Q. 1. A, a child below 7 years of age attacks B by a sword. Before A could cause death or grievous hurt to S, B opened fire by a gun on the child A (below 7 years of age), A is killed. B is prosecuted under section 302 I.P.C. for murder of A. B takes the defence that he killed the child in exercise of 'right of private defence' whereas the arguments of prosecution was that B had no 'right of private defence' because A was under 7 years of age and his act was not an offence and the right of private defence is exercised only against an act which is an offence and not against such an act which does not constitute an offence.
Decide, who will succeed, whether prosecution or defence. Give reasons and also refer to the relevant provision on the point.
Ans.: Defence (accused B) will succeed--section 98, I.P.C.
Reasons:
According to section 98, on which this problem is based, right of private defence is available even against a person, who in law not capable of committing an offence, for example - a child below 7 years of age or a man of unsound mind.
In the present case, A is a child below 7 years of age. Thus, if he had killed B or caused grievous hurt to B, it would have not been an offence in view of provision made in section 82. However, in view of the provision made in section 98, B has same 'right of private defence' which a person enjoys against a person above 7 years of age or a major (above 18 years of age).
According to section 100, a person has a right to kill another if he has reasonable apprehension of death or grievous hurt.
In the given case, B has committed no offence even if he caused death of A (child below 7 years of age) in view of section 98 read with section 100, I.P.C. In other words, it can be said that a person has right of private defence against another even if such a other person, in law, is not capable of committing offence.
Thus, in the given case, accused B (defence) will succeed and the prosecution will not succeed.
Q. 2. A instigates B to murder C, but B refuses to do so. Has A committed any offence? If so what?
Ans.: A has committed the offence of 'abetment of murder' of C -- section 108, Explanation 2.
Reasons:
Explanation 2 of section 108 provides that in order to constitute the offence of abetment, it is not necessary that the act abetted should be committed.
In the present problem, A has committed the offence of abetment for murder though the B has not committed the offence abetted.
NOTE: This problem is based on Illustration (a) attached to Explanation 2 of section 108.
Q. 3. The accused was beating a person with fists. The wife of the man being beaten intervened with her baby in arms with a view to rescue her husband. The accused gave a fist blow to her also, which struck the baby, as a result of which it died. On being prosecuted, the accused pleads accident. Decide.
Ans.: The plea of accident is not sustainable at law and the accused will not succeed in view of
Jageshwar's case, 1923 24 Cr LJ 789 and Emperor v. Chatur Nath, 1919 (21) Bom LR 1101.
Reasons:
Section 80 of I.P.C., on which this case is based, states that in order to take the defence of section 80 (accidental act), it is necessary that the act of the accused must have been lawful, and must have been done in lawful manner and by lawful means.
In the given case, the act of beating a man with fists is not lawful. The facts of the given case are based on Chatura Nath's case, referred above. In this case, the Bombay High Court held that although the child was hit by the accused by accident, yet the accused was not entitled to take the benefit of section 80, I.P.C. in as much as the act of accused i.e., 'beating', was not lawful.
The view expressed by Bombay High Court in Chatur Nath's case was also taken in Jageshwar's case referred above.
Thus, on the basis of above discussion, it can be said that in the given case, the accused cannot plead accident.
Q. 4. A says of a book published by S,: "I am not surprised that B's book is foolish and indecent for B is a man of impure mind and bad character". Do these remarks amount to defamation and why?
Ans.: Yes, the remarks of A amount to defamation. Reasons: Section 499, on which this problem is based, states that whoever, by words either spoken or intended to be read, makes or publishes any imputation concerning any person intending to harm or knowing or having reason to believe that such imputation will harm the reputation such person, is said to defame that person (if his case does not fall under any of the Exceptions given in section 499 itself).
It the present problem, the remarks made by A is wholly covered by section 499 and is not covered by any of the Exceptions given in section 499. Thus, remarks made by A amount to defamation in as much as the opinion which A expresses regarding B's character is an opinion not founded on B's book and is not covered by exceptions, specially by the sixth Exception of section 499. It reads as follows: "It is not defamation to express in good faith any opinions respecting the merits of any performance which its author has submitted to the judgement of the public or respecting the character of the author so far as his character appears in such performance, and no further". NOTE: This problem is based on Illustration (e) of sixth Exception of section 499.
Q. 5. 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 induces Z to buy and pay for the article. Discuss A's offence.
Ans.: A has committed the offence of cheating defined under section 415, I.P.C.--
Illustration (c) of section 415.
