'ACT NO.

XLV OF 1860
CHAPTER - I
• INTRODUCTION -
•
Preamble
WHEREAS it is expedient to provide a general Penal Code for
z EBangladesh]; It is enacted as follows
:-
1. Title and extent of operation of the Code.- This Act shall be called the
3 [Penal Code], and shall take effect 4* *
throughout Bangladesh.
2. Punishment of Offences committed within Bangladesh.-
Every person
shall be liable to punishment under this Code and not otherwise for every act
or omission contrary to the provisions thereof, of which he shall be guilty
within Bangladesh 5* * * * .
3. Pun
tried withinishment of offences committed beyond, but which by law may be
Bangladesh.- Any person liable, by any 6 lBangladesh' lawJ, to be
tried for an offence committed beyond Bangladesh shall be dealt with
according to the provisions of this Code for any act committed beyond
Bangladesh in the same manner as If such act had been committed within,
Bangladesh.
7[4 Extension of Code to extra teritorlal. offences.- The provisions of
this Code apply also to any offence committed by-
(1) any 8 [citizen of Bangladesh] in any place without and beyond
°[Bangladeshj; ..
1 0(2) * . * . * * * * *
11(3) * - * * * * -* *
12 [(4)
any person on any ship or aircraft \registered in Bangladesh
wherever, it may be.]
in Sch.
Regulation, 1900 (1 of 1900), s. 4 and iorce in the Chlttagong 1-Jill tracts by the Chittagong Hill tracts
Offences punishable under sections 121, 121A, 122, 123A, 124A, 125, 131, 164, 192, 194, 195.
196, 197 and 198 of the Code shall be triable excluIvely by Special Tribunal constituted under sub-
2. section (2) of section 26 of the Special Powers Act, 1974 (Act No. XIV of 1974) Sch.
The word "Bangladesh" was substituted for the word "Pakistan' by the Bangladesh Laws (Revision and
Declaration) Act, 1973 (Act VIII of 1973), Second Schedule.
3. The words within square brackets were substituted for the words"Pakistan Penal Code", ibid.
4.
The wordsand figures "on and from the first day of May, 1861", were repealed by the Amending Act.
1891 (Act XII of 1891).
5. The words and figures 'on or after the said first day. of May, 1861," were repealed, ibid.
6.
The original words "Law passed by the G.G. of India in-C" have. successively been amended by A.O,
1937 and AO, 1949, Sch, and the word "Bangladesh" was substituted for the word "Pakistan" by the
7. Section 4-asLaws
Bangladesh (Revision and Declaration) Act, 1973 (Act VIII of 1973), Second Schedule.
substituted for the original Section 4 by the Indian Penal Code Amendment . Act, 1898
(Act IV of 1898), s. 2. .
8.
The original words "Native Indian subject of Her Majesty" have successively been amended by A.O.
1949 and A,O. 1961, Art, 2 and Sch. to read as "citizen of Pakistan" and the word "Bangladesh" was
9. substituted for the word "Pakistan" by Act VIII of 1973 to read as above.
The word "Bangladesh" was substituted for the word "Pakistan" by the-Bangladesh Laws (Revision and
Dec laration) Act, 1973 (Act VIII of 1973), Second Schedule;
10. Clauses (2) as amended by A.O. 1949, Sch. has been omitted by A. 0., 1961, Art. 2 and sch.
11. Clause (3) was omitted by Act VIII of 1973.
12. Clause (4) was insetted by the Offences on Ships and Aircraft Act, 1940. (Act IV of 1940), s.2.
Law of Crimes-_i


2 LAW OF CRIMES [Sec. 5-6

Explanation-In this section the word "offence" includeds every act

committed outside Bangladesh which, if committed in Bangladesh, would be
punishable under this Code.
fliustratlons
(a) A 'ía Bangladesh subject), commits a murder In Uganda. He can be tried and
convicted of murder in any place in Bangladesh In which he may be found.
