IPC

1. Shaw v DPP [1962] AC 220 House of Lords( Crime and Morals)

The appellant published a 'ladies directory' which listed contact details of prostitutes, the services
they offered and nude pictures. He would charge the prostitutes a fee for inclusion and sell the
directory for a fee. He was convicted of conspiracy to corrupt public morals, living on the earnings of
prostitution and an offence under the Obscene Publications Act 1959. The appellant appealed on the
grounds that no such offence of conspiracy to corrupt public morals existed.

Held:

The appeal was dismissed. The House of Lords in effect created a new crime.
What is moral today can be crime tomorrow. Practicing Sati is an example.
2. State of Punjab vs Major Singh (Section 354- Outraging the Modesty)
Criminal law is dynamic

MS was 45 year old man who entered house of a neighbor where a baby of 7.5 months was lying on her
bed. He walked into the room where the child was sleeping at 9: 30 PM, then after switching off lights he
stripped himself naked below the waist and did unnatural lust on her private part thereby rupturing her
hymen and causing a tear 3/4th inch long inside her vagina. While he was doing the act, baby’s mother
entered room and filed a case, where he was tried for

(a) Criminal force (b) Outraging the Modesty of women (Section 354)

Magistrate convicted him for both however MS claimed that baby is not a woman and he shouldn’t be
punished for outraging the modesty of woman. It was argued in front of lower courts that since Sec 354
states that offender must have outrage the modesty and in this case child concerned had not developed
sufficient sex extinct it could not have been said that her modesty was violated. The child doesn’t have
woman modesty. This contention was accepted by lower courts. It was held there was no intention to
commit sec 354.

there are 3 principles of natural justice which are:

1) Absence of Biasness.
2) Audi alteram ( everyone must have right to be heard)
3) Reasoning for judgment

Sessions court upheld magistrate judgment however it didn’t provide any reason thereby violating 3).
High court held outraging the modesty of woman is connected with feelings on part of victim. It judged
dissenting from lower courts and held they can’t take child woman as distinct identity. There should be
subjectivity and hence reversed the decision.

SC( 3 judge bench) – 354 is gender specific which can be used only against men.

If HC is claiming that there was no feeling on part of victim and hence he shouldn’t be punished. Then
what will be said in case of unsound , insane and in case of prostitution where there is no feeling. Here
victim is not competent enough to feel.

Shankar: There was no feeling of outraged modesty on part of victim and hence the person should not be
tried.

Others two (dissenting): Sec 354 is about intention. Earlier cases were decided based on feelings of
victim. However, the person whose feelings should be governed is convicted not the victim.

Defence: 7 months girl cannot have feelings and you cannot decide the reasonable age where feeling is
said to be developed. You cannot make guidelines properly.

COURT: When sec 354 is gender specific as the gender of a new child can be determined at the time of
the birth. “Nevertheless from her very birth she possesses the modesty which is attribute to her sex”

The reaction of woman concerned is not the test of the offence.

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Conduct is of two types: Act and Omission voluntary Act. There is a defence of automatism (Involuntary
unconsciousness- sometimes the epilepsy , spontaneous reflex action)

3. Hill vs Baxter:

Facts

In this case, a man succeeded in driving a substantial distance before having an accident. He was charged
with dangerous driving. It was suggested (and accepted at first instance) that he was not conscious of
what he was doing, and "that he was not capable of forming any intention as to his manner of driving."
The reason for this was not able to control his actions.

It was ruled that there would be some situations where "the driver would be in such a state of
unconsciousness that he could not be said to be driving." This is in effect a denial of actus reus.c but
accused had simply fallen asleep. As this was something he had substantial control over, being presumed
to have been aware that he was tired, he found that he was reckless in continuing to drive, in Kay v
Butterworth (1945) and resurrected the now famous and hypothetical situation of a swarm of bees
attacking the driver, in which case the driver would not have been held liable.
It was held that as the defendant had driven a substantial distance without incident, he was clearly
"driving with skill", and therefore must have been driving

The judge in this case held that only a voluntary act or omission can qualify as an actus reus.

 A voluntary act is required as part of the actus reus of manslaughter

 The defendant was not in a state of automatism, rather, he fell asleep, so acted voluntarily
in recklessness

Criminal Law can’t categorize social obligation because it can’t be enforced as it includes subjectivity.
Omission can’t be a ground of action except in some 4-5 circumstances.

(a) Special Relationships

4. Omprakash vs. State of Punjab

The victim was married to the appellant in 1951 but few years later their relationship got strained. She
went to stay with her brother. Being assured that she will not be maltreated in the future, she returned to
her husband. However, she was ill-treated, not allowed to leave the house and denied food for days. On
one occasion, she managed to go out but the appellant’s brothers managed to catch her and forcibly
dragged her inside the house. She was severely beaten and being locked inside a room. She was given a
very minimal amount of food to avoid her death. One day when her mother-in-law and husband away,
he happened to find her room unlocked. She then went out o the house and managed to reach the Civil
Hospital where she met a doctor and told her of her sufferings. The appellant and his mother tried to take
her back but were not allowed to do so by the doctor. Her brother being informed about what had
happened and then make a police report. The police registered the case under 307 IPC of attempt to
murder. Omi claimed that wife was already weak and this should not be treated as attempt to murder as
he provided her pieces of bread and other things. Punjab High court confirmed the conviction observing

“ The food was willfully and intentionally withheld to shorten the remaining span of her life. Law doesn’t
require an intention to cause death then and there. It is enough if the face shows that by withholding food
to her , death would have resulted surely though gradually”

Omission as a ground of action

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PRIOR CONDUCT

5. R vs Miller
Miller, after consuming "a few drinks" went back to a friend's house, lit a cigarette and fell asleep.
Upon waking and seeing that the mattress he was lying on was on fire he got up, went into the next
room and went back to sleep. When he awoke again, the house was on fire.

Issue

Is the actus reus of the offence of arson present when a defendant accidentally starts a fire and
thereafter, intending to destroy or damage property belonging to another or being reckless as to
whether any such property would be destroyed or damaged, fails to take any steps to extinguish the
fire or prevent damage to such property by that fire?

Miller : Omission is not a ground of action. Being a trespasser you can’t sue for oligation arising in
fire.

Decision Appeal dismissed, original conviction upheld.

Reasons Diplock, writing for the court, states that the actus reus can be deemed to have occurred,
because Miller created a situation that would result in harm if he recklessly failed to prevent the harm.
As the appellant created the liability himself it would make no sense to excuse him of criminal
liability. There is subjectivity in this case , any reasonable man wouldn’t do that as he could have
foreseen the harm.

Ratio An omission can be treated as actus reus if a person creates a situation in which harm to a
person or property will occur, and he or she intentionally or recklessly fails to take steps to prevent
the harm; if the accused does not live up to the created duty, then it is a crime by omission.

6. Fagon vs Metropolitan Police commission

Fagan was parking his car when a police officer sees a spot in which he would like Fagan to park,
Fagan drove onto officers’ foot. Fagan was charged with assault and convicted.

Issues

1. Did the prosecution prove that the facts amount to an assault?

2. Do the mens rea and actus reus have to occur at the same time?

James J, writing for the majority, held that Fagan’s conduct could not be describes as a mere
omission. At the outset there was an act constituting a battery, but it was not criminal because
 there was no element of intention. However, the action became criminal from the moment that the
intention was formed (when he refused to move and shut off the engine) which followed directly
from the continuing act. The action and intention did not have to occur at the same time, because
the action was a continuing act that overlapped with the intention to create a crime. Therefore, as
the act and intention were present in the offence, he must be found guilty! Bridge, in the dissent,
stated that the defendant cannot be found guilty because after the intention was formed he did
nothing that could constitute the actus reus required for assault.

Ratio The actus reus and mens rea do not need to occur at the same time; they can be
superimposed on each other when there is a continuous act.

Causation is of two types 1. Factual 2. Legal. In factual causation but for test is used which state “
If person hadn’t act then this would not lead to particular consequence. This case is of
applicability of but for test.

7. R vs. White
The defendant put some poison in his mother's milk with the intention of killing her. The mother took
a few sips and went to sleep and never woke up. Medical reports revealed that she died from a heart
attack and not the poison. The defendant was not liable for her murder as his act of poisoning the
milk was not the cause of death. He was liable for attempt.

This case established the 'but for' test. Ie would the result have occurred but for the actions of the
defendant? If the answer is yes the defendant is not liable.

Reasoning

 Factual causation and legal causation are both required for a defendant to be said to have caused
death

 Recognition of a ‘but for’ test of factual causation

 Irrespective of the poison, White’s mother would still have died

 White could still be convicted of attempted murder

8. Rewaram vs. State of MP

The neighbors heard noises coming from nearby house. When they broke into the that house , they saw a
man was standing with a knife and his wife was lying on the floor with multiple wounds on her body. She
was admitted into the hospital and an operation was performed on her , where she developed
hyperpyrexia , i.e. high temperature due to which she dies. The doctor stated that she died of
hyperpyrexia not by multiple injuries. Mp high court put reliance on explanation 2 of sec 299 IPC.

Doctor after postmortem opined that –

 a) 23 incised wounds give indication of assault.
b) One wound was so fatal such that it might have led to killing her had hyperpyrexia would not have
happened. But doctor couldn’t identify which one was that.
c) They were sure that lady died of hyperpyrexia. ( Sensitive Victim)

Court made observations in consistent of sec 299.

a) Absence of best medical treatment is not relevant.

b) Different liabilities have to be imposed to different accused for one victim.
c) If there is supervening event (in this case 23 wounds) which is attributable to conduct then person
can be held liable.
d) In case of cumulative injuries courts have discretion to read all injuries to give decision regardless
of degree.
Court can contradict with medical opinions as it is not bound by expert opinions.

However it was observed that the person inflicting the injuries is liable for causing death as
hyperpyrexia was the direct result of her debilitated condition due to multiple injuries. As a result, it
was held that accused had caused her death and therefore his conviction for murder was upheld.

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Causation arising of 3rd Party - Doctor

9. R Vs Blaue ( Causation)
Appellant was acquitted of murder but convicted of manslaughter. Victim was an 18 year-old girl.
Appellant went to her house and attempted to rape the victim and inflicted serious wounds. Victim
collapsed and was taken to the hospital. She was a practicing Jehovah's witness and refused to have a
blood transfusion which would have saved her life.. The judge instructed the jury that they could find that
Appellant was the operative or substantial cause of death and convict on that basis.

Issue: Whether the jury was given proper instruction regarding a determination of the cause of death?

Held. The appeal fails.

He who inflicts a wound or injury which results in death could not excuse himself by pleading that his
victim could have avoided death by taking better care of himself/herself.

At common law, a man who did a wrongful act was deemed morally responsible for the natural and
probable consequences of his act. If the wound inflicted by a defendant causes the victim to be treated
negligently in a hospital or refuse medical treatment for religious reasons, a defendant’s actions can still
be held responsible for the victim’s death. Even though the acts of a hospital or the victim themselves
might be the actual cause of death, a defendant’s act was the operative cause and thus he can be held
liable.

10. Moti Singh vs State of UP: ( CAUSATION)

The deceased Gayacharan had received two gunshots wounds in the abdomen which were dangerous to
his life. There is no proof of his getting well, however he was discharged from hospital. His body was
cremated without any post mortem report.

Sc held that mere fact of two gunshot injuries is not sufficient for holding that his death which took place
after 3 weeks was on account of injuries received by him. There wasn’t any evidence to establish the
cause of death. WHEN B WAS DISCHARGED the causation is said to have been stopped.

11. R v Holland : (FACTUAL CAUSATION)

Facts: The defendant was involved in a fight in which he inflicted a deep cut on the victim's finger.
The victim failed to take care of the wound or get medical assistance and the wound became infected.
Eventually gangrene set in and the victim was advised to have his arm amputated. The victim refused
and died.

The defendant was liable for his death despite the victim's actions in contributing to his own death.
The victim refused medical treatment for a gangrene-infected wound that had been inflicted by the
defendant, and died. It is likely the victim would have survived had he received treatment.
The court used the 'but for' test; 'but for the initial injury, would the victim have died?' Even though
he would have not died, and the victim broke the chain of causation, it was because the defendant had
started the chain that he was convicted of murder. Law can’t compel any person to go for treatment.

12. STATE VS SIKORA

Sikora had a difcult upbringing. He was sent to several hoster homes,beaten, and neglected. He was an
orphan. He had a particularly difcult time in his work and social spheres. He was ²red ±rom his job and
dumped by his girlfriend.On the night of the killing, Sikora went to a bar. He drank approximately
30beers. A Sikora took out his gun, confronted his friend and shot him. The People charged him with
murder in the first degree, which would have carried a penalty of death.Sikora’s counsel sought to admit
the testimony of Dr. Galen, an expert in psychodynamics.Dr.Galen’s testimony was meant to negate the
premeditation of the murder, so that Sikora could be convicted only of the lesser included offence
(murder in the second degree). The trial judge did not allow Dr. Galen’s testimony to go to the jury. The
jury convicted Sikora on the charge and Sikora’ s counsel appealed.
Issues: Should the trial judge have admitted Dr. Galen’s testimony?
Holding: No. The testimony would have undermined a central premise in the criminal law that a person is
responsible for his “conscious” choices.
Court: There is a presumption whenever a person acts he acts in a free will and he is rational enough to
choose what is right and what is wrong. Criminal Liabilities will be judged on the basis of consciousness
not medical opinion.
Sec 84: If person is insane before and subsequent to the act leading to crime, nobody gives a fuck.
These theories claim that all results should be decide on the basis of actus reus.
PROVING OF MENS REA
 13. DPP VS SMITH

Policeman tried to stop the defendant from driving off with stolen goods by jumping on to the bonnet of
the car. The defendant drove off at speed and zigzagged in order to get the police office off the car. The
defendant argued he did not intend to harm the policeman. The policeman was knocked onto the path of
an oncoming car and killed. The defendant was convicted of murder. The trial judge directed the jury as
follows:

‘If you are satisfied that ... he must as a reasonable man have contemplated that grievous bodily harm was
likely to result to that officer ... and that such harm did happen and the officer died in consequence, then
the accused is guilty of capital murder. ... On the other hand, if you are not satisfied that he intended to
inflict grievous bodily harm upon the officer - in other words, if you think he could not as a reasonable
man have contemplated that grievous bodily harm would result to the officer in consequence of his
actions - well, then, the verdict would be guilty of manslaughter.’