Reasons:
Section 415 of I.P.C. gives the definition of cheating in following terms: "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 were not so deceived, and which act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation or property, is said to 'cheat' ".
in the given problem, A exhibits a false sample of an article to Z and in this manner he intentionally deceives Z to believe that the article is similar to (corresponds with) the sample and thus, induces Z to purchase and make payment for the article. Thus, the case of A is wholly covered by the definition of cheating given under section 415. Hence, A has committed the offence of cheating defined under section 415, I.P.C.
NOTE: This problem is based on Illustration (c) of section 415 of I.P.C.
Q. 6. A, a doctor after full examination of a patient named B, in good faith communicates to B that he has cancer and that he cannot live long. B dies next day in consequence of the shock caused by A's communication. Decide the liability of A
Ans.: No criminal liability is made out against A (Doctor), hence A is not guilty of any offence - section 93.
Reasons:
According to section 93, a communication made in good faith does not constitute an offence even though it causes harm, if the communication has been made for the benefit of the person to whom such communication is made.
In this problem, communication made by doctor to patient that he cannot live long because of cancer, is a communication made in good faith (after full examination of B), for the benefit of B. Thus, A (Doctor) is not guilty of any offence in view of the provision contained in section 93, though the patient dies as a result of shock caused by A's communication.
NOTE: This problem is similar to the Illustration attached to section 93.
Q. 7. A is attacked by a mob which attempts to kill him. A in exercise of his right of private defence fires at the mob killing one of the several children mingled with the mob. What offence, if any, is committed by A?
Ans.: A has committed no offence - section 106.
Reasons:
The problem is based on section 106.
Section 106 lays down--
"If in the exercise of the right of private defence against an assault which reasonably causes the apprehension of death, the defender be so situated that he cannot effectually exercise that right without risk of harm to an innocent person, his right of private defence extends to the running of that risk".
The present problem is wholly covered by section 106, as A is in such a situation that he cannot effectually exercise his right of private defence i.e. defend himself from the deadly assault without taking the risk of causing harm to innocent children mingled with the mob. Thus, even if he causes harm to innocent children mingled with the mob in defending himself, he (A) commits no offence. His right of private defence extends to the running of that risk which he has taken in this case.
NOTE: This problem is based on the Illustration attached to section 106.
Q. 8. A, a snake charmer exhibited in public a venomous snake whose fangs he knew, had not been extracted, and for showing his own skill and dexterity, however, without intention to cause harm to any one, placed the snake on the head of one of the spectators. The spectator while trying to push off the snake was bitten by the snake and consequently died. What offence, if any, was committed by A. Give reasons and also refer to the case law, if any, on the point.
Ans.: A has committed the offence of 'culpable homicide not amounting to murder'- Emperor v. Ganesh Dooley, (1879) 5 Cal 351.
Reasons:
The facts of the given case are based on Ganesh Dooley's case, referred above. In this case the Calcutta High Court held that the snake charmer committed the offence of 'culpable homicide not amounting to murder' under 3rd clause of section 299. It reads as follows: "whoever causes death by doing an act with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide".
Thus, it can be easily said that in the present case, A is guilty of 'culpable homicide not amounting to murder', because his act of showing the skill and dexterity in public by a poisonous (venomous) snake, being fully acquainted with the fact that the poisonous tooth (fangs) of the snake had not been extracted, was such, as he must have knowledge of the fact that his act is likely to cause the death of another, though he had no intention to cause the death or kill to any of the spectators or any onlooker present there.
NOTE: It is notable in this case, that the intention of A is immaterial, as in order to constitute the offence of culpable homicide, intention is not an essential element in all cases. That is why 3rd clause of section 299 (culpable homicide) does not speak of intention. It is also notable that if it is a case of intention, the case is covered by 1st clause of section 299 and by 1st clause of section 300 (murder). Hence, the offender becomes liable for murder defined under section 300, if the act of causing death by offender is intentional. But in the given problem, as the offender had no intention to cause death, section 300 cannot be invoked.
Q. 9. A throws acid on the right hand of B, an unmarried girl of 17 years causing permanent disfiguration of her right hand. Did A cause grievous hurt to B defined under section 320, I.P.C.? Give reasons.
Ans.: No, A has not caused grievous hurt to B, defined under section 320, I.P.C.
Reasons:
Section 320 of I.P.C. which gives the definition of grievous hurt lays down eight circumstances (clauses) under which a hurt becomes grievous hurt.