(b) B, a European British subject, commits a murder in 2 (Rangpur]. He can be
tried and convicted of murder In any place in Bangladesh in which he may be found.
(C) C. a foreigner who Is In the service of the 3 [l3anglaesh] Goverment, commits
a murder in 4 [Khulnaj. He can be tried and convicted of murder at any place in
Bangladesh in which he may be found.
(d) D, a British subject living In Khulna, instigates E to commit a murder in
5 lChittagongl. D is guilty of abetting murder.]
5. Certain laws not to be affected by this Act.- Nothing in this Act is
intended to repeal, vary, suspend, or affect 6***********s any of the
provisions of any Act for punishing mutiny and desertion of officers
7 [soldiers, sailors or airmen] in the service of 8 [the 9[Repuhlicj], or of any
special or local law. .

CHAPTER -II
GENERAL EXPLANATIONS
6. Definitions In the Code to be understood subject to exceptions.-
Throughout this Code every definition of an offence, every penal provision
and every illustration of every such definition or peanl provision, shall be
understood subject to the exceptions contained in'thechapter entitled
"General Exceptions," though those exceptions are not repeated in such
definition, penal provision or Illustration.
mustratlons
(a) The sections in this Code, which contain definitions of offenes, do not
express that a child under seven years of age cannot commit such offences: but the
definitions are to be understood subject to the general exception which provides that
nothing shall be an offence which is done. by a child under seven years of age.
I. The words "a Pakistan subject' were substituted for the words 'a coolie who Is a Native Indian
subject" were substituted by Act XXVI of 1951 and then the word Bangladesh was substituted for the
word "Pakistan" by the Bangladesh Laws (Revision and Declaration) Act, 1973 Act Vu! of 1973),
Second Schedule.
2. The word "Rangpur" was substituted for the word "Kashmir" by Act VIII of 1973, s. 3& 2nd sch.
3. The word "Bangladesh" was substituted for the words "West Pakistan, ibid.
4. The word "Ithulna" was substituted for the word 'Junagadh', Ibid.
5. The word "Chittagong" was substituted for the word 'Lahore", ibid..
6. The words "any of the provisions of the Statute 3 and 4 William IV, Chapter 85, or of any Act of
Parliament of the United Kingdom passed after that Statute in anywise affecting the East Inida
Company or Pakistan or the inhabitants thereof; or" were omitted by Act VIII of 1973, 2nd sch.
7.. The original, words "and soldiers" have successively been amended by the Repealing and Amending
Act, 1927 (Act Xof 1927), s. 2, and Sch. I, and the Amending Act, 1934 (Act XXXV of 1934), s. 2 and
Sch, to read as above. . . . .. .
8. The original words 'Her Majesty or of the East India Company" have successively been amended by
the Repealing Act, 1870 (Act XIV of 1870) and A.O., 1961, Art. 2 and Sch.
9. The word 'Republic" was substituted for the word "State" by Act VIII of 1973, Second Sch.
Sec. .7-191 GENERAL EXPLANATIONS 3

(b) A, a police officer, without warrant, apprehends Z who has committed

murder. Here A Is not guilty of the offence of wrongful confinement: for he was
bound by law to apprehend Z. and therefore the case falls within the general
exception which provides that "nothing is an offence which Is done by a person who
is bound by law to do it".
7. Sense of expression once explained.- Every expression which is
explained in any part of this Code is used in every part of this Code in
conformity with the explanation.
8. Gender.- The pronoun "he" and its derivatives are used of any person,
whether male or female.
9. Number.- ' Unless the contrary appears from the context, words
importing the singular number include the plural number, and words
importing the plural number include the singular number.
10. "Man", "Woman".-The word "man" denotes a male human being of
any age: the word "woman" denotes a female human being of any age.
11. "persons".-The word "person" incudes any Company. or Association
or body of persons, whether incorporated or not.
12.. "Public".- The word 'Public" includes any class of the public or any
community. .