The jury convicted of murder and the defendant appealed on the grounds that this was a mis-direction and
that a subjective test should apply. House of Lords held that there was no mis-direction thereby holding
an objective test was applicable. Objective test looks at the perspective of a reasonable person. Would a
reasonable person have foreseen the degree of probability of the result occurring from the defendant's
actions?

14. Hyam vs DPP

The defendant had recently been disappointed when her affair was ended by the engagement of her
‘partner’ to another woman, the victim. The defendant intended to prevent this engagement, so after
checking that her ‘partner’ was no at the victim’s house, the defendant poured and set light to a gallon of
petrol through the victim’s letterbox
The victim (and her daughters) was killed as a result of the defendant’s intent to frighten them from the
area (not to kill them)
Hyam : She never intended to kill the family. She should be liable just to the extent of destroying the
property.
Court: Intention is of two types : Direct and Virtual. Virtual Intention is a natural flow of real intention.
Here real intention was to frighten the victim which lead to death of him and his family.
Criticism of these judgment was that earlier subjective test were considered, which says that if a person
has intention to cause injury he can’t be charged for murder as in this case since been overruled by R v
Nedrick [1986] and R v Woolin [1999] the virtual certainty test now contains both subjective and
objective elements.

15. Virsa Singh vs State of Punjab

Here virsa gave a grievous blow to stomach of a person with iron rod damaging his intestine and thereby
causing his death. He was charged for murder under 300(3)

Virsa: I gave just one blow, and that too not job:-P , I was interested in injury and not in death.

I never gave a blow to any of the vital organs.

Court : your case comes under sec 268 of IPC stating this act as strict liability case where no mens rea is
needed . Manner of assault proves everything.

SC held that the requirement that the accused should have intention or knowledge to cause injury, which
is sufficient in the ordinary course of death, is fallacious. The court held that the two parts to cl(3) are
disjunctive. The injury here caused the death, so accused must be held liable.

In the absence of any circumstances to show that the injury was caused accidentally or unintentionally, it
had to be presumed that the accused had intended to cause the inflicted injury. Whether the injury
intended by the accused and actually inflicted by him is sufficient in the ordinary course of nature to
cause death or not, is a matter of objective determination which must be determined in each case on the
basis of the facts and circumstances”.

that the prosecution must prove the following before

it can bring a case under s. 300 Indian Penal Code third

clause.

(1) It must establish, quite objectively, that a bodily

injury is present.

(2) The nature of the injury must be proved; these are

purely objective investigations.

(3) It must be proved that there was an intention to

inflict that particular injury, that is to say, that it was

not accidental or unintentional, or that some other kind of

injury was intended.

(4) It must be proved that the injury of the type just

described made up of the three elements set out above was

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.

First it has to be found that bodily injury was caused and the nature of the injury must be established, that
is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any
vital organs were cut and so forth. These are purely objective facts and leave no room for inference or
deduction: to that extent the enquiry is objective; but when it comes to the question of intention, that is
subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is
found to be present

581, 572 pillai

TRANSFERRED MALICE

16. Abdul Suleman vs State of Gujarat

Five relatives went to attack the complainant, where one of the relative started firing. Due to
this a child of 10 years died.

Court: Even though they have not intention to kill 10-year-old kid. There was a transferred malice.

17. Emperor vs Mushnooru Suryanarayana Murthy

The accused, with the intention of killing A. He gave A some sweetmeat (halva) in which a poison
containing arsenic and mercury in soluble form had been mixed. A ate a portion of the sweetmeat, and
threw the rest away. R, who was aged 8 or 9 years, and who was niece of the accused, took some of the
sweetmeat and ate it and gave some to another little child who also ate it. They died after eating sweets.

Accused: Lack of foresight

Court: Malice will be shifted; here the accused will be liable even when the act is not foreseeable as this
is the case of transferred malice. Transferred Malice is an exception of having actus reus and mens reus
in crime.

18. Jaspal Singh vs State

A Person had mens rea to kill others. B fired to A and this leads to killings of his wife. Court held that B
is liable. Even though the Intention of B was to kill a particular individual it is also a killing of Human
Being and hence but for test under theory of causation will not apply. This case also laid down that a
statutory duty has been imposed on the court to consider as to whether the offence committed by an
accused comes under the general exceptions whether he has or hasn’t taken the plea specifically.
STRICT LIABILITY
19. Rv Lemon/ Whitehouse v Gay News
The appellants, the editor and publishers of a newspaper for homosexuals, published in the newspaper a
poem accompanied by a drawing illustrating its subject-matter which purported to describe in explicit
detail acts of sodomy and fellatio with the body of Christ immediately after His death and to ascribe to
Him during His lifetime promiscuous homosexual practices with the Apostles and with other men. The
appellants were charged with the offence of blasphemous libel. The appellants were convicted. They
appealed to the Court of Appeal contending that a subjective intent on the part of the appellants arouse
resentment among Christians had to be proved by the prosecution The Court of Appeal dismissed their
appeal and they appealed to the House of Lords.

Held: It was sufficient, for the purpose of establishing mens rea, for the prosecution to prove an intention
to publish material which was in fact blasphemous and it was not necessary for them to prove further that
the defendants intended to blaspheme. Decided in 3:2 , where gay news lost. Mens Reus is not required.
Strict Liability for blasphemy. Conviction was done but punishment was not given.

20. R vs Chief Metropolitan Magistrate ( Blasphemy)

The common law of blasphemy was confined to protecting only the Christian religion and the court
would not extend the law of blasphemy to cover other religions because it would be virtually impossible
by judicial decision to set sufficiently clear limits to the offence if it were to be extended. Furthermore,
the absence of a law protecting religions other than Christianity was not a breach of the United
Kingdom’s obligations under the European Convention for the Protection of Human Rights and
Individual Freedoms because the protection of freedom of religion in article 9 of that convention did not
require a domestic law to provide a right to bring criminal proceedings of blasphemy and such
proceedings would be contrary to the author’s right of freedom of expression under article 10 of the
convention”.

“Indeed, all offences of this kind are not only offences to God, but crimes against the law of the land, and
are punishable as such, inasmuch as they tend to destroy those obligations whereby civil society is bound
together; and it is upon this round that the Christian religion constitutes part of the law of England”

21. Satanic Verses by Salman Rushdie:

 Salman rushdie made fun of Mohammed ( Muslim Guru) in his book.

Court: Blasphemy Law is confined with Christianity. Strict Liability cannot be imposed. However we
can’t separate religions under 295 and 295 A.

22. Kochu Md Ranju Ismail Vs Mel kaalifa Umma ( Air 1959 Ker 51)
Lawyer fraudulently tells his agent the woman that the divorce was complete. She remarried after lawyer
told her. However marriage was not ended, hence Husband filed a suit for bigamy. It was held that
woman acted bona fide relying on a professional. Lawyer was held to be strictly liable.

23. Ranjit udeshi vs State of Maharashtra ( Strict Liability)

A person was prosecuted for selling a book by name Lady Chatterley’s Lover, a popular book written by
DH Lawrence. This book complied phone no. of prostitutes which was banned erstwhile by Maharashtra
Gov. He was charged for Section 292 of IPC.

RU: Being a book Seller, I cannot go through every book and every page. I had no knowledge of the
contents of the book. Moreover, there was no Mens Rea.

Prosecution: For being liable under 292, Mens Rea is not necessary.

The court rejected his plea and held that, as 292 IPC doesn’t contain word -knowingly, knowledge of
obscenity is not an essential ingredient to commit offence under 292. RU: Section 292 is violative of
article 19(2) .

Court: The usage here was not for propagation of ideas, opinions and information of public interest.
Hence it is constitutional. If the sale was without your knowledge then only you can be charged free.

Court cited R vs Hickin’s Hicken Test:

There are two types of people. A) Normal people B) Mentally Corrupt People (Fond of
Pornography(every

Standards will be made considering both, however if any content is a source of entertainment for B) then
it will lead to obscenity.

Ranjit was held liable. This is a case of strict liability , hence no mens rea required.

24. Aveek Sarkar Vs State of West Bengal (2014)

Incident of 1993, In Germany racial discrimination was at its peak. Borris Baker to criticize racial
discrimination shows himself and his gf naked on stern for making a point.

Aveek put the same image in his newspaper. District court and High court held obscenity under 292.

A thing which is merely appealing to eye without a background or documented data leads to obscenity.

Court Held that interpretation should be made liberal, this was not obscenity.

25. Abhayanand Mishra Vs State of Bihar ( Very Important ) Attempt of

Crime
AM applied for MA Entrance Exam in Patna University. He represented that he has done BA and also
taught in a school. University requested AM to submit fees and photographs. University after this send
the admit card to the school he mentioned. Headmaster of the school sends the report stating he was not
teacher. It was found that AM was not even graduated as he was involved in malpractices earlier where
university filed a suit for cheating. The trail court convicted him only for attempting to cheat the
university. The matter ultimately reached SC.

In SC,

AM: University issued admit card to school and they haven’t suffered harm yet as admit card is not a
property.

SC: Admit card is property as person can enter Exam Hall. Harm is caused to University Reputation.

Penultimate Act before Commission Vs Any Act after preparation (Question was raised on issue of
SECTION 511)

Let’s bring a case in different parts

1) Inquiries about college, Searching of University etc.

2) Collect the form
3) Filling of form
4) Dispatching the form.
5) Communication from University ( Fees Submit)
6) Compliance with above
7) Communication from student for coming to college
8) Outside the examination Hall
9) Taking out the Question paper
10) Writing Answer
11) Submitting the answer key

AM: He never attempted to write the exam as in this case the act was contemplated upto 8)
and hence this comes under Preparation
 SC: He could have changed the mind at 1) 2) and 3). But after 3) university started acting
which leads to annoyance later which itself is a crime. Before 4) everything is preparation,
after 8) it is commission.

Determination of attempt is question of fact and it is subjective. We can’t apply same rules in
different cases.

Sc held that the act interrupted need not be the last act to complete the contemplated offence but could be
at any stage crossing the stage of preparation. Any act after preparation is attempt. There may also be
series of act coming under attempt.

26. R vs. Shivpuri ( Demarcating preparation from attempt-

Impossibility Test)
The appellant had to give 1000 packets to 3rd party .The appellant was arrested by customs officers while
in possession of a suitcase which he believed to contain prohibited drugs. After his arrests, he told the
officers that he was dealing in prohibited drugs. However on sending to medical analysis, the substance
in the suitcase was found to be non drugs but of snuff or similarly vegetable matter. He was charged for
violating sec 1 of Criminal Attempts Act 1981 and s 170 (b) of the customs and Excise Management Act.
He was convicted of attempting to commit an offence of being knowingly concerned in dealing with and
harboring the prohibited drugs contrary to 170 (B). He tried to act innocent by claiming that confession
made was given under pressure of police. One of the main grounds of his appeal was that because the
substance found in his possession was not a prohibited drug, he could not be guilty of attempting to deal
in or harbor prohibited drugs, he could not be covered under sec 1 of CAA 1981, as the commission of
offence was impossible. Court of Appeal certified that the point of law involved therein was- ‘does a
person commit an offence und sec 1 of CCA 1981 where if the facts were as that person believed them to
be, the full offence would have been committed by him, but where on the true facts the offence which
that person set out to commit was in law impossible e.g. because the substance imported and believed to
be heroine but harmless substance.’

The House of Lords dismissed the appeal by holding that where an accused is charged with being
knowingly concerned with harboring or dealing with the goods whose import was prohibited,, it would be
sufficient if it is proved that the person knew that the goods concerned were prohibited goods. Further
,since no proof was required that the person knew which category of prohibited drugs the good he
handled belonged to, it was immaterial that the appellant was unsure of the exact nature of the substance
in his possession , other than the fact that he believed that he was dealing in heroine or cannabis, the
import of which was prohibited. An act otherwise innocent turns to be a crime, if the intention of the
accused was to commit an offence through the said acts or activities.

In this case a person should be charged for attempt. It is not personal knowledge, but his belief that he
can commit crime. A have mens rea, A is about to commit actus reus then A can be held liable. Shivpuri
acted after having mens reas, even though the act could have been impossible. But he acted towards
commission of crime.

 However the position is not same in India. Impossibility to do an offence can’t be a defence In
India.
27. Maharashtra Vs Md Yakoob & Others ( Proximity Test)
Two judges contention is imp.
In this case the accused were arrested by official of the Central Excise for attempting to smuggle silver
out of India. Based on secret Information, custom officials kept a watch over the accused and a followed
them when they had brought silver ingots in a truck. The accused were found to have kept some small
and heavy parcels on the ground. At the same time, the sound of a mechanized sea craft was also heard.
And ultimately officials caught them near a pond, where they were about to load into vessels into the
craft. Trial court convicted them for attempting to smuggle silver out of India in contravention of FERA,
Customs act, and Imports and Exports Act. However additional Sessions Court on appeal acquitted them
stating that the facts proved by prosecution showed that the accused had not proceeded beyond the stage
of preparation and they had not yet committed any act towards the commission of the offence. The appeal
was dismissed by Bombay High court. However Sc, on appeal by state of Maharashtra set aside the
acquittal holding that the accused had committed the offence of attempting to export silver out of India
by sea in contravention of law. Two separate but concurring judgments were given by Sarkaria and
Reddy.