According to the 'sixth circumstance' of section 320, a hurt becomes grievous hurt if offender causes permanent disfiguration of the head or face of the victim.
In the present case, A caused permanent disfiguration of right hand of girl and neither of face nor of head, by throwing acid. Thus, his case is not covered by section 320. Hence, he did not cause grievous hurt defined under section 320, I.P.C. Here, it is immaterial that the girl is unmarried and is only 17 years old i.e. a minor.
However, it is notable that A has caused simple hurt, defined under section 319, I.P.C. Section 319, I.P.C. reads as follows: "whoever causes bodily pain, disease or infirmity to any person is said to cause hurt".
Q. 10. X sets a live electric naked wire in the passage of the latrine, so that no trespasser should come and use the latrine. There was no warning that the wire was live and trespasser V manages to pass into the latrine without contacting the wire but her hand happens to touch the wire while coming out and as a result of shock she dies. What offence, if any, has been committed by X? Give reasons for your answer.
Ans.: X has committed the offence of 'causing death by negligence' - section 304A and in Supreme Court Chemibin Gregory v. State, MANU/SC/0080/1963 : AIR 1964 SC 205.
Reasons:
According to section 304A, when a person causes the death of another by his rash or negligent act not amounting to culpable homicide, the person who causes such death commits the offence of causing death by negligence.
In the instant case, X has a right to prevent the trespasser V from entering and using his latrine. There is only want of warning on part of the X that he has set live electric naked wire. Thus, he is merely negligent and his act does not come within the ambit of 'culpable homicide'. Hence, he has committed the offence of 'causing death by negligent act, under section 304A.
Tn Cherubin's case, the Supreme Court observed that the accused is guilty under section 304A as his act does not amount to 'culpable homicide'.
Q. 11, P lures Q, a boy of 17 years, to Delhi without consent of Q's father. Has P committed the offence of 'kidnapping from lawful guardianship'? Give reasons and also refer the relevant provision in this regard.
Ans.: No, P has not committed the offence of 'kidnapping from lawful guardianship' - section 361.
Reasons:
According to section 361, I.P.C. in order to constitute the offence of 'kidnapping from lawful guardianship', the age of person kidnapped must be below 16 years in case of a male.
In the instant case, the age of Q is 17 years and he is a male. Thus, P has not committed the offence of kidnapping form lawful guardianship.
NOTE: The difference between the preceding problem and the present problem is that in preceding problem Q is a female below 18 years of age, thus offence of kidnapping from lawful guardianship is committed. In the present problem Q is a male, so the offence of kidnapping from lawful guardianship is not committed.
Q. 12. W, a woman intentionally put poison into the food of her husband H for causing the death of H. H died sometimes afterwards from inflammation of the brain. During trial the prosecution could adduce no evidence that the poison was even the secondary cause of the death of H. Is W guilty of 'murder' or 'attempt to murder' of H under section 302 or under section 307? Give reasons and also refer to case law, if any, on the point.
Ans.: No, W is not guilty of 'murder' of H under section 302, I.P.C. - Venkatasami, 1882 Weir, 3rd Edn., 187.
Reasons:
The facts of this case are similar to Venkatasami's case referred above, where the wife intentionally put arsenic in the food of her husband to kill him. The husband died sometimes afterwards from the inflammation of the brain. The prosecution could adduce no evidence that the 'arsenic' was even the secondary cause of the death of the deceased. It was held that the wife is not guilty under section 307, I.P.C.
In the given case also, the prosecution could not adduce the evidence during trial that poison is even the secondary cause, if not the primary or main cause of the death of H. Thus, W is not guilty of even 'attempt to murder' under section 307 and as she is not guilty under section 307, she cannot be held guilty of murder of H under section 302, I.P.C.
Q. 13. A performs sexual intercourse with his wife aged 13 years. Has A committed any offence?
Ans.: Yes, A has committed the offence of 'rape' defined under section 375 (punishable under section 376)--Exception attached to section 375.
Reasons:
Sexual intercourse by husband with his own wife does not constitute the offence of rape defined under section 375, I.P.C.
But there is an 'exception', attached to section 375. According to this 'exception' performance of sexual intercourse with own wife becomes rape if the wife is below 15 years of age.