13 [Definition of "Queen"] Omitted by A,O. 1961.
1 114. "Servant of the State".-The words, "servant of the State" denote all
officers or servant, continued, appointed or employed in 2[Bangladeshl by or
under the authority of the 3[Government]. .
15. [Definition of "British India"] Rep. by A.O. 1937.
16. [Difinition of "Government of India"] Rep. by A.O. 1937.
17. "Government".-The word "Government" denotes the person or
persons authorised by law to administer executive GOvernment in
"Bangladesh". or in any part thereof.
18. [Definition of Presidency"] Rep. by A.O. 1937.
19. "Judge."-The word "Judge" denotes not only every person who is
officially designated as a judge, but also every person,-.
who is empowered by law to give, in any legal proceeding civil or
criminal, a definitive judgment. or a judgment which, if not appealed against.
would be definitive, or a judgment which, if confirmed by some other
authority, would be definitive, or
who is one of a body of persons, which body of persons is empowered by
law to give such a judgment.
I. The original section 14 has successively been amended by A.O., 1937, A.O, 1949, Sch, and A.O. 1961,
Art. 2 and Sch.
2. The word "Bangladesh' was substituted for the word "Pakistan" by the Bangladesh Laws (Revision and
Declaration) Act, 1973 (Act VIII of 1973), Second Schedule.
3. The word "Government' was substituted for the words "Central Government or any Provincial
Government", ibid. .

4 LAW OF CRIMES [Sec. 20-21

mustrations
(a) A Collector exercising jurisdiction in a suit under Act X of 1859, Is a Judge.
(b) A magistrate exercising jurisdiction in respect of a charge on which he has
power to sentence to fine or imprisonment with or without appeal, is a Judge.
1 (c) * * * * * * * . * * *
(d) A Magistrate exercising jurisdiction in respect of a charge on which he has
power only to commit for trial to another court, is not a Judge.
20. "Court of Justice".- The words "Court of Justice" denote a Judge who
is empowered by. law to act judicially alone, or a body of Judges which is
empowered by law to act judicially as a body, when such Judge or body of
Judges is acting judicially.
2* * * * * * * * * *
21. "Public servant,— The word "public servant" denote a person falling
under any of the descriptions hereinafter following, namely :-
3* *. *. * * * * * * *
Second.. Every Commissioned Officer in the Military 4 [Naval or Air]
Forces of 5[Bangladesh];6** * * ** * *
7 [Third. - Every Judge including any person empowered by any law to
perform, whether by himself or as a member of any body of persons, any
adjudicatory function;]
F ourth.- Every officer of a Court of Justice whose duty it is, as such
officer, to investigate or report on any matter of law or fact, or to make,
authenticate, or keep any document, or to take charge or dispose of any
property, or to execute any judicial process, or to administer any oath, or to
interpret, or to preserve order in the court; and every person specially
authorized by a Court of Justice to perform any of such duties;
Fifth.- Every juryman, assessor; or member of a panchayat assisting a
Court of Justice or public servant;
Sixth.- Every arbitrator or other person to whom any cause or matter
has been referred for decision or report by any Court of Justice, or by any
other competent public authority;
Seventh.- Every person who holds any office by virtue of which he is
empowered to place or keep any person in confinement;
Eighth.- Every officer of [the Government] whose duty it is,. as such
officer, to prevent offences, to give information of offences, to bring
offenders to justice, or to protect the public health, safety or Convenience;
I. Illustration (c) was repealed by the Federal Laws (Revision and Declaration) Act, 1951 (Act XXVI of
1951), s. 3 and 2nd sch.
2. The Original Illustration. which was previously substituted, ibid,s, 4 and Ill sch. has been omitted by
A.O., 1961, Art. 2 and sch.
3. . Clause First was omitted by Ord. No. X of 1982, s. 2.