Reddy’s Contention:

There should be an intention to commit a particular offence. Then some act should be done towards
commission of the crime. Third the act must be proximate to the intended result. The measure of the
proximity is not in relation to time and action but in intention. To prove the attempt you need not
prove mens rea of the accused.

Sarkaria’s contention:

Overt act need not be penultimate act towards the commission of the offence. It is sufficient if such act
manifest an intention to commit the offence aimed, being reasonably proximate to the consummation of
the offence. Section 3 of Indian Evidence act states that absolute proof is not necessary to prove crime.
Attempt is a mix question of law and Fact. In this case the loading of bags could have been the final act
towards commission of the offence. Actus reus of attempt.

Criticism of Reddy:

Not valid in case of Strict Liability where mens rea is not compulsory. People can take defense of
mistake and they didn’t have mens reus too.

28. Malkiat Singh vs State of Punjab

In this case the driver, the accused and cleaner were intercepted at Samalkha barrier post in Punjab which is about
14 miles from the Punjab- Delhi border, driving a truck containing 75 kg of paddy. A letter is written by consignor
in Punjab to consignee in Delhi was also recovered from the possession of the driver. Receipt of the company.
Driver claimed that he had the power from company to go anywhere where customer wants to go, however
company refused that we didn’t had collusion on going out of the state. They were charged with the offence of
attempting to export paddy in violation of Punjab paddy export control order 1959.

The Supreme Court set aside the conviction of the accused that their acts were still at the stage of observation. It
held that it is quite possible that the appellants were warned that they had no license to do so and they may have
changed their minds by retracting their act (theory of repentance).

Reddy (25 case wala) held that this case was wrongly decided. However this is the case of Essential Commodities
Act which comes under strict Liability. But it seems like reddy is contradicting his own claim as this doesn’t need
even Mens rea which was the sole important thing in reddy’s theory.

29. Dakhi Singh vs State( On question of act done under order of

superior authority can be a defence?)

The accused arrested the deceased who was suspected of being a thief and the deceased resisted the
arrest. Deceased managed to escape from the custody and while chasing constable, allegedly fired at an
absconded thief (on alleged orders of his chief) for affecting his arrest, killed a railway fireman. He
pleaded defence under mistake of fact and that of his powers under CRPC to arrest.

Some may argue that he is not liable due to general defence while some argue that this is the case of
transferred malice.

The Court observed that section 46 of Crpc lays down that a police officer may use all means necessary
to affect the arrest of a person evading or resisting the arrest; but cannot cause the death of such person
unless he is accused of an offence punishable with death or life imprisonment. Since neither the thief nor
the fireman was suspected of any such offence punishable by death or life imprisonment, accused
couldn’t avail the defence of S.46.

Further, even when it was assumed that he fired the gun on orders of his chief, he must be presumed to
know the law laid down in S.46 of CrPC (as ignorentia non juris excusat – ignorance of law is no
excuse) and his act being a consequence of mistake of law, thus cannot be held to be bound or justified by
law on account of mistake of fact under S.76 or 79 of IPC.

However, since accused was a public servant who, while acting bona fide for advancement of public
justice, exceeded the powers given to him by law in killing the deceased, but without any malice, he was
convicted only of culpable homicide not amounting to murder under Exception 3 of S.300 of IPC.
30. State of Maharashtra vs M H George( Mistake of Law)

Relevant Facts: Accused, a gold trader, in a flight bound for Munich was carrying 39kg. Gold without
any notification to or approval from RBI, this was in violation of guidelines as published before he
boarded flight in Geneva. However, due to some problems in his flight he have to land up in Mumbai. He
was carrying 39 kgs of gold, which was valid in Philippines but not in India. Custom authorities got to
know this and charge him of violating rules by RBI (which have power equal to law).

However, since he was a foreign national, he didn’t have any knowledge of such notification being issued
and pleaded not guilty because of lack of mens rea.

Pertinent issues: Whether mens rea was an essential ingredient of alleged violation of RBI notification
which made bringing gold in India without prior approval from RBI an offence?

MH: No evidence of Mens Rea and since law was not published he should not be convicted. Under
Common law mens rea is necessary to held person gullible for crime. Moreover, since he was foreign
national he was acting under mistake of fact for which he should not be held liable. This is not a case of
violating a law but of delegated legislation and it is very difficult to trace a large no. of laws.

Court: This is an obligation for any individual to check the laws of country where he is travelling. This is
a case of strict liability where mens rea need not be proved.

It is assumed that the person travelling know all the laws of a country. In this case he violated RBI
guidelines which basically hold the significance to that of law, so he is violating a law and hence he
should be charged for Mistake of Law.

Rule laid down:

Unless the statute by express words or by necessary implication rules out the necessity of mens rea as
constituent in commission of a crime, there is a rebuttable presumption that mens rea is an essential
ingredient of the offence. In other words, ‘strict liability’ is not to be presumed, but ought to be
established.

To rebut this presumption by necessary implication, reference has to be made to language of the
enactment, object and subject-matter of the statute, nature and character of the act sought to be punished
and the punishment prescribed thereto.
The mere fact that the object of the statute is to promote welfare activities or to eradicate a grave social
evil is by itself not decisive of the question whether the element of guilty mind is excluded from the
ingredients of an offence.

Mens rea by necessary implication can be excluded from a statute only where it is absolutely clear that
the object of the statute would otherwise be defeated.

Even in cases of strict liability, absence of mens rea can act as mitigating factor for reducing the
punishment.

Now in present case, statute had emphatically put an absolute embargo on ‘bringing’ any gold in India
unless authorized by RBI. Further, statute was designed to safeguard and conserve FOREX by preventing
smuggling and other unauthorized transactions of gold. It had prescribed stringent punishment for alleged
commission of crime. Therefore, SC by majority held that by necessary implication, the presumption of
mens rea being a necessary ingredient of alleged crime was successfully rebutted. In any case, ignorance
of law is no excuse and his act of bringing the gold in India being a conscious and voluntary one was
sufficient to constitute alleged offence.

It was construed as a strict liability offence as the object was safeguarding and conserving foreign
exchange that is essential to the economic life of a developing country. The provisions therefore had to be
stringent to prevent unauthorised and unregulated transactions. Very object/purpose would have been
defeated.

31. DPP VS Morgan & Others ( Overruled in many aspects) [

M was senior officer in Royal force. One day when he was in a party and consuming alcohol with his
juniors. He invited 3 of the juniors to have sexual intercourse with his wife and in the meantime he will
watch them fucking his own wife. They all came to his house and where Mrs. Morgan was awaken from
sleep. She was desisting, resisting, screaming but no one cared to stop their act. A case was filed for
sexual assault and rape against them and of abetment against M.

Officer: Mistake of fact. M said that even if wife will pretend as unwilling to have sexual intercourse that
will be an implied consent to have sex. There was no mens rea on our part as we relied on what M said.

Trial Court convicted them and held that mistake should be reasonable and here they acted unreasonably
so they should be held liable for their acts.

House of Lords (5:2) Mistake of fact should be determined on subjective basis. Mistake can be
unreasonable but it should be genuine and honest.

This rule is followed in certain cases however, this rules 6 overrule when a law was passed in UK which
held that unreasonable mistake can be interpreted as mens rea for offence of rape.

32. Chirangi Vs State of MP ( Mistake of Fact)

Accused, after he hit a hard object because of a severe fall, acted under momentary delusion killed his
only devoted son with an axe, allegedly mistaking him as a dangerous tiger. After this incident, he came
back to his home and slept with the same axe stained with blood.

A suit was charged against him where he take defence that he was incapable of knowing the nature of his
act.
The accused was proven not to be an insane either prior or subsequent to the commission of the offence.
However, evidence by medical specialists proved that his fall combined with his existing physical
ailments could have produced a delusional state of mind in which he in good faith thought that the object
of his attack was a tiger and not his son.
In these circumstances, Court held that inasmuch as accused had bona fide belief that he was justifiably
killing not his son rather a dangerous tiger, his act, on account of mistake of fact, was covered under
general exception of S.79 of IPC.

It was held that Chirangi’s could have produced a state of mind in which he in good faith thought that the
object of his attack was a tiger and was not his son. Mistake should be genuine and honest, even though it
was unreasonable. There was no motive in this case and this was held to be justified by law as per 79.

33. Bonda kui vs Emperor

There were two women in the village and their husbands were brothers. On one dark night when all male
members were away, a lady, while being alone in home with her niece, heard a noise and when she came
on the door to see who is there where she saw a form of a naked humanly figure weirdly dancing with
broom-stick tied on one side and a torn mat round the waist.

Being superstitious , she mistook that ‘figure’ to be a cannibalistic witch and with repeated blows, killed
the being. However, it was the other woman who was performing some ritual.

Court, upon considering full circumstances of the case, held that the lady’s act of killing the human
being, while mistaking it to be a cannibalistic witch, amounted to a mistake of fact as covered under
general exception of S.79 of IPC. The prosecution however further contented that the act was not done in
good faith inas much as accused didn’t exercised due care and caution in checking the dancing figure.
The Court observed that since the woman was superstitious, it was a dark night, she and her niece were
alone in home, the figure was naked, and dancing weirdly; all these circumstances reasonably show that
the lady in bona fide belief, that the figure wasn’t a human being rather a cannibalistic witch, killed the
deceased. Hence, the act was done in good faith. She was discharged as it is justified by Law. There is
absence of Mens Rea. She was fully protected by 76 and 79 because she thought that she was, by a
mistake of fact, justified in killing the deceased whom she did not consider to be a human being, but a
thing which devoured human beings.

The case thus proves that while determining element of ‘good faith’, instead of the objective
‘prudent man test’ (i.e. what a reasonable man would have done had he been in similar or same
circumstances), court looks into the subjectivity of mind of accused.

34. State of Orissa vs Ram Bahadur Thapa

An abandoned aerodrome in Orissa where large quantity of valuable aero scrap is collected and is
surrounded by Adivasi villages where communities having strong belief in ghosts as this area is called to
be haunted with such notoriety and infested with ghosts. One Jagat Bandhu Chatterjee from KOLKATA
came there with Nepali servant, Ram Bahadur Thapa for purchasing aero scrap. Accused, Thapa when
returning from an aerodrome, which was framed for being haunted, indiscriminately killed and
grievously injured several mistaking them to be ghosts when he saw them as dark figures with a
flickering light (which he believed to be a will-o’-wisp). It was dark in night and everyone had obsessed
accused of the presence of ghosts in aerodrome. While passing through camp they noticed light at
distance. There was a strong wind blowing and the movement of the light in that breeze created in them
an impression that it was not ordinary light. They also found some figures moving around the light. They
thought that some ghosts were dancing and they all ran towards that place. Ram bahadur thinking the
figures as ghost started hitting with weapons but it proved later that the figures were woman of local
community. However, these beings were no other than innocent women collecting tender leaves. Due to
attack, one woman died and two suffered grievous hurt. He was charged under 302.

RULE: “The standard of care and caution must be judged according to the capacity and intelligence of
the person whose conduct is in question.”

The Court, upon consideration of all facts including the subjectivity of accused mind’s, held that accused
had bona fide belief that the ‘figures’ he was attacking were ghosts not humans. Further, in doing so, he
acted ‘with due care and caution’, in good faith, and believed himself to be justified by law. Thus, he was
entitled to general defence u/s 79 of IPC.

Ratio: He was believer in ghost. His act was unreasonable but still his act is not wrong on his part as a
believer.

35. R vs. Prince

Accused (prince) took an unmarried girl under the age of sixteen (14 years) out of the possession and
against the will of her father, albeit having reasonable bona fide belief that she was over sixteen. He had
sexual intercourse with her consent. Henry Prince was accused of abducting a 14-year-old girl
Issue: Is the court required to read a mens rea requirement into a statute that is silent with regard to the
mental state required to make the act a crime?

HOL 15 judges: It was decided against Prince. The act per se was Mala inse. (Kidnapping rape or sexual
assault is bad act). Kidnapping did not require Mens Rea. Mistake of fact does not stand as a defense to a
crime where the statute making the act a crime contains no requirement of knowledge of that fact to begin
with.

In this case the forbidden act is wrong in itself and the legislature has enacted that if anyone does this act,
he does so at his own risk. The offence was one of strict liability as to age and therefore his reasonable
belief was no defence. Criminal enactment did not provide for presence of any ‘mens rea’ as constituting
element for act of kidnapping. Therefore, HL deviated from conventional definition of ‘crime’ (as an
offence perpetrated with criminal mind and punishable by law) and effectively held that kidnapping is
one such offence which carry ‘strict liability’, i.e. even when there is no guilty mind accompanying the
act constituting kidnapping, such act will be punishable by law.

36. R vs. tolson ( Mistake of fact)

Facts: The appellant married in Sept 1880. In Dec 1881, her husband went missing. She was told that he
had been on a ship that was lost at sea. Six years later, believing her husband to be dead, she married
another. 11 months later, her husband turned up. She was charged with the offence of bigamy, having
gone through the ceremony of marriage within seven years after she had been deserted by her husband.

Ratio: However, as she had reasonable bona-fide belief in the death of her husband at the time of her
second marriage, HL acquitted her for absence of ‘mens rea’ or criminal intention.
In this case too the statute neither provided any ‘mens rea’ as constituting element for act of bigamy nor
classified its absence as an exception to the offence. However, HL considered that it is not just the
wording of statute rather all the surrounding circumstances of the case which must be taken into account
for deciding whether element of mens rea is essential to constitute the offence. Thence, HL came to
conclusion that for bigamy, actus non-facit reum nisi mens sit rea, i.e. no act will constitute an offence if
done without guilty intentions, is applicable.