In the present case, the age of wife is 13 years and the husband A performs sexual intercourse with her. Thus, he committed the offence of rape. NOTE: It is notable that according to section 18 of Hindu Marriage Act, marrying a girl under 18 years of age is an offence and punishable. It has not been mentioned in the answer because the problem has been asked on subject relating to Indian Penal Code and not Hindu Marriage Act.
Q. 14. B owes some money to A. A in order to put pressure on B to pay the debt, takes away without B's consent two of his cows and ties them in his house. Is A guilty of any offence?
Ans.: Yes, A is guilty of offence of theft defined under section 378, I.P.C. - Queen Empress v. Sri Churn Chungo, (1895) ILR 22 Cal 117 (1022) (FB).
Reasons:
According to section 378, for the commission of offence of theft, following five conditions must be satisfied:
(i) The property must be movable.
(ii) Such property must be in possession of some other person.
(iii) Property must be removed from such possession.
(iv) Removal must be done dishonestly, and
(v) Property must be removed without consent of the person who has possession of the property.
In the present case, all the essential conditions of 'theft' are satisfied by A as he takes away (removes) two cows (movable property) which was in the possession of B, without B's consent and he does so dishonestly (to put pressure on B to pay the debt). Thus, A has committed the offence of theft.
In Churn Chunga's case, it was held by the Calcutta High Court that removal of debtor's property by his creditor without the consent of debtor to enforce the payment of debt by coercion amounts the offence of 'theft'.
Thus, it can be said that A has committed the offence of theft. Once the acts of A comes within the definition of section 378 (theft), he is guilty of theft and it is immaterial that he did so to put pressure on B for recovery of his debt.
In fact, law does not empower a creditor to take law in his own hand and the remedy available to creditor (in this case A) is to take civil action against the debtor (in this case B).
Q. 15. Liladhar threatens to publish a defamatory libel concerning Roopa Devi unless she gives him money. Roopa Devi, who is an unmarried girl, gives him money. What offence has been committed by Liladhar?
Ans.: Liladhar has committed the offence of 'extortion' - defined in section 383 and punishable under section 384 of I.P.C.
Reasons:
Section 383 of I.P.C. defines the offence of 'extortion'. The section lays down that when a person intentionally puts another in fear of any injury and thus dishonestly induces such another person put in fear, to deliver any property, he commits the offence of 'extortion'.
In the given case, Liladhar intentionally puts Roopa Devi, who is an unmarried girl, in fear of injury by giving threat to defame her by publication of libel. If she does not give money to him. In this manner Liladhar dishonestly induces Roopa Devi to deliver property to him. Thus, Liladhar has committed the offence of 'extortion'.
Q. 16. A, a Hindu minor girl goes to Mumbai from Chennai with her mother B to appear at a certain examination. C, the husband of B (Father of A) had also consented for the same. In Mumbai, X lures the minor girl and removes her from the custody of S. X is prosecuted by B for kidnapping the minor girl. X takes the defence that C, the father of minor girl, is the real (natural) guardian of the girl under Hindu Law and not the mother and he did not remove the girl from the guardianship of father but from mother. Thus, he has not committed the offence of 'kidnapping' defined under section 361. Is the defence of X sustainable at law? Give reasons.
Ans.: No, the defence of X is not sustainable at law and he has committed the offence of kidnapping the minor girl in view of definition given in section 361, I.P.C. - Pran Krishnan's case, (1882) 8 Cal 969.
Reasons:
It is true that under Hindu Law, father is the natural or real guardian of his legitimate child and mother is not the natural guardian of her legitimate child as long as father is alive as per section 6(a) of the Hindu minority and Guardianship Act, 1956.
But in Pran Krishnan's case, referred above, the Calcutta High Court held that custody of mother is considered to be the custody of father and mother is also lawful guardian of her legitimate child unless the mother acts without the consent of her husband (father of the child).
In the instant case, the mother has gone to Mumbai with her daughter with the consent of her husband i.e. with the consent of the father of minor girl. Thus, here mother is the lawful guardian of the girl and the girl is in custody of her father in view of decision given by Calcutta High Court in Pran Krishan's case. Hence, if X lures the girl who is minor and removes her from the custody of her mother, he commits the offence of 'kidnapping' from the lawful guardianship defined under section, I.P.C. and the defence taken by him is not sustainable at law.
Q. 17. A police officer obtains certain ornaments from a person by threatening that he will be locked up immediately and not be released for months. What offence has been committed by the police officer?
Ans.: The police officer has committed the offence of 'robbery' (not extortion) defined under section 390 - Basant Rai's case, (1896) PR N 12 of 1896.
