Chapter 3 of Indian Penal Code 1860 captioned “Punishment” deals with various kinds of punishments to which offenders are liable under the code. This chapter extends from section 53 to section 75.

Punishment is the suffering in person or property inflicted by the society or the public servants on the offenders who is adjudged guilty of crime under the law. The administration of punishment involves the intention to produce some kind of pain which may be physical or monetary or both. Prof. Hart defines punishment in terms of the following five elements:

i. It must involve pain or other consequent normally considered unpleasant

ii. It must be for an actual or supposed offender for his offence.

iii. It must be for an offence against legal rules.

iv. It must be intentionally administered by human beings other than the offender.

v. It must be imposed and administered by an authority constituted by a legal system against which the offence is committed.

Kinds of punishment:

Section 53 of the code mentions the kind of punishments. It says the punishment to which offenders are liable under the code are:

i. Death(Capital punishment)

ii. Imprisonment for life. The word “imprisonment “has been substituted by act 26 of 1955 as “Transportation”.

iii. Imprisonment which is of two description; simple and rigorous

iv. Forfeiture of property fine.

Explanation of punishments:

i. Capital punishment (death): The infliction of death sentence or taking away the offenders life by authority as a punishment for an offence is capital punishment. In India it is awarded in rarest of rare cases. It may be awarded as punishment in the following offences:

a) Waging war against the government of India (section 121).

b) Abetting mutually actually committed(section 132)

c) Giving or fabricating false evidence upon which an innocent person suffers death(section 194)

d) Murder(section 302)

e) Murder by life convicts(section 303)

f) Abetment of suicide of a minor or an insane or intoxicated person(section 305)

g) Dacoity accompanied with murder.( section 396)

h) Kidnapping for ransom(section 364 A)

ii. Transportation for life: In its ordinary connotation imprisonment for life means imprisonment for the whole of the remaining life period of the convicted person’s natural life. According to section 57 imprisonments for life shall be reckoned as equivivalent to imprisonment for 20 years.

But only for calculating fractions of terms of punishment imprisonment for life shall be reckoned as equivalent to imprisonment for 20 yrs.But otherwise the sentence of imprisonment for life is of indefinite duration.

iii. Imprisonment :

a) Simple- it is a punishment in which the offender is confined to jail only and not subjected to any hard labour. The following are some offences which are punishable with simple imprisonment –

· Wrongful restraint (section 341)

· Uttering any word or making any sound or gesture with an intention to insult the modesty of a women(section 509)

· Misconduct in a public place by a drunken person(section 510)

· Defamation (section 500,501,502)

· Criminal misappropriation of property(section 403)

b) Rigorous-in this case the offender is put to hard labour such as grinding corn,digging,cutting wood etc.In state of Gujarat v/s hon. high court of Gujarat it was held that imposition of hard labour on prisoners undergoing rigorous imprisonment has been held to be legal. The following are some offences which are punishable with rigorous imprisonment –

· Kidnapping in order to murder (section 364)

· Robbery(section 392)

· Dacoity(section 395)

· House breaking in order to commit offence punishable with death (section 449)

iv. Forfeiture of property:

The punishment of absolute forfeiture of all the property of the offender is now abolished by act 16 of 1921.

v. Fine:

Fine can be simply defined as monetary punishment. Almost all the section related with awarding punishment includes fine as punishment .However section 63 says where n sum is expressed to which a fine may extend, the amount of fine to which the offender is liable is unlimited, but shall not be excessive .

Q 3: What is Private Defense? Discuss relevant provisions.

Introduction:

The right to private defense has been explained in chapter 4 of Indian penal code 1860.Chapter 4 captioned “general exception” extends from section 76 to section 106 and deals with general conditions of non immutability or general grounds of exemption from criminal liability.

An analysis of section 76 to section 106 shows that they deal with circumstances which negative the existence of mensrea.

Private defense:

A man is justified in repelling force by force in defense of his person, habitation or property against one who manifestly intends and endeavors by violence or surprise to commit a felony upon either.

Section 96 says nothing is an offence which is done in the exercise of the right of private defense.

Extent of right to private defense:

The extent of right private defense has been mentioned in section 97 of Indian Penal Code which says:- every person has a right subject to the restriction contained in section 99 to defend;

a) His own body or other human being’s body.

b) The property whether movable or immovable of himself or of other person.

Illustration; A lives in a flat along with his wife. B enters into his house in night with the intention of killing A. while B attacked A his wife stabbed B .Here A’s wife acted in private defense to protect the body of other human being(her husband) and thus she will get protection under this section of i.p.c;

In Nur Miah (1945) the accused who was attacked by a number of men armed various weapons , snatched away a weapon from one of them struck him with weapon causing his death. It was held that the accused has the right to private defense of body.