4. Subs, by the Repealing and Amending Act, 1927 (Act X of 1927), s. 2. and sch. I, for 'or naval'.
5. The word "Bangladesh' was substituted for the word Pakistan by the Bangladesh Laws (Revision and
Declaration) Act, 1973 (Act VIII of 1973), Second Schedule.
6. The words "while serving under the Government" were omitted by Ord. X of 1982, s. 2.
7. Subs, ibid, for the former clause "Third".
Sec. .2 1) GENERAL EXPLANATIONS 5

Ninth.- Every officer whose duty it is, as such officer to take, receive,
keep or expend any property on behalf of ' [the Government]. or to make any
survey, assessment or contract on behalf of the Government, or to execute
any revenue-process, or to investigate, or to report, on any matter affecting
the pecuniary interests of the Government, or to make, authenticate or keep
any document relating to the pecuniary interests of 1 Governmentj, or to
prevent the infraction of any law or the protection of the pecuniary interests
of "the Government" 2*************;
Tenth.- Every officer whose duty it is, as such officer, to take, receive,
keep or expend any property, to make any survey or assessment or to levy
any rate or tax for any secular common purpose of any village, town or
district, or to make, authenticate or keep any document for the ascertaining
of the rights of the people of any village, town or district:
3 [Eleventh.- Every person who holds any office in virtue of which he is
empowered to prepare, publish, maintain or revise an electoral roll or to
conduct an election or part of an election 4[;]1*
Illustration
A Municipal Commissioner is a public servant.
- 5 [Twelftli. - Every person -
(a) in the service or pay of the Government or remunerated by the Government
by fees or commission for the performance of any public duty;
(b) in the service or pay of a local authority or of a corporation, body or
authority established by or under any law or of a firm or company in which any.part of
the interest or share capital is held by, or vested in, the Government.
Explanation 1.- Persons falling under any of the above description are
public servants, whether appointed by the Government or not.
Explanation 2.- Wherever the words "public servant" occur, they shall be
understood of every person who is in actual possession of the situation of a
public servant, whatever legal defect there may be in his right to hold that
situation.
6 [Explanation 3.- The word "election" denotes an election for the
purpose of selecting members of any legislative, municipal or other public
authority, of whatever character, the method of selection to which is by, or
under any law prescribed as by election.]
Comments
This section does not define' public servant but enumerates and illustrates what
categories of servants are meant to be Included. A question whether a person is a
public servant or not is a mixed question of fact and law. (AIR 1976 SC 2300: 1976
CrLJ 1756; 40 DLR 131. In order to be a public servant, he must be a servant in the
first instance whether he receives any emoluments for his work or not and lie must
I. The original word "Government" has successively been amended by A.O., 1937, and A.O., 1961, Art. 2.
2. The comma and certain words were omitted by Ord. No. X of 1982.
.1 Ins, by the Elections Offences and Inquiries Act, 1920 (XXXIX of 1920), section 2.
4. The semi-colon was subs, for the full stop at the end in clause Eleventh by Ord. No, X of 1982, S. 2.
5. Added, ibid., after clause Eleventh and before Explanation 1.
6. Ins, by the Elections Offences and Inquiries Act, 1920 (XXXIX of 1920). s. 2.

9
 LAW OF CRIMES [Sec. .21
be in charge of a public office and has done the duties of a public servant. A minister
of state is a public servant. (AIR 1953 SC 391) A pubnhic servant as defined in this
section means a public servant who is holding an office and not one who has ceased
to hold office (19 DLR(SC) 33). But a public servant can be prosecuted for the offence
under section 5(1) of Act II of 1947 committed during the period while he was In
imbue office (H.M. Ershad Vs. The State 1992 BLD 610; 45 DLR533;27 DLR (AD) 35
and 17 DLR (SC) 26). No sanction is necessary for prosecution of a public servant
who had ceased to be a public servant when the court takes cognizance of the offence
allegedly committed by him when he was public servant (Ibid).