She was afforded the defence of mistake, as it was reasonable in the circumstances to believe that her
husband was dead. She was acquitted.

37. King Emperor Vs Sree Narayan

Facts: A strikes wife with punches on her faces and fall unconscious.. Thinking that she is dead he
decided to burn her however she was still alive. After burning her, he tried to hide the ashes that shows
that he deliberately intended to kill her. A was claiming defence under mistake of fact.

Ratio: A’s act is not innocent though ne is acting under a bona fide mistake of fact. This is a case of mala
inse.
It does not amount to mistake of fact for avoiding criminal liability as he, in burning the body of B,
intended to cause disappearance of the evidence of his previous act of striking B and its consequential
result.

38. KLAUS MITTELBACHERT V/S EAST INDIA HOTELS LIMITED

(Standard of care: Amount of consideration involved)

KM was a pilot. Due to delayed flight, he has to stay for a day and he decided to stay in defendant’s hotel. He went
to swimming pool, generally hotels have 5 feel water limit so that no one can be drown in the water. Nevertheless,
KM did not know swimming but still went down. He dived into pool but got paralyzed. Km heirs filed a suit.
Hotel: If he did not know swimming, he should not go down in the first place.

Court: Amount of consideration involved at a higher level. There should be an attendant. Better of higher care of
caution. This is a case of negligence.

Court: Since AMRI charge, so much of amount. They paid 10 crores compensation.

39. MP Vs Rangaswami

A Hyena, wild animal was moving in the villages and causing injuries and deaths to small children. The
people frightened with it. They complained to the authorities. The Government deputed certain officers.
While they were wandering in the forests in search of Hyena, they saw a moving animal behind the
bushes. It was a rainy day and the vision was not clear.

Accused shot, from a distance of approximately 150 feet, a brown clad thing which was moving in tall
grass thinking it to be a Hyena which he encountered previous day also. However, it wasn’t Hyena rather
a human being who had trespassed the premises. Not even accused but all those who accompanied him
were also of same belief that the thing was either a Hyena or a tiger but nobody even thought of it as a
human.
The Madhya Pradesh High Court held that the accused was protected under Sec. 80.
Court: Unlawful means. Exception of accident can be used. He will be liable for Arms Act. But not
murder.

Court held that accused fired the gun in bona fide and reasonable belief that the moving thing was hyena.
He acted with proper care and caution in doing the lawful act of firing at dangerous animal and in lawful
manner. Therefore, he was held entitled to defence of accident u/s 80 of IPC.
However, prosecution argued that since accused fired with an unlicensed gun, he did the act by unlawful
means and in unlawful manner. The Court however negatived such contention and held that it didn’t
make accused act of killing unlawful but was a mere offence of possessing unlicensed gun under Arms
Act.
The Court further distinguished between Culpable rashness and Criminal Negligence as:
CR is acting with the consciousness that the mischievous and illegal consequences may follow but with
the hope that they will not and often with the belief that the actor has taken sufficient precautions to
prevent their happening. The imputability arises from acting despite the consciousness. Culpable
negligence is acting without the consciousness, that the illegal and mischievous effect will follow, but in
circumstances which show that; the actor has not exercised the caution incumbent upon him, and that, if
he had, he would have the consciousness. The imputability arises from the neglect of the civic duty of
circumspection.
It is only when criminal negligence is proved, that the defence of accident will not apply. Since it wasn’t
the case here, hence, it was held to be mere accident.

40. Bolam v Friern Hospital Management Committee (Medical

negligence)
Bolam Test: Where the defendant has represented him or herself as having more than average skills and
abilities, this test expects standards which must be in accordance with a responsible body of opinion,
even if others differ in opinion. In other words, the Bolam test states that "If a doctor reaches the
standard of a responsible body of medical opinion, he is not negligent".

Facts: Mr Bolam was a voluntary patient at Friern Hospital, a mental health institution run by the
Friern Hospital Management Committee. He agreed to undergo electro-convulsive therapy. He was not
given any muscle relaxant, and his body was not restrained during the procedure. He flailed about
violently before the procedure was stopped, and he suffered some serious injuries, including fractures of
the acetabula. He sued the Committee for compensation. He argued they were negligent for (1) not
issuing relaxants (2) not restraining him (3) not warning him about the risks involved.

Held:
The doctor was not in breach of duty. The House of Lords formulated the Bolam test:
"a medical professional is not guilty of negligence if he has acted in accordance with a practice accepted
as proper by a responsible body of medical men skilled in that particular art . . . Putting it the other way
round, a man is not negligent, if he is acting in accordance with such a practice, merely because there is a
body of opinion who would take a contrary view." expert witnesses had confirmed, much medical
opinion was opposed to the use of relaxant drugs, and that manual restraints could sometimes increase the
risk of fracture. Moreover, it was the common practice of the profession to not warn patients of the risk
of treatment (when it is small) unless they are asked. He held that what was common practice in a
particular profession was highly relevant to the standard of care required. A person falls below the
appropriate standard, and is negligent, if he fails to do what a reasonable person would in the
circumstances. But when a person professes to have professional skills, as doctors do, the standard of
care must be higher.

Bolam ( affirmed by Jacob matthew) : Where you get a situation which involves the use of some special
skill or competence, then the test as to whether there has been negligence or not is not the test of the man
on the top of a Clapham omnibus, because he has not got this special skill. The test is the standard of the
ordinary skilled man exercising and professing to have that special skill. A man need not possess the
highest expert skill..... It is well-established law that it is sufficient if he exercises the ordinary skill of an
ordinary competent man exercising that particular art."

41. Bolitho v City and Hackney HA

Facts: The claimant's son was admitted into the hospital for respiratory difficulties and was placed under the care
of Doctor Horn. Doctor Horn did not see the patient due to her beeper being broken. The doctor delegated the care
to another doctor, her junior, Doctor Rodger. Doctor Roger also did not see the plaintiff's son. This led to further
complications in the patient and then severe brain damage from which he eventually died. The claimant argued that
the son would have lived if the child had been intubated, and that the defendant had been negligent. The defendants
argued based on Bolam case that if they had seen the patient, they would not have intubated him; furthermore, their
decision not to have intubated him earlier could be confirmed by a reliable and respectable body of opinion.

The House of Lords held that there would have to be a logical basis for the opinion not to intubate. This would
involve a weighing of risks against benefit in order to achieve a defensible conclusion. This means that a
judge will be entitled to choose between two bodies of expert opinion and to reject an opinion which is
'logically indefensible'. This has been interpreted as being a situation where the Court sets the law not the
profession. However, Lord Browne held that the court would hold a practice that was in conformity with a
sound body of expert opinion to be negligent only in "a rare case". On the facts, it was decided that not
intubating the child in the particular circumstances at hand was not a negligent way to take, even though the expert
opinion on the matter was divided. In applying the Bolam test where evidence is given that other practitioners
would have adopted the method employed by the defendant, it must be demonstrated that the method was based
on logic and was defensible.

42. IMA Vs VP Shanta

1. Whether and, if so, in what circumstances, a medical practitioner can be regarded as rendering 'service' under
Section 2(1)(o) of the Consumer Protection Act, 1986

Hon’ble Judge said that medical practitioner should be held liable when they are negligent and to find out their
negligence Bolam test is sufficient enough.

2. Whether the service rendered at a hospital/nursing home can be regarded as 'service' under Section 2(1) (o) of
the Act.

This case gave effect to consumers who were suffering from medical negligence and including medical services in
the ambit ofConsumer Protection Act, 1986 enabled consumer to get more speedy and cheap justice. As this is the
main aim of the Act.

2. This case also differentiated contract for service and contract of service, in respect of medical practice and
profession.

3. System of liability which it established is not appropriate in case where patients are not treated as consumer
even in government hospital availing services free of charge. It is question of common conscience and equity as
person who are availing services in government hospital are not economically sound that is why they are availing
services in government hospital. It is point of reconsideration.

Medical Science is an inexact science hence a doctor can’t give exact result of what would happen after
performing some operation except the case of plastic surgery.

43. Dr. Suresh Gupta vs. Govt of NCT

Demarcated Negligence in civil and criminal law

Suresh Gupta followed minor surgery laser operation and didn’t put a particular type of tube which was required he
didn’t put the right size of that tube. Patient died of it.

Two opinions: Person died of cardiac arrest.

Died because of flowing back of blood due to the wrong size of tube.

Court went with the majority opinion and held that even if the court goes with the minority opinion assuming it to
be the majority opinion still not possible as under 304 A there is need of gross negligence not normal negligence

44. Jacob Matthew vs State of Punjab - There are criticism of medical negligence.
Facts: There was a 60 year old person suffering from cancer and admitted to Chandigarh. One day he was talking
to his brother. He informed his brother that he is facing breathing problem due to lack of oxygen. His brother
informed the medical staff and doctor came and put a oxygen mask on him but even after this the condition
deteriorated and he died. Actually the oxygen cylinder was empty.

Division bench: Requires gross negligence. Suresh Gupta wrongly held.

3 judges: ordinary Bolam test applies. b) Requires Gross Negligence not ordinary negligence.

1) Lack of skills 2) In proper applying of skills without due care.

Court held that any 1 of the two will lead to doctor’s liability.

Ratio: The practitioner must bring to his task a reasonable degree of skill and knowledge, and must exercise a
reasonable degree of care. Neither the very highest nor a very low degree of care and competence is what the
law requires."

45. Malay Kumar Ganguly vs. Dr. Sukumar Mukherjee & ors. ( Kunal
Saha Case)
Before this case maximum compensation is 1st Crore and after this year 11.5 Crore was given as compensation. It
is an case of consumer forum.

KS and AS (Kolkata) were doctors settled in US for 15 years. They came back to Kolkata in 1998. But due to some
reasons AS developed rashes in her hand. KS had contacts in Kolkata. AS health started deteriorating. KS
contacted 3 best lawyers of Kolkata. And at the end he was admitted in AMRI Kolkata. But later shifted to
Mumbai hospital where she died. KS sued for medical negligence as doctors gave heavy overdose to AS of ten
chemical. Calcutta HC acquitted them. KS in full time business in US.

KS: I travelled 1000 times which is more than 11.5 crores. Reproduced evidence from specialists in US. Doctor in
India produced evidence from Indian Medical Science.

Court – 1) Relevancy of Expert’s opinion. Expert’s opinion is not binding on court. ( Bolitho Vs Healthcare)

2. Court is not bound to call expert and expert’s opinion should pass through logic and it is not obligatory. .
Court will not follow expert’s opinion and requirements should be the one mentioned in 304 A. Gross
Negligence. Defence of contributory negligence (interference from KS) was taken however was negated when
court said that this doesn’t apply in civil law cases. Defence also argued that it is cumulative result of 7
doctors who checked her earlier to them. Court held even this is not a part of criminal law. Res Ipsa Loquittor
is rule of evidence but not applied in criminal law. Not only doctor but also the hospital will be liable 1)
legitimate expectation by patient when Amre claiming we are best. 11.4 crores from hospital and 0.10 lacs
from doctor.

46. Frye Vs. U.S(discussing the admissibility of polygraph test as

evidence) the frye test was applied before 1993 now daubert
The Court in Frye held that expert testimony must be based on scientific methods that are sufficiently
established and accepted.The court wrote:
Just when a scientific principle or discovery crosses the line between the experimental and demonstrable
stages is difficult to define. Somewhere in this twilight zone the evidential force of the principle must be
recognized, and while the courts will go a long way in admitting experimental testimony deduced from a
well-recognized scientific principle or discovery, the thing from which the deduction is made must be
sufficiently established to have gained general acceptance in the particular field in which it belongs.
Faizal Sir : Blood styollic test should not be considered to use as it is unconstitutional. For new
experiment to be applied to general use a) experiment b) demonstration has to be done. B) is accepted by
community but experiment on human body cannot be accepted in light of rights of an individual.
However this was overruled by daubert.

47. Daubert vs Merrel Dow Pharmaceuticals

Facts: Petitioners, two minor children and their parents, alleged in their suit against respondent that the
children's serious birth defects had been caused by the mothers' prenatal ingestion of Bendectin, a
prescription drug marketed by respondent. The District Court granted respondent summary judgment
based on a well credentialed expert's affidavit concluding, upon reviewing the extensive published
scientific literature on the subject, that maternal use of Bendectin has not been shown to be a risk factor
for human birth defects. Although petitioners had responded with the testimony of eight other well
credentialed experts, the court determined that this evidence did not meet the applicable "general
acceptance" standard for the admission of expert testimony. The Court of Appeals agreed and affirmed,
citing Frye v. United States, for the rule that expert opinion based on a scientific technique is
inadmissible unless the technique is "generally accepted" as reliable in the relevant scientific community.

Higher court: Frye's "general acceptance" test was superseded by the Rules' adoption. Judge, must make
a preliminary assessment of whether the testimony's underlying reasoning or methodology is
scientifically valid and properly can be applied to the facts at issue. Many considerations will bear on the
inquiry, including whether the theory or technique in question can be (and has been) tested, whether it
has been subjected to peer review and publication, its known or potential error rate, and the existence and
maintenance of standards controlling its operation, and whether it has attracted widespread acceptance
within a relevant scientific community.

Ratio: Court will check basis & background of expert’s opinion. Court is an expert of expert .There
should be a logical background of opinion. If opinion is logically indefensible, then court may put aside
the opinion by experts.