Limits of private defense:-

Section 99 lays down the limits within which the right of private defense should be exercised;

It says there is no right of private defense against an act;

a) Which does not reasonably cause the apprehension of death or of grievous hurt?

b) Which is done by a public servant acting in good faith under the color of his office though that act may not be strictly justified?

c) Which does not reasonably cause the apprehension of death or of grievous hurt? And done or attempted to be done by the direction of public servant acting in good faith under the color of his office though that act may not be strictly justified.

d) In cases where there is sufficient time to recourse with public authorities.

In kanwar Singh (1965) cri.L.J. (S.c)case a raiding party organized by the officials of the municipal corporation to round up the stray cattle’s within the limits of the corporation was attacked when it had rounded up some cattle’s and was leading it to the cattle pound. It was held that the act of raiding party was fully justified by law and the accused had no right of private defense.

When the right of private defense of body extends to causing of death:-

Section 100 says the right to private defense extends to causing of death only when he offence which occasions he exercise of the right is one of the kinds;

a) Such an assault as may reasonably cause the apprehension of death

b) Such an assault as may reasonably cause the apprehension of grievous hurt

c) an assault with the intension of committing rape

d) an assault with the intension of gratifying unnatural lust

e) an assault with the intension of kidnapping

f) an assault with the intension of wrongfully confine a person.

In sheo person Singh v/s state of U.P(1979) a truck over ran two persons sleeping on the road at night people ahead of the truck stood in the middle of the truck to stop the truck driver took no heed speeded away overrunning the people and caused death of several of them. The driver pleaded right to private defense as he was apprehensive of the crowd grievously injuring him. It was held that it is no doubt true that in many cases after the incident the crowd has seriously dealt with the drivers but it cannot be accepted as a general rule .the driver had no right of private defense in running away from the scene of occurrence and causing the death of so many people.

When the right to private defense of property extends causing death :-

Section 103 enumerated the cases in which the right to private defense of property extends to the causing of death

A person may cause death of a person in safeguarding his property whether movable or immovable or someone else property when there is a reason to apprehend that the person whose death has been caused was about to commit one of the offences mentioned below:-

a) robbery

b) house breaking by night

c) mischief by fire

d) Theft mischief or house trespass under such circumstances as may reasonably cause apprehension that death or grievous hurt will be consequence.

Illustration; A entered the house of B at the dead of night with the intension of committing theft.B struck him with a lathi in the dark and A fell down unconscious gave him one more blow which fell on A’s head causing extensive bleeding and his death .here the plea of private defense of property by B would not be available because in case of theft only harm less than death could be caused. There was no danger of death or grievous hurt to B.

Q 4:- What do you mean by abetment? Differentiate it with criminal conspiracy?

NOT ANSWERED

Q 5:- Explain criminal liability of unsound mind person. Discuss with relevant case laws?

NOT ANSWERED

Q 6:- Explain criminal liability of children? Discuss with relevant case laws?

Introduction:

Criminal liability of children has been explained in chapter 4 of Indian penal code 1860.Chapter 4 captioned “general exception” extends from section 76 to section 106 and deals with general conditions of non immutability or general grounds of exemption from criminal liability. There can be no crime without an evil mind .It is the principal of all most all legal systems that the essence of an offence is wrongful intent without which it cannot exist.

It is presumed that children lack mensrea and hence they are freed from criminal liability.

Criminal liability of children is dealt under two sections 82 and 83:

a) Section 82 deals with criminal liability of children below seven years.

b) Section 83 deals with criminal liability of children above seven but below 12 years of age.

Liability of children under 7 years of age:

Infancy is a defect of understanding and infants are ought not to be punished by any criminal prosecution. In legal sense both boys and girls were held to be infants under the age of 7 years and were immune from punishment.

Section 82 of code says that nothing is an offence which is done by a child under 7 years of age.

A child below seven years of age is considered to be doli incapax (i.e. incapable of understanding the nature and consequence of the act) and therefore cannot be held guilty of any offence. Merely the evidence of that age is the conclusive proof of the innocence of a child and would ipso facto be an answer to any charges against him.

Case law:- In marsh v/s loader defendant caught a child while stealing a piece of wood from his premises and gave into the custody .since the child was under the age of responsibility (i.e. 7 yrs) he was discharged. Because a child below 7 years of age is absolutely immune from criminal liability.

Liability of children above 7 years but below 12 years of age.

The age at which a person may be said to have acquired sufficient intelligence to judge of the nature and consequence of his acts varies with and depends upon the climatic condition, education, precocity etc.