The test to determine whether a person is a public servant is whether he is in
the service or pay of the government and whether he is entrusted with the
performance of a public duty (AIR 1957 SC 13; 1957 CrLJ 1). A branch manager of a
national insurance company is a public servant (1980 CrLJ (NOC) 20). Members of a
union parishad are public servants within the meaning of section 21 of the Penal
Code (41 DLR (AD) 30; 1989 BLD (AD) 25). Receivers are no doubt public servants as
they are appointed by the court but a guard appointed by them can not be a public
servant (1989 BLD 309). A Mutwalli is not a public servant (30 DLR (SC) 127).
Similarly contractor discharging certain functions on the basis of agreement with the
government Is . not a public servant under section 21 of the Penal Code (30 DLR (SC)
58). Nikah Registrar is not a public servant (21 DLR (SC) 330).
A person who was appointed by the Governor to discharge the function ofa
Minister and who was paid Out of the public exchequer and whc also liable to be
dismissed by the Governor comes within the description as indicated in the latter
part of section 21 of the Penal Code and as such a minister cannot but be regarded
as a public servant (Sk. Mujibur Rahman Vs. The State 15 DLR 549).
Labourers employed by a Government contractor are neither remunerated by
the Government nor are they discharging any public duty. They are solely responsible
for their duty and remuneration to the contractor. They cannot be said to be auxiliary
to any Government servant (30 DLR (SC) 58). The officers of a bank who perform
functions In regard to the affairs of the Federal Government are servants of the
Federal Government and since they draw their pay and salary also from that
Government, they are 'public servants' (1986PCrLJ 1530).
Where a Cotton Inspector was employed by the Director of Agriculture but It
was latter on found that he had not been appointed under the statute.• it was held
that in spite of that irregularity in the appointment as the Inspector was given the
duties of a cotton Inspector, he would be covered by the provisions of clause (8) of
section 21 (PLD 1954 Lah 37; 6 DLR 143).
An officer of life Insurance and General Insurance Corporation is a public
servant (1985 (2) Crimes 869 (670) SC). Employees of a nationalised bank are public
servants (1985 CrLJ 1411 (1416) P & H). Receivers are no doubt public servants as
they are appointed by the court by a guard appointed by them cannot be a public
servant (Syed Md. Jahar All Vs. Afrazul Islam Chowdhury 1989 BLD 59). An advocate
engaged by the custon authority or for that matter by any government official, does
not become a public servant within the meaning of clause 12(a) of section 21 of the
Penal Code, just because of his engagement (Adi P. Gandhi Vs. State 1990(2) Crimes
211 (Born).
The accused was not a public servant as defined In section 21 Penal Code when
the alleged offence was committed. He became a public servant within the meaning
of section 21 of the Penal Code afterwards as such he cannot be tried as a public
servant (29 DLR 218; 26 DLR 17).
Sec. .22-231 GENERAL EXPLANATIONS 7
22. "Moveable Proparty".-The words "Moveable property" are intended
to include corporal property of every description, except land and thing
attached to the earth or permanently fastened to anything which is attached
to the earth.
Comments
The term property conveysa compound idea composed of that which isits
subject, and of the right to be exercised over it. It is everywhere used In this code so
as to be applicable exclUsively to "that which Is its subject". The word 'property' Is
used in the code in a much wider sense than the expression 'movable property' (11
CrLJ 85).
Teh General Clauses Act of 1897 says that 'movable property' shall mean
property of every description, except Immovable property'. The Registration Act of
1908 says that 'movable property' Includes standing timber, growing crops and grass,
fruit upofi and juice in trees, and property. of every other description, except
immovable property The Indian Companies Act provides that 'shares or other
interest of any member in a company -shall be movable property, transferable In
manner provided by the articles of the company
The definition In the penal code restricts movable property as Including
corporeal property of every description except land and things attached to the earth.