48. Martin F. D’Souza v Md.Ishfaq ( KAtju judgement)

Facts: The respondent reached Nanavati Hospital, Bombay and was under the treatment of the appellant
Doctor. The appellant constantly requested the complainant to get admitted to hospital but the respondent
refused. The respondent who had high fever finally agreed to get admitted due to his serious condition.
Later the respondent, despite the appellant's advice, got himself discharged from Nanavati Hospital.T he
respondent attended the Haemodialysis Unit and complained to the appellant that he had slight tinnitus
(ringing in the ear). The appellant has alleged that he immediately told the respondent to stop taking the
Amikacin and Augmentin and scored out the treatment on the discharge card. However, despite express
instructions from the appellant, the respondent continued to take Amikacin .Thereafter, the appellant was
not under the treatment of the appellant. The respondent later filed a complaint as his hearing had been
affected.

Held: A medical practitioner is not liable to be held negligent simply because things went wrong from
mischance or misadventure or through an error of judgment in choosing one reasonable course of
treatment in preference to another. He would be liable only where his conduct fell below that of the
standards of a reasonably competent practitioner in his field. The test in fixing negligence is the standard
of the ordinary skilled doctor exercising and professing to have that special skill, but a doctor need not
possess the highest expert skill. Considering the facts of the case we cannot hold that the appellant was
guilty of medical negligence.
Faizal sir: Mere negligence cannot be lead to applicability of 304 A. Reasonable skill is question of fact.
Human error can be a defence but inexperience of doctor can’t.

49. Roe vs Minister of Health (Medical negligence)

Roe and Woolley underwent surgery which was managed under the general supervision of the Minister of Health.
Before entering the operating theatre, an anaesthetic consisting of Nupercaine was administered. At that time, it
was common practice to store such anaesthetic in glass ampoules immersed in a phenol solution to reduce the risk
of infection. Unknown to the staff, the glass had a number of micro-cracks which were invisible to the eye but
which allowed the phenol to penetrate. When used, the phenol-contaminated anaesthetic caused
permanent paraplegia.

It was held that the micro-cracks were not foreseeable given the prevailing scientific knowledge of the time. Thus,
since no reasonable anesthetist would have stored the anesthetic differently, it was inappropriate to hold the
hospital management liable for failing to take precautions. That the profession had changed its practice in the light
of experience proved that the profession was responsible in its self-regulation. In 1954, anesthetists colored the
phenol with a dye. If a vial became contaminated, the dye showed inside the vial. These vials were then discarded.
But, given that the hospital was applying the best practice of the time, there was no negligence.

The risk was not foreseeable as it was an unknown risk at the time. Absence of foresight is limitation of medical
science.

50. R Vs. Dudley & Stephens ( Necessity)

There were 4 people in a life boat. 2 sailors, crook and cabin boy. Consuming water was not advisable. Cabin Boy
consumed the water and became the weakest. Boy was probably in a coma, Dudley told the others that it was better
that one of them die so that the others survive and that they should draw lots. Brooks refused. That night, Dudley
again raised the matter with Stephens pointing out that Parker was probably dying and that he and Stephens had
wives and families. Next day Dudley and Stephens silently signaled to each other that Parker would be killed.

The defendants were convicted of murder. The defence of necessity was not allowed. They were sentenced to
death but then granted a pardon by the Crown and served 6 months imprisonment.

Sir’s Notes: They claimed that that greater harm was prevented. Trial court sentenced them capital punishment.

Court held that necessity can’t be taken on the lives of the others and can’t justify human cannibalism. People will
start committing crime in shield of necessity. Person should sacrifice. Who have power to call for a necessity.
What should be an ingredient of comparing human lives. They accepted that people discriminated for rescuing no
fair procedure here.

R vs. Dudley and Stephens:

Facts from Pillai

Issues: Whether accused be allowed to avail the exception of private defence? Whether accused be allowed to avail
the defence of ‘necessity’?
Rule: Private Defense is only exercisable to preserve one’s own or another’s body or property against the unlawful
acts of aggressor. In present case, deceased didn’t commit any such unlawful act which could have afforded D & S
a justifiable exercise of RPD to kill deceased.

Self Preservation isn’t an absolute necessity, i.e. no person has a right to take another’s life to preserve his own
unless such right is justifiable as exercise of RPD. Court further explains by giving certain illustration:

In case of extreme hunger, it doesn’t afford a destitute a right to steal from others, let alone kill someone.

When two persons are drowning and one struggle with another to hold a plank, with capacity of only one, then if
one succeeds and another dies, such act would be justifiable in light of RPD not necessity.

There may be circumstances when men are ‘imposed’ with ‘moral necessity’ not of self preservation but of self
sacrifice, as in situation of a shipwreck, a captain has to his crew, crew to passengers and of soldiers and valorous
men to women and children.

The rule that self-preservation is no defence is applicable only in cases of private homicide and not when in
incident of war, State imposes duty upon its citizen to defend their country even to the extent of taking lives.

Since in present case, D & S deliberately killed unoffending and unresisting cabin boy merely to preserve their
own selves, such act amounted to murder even when exercised reasonably in good faith. However, their sentence
was mitigated to mere 6 months imprisonment in light of the compulsive circumstances.

51. US Vs Holmes
Accused person threw 16 people out of the boat. All of the male passengers, except for two married men and a
young boy, had been sacrificed, while all of the crewmen remained aboard

They accepted people discriminately for rescuing and no fair procedure was followed.

52. R Vs. Blaue – Refer 9

53. Southwark London Borough Council v Williams
The defendants, in dire need of housing accommodation entered empty houses owned by the plaintiff
local authority as squatters. They were claiming right to life also includes right to livelihood (Olga tellis).
The court while denying the defence of necessity held:
Denning: Squatters, in urgent need of accommodation, could not claim a defence of necessity because
the peril they found themselves in was “an obstinate and longstanding state of affairs,” rather than an
immediate or emergent threat. If homelessness were once admitted as a defence to trespass, no one’s
house could be safe. Necessity would open a door no man could shut. It would not only be those in
extreme need who would enter. There would be others who would invent a need, to gain entry. Necessity
will then simply become a mask for anarchy.
Court said that if this will legalized then offences like trespass will have to be removed. Necessity is a ground
cannot be granted.

54. ReA ( Children) : Conjoined Twins Case (2000) 4 All ER 961

Two conjoined twins were born to Roman Catholic parents. One of those twins, J, was capable of
independent survival; however, other M was too weak to survive independently. Together, both J and M
would have died in 6-7months. When parents refused to give consent to separation of twins, doctors
pleaded permission before the Court.
The Court observed:
Sanctity of Life principal: everyone's right to life should be protected by law and that no one should be
deprived of life intentionally save by procedure laid down by law.
Though parents had the right to determine the interests of their children, yet to ensure that the
performance of their duties was in best interest of child, Court has overriding power.
The operation, though, was in best interest of J, yet was fatal to M who would have certainly died in
consequence. Given the conflict, the court had to balance the interests of one against the other. The only
way to deal with it was to choose the lesser of the two evils and find the least detrimental alternative.
The best interests of the twins was to give the chance of life to J who was capable to independent survival
even when it was at the cost of sacrificing M’s life which was unnaturally supported.
The proposed operation would not in any event offend the sanctity of life principle. The harsh reality was
that M was killing J, albeit unintentionally. The availability of a plea of quasi self defence, modified to
meet the exceptional circumstances nature had inflicted on the twins, made intervention by the doctors
lawful.
Therefore, the Court approved the operation subject to being conducted lawfully and without any medical
negligence.

55. R vLoughnan( Very Very Important)

A prisoner was trying to escape. He claimed someone apprehended him that he will be killed by someone in the
night. So he took defence of necessity as he thinks he was saving a greater harm.

Issue: Apprehension of Injury

Court: Mere apprehension of future injury can’t be a ground of necessity. There should be a imminent danger.
Ingredients of necessity:

1) The seriousness of the harm which was being avoided . Harm should be irreparable.
2) The imminence of that harm or imminent Danger
3) The proportionality between the conduct of the accused and the harm which he was trying to avoid
4) Threatened harm caused under Human agency or physical harm.
5) No better alternative available
6) Prudent Man Test.

Rules laid down by this case were the elements of the defence were that —
(i) the criminal act must have been done in order to avoid certain consequences which would have
inflicted irreparable evil upon the accused or upon others whom he or she was bound to protect;

(ii) the accused must honestly have believed on reasonable grounds that he or she was placed in a
situation of imminent peril; and

(iii) the acts done to avoid the imminent peril must not be out of proportion to the peril to be avoided.

56. Bishambar Vs. Roomal ( Necessity)

Complainant (C) sexually assaulted on a chamar girl. About 200 people armed with lathis, being
frustrated with this incident, collected together with a view to give C thrashing. Co-accused intervened
and all people including C consented to abide by the punishment which self-proclaimed panchayat
(constituted by accused) will give against C.
With directions of Panchayat, C’s face was blackened and he was given shoe beating. In view of alleged
indignant treatment meted out to C, he sought relief from Court. Court held that the acts of accused were
within the general exceptions 81 and 87 of IPC:
Accused had intervened in good faith without any criminal intention but to arrive at an amicable solution
acceptable to both the parties; and but for their intervention grave consequences might have ensued.
Thus, their actions covered u/s 81 of IPC.
Having already suffered humiliation and disgrace in consequence of his indecent conduct being found
out, in order to avoid physical violence to his person, he consented to suffer further humiliation and
disgrace. Since the harm meted out to him was in his interest and with his consent, the act was covered
under S.87 of IPC.

57. Darshan Singh Vs State of Punjab ( Right to Private Defence)

Dispute on cultivation of land. One side X was carrying axe and other side Y and Z (father & son) were
standing. X striked father with his axe and believing father to be died Z the son shooted X with his
licensed gun where X died. In reality Y was not dead but suffered heavy injury and Z acted believing so.

Rule of proportionality will not apply. This case comes seven exceptions where death can be caused
while exercising private defence .Sc said that in this case apprehension of death was there so no rule of
proportionality applies. He will not be held liable as there exists reasonable apprehension of either death
or grievous hurt.

58. Amjad Khan vs State ( Right to Private Defence)

A communal riot broke out in a town between some Sindhi refugees and the local Muslims. The trouble
started in a locality where most of the shopkeepers were Sindhis. The goods in the Muslim shops
there were scattered and some Muslims lost their lives. Alarm spread to another locality where the
shops of appellant and his brother (both Muslims) were situated and the people there, including the
appellant,
Started closing their shops. The family of the appellant's brother had taken shelter in the appellant's
portion of the building through a hole in the wall between the two portions of the building in which the
two shops were situated. A mob collected there and approached the appellant's locality and
looted his brother's shop and began to beat the doors of his shop with lathis. Moreover, after amzad’s
shop was burnt Sindhis attacked outside the door of his house with their weapons. Amzad had gun he
shot twice in shutter gate due to which one person died & one was grievously hurt.
The appellant fired two shots from his gun which caused the death of one Sindhi and injured three other
Sindhis.
Issues:
1. He had RPD.
2. Whether proportionality rule applies?

Amzad: It was RPD. In addition, my act is justified. Imminent threat of death and grievous hurt.

There was a barrier. Court: The next shop to their house was looted in riots. There were family members
and in case there is a vulnerable group the interpretation of law should be made liberal. It is an
apprehension to body and property and also of grievous hurt. Theory of proportionality will not be
applied. It should be understood with perspective of victim.

Held, that the facts of the case afforded a right of private defence to the appellant under the provisions
of IPC. The circumstances in which he was placed were amply sufficient to give him a right of private
defence of the body even to the extent of causing death as the appellant had no time to have
recourse to the authorities and has reasonable grounds for apprehending that either death or
grievous hurt would be caused either to himself or to his family. These things could not be weighed
in too fine a set of scales or "in golden scales."

59. Sukar rao vs Emperor

Common wall b/w 2 houses. One filed for trespass and he wanted to demolish the wall.

Magistrate specifically gave order to a police officer that “ to see that the status quo is maintained”.

The police went to the accused building and attempted to demolish the wall of the building which was
resisted by the accused. The accused could exercise the right of private defence of property because the
police did not act in good faith. And hence section 99 was not valid.

60. Vishwanath vs State of UP

The relations between one G and his wife were strained and she went to live with her father B and her
brother V, the appellant. G, with three others, went to the quarter of B and he went inside and came out
dragging his reluctant wife behind him. She caught hold of the door and G started pulling her. At this
the appellant shouted to his father that G was adamant and thereupon B replied that he should be beaten.
The appellant took out a knife from his pocket and stabbed G once. The knife penetrated the heart of G
and he died. B and the appellant were tried for the murder of G; B was acquitted and the appellant was
convicted under S. 304 The appellant contended that he had RPD un sec 100 which extended to the
causing of death as G had assaulted his wife with the intention of abducting her. The respondent urged
that s. 100 applied only when the abduction was of such a nature as was punishable under IPC.

All court said RPD was excess. SC : nature of assault. If X given one blow to Y, sometimes it is
presumed that there was no mens rea.

Issues: Whether killing is justified? Can abduction is said to be a ground of killing?

Abduction is of two types: 1. Unlawful 2. Abduction under lawful or matrimonial state.

Section 100 covers both types of abduction. Abduction here is used in practical sense. Rule of
proportionality is fixed. Women has danger of grievous hurt. His brother was given RPD. There is no
prior planning. Rule of proportionality doesn’t apply here. This is among seven grounds. The appellant
had the right of private defence of the body of his sister which extended to the causing of death of G.
The word " abduction " used. In the fifth clause of s. 100 meant nothing more than what was defined
as "abduction " in s. 362, and it was not necessary, to get the protection of this clause, that the
abduction must be of a type punishable under the Penal Code

61. Yeshwantrao vs state of MP

The incident took place at about 10 O'clock in the night. It took place on the rear side of the house of the
appellant close to the latrine which was engrossed in darkness. Half an hour before the incident Chhaya
who was 15 years of age had gone to the house of the deceased to call him and for the same reason the
deceased might have come to the house of the appellant and with the consent of Chhaya was doing sexual
intercourse with her on the rear side of the house. According to Sessions court appellant might have seen
the deceased Lakhan doing sexual intercourse with his daughter and on seeing such an act being
performed, any father could easily lose control of himself and assaulted the deceased due to grave and
sudden provocation.