In India a child above 7 years but below 12 years of age is presumed to be possessed with maturity of understanding and capacity to commit a crime. However the presumption is rebuttable and the burden to rebut the presumption lies upon the defendant.

Section 83 says:-nothing is an offence which is done by a child above 7 years but 12 years who has not attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion.

A child above 7 years but 12 years is qualified to avail the defence of doli incapax, if it is proved that he has not attained sufficient maturity to understand the nature and consequence of his conduct on that occasion.

Test of qualified immunity:-

The test of qualified immunity under section 83 depends upon three factors:-

a) The nature of the act done.

b) Subsequent conduct of the offender.

c) Demeanor and appearance of the offender in the court.

In Ulla mahapatra(1950), the accuse a boy of over 11 years but below 12 years picked up a knife and threatened to cut the deceased to pieces and did actually kill him. It was held that his action could lead to only one inference namely that he did what he intended to do and that he knew all along that one blow inflicted with a knife would effectuate his intention. He was sent to reformatory school for 5 years.

In mussat aimona(1864) the accused aged about 10yrs slept with her mother in law on the night before she committed murder her husband aged about 19 years slept with his brother in another hut but in the same homestead. In the early hours of the day the mother in law woke up the accused and told her to go about her household duties. Shortly after this the accused was seen running out of the house and her husband was found mortally wounded on the neck she hide herself in a field and could be found only in the afternoon .she was held by the court to be doli capax because it could be inferred from her conduct that she was possessed with sufficient degree of criminal intent so as to justify her conviction.

Q 7:- Define murder and give difference between murder and culpable homicide?

NOT ANSWRED

Q 8:-what is theft? Explain essential elements and cases of theft?

Introduction:-

Theft comes under the purview of offences against property which extends from section 378 to section 462. Theft has been dealt under section 378 to 382

Theft:

General meaning of theft is taking away of one’s property without consent. According to section 378 “whoever intending to take dishonestly any movable property out of the possession of a person without his consent and any moving in order to such taking is said to commit theft”.

Illustration: A finds a ring belonging to Z on a table in the house which Z occupies. Here the ring is in Z’s possession, and if A dishonestly removes it, A commits theft.

Explanations:-

Explanation 1: A thing so long as it is attached to the earth, not being movable property is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth.

Illustration: A cuts down a tree on Z’s ground, with the intention of dishonestly taking the tree out of Z’s possession without Z’s consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft.

Explanation 2: A moving affected by the same act which affects the severance may be theft.

Explanation 3 and 4: these explanations deal with the various modes of moving of property. The three modes according to explanation 3 are:-

a) Actual moving

b) By separating it from any other thing.

c) By removing an obstacle which prevented t from moving.

Illustration: A puts a bait for dogs in his pocket, thus induces Z’s dog to follow it. Here, if A’s intention be dishonestly to take the dog out of Z’s possession without Z’s consent. A has committed theft as soon as Z’s dog has begun to follow A

Explanation 5: consent may be express or implied and it may be given either by the person in possession or by any person having authority express or implied to give consent.

Ingredients of theft:

The following are the essential requirements of theft:-

a) Dishonest intention to take property: Intention is the essence of the offence of theft. The intention must e dishonest and it must so exist at the time of taking of the property.

Illustration; A in good faith believing property of B to be his own property takes that property out of B’s possession .In this case A does not take dishonestly therefore A will not be liable for theft.

Taking need not be permanent: theft may be committed without an intention to deprive the owner of his property permanently.

Illustration; A snatched away some books from a boy B as he came out of the school and told him that they would be returned when he came to his house. A was held guilty of theft.

b) Movable property: anything which is permanently attached with the earth or is permanently fastened with anything which is permanently attached with the earth is known as immovable property. A thing other than above is a movable property. Taking dishonestly movable property from another’s possession without his consent constitutes theft.

c) Taking out of the possession of other: the property must be in the possession of the prosecutor whether he is the owner of it or is in possession of I in some other manner.

Where the property dishonestly taken belonged to a dead person and mot in anyone else possession or where it is lost property without any apparent possessor, not the offence of theft but of criminal misappropriation is constituted. There can be no theft of wild animals but theft can be possible of tamed animals, birds or fishes etc.

d) Taking without consent: in order to constitute theft the property must have been taken without the consent of the person in possession of it. Consent obtained by representation which leads to a misconception of facts will not be a valid consent.

Illustration: A being on friendly terms with Z goes into Z’s library in Z’s absence and takes away a book without Z’s 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.

e) Moves that property: the offence of theft is complete when there is dishonest moving of the property .the least removal of the thing taken from the place where it was before amounts to taking though it may not be carried off. It is not necessary that the property should be removed out of its owners reach or carried away from the place in which it was found.