The Code, excludes all intangible rights In property and includes things not
permanently fixed to the earth The definition of movable property is narrower than
the definition in other enactment. Corporeal property Is property which can be
perceived by the senses, In contradictiction to Incorporeal •rights, which • are not so
perceivable, as obligations of all kinds; Thus, salt produced on a Swump (4 Mad 228).
papers forming part of the record of a case and a cheque (52 All 894), are movable
property within the' meaning of this section.
An order of assessment by an Income Tax officer is movable property (AIR 1969
SC 40; 1969 CrLJ 271). Electricity Is not movable property (AIR 1965-SC 666;
(1965) 1 Cr1J 605).
23. "Wrongful gain".- "Wrongful 'gain" is gain by. unlawful means of
property to which the person gaining is not legally entitled.
"Wrongful loss. -"Wrongful loss" Is the loss by unlawful means of property
to which the person losing It Is legally entitled. .
Gaining wrongfully. Losing wrongfully. -A person is said to gain wrongfully
when such person retains wrongfully, as well as when such person acquires
wrongfully. A person is said to loss wrongfully when such person is
wrongfully kept out of any property, as well as when such person is
wrongfully deprived of property.
Comments
The word wrongful' means prejudicially affecting a party in some legal right.
The words 'by unlawful means' are intended to refer to an Sct which would render
the doer liable to an action or prosecution (1 CrIJ '730 FB; 23 CrLJ 607; AIR 1921
Mad 322. -
The words 'gaining wrongfully' or 'losing wrongfully' need not be confined only
to the acquisition or to the actual deprivation of property, and would cover also cases
of wrongful retention of property in the one. case and wrongfully being kept out of
property in the other (1959 CrLJ .. 1508: 1960 SCR 452).
 8
LAW OF CRIMES [Sec. .24-29
The gain or loss must relate to property. It must be material. it must be by
unlawful means. Thus wrongful gain is wrongful or unlawful acquisition of property
whien is material. Similarly wrongful loss is wrongful or unlawful deprivation
property which is material. In order to constitute wrongful gain, the property In of
question should have beeen wrongfully acquired and retained whether such retention
results In any profit or not. Similary to constitute wrongful loss, the property in
- question should have been lost to the owner or the owners should have been kept out
of it. Under section 23 the gain or loss contemplated need not be a total
acquisition
or a total deprivation but It is enough if It is temporary retention of property by the
person wrongfully gaining or a temporary keeping out of the property from the
persons legally entitled • (PLD 1957 Ind 317).
24. "Dishonestiy'...
Whoever does anything with the intention of causing
wrongful gain to one person or wrongful loss to another person, is said to do
that thing 'dishonestly".
25. "Frudulentlr' .. A persn is said to do a thing 'fraudulently if he
that thing with intent to defraud but not otherwise. does
26. "Reason to believe".-
A person is said to have "reason to believe" a
• thing if he has sufficient cause to believe that thing but not otherwise.
27. Property In possession of wife, clerk or servant.-
When property is
in the possession of a person's wife, clerk or servant, on account of that
person, it Is, in that person's possession within the meaning of this Code
Exp lanation...
A person employed temporarily or on a particular occasion
in the capacity of a clerk or servant, is a clerk or servant within the meaning
of this section.
28. " Co unterfeit"... A -person is s
aid to "Counterfeit" who causes
thing to resemble another thing intending by means of that resemblanceone
to
practise deception, or knowing it to be likely that deception will thereby be
practised. -
'[Explanation 1.-It is not essential to co
should be exact. unterfeiting that the imitation
Explanation
2.-When a person causes one thing to resemble
thing, and the resemblance is such that a person might be deceived another
thereby,
it shall be presumed until the contrary is proved, that the person so causing
the one thing to resemble the other thing intended by means of that
resemblance to practise deceiption or knew it to be likely that deception
would thereby be practised.] -
29. "D ocument".
-The word 'document' denotes any matter expressed or
described upon any substance by means of letters, figures or marks, or by
more than one of those means, intended to be used, or which may be used,
as evidence of that matter.
