) AC 479

House of Lords laid down three rules regarding drunkenness:

1. Insanity, whether produced by drunkenness or otherwise is a defence to the crime charged;

2. Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into consideration with the other facts proved in order to determine whetheror not he had the intent;

3. 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 was affected by drink so that he more readily gave way to some violent passion, does not rebut presumption that a man intends those natural consequences of his acts.

• Basudev v. State of Pepsu, AIR 1956 SC 488

So far as the knowledge is concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober,but as far as intent is concerned it must be gathered from the attending general circumstances of the case paying due regard to the degree of intoxication.

• K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605

Supreme Court gave following test of grave and suddenprovocation:

(1) Whether a reasonable man, belonging to same class of society as that of accused and placed in same situation would be provoked to lose his self-control;

(2) Words and gestures may also, in certain circumstances, amount to grave and sudden provocation;

(3) Mental background created by previous acts of victimmay be taken into consideration;

(4) Fatal blow should be traced to the influence of passion and not after passion has cooled down.

• Deo Narain v. State of U.P., AIR 1973 SC 473

According to Section 102, the right to 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. Such right continues so long as such apprehension of danger to the body continues. The threat, however, must reasonably give rise to present and imminent danger and not remote danger.

CONSPIRACY

• State of Tamil Nadu v. Nalini 1999 Cri. L.J. 3124 (SC)

Supreme Court held that association of the accused with the main accused or knowledge of conspiracy would not make the accused a conspirator. Agreement is sine qua non for the offence.

OFFENCES AGAINST THE STATE

• Kedar Nath v. State AIR 1962 SC 955

Supreme Court held that Section 124-A does not violate Article 19 (1) (a) of the Constitution as it is a reasonable restriction.

COMMON INTENTION AND COMMON OBJECT

• Mahboob Shah v. Emperor, (Indus River case) AIR 1945 PC 118

The court held that common intention implies a pre-arranged plan, prior meeting of minds or prior consultation between all persons constituting the group. The court laid down the following principles under Section 34:-

(1) Essence of liability under Section 34 is found IN ‘common intention’

(2) To invoke Section 34, it must be shown that act was done in furtherance of common intention;

(3) Common intention implies pre-arranged plan and it must be proved that criminal act was done in concert pursuant to pre-arranged plan;

(4) For intention to be common it must be known to all members and must also be shared by them.

• Barender Kumar Ghosh v. Emperor, Post Office Case 52 I.A 40 P.C

The court held that even if a person who does not do anything but if he has common intentions, he will be liable. The court said that “they also serve who only stand and wait.

OFFENCES AGAINST HUMAN BODY

• Mithu v. State of Punjab, AIR 1983 SC

Supreme Court held Section 303 unconstitutional, as, it is against the spirit of Articles 14 and 21 of the Constitution.

• Jacob Mathew v. State of Punjab, 2005 Cri L.J. 3710 (SC)

The word ‘gross’ has not been used in Section 304A, but it is settled that in criminal law, negligence or recklessness must be of such high degree as to be ‘gross’. The expression ‘rash and negligent act’ is to be qualified by the word ‘grossly’.

• Vardarajan v. State of Madras, AIR 1962 SC 942

The Supreme Court said that there was a distinction between the ‘taking’ and ‘allowing a minor to accompany any person’. Something more has to be shown, some kind of inducement or active participation of the accused in ‘taking’the person.

• Independent Thought v. Union of India, (2017) 10 SCC 800

Supreme Court read down Exception 2 of Section 375. The court held that sexual intercourse with wife below the age of 18 years constitutes rape. Therefore, after the decision of Supreme Court in this case ‘fifteen years’ in Exception 2 of Section 375 should be read as ‘eighteen years’.

• Navtej Singh Johar&Ors. v. Union of India, (2018) 10 SCC 1

Supreme Court held Section 377 of Indian Penal Code held unconstitutional to that extent it criminalizes consensual homo-sexual acts in private. Supreme Court overruled its previous 2013 judgment in Suresh Kumar Kaushal v. Naz Foundation.

OFFENCES AGAINTS MARRIAGE

• Joseph Shine v. Union of India, (2019) 3 SCC 39

Supreme Court struck down Section 497 of Indian Penal Code which criminalizes adultery as unconstitutional.

ATTEMPT

• State of Maharashtra v. Mohd. Yakub AIR 1980 SC 1111

Supreme Court held that some act must be done towards the commission of offence and such act must be ‘proximate’ to the intended result. Proximity need not be in relation to time and action but in relation to intention.

• Queen v. Collins 9 Cox. C.C. 407

It was laid down that if a man attempted to do an impossible act, he would not be liable. R v. McPherson and R v. Dodd were decided on same lines.