Punishment

Section 379: punishment for theft: whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or both.

Section 380: theft in dwelling house etc: : whoever commits theft in any building tent or vessel which is a human dwelling or used for the custody of property ,shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to fine.

Section 381: theft by clerk or servant of property in possession of master;

Whoever being clerk or servant or being employed in any capacity of clerk or servant ,commits theft in respect of any property in the possession of his master or employer, shall be punished with imprisonment of either description for a term which may extend to seven years and shall also be liable to pay fine

Section 382: theft after preparation made for causing death, hurt or restraint in order to the committing of the theft: whoever commits theft after preparation made for causing death, hurt or restraint in order to the committing of the theft shall be punished with imprisonment for a term which may extend to ten years and shall also be liable to pay fine.

In HJ Ransom v/s Triloki nath(1942) (B),B had taken a bus on hire purchase system from a company which had reserved the right of seizing the bus in case of default in payment of instalments.The company took the possession of the bus by force from the driver of the bus who was B’s servant. It was held that the possession of the driver was possession of the master and the company was not entitled to recover possession of the bus even though default in payment of installment had taken place. Therefore the agents of the company who had taken possession of the bus forcibly were liable.

Q 9: Define robbery? How it is different from theft and extortion?

NOT ANSWERED

Que 10: Explain criminal misappropriation of property and distinguish it with criminal breach of Trust.

Introduction:

Criminal misappropriation of property has been explained under chapter 17 of Indian penal code captioned offences relating to property which extends from section 378 to section 462. Criminal misappropriation of property has been under section 303 and section 304.

Meaning and definition:

Definition of criminal misappropriation of property has been explained in section 303, it says whoever dishonestly misappropriates or converts to his own use any movable property shall be punished with imprisonment of either description for a term which may extend to two tears or with fine or both.

Illustration: A being on friendly terms with Z goes into Z’s library in Z’s absence and takes away a book without Z’s express consent.Here, if A was under the impression that he had Z’s implied consent to take the book for book for the purpose of reading it. A has not committed theft. But if A afterwards sells the book for his own benefit he is guilty of an offence under this section.

A takes property belonging to Z out of Z’s possession in good faith, believing at the time when he takes it, that the property belongs to himself .A is not guilty of theft; but if A ,after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section.

Ingredients:

The following are the essential requirement of criminal misappropriation:-

i. Dishonest Misappropriation or conversion of property to one’s own use.

ii. Such property must be movable.

Dishonest Misappropriation or conversion of property to one’s own use:-

The essence of offence under this section is that some property belonging to another which comes into the possession of the accused innocently is misappropriated or converted by the accused to his own use. There must be actual conversion of the thing misappropriated to the accused’s own use. Mere retaining of an article found does not amount to criminal misappropriation. The misappropriation need not be permanently, it may be even for a temporary period may be.

Illustration: A took possession of a stray cattle and it was not shown that the cattle was stolen property and he dishonestly retained it, he was liable under this section.

Movable property:-

Only movable property can be the subject matter of an offence under this section.

Explanations;-

Explanation 1: it refers only to those cases where there is a dishonest misappropriation of property and makes it clear that section 403 includes temporary as well as permanent misappropriation of property.

Illustration:- A finds a government promissory note belonging to Z, bearing a blank endorsement .A knowing that the note belongs to Z,pledges it with a Banker as a security for a loan, intending at a future time to restore it to Z.A has committed an offence under this section.

Explanation 2: this explanation makes it clear that thing abandoned cannot form a proper subject of an offence under this section. For constituting an offence under this section property appropriated must be owned by somebody. This explanation requires finder of goods, before appropriating the property found, to make attempt to find the owner, if they have means to do so. the finder of goods must wait for a reasonable time to allow the owner to claim that property, before he appropriates it.

Illustration: A find a 100 rupees note on the high road, not knowing to whom the rupee belongs. A picks up the rupee. Here A has not committed defined in this section.

Differences:

The following are the point of differences between criminal misappropriation of property and criminal breach of trust:-

Point of difference

criminal misappropriation of property

criminal breach of trust

Section

403 and 404

405

Acquisition of property

Property comes into the possession of the offender by some casualty and he afterwards misappropriates it.

Offender is lawfully entrusted with the property and he dishonestly misappropriates it or willfully suffers any person so to do.

Character of possession

There is no fiduciary relationship in this offence. The property comes into the possession of the offender any how

There is conversion of property held by a person in a fiduciary capacity.

Nature of possession

It must be of movable property.

Property may be movable or immovable.

Punishment

2 years+ fine

Minimum 3 years + fine and extended punishment for grave criminal breach of punishment i.e. maximum 10 years+ fine.