Explanation 1.- It IS
immaterial by what means or upon what
the letters, figures or marks are formed, or whether the evidence Issubstance
inteded
for, or may be used in, a Court of Justice, or not.
1. subs, by the Metal Tokens Act, 1889 11 of 1889), s. 9, for the original Explanations,
Sec. 30.321 GENERAL EXPLANATIONS 9
Illustrations
A writing expressing the terms of a contract which may be used as evidence of
the contract, Is a document.
A cheque upon a banker is a document.
.A Power of Attorney Is a document.
A map or plan which is inteded to be used or which may be used as evidence is
adocument.
A writing containing directions or instructions is a document.
Explanation 2.- Whatever is expressed by means of letters, figures or marks as
explained by mercantile or other usage, shall be deemed to be expressed by such
letters, figures or marks within the meaning of this section, although the same may
not be actually expressed.
Illustration
A writes his name on the back of a bill of exchange payable to his order. The
meaning of the endorsement, as explained by mercantile usage, is that the bill is to
be paid to the holder. The endorsement is a document, and must be construed In the
same manner as if the words pay to the holder" or words to that effect had been
written over the signature.
30. "Valuable security".- The words "valuable security" denote a
document which is, or purports to be, a document whereby any legal right is
created, extended, transferred, restricted, extinguished or released, or
whereby any person acknowledges that he lies under legal liability, or has not
a certain legal right.
Illustration
A writes his name on the back of a bill of exchange. As the effect of this
endorsement is to transfer the right to the bill to any person who may become the
lawful holder of it, the endorsement is a 'valuable security'.
Comments
A document which on evidence given creates, or purports to creat a right to
movable property and which is recognised or enforceable will be a valunable security
(59 Cal 1233). The following documents have been held to be valuable security; (a) A
rent note (AIR 1963 Nag 165): (b) A lottery ticket (1970 Ker Lj 193); (c) A pass prt
(AIR 1968 Mad 349); (d) Extorted documents executed through fear or threat of
injury (35 CrLJ 123): (e) A deed of divorce (11 Suth. WR 15 DB): (I) A .document
which has been stamped but the signature is not across the stamp can nevertheless
be a valuable security (AIR 1916 All 197).
A vokalatnama is a document under which a person empowers his lawyer to do
certain things on his behalf. Such a document does not on the face of It purport to
create, extend, transfer, restrict or extinguish a right and as such, it can not be
deemed to be a valucable security within the meaning of section 30 of the Penal Code
(22DLR 703).
31. "A will".-The words' a will 'dertote any testamentary document.
32. Words referring to acts include Illegal omissions.-In every part of
this Code, except where a contrary intention appears from the context,
words which, refer to acts done extend also to illegal omissions.
Law of Crimes-2
 10 LAW OF CRIMES (Sec. 33
Coinnients
Criminal law fastens liabilty on persons who omit to perform the duty required
by law such as to provide food, clothing, shelter or medical aid to another, but a
• refusal to perform acts of mere charity or mercy not coupled with a legal duty, does
not entail legal punishment even if death ensues from such refusal or neglect (Om
• Prakash Tilak Chand Vs. State, AIR 1959 Punj 134(145)=60 PLR 563).
'Omissions' is used in the sense of intentonal non-doing. Thus, according to this
section, 'act' includes intentional doing as well as intentional non-doing. The
omission or neglect must. no doubt. be such as to have an active effect conducing to•
• the result, as a link in the chain of facts from which an intenton to birng about , the
result may be inferred (Thornotti Madathil Poker (188 ,6) 1 Weir 495).