Reasons:
According to section 390, in every robbery there is either theft or extortion.
Section 390 provides that extortion is 'robbery' if the offender who commits the extortion, puts the person extorted in fear of instant 'wrongful restraint' and obtains the property extorted at once, then and there. It goes without saying that the offender must be present before the person so put in fear.
In the present case, the police officer puts the concerned person in the fear of wrongful confinement (which includes 'wrongful restraint') by giving threat to lock him up and not to released for months and thereby obtains the property immediately. Thus, the police officer commits the offence of 'robbery' by committing 'extortion' in presence of concerned person, in view of law embodied in section 390, I.P.C.
The facts of the given case are based on Basant Rai's case, referred above, In this case also, it was held that the police officer has committed the offence of 'robbery' and not 'extortion'.
NOTE: It is notable that fear of instant wrongful confinement and delivery of ornaments immediately, converts the offence of 'extortion' into 'robbery'. Hence, police officer has not committed 'extortion' but 'robbery'.
Q. 18. X, while going on a journey, entrusts his diamond ring to Y. Y sells the diamond ring. What offence, if any has been committed by Y.
Ans.: X has committed the offence of criminal breach of trust - defined under section 405, I.P.C.
Reasons:
Section 405 which defines the offence of 'criminal breach of trust' on which the instant case is based, provides that when a person is entrusted with property in any manner and he dishonestly disposes of that property, he commits the offence of 'criminal breach of trust'.
In the given case, Y was entrusted with the property (diamond ring) by X while he was going on a journey. Y disposes of the diamond ring by selling. Obviously Y had a dishonest intention. Thus, Y has committed the offence of 'criminal breach of trust' in view of section 405.
Q. 19. A intending to murder B buys a gun and loads it. Has A committed any offence?
Ans.: A has not committed any offence as he is still in preparation stage and preparation to commit murder is not an offence - 1st part of Illustration (c) of section 307 and Supreme Court in Abhaya Nand Mishra v. State of Bihar, (1962) 1 SCJ 183.
Reasons:
As a general rule, preparation to commit an offence is not an 'offence' (It is notable that this general rule is subject to some exceptions--for example, 'making preparation to commit dacoity' - section 399, I.P.C.
So far as 'attempt to an offence' is concerned, it is always punishable and there is no exception to it.
The answer of present problem depends upon the fact that whether in given problem A is in preparation stage or in attempt stage. If A is in preparation stage, he is not guilty but if he is in attempt stage, he is guilty of 'attempt to murder' B.
In Abhayanand Mishra v. State of Bihar, referred above, the Supreme Court of India observed that when a person is in position to change his mind or withdraw from the act intended, he is in preparation stage and if it is not so, he enters into the realm of 'attempt'. In other words it can be said that when the act of a person is within his control, he is in preparation stage but if act is beyond his control, he enters into the realm of 'attempt'.
In the given problem, though A has. intention to murder B and for this purpose he not only buys a gun but loads it, yet he is in preparation stage and has not entered into the realm of 'attempt', as he is still in a position to change his mind. Thus, A is in preparation stage and has not committed any offence under the I.P.C.
NOTE: (i) This problem is based on 1st part of Illustration (c) of section 307, I.P.C.
(ii) In the concluding part of answer it has been mentioned 'not committed any offence under I.P.C. as A may be guilty under any other Act like Arms Act etc. It has not been mentioned in the question that gun was purchased with license or without license, so nothing has been mentioned in the answer in this regard.
Q. 20. A found a purse having money in it. He did not know to whom did it belong. Subsequently he came to know that purse was of B and he A kept the same for his own use. What offence was committed by A?
Ans.: A has committed the offence of 'dishonest (criminal) misappropriation of property' -section 403 read with Explanation 2.
Reasons:
Section 403, I.P.C. provides that when a person dishonestly misappropriates or converts to his own use any movable property, he commits the offence of 'dishonest (criminal) misappropriation of property'.
Further, Explanation 2 of section 403, on which the present problem is based, lays down that that when a person appropriates the property to his own use after knowing about the owner of property, he commits the offence of 'dishonest misappropriation of property'.
In the instant problem, when A finds the purse having money in it, he does not know that to whom this purse belong. Subsequently, he comes to know that purse belongs to B and even after knowing this fact, he keeps the same for his own use. Thus, A is guilty of the offence of dishonest misappropriation of property.
NOTE: This problem is based on Illustration (e) of Explanation 2 of section 403.
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