It can be easily found out that the attempt of rape or actual sexual intercourse was not fully complete and
it is in that state of affairs that the appellant is alleged to have assaulted the deceased with spade on his
head. As per the medical evidence the cause of death is not by spade but it was due to the rupture of the
liver which could be either by fall on hard object, as the appellant stated that the deceased tried to run
away but hit against the wall and fell on the ground or it could be as a result of blow given by the
appellant. The fact remains that the right of private defence is extendable to the facts of the present case
when the daughter of the appellant was being sexually molested.

Appellant has RPD. Exception of Unnatural Lust.

62. Cherubin Gregory vs Bihar ( Not that imp) Illustrative case

Facts: The appellant was charged under s. 304-A of Indian Penal Code for causing the death of a woman. The
deceased was residing near the house of the accused. The wall of the washroom of the house of the deceased had
fallen down about a week prior to the day of occurrence and so the deceased along with others started using the
latrine of the accused. The accused protested against their coming there. The oral warnings however, proved
ineffective and so he fixed up a naked copper wire across the passage leading up to his washroom and that wire
carried current from the electrical wiring of his home to which it was connected. On the day of the occurrence, the
deceased went to the washroom of the appellant and there she touched the aforesaid fixed wire as a result of which
she died soon after. The trial and the appellate court convicted and sentenced the appellant under S. 304A

The accused used the defence was RPD of property. The court held that he was guilty and was not entitled to cause
serious injury to a trespasser as in this case.

Ratio: Mere fact that the person entering a land was a trespasser did not entitle the owner or occupier to inflict
on him personal injury by direct violence. The same principle would govern the infliction of injury by indirectly
doing something on the land the effect of which he must know was likely to cause serious injury to the trespasser.
SC upheld conviction.

A rule was used : if X is performing under stage. If Y shoots X and X in returned shoots Y for rpd, he will be
allowed to risk innocent lives.

63. Puran Singh vs State of Punjab

Trespasser has rights in three conditions against owner.

1. Actual physical possession over a long period. This is a question of fact. If trespasser has
cultivated crops in land.
2. Possession of trespasser must be a known to lawful owner.

Animus Possidendi: Intention of trespasser to own.

3. Process of dispossession of the lawful owner must be valid is final.

4. If there is two property of X. Moreover, X is the owner of both properties. X cannot use force
against Y but file a suit in civil court.
64. Munshi Ram vs Delhi Administration
Munshi ram purchased a public property. He received the certificate of possession. Already a trespasser –
residing MR entered the land to evict out trespasser. Trespasser used force to get him out (lawful owner).
MR claim physical assault. Trespassers claimed to RPD to property. Court held:

In this the person who was in possession of the field on established that he continued to be the tenant of
the land even after the sale in favour of A. After the issue of the sale certificate to A, the
Government had no interest in the land and the managing officer was not therefore competent to evict
him.

RPD applies, as a proper legal mechanism should be allowed.

65. Hukum Singh vs State of Uttar Pradesh ( Last case of RPD)

Y has trespassed land of X for usage of highway. Y is sort of using this property as shortcut. X stops Y
and Y want to go back. X said that Y has to take longest route. Once you have trespassed the land of X he
cannot act trespass on trespass. He is obliged to follow the longest route otherwise; it will be called as a
continuing trespasser.

66. Hiralal Mallick vs State of Bihar ( Infancy) IMp

Accused (A), along with his brothers, delivered many superficial injuries with a sharp weapon to victim
(D) resulting in latter’s death, for revenging earlier attack on his father. After the incident, he along with
his brothers ran away from the site of incident.
A, being 12 years of age, pleaded defence u/s 83, IPC contending his immaturity to understand either the
nature or wrongness of the act committed. It was further contended that his actions were spurred and
urged by his brothers and he only inflicted superficial injuries.
Court observed:
Unless rebutted by reasonable evidence of 'mischievous discretion' i.e., knowledge that what was
done was morally wrong, mens rea of accused must be adjudged in light of presumption of law that a
person intends the natural and reasonably probable consequences of his act.

Use of sharp weapon, infliction of several injuries (albeit superficial), motive of revenge, and absconding
after committing the offence clearly establish that A had capability to understand and very well knew that
the act committed was morally wrong. Therefore, A was held guilty of murder, but his sentence reduced
on humanitarian grounds.
67. State of WB vs Shew Mangal Singh
The deceased and his brother were shot dead by the police and murdered brutally. Defence version was
that the mob attacked the senior police officer and orders were given by deputy commissioner to open
fire.

Held: the police constables were bound by law under 76 to obey the orders of the seniors, so they will
not be held liable.
However, there are certain critiques of this judgement as the person will not be absolved from the
liability unless he shows that the orders were lawful and binding on him and he in good faith believed
that he is bound to follow the laws.

68. Abdul Sattar vs crown ( infancy)

A minor bw 7-12 years committed theft by breaking the locks of the shop. This act can show the maturity
of person according to plaintiffs. Previous conduct has to keep in mind while deciding maturity.

Held: It can be inferred from the nature of the act and subsequent conduct aligned with the other factors
such as his demeanor and appearance in the court. It need not be proved by positive evidence.

69. Pratap Singh vs Jharkhand

Before this case , umesh Chandra vs State of rajasthan , held that the relevant date for applicability of the
act is the commission of crime and not the date of the trial. However, Sc in Arnit Das vs State of Bihar
held that the date should be the one on which the accused is produced before the trial.
The reckoning date for the determination of the age of the juvenile is the date of an offence and not the
date when he is produced before the authority or in the Court.
To render a document admissible under Section 35 of IEA, three conditions must be satisfied, firstly,
entry that is relied on must be one in a public record,
secondly, it must be an entry stating a fact in issue or relevant fact,
and thirdly, it must be made by a public servant in discharge of his official duty
An entry relating to date of birth made in the school register is relevant and admissible under Section 35
of the Act but the entry regarding to the age of a person in a school register is of not much evidentiary
value to prove the age of the person in the absence of material on which the age was recorded.

70. Bhoop Ram vs State of UP

Relying on school certificates, accused contended his age to be approximately 15 years. However, as per
radiological examination and physical features, CMO ( Chief Medical officer) concluded that his age was
approximately 18 years at the time of commission of offence.
SC held that school certificate should prevail as evidence over CMO’s prognosis as: Firstly, unlike
CMO’s examination which yields approximate results, School certificate adduced by accused
categorically mentions his date of birth. Secondly, prosecution to hold that the school certificate does not
relate to A or that the entries therein were incorrect produced no material. Thirdly, CMO opinion is based
only on an estimate, not a fact, and there is high possibility of an error.

71. Gopinath Ghosh vs State of WB

The appellant for the first time in the Supreme Court raised the plea of his being minor and beneficiary of
WB Children Act against criminal proceedings for crime of murder.
Court held:
Ordinarily, the Supreme Court would be reluctant to entertain a factual averment for the first time before
it. However, the court is equally reluctant to ignore or nullify the beneficial provisions of a socially
progressive statute for non-observance of procedural technicalities, particularly when A.39(f) of
Constitution directs State to secure freedom and dignity for youth and protect it against exploitation or
moral or material abandonment.
The SC therefore directed sessions court to inquire into the age of the accused. And later the accused was
held to have protection under the act and conviction was put aside.

72. R vs McNaughter
Mc was frustrated & depressed from his life. He had personal, political, economic problems. He thought
the reason was PM of the country. If a person is depressed, he tries to take defence of insanity. Moreover,
he decided to kill PM. He went to his event & his secretary was killed as he thought that secretary was
PM. Prosecutors claimed of transferred Malice.

For the first time defence of permanent / Momentary, delusion was taken up the cause. HOL was referred
but without an appeal. They took it due to protests. Five questions were asked in the case: Refer copy.

Principles:

1) Every man is to be presumed to be sane, and capable of knowing the nature and consequences of the
act, unless rebutted to court’s satisfaction;

2) To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the
committing the act, the party accused was laboring under such a defect of reason, from disease of the
mind, as not to know the nature (James Stephen’s example of cutting the head of sleeping person) and
quality (lighting hay-knowing blaze-but no consciousness of destruction of life and property) of the act
he was doing; or, if he did know it, that he did not know what he was doing was wrong.

3) If a person under an insane delusion as to existing facts, commits an offence in consequence thereof,
his culpability is to be determined after assuming his delusion to be real.

For example, if under the influence of his delusion he supposes another man to be in the act of attempting
to take away his life, and he kills that man, as he supposes, in self-defence, he would be exempt from
punishment.

4) Medical evidence cannot, in strictness, be sought to state the prisoner’s state of mind at the time of
commission of offence because such a question involves the determination of truth of facts which the
trial is to determine. But where the facts are admitted or not disputed, and the question becomes
substantially one of science only, it may be convenient to follow the expert advice.
73. Srikant AnandRao Bhosale vs State of Maharashtra ( insanity)
Page 107-108 pillai page 66 of own notes

74. State of MP vs Ahmedullah( insanity)

Page 106 Pillai page 66 of own notes

75. Anandi vs Emperor

Accused slit the throat of a child when she was alone with her in home. She then changed her clothes and
tried to remove the blood stains on her clothes by washing.
When other family members returned, they found the door to be inside locked. However, A opened the
door upon being called. She then attempted to run away either to escape or to jump in well. However, she
was caught hold of. When others saw the body of child with throat slit, they asked A who replied that she
had destroyed child’s sins.
When the matter was reported to police, P.O. when interrogated her, he got answers which he considered
rational. However, prior to trial, doctors had informed court that A was insane and the trial was thus
postponed till she recovered in mental asylum. A was found to have suffered from fits of insanity prior to
commission of offence. Further, her F and GF also had suffered from fits of epilepsy.

The issue was whether the A was insane at the specific time of commission of offence. Considering the
whole evidence on record, Court, upon balance of probabilities, found that A was insane at the time of
commission of offence. In fact, the court considered the evidence of concealment of offence by washing
her clothes as the ‘half-witted’ one as the body of child with its throat cut was lying on bed all the time.

76. Lakshmi Vs State ( Important) ( overruled 74.)

Lakshmi was an addict and to satisfy his urge, he used to ask deceased, his step brother, for money.
However, latter used to refuse, even to the extent of tying up accused with ropes for preventing him to
purchase any alcohol. Thus, there were strained relations b/w accused and deceased. One day, accused
attacked deceased with lethal weapon such that latter died out of shock and haemorrhage as a result of
injuries sustained. After the hue and cry, accused absconded, however, later surrendered himself.
It was urged before the Court that accused, being an addict and suffering from delusions, didn’t know
that what he was doing was wrong.

Court held that “…the significant word in the above section is "incapable"…the accused should be
"incapable" of knowing whether the act done by him is right or wrong. The capacity to know a thing
is quite different from what a person knows. The former is a potentiality, the latter is the result of it. If a
person possesses the former, he cannot be protected in law, whatever might be the result of his
potentiality (Ashirrudin Ahmed v. Emperor overruled)”

“…Further, ‘Legal insanity’ is not the same thing as ‘medical insanity’ and a case that falls within the
latter category need not necessarily fall within the former. Further, the case where a murderer is struck
with an insane delusion is different from the case of a man suffering from organic insanity. A person
labouring under specific delusions, but in other respects sane, shall not be acquitted on the ground
of insanity, unless the delusions caused him to believe in the existence of some state of things which,
if it existed, would justify or excuse his act.”

Thus, the Court observed that presence of motive on his part and his conduct immediately prior and
subsequent to incident do not support the contention that he was of unsound mind (suffering from legal
insanity) at the time when offence was committed, even though he may have been suffering from medical
insanity or irresistible urge at that time such that his knowledge of wrongness of his act might have been
impaired but his capacity did not.

77. Dayabhai Chhaganbhai Thakker v State of Gujarat ( Insanity)

Accused (H) didn’t like his wife (W) and wanted his father-in-law to take her back. However, instead
of doing so, his father-in-law tried to resolve their disputes through H’s father.
On one fateful night, H and W bolted their door from inside to sleep. After some time, W raised
alarm. Eventually villagers gathered and requested H to open the door. But, H refused till some Mukti
arrives. When the door opened, W was died due to many injuries and H was holding the incriminating
weapon.Defense contended that H was suffering from unsoundness of mind. However, H had no
antecedent history of insanity.
Before the Sessions Judge a defence was set up that the appellant was insane when the incident took
place and was not capable of understanding the nature of his act. The Sessions Judge rejected
the plea of insanity and convicted him under s. 302 .On appeal the High Court confirmed the
conviction
Supreme Court observed:
The doctrine of burden of proof in the context of the plea of insanity may be stated in the following
propositions: The prosecution must prove beyond reasonable doubt that the accused had committed
the offence with the requisite mens rea; and this burden of proof always rests on the prosecution from
the beginning till the end.
In the sense of S.84,IPC (vide S.105+S.4 of IEA), there is a rebuttable presumption that the accused
was absolutely sane when he committed the offence. It may be rebutted by Court’s considering of
relevant evidence on record in light of balance of probabilities.
Even if the accused is not able to establish conclusively that he was of unsound mind at the time he
committed the offence, the prosecution’s burden will not be discharged if accused’s evidence raises a
“reasonable doubt” in the mind of court of his being insane, after having adjudged the circumstances
so alleged in light of standard of ‘prudent man’.

In present case, presence of motive (H was frustrated by his wife), existence of the weapons in the
room, bolting the door from inside, H’s reluctance to come out till Mukti arrives indicate that it was a
premeditated murder and that he knew that if he came out of the room before the Mukhi came he
might be manhandled. Therefore, defence’s evidence was held not sufficient even to throw a
reasonable doubt in mind of Court that accused was insane when committing offence.
.
Ratio: There is no conflict between the general burden to prove the guilt beyond reasonable doubt, which
is always on the prosecution and which never shifts, and the special burden that rests on the accused
to make out his defence of insanity. The prosecution must prove beyond reasonable doubt that
the accused had committed the offence with the requisite, mensrea; and the burden of proving that
always rests on the prosecution from the beginning to the end of the trial. (2) There is a rebuttable
presumption that the accused was not insane, when he committed the crime, in the sense laid down by s.
84 of the Indian Penal Code: the accused may rebut it by placing before the court all the
relevant evidence-oral, documentary or circumstantial, but the burden of proof upon him is no higher
than that which rests upon a party to civil proceedings. (3) Even if the accused was not able to
establish conclusively that he was insane at the time he committed the offence, the evidence
placed before the court by the accused or by the prosecution may raise a reasonable doubt in the mind of
the court as regards one or more of the ingredients of the offence, including mens rea of the
accused and in that case the court would be entitled to acquit the accused on the ground that
the general burden of proof resting on the prosecution was not discharged.
78. Surya Prasad Rout v State of Orissa( Insanity)

Facts: The petitioner was residing in the house of his sister who happens to be a nurse in the hospital.
Victim went to a short distance to see off her friends while coming back from school and while she was
returning the petitioner came from a nearby place in a threatening attitude where he caught hold of her
left hand and stabbed a knife on her right stomach, waist and when she fell down when the petitioner
gave some blows on her face.
Petitioner argued that she used to come to his house for lessons and he was treating her as his younger
sister. He never gave any proposal for marriage. He has taken further plea of insanity at the time of
occurrence.
Ratio: The crucial point of time for ascertaining the state of mind of the accused is that time when the
offence was committed. Whether the accused was in such a state of mind as to be entitled to the benefit
of Section 84 of I.P.C. can only be established from the circumstances which preceded, attended and
followed the crime. the accused will have to rebut the presumption that such circumstances did not exist,
by placing material before the court sufficient to make it consider the existence of said circumstances so
probable that a prudent man would act upon them.s The accused had to satisfy the standard of a prudent
man. If the material placed before the court, such as, oral and documentary evidence, presumptions,
admissions or even the prosecution evidence, satisfies the test of prudent man, the accused will have
discharged the burden. Petitioner created a doubt to prove his insanity beyond reasonable doubt and
hence acquitted. This case followed rules by case 77.
Pattern of the crime, the circumstances under which it was committed, the manner and method of its
execution, behavior of the offender before or after the commission of the crime—whether there was
deliberation and preparation for the act; whether it was done in a manner which showed desire to conceal;
whether after the crime, the offender showed consciousness of guilt and made efforts to avoid detection,
etc. along with circumstantial evidence consisting of the previous history of the accused and the
motivation for crime furnish important clues to ascertain whether the accused had no cognitive faculty to
know the nature of the act or that what he was doing is either wrong or contrary to law.
On basis of aforesaid observation, Court held that since A was hospitalized immediately 3 days prior to
crime in relation to treatment of his insanity, reasonable doubt was created in Court’s mind as to A’s
being insane at the time of commission of offence.

79. Sudhakaran v State of Kerala

Facts: The appellant herein was convicted and sentenced to rigorous imprisonment for life under Section
302 IPC for murdering his wife. He had killed his wife by assaulting her with a chopper on her neck in
the bedroom of his house. There is no direct evidence of the murder. However, the injuries noticed in
post mortem report are not disputed. The appellant had taken the defence of insanity based on Section
84 IPC.
The appellant with the intention of killing his wife, had struck her on her neck with a chopper when she
was in the bedroom of his house. an individual saw when the appellant approached to him that he was
carrying his child in one arm and carrying a chopper in the other hand. He said, “I have child in my hand.
Kindly hold him. I am going to the police station."
The trial court concluded that there is no material to indicate that at the time of the commission of the
offence or immediately before the occurrence of the incident, the appellant was suffering from any
mental illness. Although he had taken some treatment in the year 1985 for mental illness but he had fully
recovered from that.
Appellant showed that he had been treated for paranoid schizophrenia, 11 days after the alleged murder.
Even during the trial, the appellant had to be taken to the mental hospital.
Held: The entire medical evidence produced was not sufficient to show that at the time of the commission
of the murder the appellant was medically insane and incapable of understanding the nature of the
consequences of the act performed by him. The blood stained chopper remained in the possession of the
appellant till he was asked to put the same on the ground.
He should be held liable.

80. Ashiruddin Ahmed vs Emperor(Last case of Insanity overruled by 76)

Accused (a Muslim) after having been commanded, in his dream, to sacrifice his own son, took his son to
mosque and killed him there (he knew ‘nature’ of act, i.e. killing his son). He then went straight to his
uncle, but, finding a chaukidar nearby took his uncle to a tank at some distance and slowly told him the
story (he knew what he did was contrary to law).

It was observed that for getting the benefit of Section 84 accused should be able to establish that he was
prevented from unsoundness of mind from knowing either: (1) the nature of the act; or (2) that the act
was contrary to law; or (3) that the act was wrong.
Since accused was laboring under an illusionary belief that his dream was a reality; he sacrificed his son
believing it to be God’s command and thus morally right such that immediately after the incident he
confessed it before his relatives and even Court, the third element was held proved and accused was
acquitted vide S.84.
81. State of Bombay vs FN Balsara .( intoxication)
Intoxication case not that relevant as deals with state and union list. Can be read under consti.

Facts: Bombay passed legislation prohibiting the alcohol consumption selling etc. Constitutionality was
challenged. Court held to lift prohibition because people are already consuming the same even after the
ban.

This case determines that sec. 85 can be a complete defence however sec 86 imputes an assumption of
knowledge . Moreover, a person can be discharged if it is proved that no element of intention or
knowledge was present.

82. Basdev Vs Pepsu .( intoxication)

A retired military officer was charged with the murder of a young boy of 15 or 16. Both of them and
others of the same village attended a marriage party. All of them went to the house of the bride to attend
the mid-day meal. Some had settled down in their seats and some had not. Accused (A), who was
voluntarily drunk, shot dead D, a boy, on his refusal to step aside so that A may occupy a convenient
seat.
The injury proved fatal. The evidence showed that the accused sometimes staggered and sometimes was
incoherent in his talk. However, it was shown that he was capable of moving himself independently and
was capable of talking coherently as well. The evidence proved that he came on his own to the house of
the bride and that he made the choice of his own seat after injuring the deceased, he attempted to get
away and was secured a short distance from the scene. When he was secured, he realized what he had
done and asked for forgiveness. Defense sought relief u/s86, IPC contending lack of A’s intention to kill
D.

All these facts, according to the SC, go to prove that there was no proved incapacity on the accused to
form the intention to cause bodily harm sufficient in the ordinary course of the nature to cause death. In
view of his failure tom prove such incapacity, the law presumed that he intended the natural and probable
consequences of his act. In other words, he intended to inflict bodily injuries on the deceased and the
bodily injuries so intended to be inflicted, was sufficient in the ordinary course of nature to cause death.
The accused was found guilty of murder.
Court observed:
The import of S.86 is that in cases of voluntary drunkenness, “court must attribute to the intoxicated man
the same knowledge as if he was quite sober but so far as intent or intention is concerned, the court must
gather it from the attending general circumstances of the case (like, nature of instrument used, nature of
injury inflicted, ) paying due regard to the degree of intoxication. If the man was beside his mind
altogether for the time being, it would not be possible to fix him with the requisite intention. However, in
cases where the evidence of drunkenness falls short of proved incapacity to form the specific intent
necessary to constitute crime, Court will uphold the presumption that a man intends the natural
consequences of his acts.

In the present case, although A was under influence of alcohol to the extent of impaired balance, his mind
wasn’t obscured to such an extent that he was incapable to form the specific intent to kill D. this is
because, he not only made a choice for his seat and thus, asked D to move away but after shooting at D
he attempted to abscond.
Here, A failed to rebut the presumption (that he intended natural foreseeable consequences of his act) by
adducing evidence to prove his incapacity to form the specific intent while committing offence. Thus, A
was charged with Murder.

83. Prakash Rama More v State of Maharashtra

No clues of case

84. Jethu Ram Shukla Vs State of MP ( Last case of Intoxication)

Facts: The appellant (accused) Jcthuram has been convicted by the Second Additional Sessions Judge,
Bilaspur, under Section 302 of the Indian Penal Code for committing the murder

Principles Followed : Where a man breaks the words of the law by involuntary ignorance, there he shall
not be excused. As if a person that is drunk kills another, this shall be felony, and he shall be hanged for
it. However, if he did it through ignorance, for when he was drunk he had no understanding nor memory;
but inasmuch as that ignorance was occasioned by his own act and folly, and he might have avoided it, he
shall not be privileged thereby. Voluntary drunkenness is no excuse for crime. If a party be made drunk
by stratagem, or the fraud of another, he is not responsible."

The expression "without his knowledge" presents no difficulty. It simply means 'in ignorance of the fact
that what is being administered to him is or contains or is mixed with an intoxicant.' Consequently, where
the intoxicant is administered to the accused by stratagem or fraud of another, as when mixed with his
food or drink, and given to him in confidence, he is excused. The act of drinking was his own act for
which the immediate force was his own free will. The act of persuasion could not and did not make the
act of drinking the act of anybody else than the doer's. But if a person were put in fear of immediate
physical danger and then made to drink, the act cannot be said to be his. Similarly, when he is bound
hand and foot and then the intoxicant is literally "poured down his throat, the mere reflex act of
swallowing cannot make the drinking of the intoxicant his own act performed out of his own free will.

Held: Even though the accused might have been drunk to a certain extent, he could not, under the
circumstances, claim any benefit under the provisions of Section 85 of the Indian Penal Code.

85. Dasrath Pasvan Vs State of Bihar ( Section 87+300)

Accused (A), having faced failure in life, was adamant to end his life. However, his wife (D) urged him
to first kill her and then kill himself. With this thought, A killed D and was going to kill himself when he
was caught by police.
Defense urged that as D willfully consented for her death at hands of A, therefore, A should only be
charged for CH not amounting to Murder (vide Exception 5, S.300, IPC). However, prosecution
contended that prospect of widowhood ‘pressurized’ her to consent to her death at hands of her husband,
A.
However Court held that since D gave consent for her death neither under fear of injury nor under a
misconception of fact, such consent was valid in eyes of law, (vide S.90, IPC). Thus, appellant was
convicted under 1st part of S.304, IPC.

86. R vs Brown ( Consent)

Five of the appellants of the case engaged in sadomasochistic sexual acts, consenting to the harm which
they received. While none of these individuals complained against any of the acts in which they were
involved, they were uncovered by an unrelated police investigation. Upon conviction, the appellants
argued that they could not be convicted under the Offences against the Person Act 1861, as they had in
all instances consented to the acts they engaged in.
Court held that since consent was given and the act was in private so they should not be held liable.
Two judges dissented. Faizal argument: The main issue of consent is not justified in this case as sexual
pleasure deriving from pain is against society’s morality. There is nothing unreasonable about preventing
people from repeatedly inflicting grievous bodily harm upon others, merely because they want to repeat
the ephemeral sexual thrill it gives them

87. Veeda Menezes Vs Yousuf Khan ( trivial95)

Page 139 Pillai

In the course of an altercation between neighbours the first respondent slapped the appellant's servant and
threw a file of papers at the appellant's husband which missed him but hit the appellant on the elbow,
causing a scratch. On a prosecution being launched the Presidency Magistrate convicted the
first respondent under s. 323 of the Indian Penal Code. The High Court however held that the
offending act came within the General Exception in s. 95 of the Indian Penal Code as it was trivial.
In appeal to this Court the appellant contended that: (1) Section 95 applies only when the act of
the accused is accidental and not deliberate; (2) the section cannot be invoked if the harm caused consists
of physical injury.

HELD:(i) It cannot be said that harm caused by doing an act with intent to cause harm or with the
knowledge that harm may be caused thereby will not fall within the terms of s.95.

(ii) There is nothing in s. 95 to justify the contention that the word 'harm' as used in that section
does not include physical injury. Sec95 is a general exception and that word has in many other
sections dealing with general exceptions a wide connotation inclusive of physical injury. There
is no reason to suppose that the Legislature intended to use the expression 'harm' in s. 95 in
a restricted sense.

(iii)Whether, an offence is trivial must depend on the nature of the injury, the position of
the parties, the knowledge or intention with which the offending act is done,and other related matters
Nature of injury, position of parties, mens rea and other related circumstances will decide the threshold to
trivial acts.

88. Rupan Deol Bajaj Vs KPS Gill ( outraging the modesty not trivial un95 )
Rupen Deol Baja was at that time Officer of the Indian Administrative Service (I.A.S) belonging to the
Punjab Cadre. She filed complaint against Gill un 341,342,352,354 and 509 IPC. Gill in one party called
out to her and asked her to come and sit next to him. He pulled the chair on which she was going to sit
and later crooked his finger to ask her to come along with him. He later blocked her way and she could
not get up from chair without touching him. She threw chair back after which Gill slapped her. High
court held that the nature of harm made this act as trivial issue. SC held that when an offence is related to
outraging the modesty un sec 354 then it cannot be termed as trivial in any case. The ultimate test to
check whether modesty has been outraged is whether the criminal force or assault done on victim is
capable of shocking the sense of decency of a woman.

89. State of Karnataka vs Lobo Medicals ( 95)

Page 141 Pillai

90. Mobarak Ali vs State of Bombay ( Jurisdiction Of IPC)

Page 319 Pillai

91. Salomon vs Salomon Co. ( jurisdiction of IPC)

Facts: Solomon was a leather merchant who converted his business into a Limited Company as Solomon
& Co. Limited (the ‘company’). The company so formed consisted on Solomon, his wife and five of his
children as members.T he company in less than one year ran into difficulties and liquidation proceedings
commenced. The assets of the company were not even sufficient to discharge the debentures (held
entirely by Solomon himself). And nothing was left for unsecured creditors. The liquidator on behalf of
unsecured creditors alleged that the company was a sham and mere alias or agent for Salomon.

Court of appeal: shareholders of Salomon & Co Ltd. were not intended to legalize the pretended
association for the purpose of enabling an individual to carry on his business within; limited liability in
the name of joint stock company.”

HOL: the company is different person altogether from subscribers… and, though it may be that after
incorporation the business is precisely the same as it was before and same persons are managers, and
same hand receive the profit, the company is not agent for subscriber or trustee for them. the business
belonged to the company and not to Solomon rather Solomon was its agent. The company was not agent
of Solomon. The legal fiction of corporate veil, thus established, enunciates that a company has a legal
personality separate and independent from the identity of its shareholders.9 Hence, any rights, obligations
or liabilities of a company are discrete from those of its shareholders, where the latter are responsible
only to the extent of their capital contributions, known as "limited liability"

92. State of Maharashtra vs Syndicate Transport Company( Jurisdiction)

Page 55 page 321 pillai page 77 own notes

93. Superintendent of Legal Affairs WB vs Corporation of Calcutta( jurisdiction)

page 321 pillai page 77 own notes

94. Om Hemrajani Vs. UP ( Section3-4)

Page 326 pillai & 77 of own notes

95. Barendra K Ghosh Vs. Emperor( common intention 34)

This case is also known as the ‘Post Master Case’. In this case, the accused Barendra with other three
persons went to post office at about 3.30 pm armed with firearms. The accused stood outside the post
office while others three entered the post office through the backdoor of office. They asked post master
Amrita Lal Roy to give the money which he was counting. When he refused, then others three opened
fire from the pistol and fled from the place. As a result of which he died almost immediately. Seeing
others running the accused also ran away by air firing with his pistol. But he was chased and caught by
post office assistant. He was charged with others under s.302 (murder to post master) and s.394 (causing
hurt in doing robbery) with s.34 in common intention of all. He contended that he was only standing
guard outside the post office and he did not have the intention to kill the post master. Calcutta High Court
confirmed his conviction of murder under s.302 with s.34. In the appeal before the Privy Council, Lord
Sumner dismissed the appeal against the conviction and held that – “criminal acts means that unity of
criminal behavior which results in something for which an individual would be responsible, if it were all
done by himself alone, that is, in criminal offence.”

96. Priya Patel Vs State of MP( common intention 34)

Facts: When victim reached her destination at Sagar, accused Bhanu Pratap Patel (husband of the accused
appellant) met her at the railway station and told her that her father has asked him to pick her up from the
railway station. Since the prosecutrix was suffering from fever, she accompanied accused to his house.
He committed rape on her. When commission of rape was going on, his wife, the present appellant
reached there. The prosecutrix requested the appellant to save her. Instead of saving her, the appellant
slapped her, closed the door of the house and left place of incident.

Question: Can a lady be prosecuted for gang rape ?

High court: Though a woman could not commit rape, but if a woman facilitated the act of rape, she could
be prosecuted for gang rape. Explanation-I to Section 376(2) comes into operation and she may be
prosecuted for gang rape.

Supreme court: The Explanation only clarifies that when a woman is raped by one or more in a group of
persons acting in furtherance of their common intention each such person shall be deemed to have
committed gang rape within this sub-section (2). That cannot make a woman guilty of committing rape.
The Explanation only indicates that when one or more persons act in furtherance of their common
intention to rape a woman, each person of the group shall be deemed to have committed gang rape. By
operation of the deeming provision, a person who has not actually committed rape is deemed to have
committed rape even if only one of the group in furtherance of the common intention has committed
rape.

The rule is based on the principle of common intention as provided in section 34 of the IPC. Common
Intention denotes acts done in postulation as per a pre arranged plan or in pursuance of prior meeting of
minds. When this section is applied to section 376 (2) (g), it may require fulfilment of the common
intention which in such a case may be common intention to rape. Since such intention may not exist with
a woman, as given in the definition, a woman may not be held liable for gang rape as well.

SC also quashes charges for abetment as these charges has to be raised in trial or high court which was
not done.

97. Mehboob Shah vs Emperor ( common intention 34)

1. Facts of the Case Allah Dad, deceased, with a few others left their village. On the way they saw Mahbub
Shah, father of Wali Shah (absconder) who warned them against collecting reeds from land belonging to
them. Ignoring which they collected reed from their land. • While returning, Ghulam Quasim Shah,
nephew of Mahbub Hussain Shah stopped them and pulled the boat with a rope and asked to return the
reeds. • Allah Dad picked up the Iari from the boat and struck Quasim Shah. Quasim Shah then shouted
out for help and Wali Shah and Mahbub Shah came up. • When Allah Dad and Hamidullah tried to run
away, Wali Shah and Mahbub Shah came in front of them and Wali Shah fired at Allah Dad who fell down
dead and Mahbub Shah fired at Hamidullah, causing injuries to hint.
2. 3. Issues • Whether the appellant has been rightly convicted of murder upon the true construction of
Section 34 of the Indian Penal Code ? • Whether a common intention to commit the crime which was
eventually committed by Mahbub Shah and Wali Shah came into being when Ghulam Quasim Shah
shouted to his companions to come to his rescue ?
3. 4. Observations • Ghulam Quasim had no common intention of killing any member of the
complainant party as he did no more than ask his companions to come to his assistance when he was
attacked with a pole by the deceased: and that "he could not have been aware of the manner in
which assistance was likely to be rendered to him or his friends were likely to shoot at and kill one
man or injure another. • Mahbub Shah and Wali Shah stood in different footing. It is difficult to believe
that when they fired the shots they did not have the common intention of killing one or more of the
complainant party. If so, both of them are guilty. • Common intention within the meaning of the section
implies a pre-arranged plan, and to convict the accused of an offence applying the section it should be
proved that the criminal act was done in concert pursuant to the pre- arranged plan.
4. There was no evidence and there were no circumstances from which it might be inferred that the appellant
must have been acting in concert with Wali Shah in pursuance of a concerted plan when he along with him
 rushed to the rescue of Ghulam Quasim. • The sole point which requires consideration now is whether a
common intention to commit the crime came into being when Ghulam shouted to his companions to come
to his rescue and both of them emerged from behind the bushes and fired their respective guns. • The
appellant and Wali Shah had the same intention, viz, the intention to rescue Quasim if need, be by using
the guns, Evidence falls far short of showing that the appellant and Wali Shah ever entered into a pre-
meditated concert to bring about the murder of Allah Dad. Care must be taken not to confuse “same or
similar intention” with “common intention”.
5. 6. Judgement • For the reasons indicated above their Lordships have humbly advised His Majesty that the
appellant having succeeded in his appeal, his appeal should be allowed and his conviction for murder and
the sentence of death set aside.

98. Dukhmochandan Pandey vs State of Bihar( common intention 34)

The complainant had sent about 20 labours to his field for transplanting paddy. On the mid day the
accused party came as a mob of about 200 people armed with various deadly weapons. They asked
labourers to stop the work, and when the complainant objected to this, the two accused directed the mob
to kill labourers. The mob started assaulted the labourers because of this two labours died. When the
police party reached, the mob fled from the spot. The death was established to have caused by injuries
inflicted by shock and haemorrhage caused by injuries inflicted with sharp pointed weapons.

The Supreme Court in this case held that: “Common intention which developed at the spur of the moment
is different from the similar intention actuated a number of person at the same time….the distinction
between a common intention and similar intention may be fine, but is nonetheless a real one and if
overlooked, may lead to miscarriage of justice….”
Mere presence of accused together is not sufficient to hold that they shared the common intention to
commit the offence in question. It is necessary that the intention of each one of ‘several persons’ be
known to each other for constituting common intention.

99. Nalini vs State ( Rajeev Gandhi case) ( 120 A)

100. Mohammed Khalid vs State of Wb ( Criminal conspiracy 120 A)

Page 232 pillai
101. Tej Singh vs State of Rajasthan ( Abetment)
Page 204 , 613 pillai, 86 of own notes

102. Pratima Datta vs State of Wb ( Leading abetment)

Page 86 own notes, page 204 pillai

103. Rajkumar vs State ( Abetment)

104. Brijlal vs Premchand ( abetment)

105. R vs Govinda [ 300(2) ]

106. Naveen Chandra v State of Uttaranchal

107. Nanavati vs State of Maharashtra( sudden & grave provocation)

108. Suresh Kaushal Vs. Naz Foundation

Page 741, 744 pillai

109. Maruti Dubal vs State of Maharashtra

110. Chennaa Jagdeeshwar vs State of AP

111. P rathinam vs UOI( suicide un 309)

112. Gian Kaur vs State of Punjab( suicide un 309)

Page 615 pillai

113. Aruna Shaunbaug vs UOI ( 309)

Page 614 pillai

114. Common Cause vs UOI( 309)

Page 614 pillai page 798 pillai
115. Chandrika vs State of Bihar( criminal force 349- 350)
Page 668

116. S Vardharajan vs State of Madras (Kidnapping 360)

Page 694 pillai 704 too

117. State of Haryana vs Rajaram(Kidnapping 360)

Page 695 pillai

118. Thakorlal D. Vadgama v State of Gujarat ( kidnapping)

Page 703 pillai

119. Tukaram vs State of Maharashtra( Sexual offences)

120. State of Punjab vs Gurmeet Singh( sexual offences)

121. Mahmood Faruqui case (Sakshi v Union of India) ( sexual offences)

Page 743 pillai

122. R v Thomson( theft)

Page 754

123. Avatar singh vs State of Punjab ( theft) Imp

Page 108 notes

124. Kn Mehra vs State of Rajasthan( theft) Leading case

Page 747-748 pillai
125. Pyarelal Bhargava vs State of Rajasthan (theft)
Page 754 pillai

126. Musauddin Ahmed v State of Asssam

127. UP vs Naushad ( Cheating)

128. Bihar State Electricity Board Vs. NandKishore ( Mischief)

Page 830 Pillai

129. Byomkesh Bhattacharya vs LakshmiNarayan ( Mischief)

Page 832 Pillai

130. Punjab National Bank vs. All India Punjab National Bank Employees (
criminal trespass)

Page 846

131. B.S.S.V.V.V.M. v State of Andhra Pradesh

132. Dilip Singh v State of Bihar
133. Yusuf Abdul Aziz v State of Bombay
Page 553
134. Revati v Union of India
135. Sarla Mudgal v Union of India
Page 548-549 pillai
136. Lily Thomas v Union of India
Page 548-549 pillai
137. Bhanuben v State of Gujarat imp

138. Rajinder Singh v State of Punjab Imp

Demands for money were made shortly after one year of the marriage. A she-buffalo was given by the
father to the daughter as a peace offering. The peace offering had no effect. The daughter was ill-treated.
She went back to her father and demanded money again. The father, then, went along with his brother
and the Sarpanch of the village to the matrimonial home with a request that the daughter be not ill-treated
on account of the demand for money. The father also assured the said persons that their money demand
would be fulfilled and that they would have to wait till the crops of his field are harvested. Fifteen days
before her death, Salwinder Kaur again visited her parents' house on being maltreated by her new family.
Then came death by poisoning. The cross-examination of the father of Salwinder Kaur has, in no manner,
shaken his evidence. On the facts, therefore, the concurrent findings recorded by both the courts below
are upheld. The appeal is dismissed. Rajinder liable un 304 B
Mischief Rule:
No-doubt all penal Statutes are to be construed strictly, that is to say, the Court must see that the thing
charged as an offence is within the plain meaning of the words used, and must not strain the words on
any notion that there has been a slip, that there has been a casus omissus, that the thing is so clearly
within the mischief that it must have been intended to be included if thought of. On the other hand, the
person charged has a right to say that the thing charged although within the words, is not within the spirit
of the enactment.
He must set to work on the constructive task of finding the intention of Parliament, and he must do this
not only from the language of the statute. However, also from a consideration of the social conditions
which gave rise to it and of the mischief which it was passed to remedy, and then he must supplement the
written word so as to give 'force and life' to the intention of the legislature.

MODULE

139. Bhabha Nanda Sarma vs State of Asom ( Voluntary act)

140. B vs DPP(2000)
141. W vs Doelboy ( natural and probable consequences, reasonable
forseeability)
142. State of kerala vs Ashraf (ibid)
143. Suleman rahiman vs State of Maharashtra ( causation in crime &
negligence)
144. Ambalal D Bhatt vs State of Gujarat.( ibid)
145. Sanjay vs State of UP ( Causation in crime)
146. R vs Pembliton ( Transferred malice)
147. A-G Reference ( ibid)
148. Nathulal vs State of Mp ( strict Liability)
149. State of Orissa vs K rajeshwar Rao ( Ibid)
150. Sherras vs De rutten (ibid)
151. Indo- China Steam Navigation Co Ltd. Vs Addl Collector of
Customs
152. Pharmaceutical Society of great Britain vs Stockwain Ltd.
153. Commr of Income Tax vs Patram Das ( ibid)
154.