The Code makes punishable omissions which have caused, which have been
intended to cause, or which have been known to be likely to cause, a certain evil
effect in the same, manner as It punishes acts, provided they were illegal. And when
the law imposes on a person a duty to act, his illegal omission to act renders him
liable to punishment (36 CTLJ• 308=AIR 1934 Lah 13; Benoy Chandra Dey Vs. State
1984 CrLJ 1038 Cal relying on Hussain SN 1972 CrLJ 496 SC).
As a similar duty is cast upon the Magistrate,a Magistrate who was present
while certain police constables were wrongfully confining and causing hurt to a
villager with a view to extorting a confession, was similarly convicted of abetment
(Krishna Settl; 1 Weir 50: Appannece Hegade, 1 weir 52).
Omission may also render an offender liable for punishment under section'
304/34. Although as a general rule participation renders an offender liable for joint
action. but sometimes omission may also render an offender liable under section'
304/34 of the Penal Code if for example a man joins with another to assault a person
even though the original intention was merely to inflict relatively harmless injuries
but he sees his companion in course of the action give serious beating which is likely
to cause his death, but he does not take any step to interfere with that action or to
render any assistance to the victim but the victim dies subsequently - such act of
omission may render him liable under section 304, Penal Code, for "action" as
defined under section 32 of. Penal Code includes an omission also (Bhagawat Singh
and anothers Vs. Emperor AIR 1929 Pat 65).
In the case of Shaikh Baharul Islam Vs. State,' (1991) 43 DLR 336 deceased
Arun was mercilessly beaten inside the Ramna Police Stattion and he was seriously
injured. The injuries ultimately caused death. Advocate for the complainant argues
that accused Baharul Islam, the Officer-in-charge of Ramna P.S. must know who in
fact assaulted Arun leading to his death. Being in charge of the Police Station he
ought to have pr.evented the assailants from causing such injuries. Therefore,
according to the complainant's advocate, accused Baharul Islam must be held guilty
for such act of omission on top of his actively beating the victim. The High Court
Division relying on the decision in Bhagewat Singh and another Vs. Emperor, AIR
1929 Pat. 65, held that non-interference on the part of Baharul Islam, the Officer in-
charge of Ramna Police Station rendered him guilty under section 304/34 of the
Penal Code.
33. "Act", "Omission".- The word "act" denotes as well a series of acts as
a single act : the word "omission" denotes as well a series of omissions as a
single omission.
Sec. 34.Syn. NO. 11 GENERAL EXPLANATIONS 11
1 134. Acts done by several persons in furtherance of common intention.-
When a criminal act is done by several persons, in furtherance of the
common intention of all, each of such persons is liable for that act In the
same manner as if it were done by him alone.
Synopsis
1. Principle and applicabIlity. 8. Mere presence does not raise presump-
2. Criminal act done by several persons. tion of complicity.
3. "In furtherance of common intention of 9. Failure to mention section 34 in the
all". charge - Effect.
4. Common intention. 10. Where co-accused are acquitted.
5. Poof of common intention. •11. Distinction between common intention
and common object.
6. Presence of accused If necessary at time 12. Section 34 and sections 397, 398.
of commission of offence. 13. Sentence passed on different accused.
7 Inference of common intention. 14. Common intention, when not establish-
ed. Effect of.
1. Principle and applicability. - Section 34 lays down the principle of joint.
liability for doing a criminal act. The essence of the liability is to be found in the
existence of common intention animating the accused persons to the doing of a
criminal act in furtherance of the common intention of them all. "Common intention"
of several persons is to be inferred from their conduct, manner of doing the act and
the attending circumstances. If one has intention to do any act and others share this
intention, their intention becomes 'common intention' of them all. And if the act is
done in furtherance ofthe common intention, then all who participated In the act are
usaully liable for the result of the act. It is true that in this case, as the evidence
shows, there was no pre-plan of the accused persons to kill Tara; but their common
intention to kill Tara developed on the spot when they , all simultaneously fell upon
the victim as soon as he appeared on the scene. The learned Sessions Judge is found
to have correctly held that in this case as soon as Tàra ran towards the accused
persons they intended to .'kill him. The fact that some of them had caused fatal
injuries and others caused minor, injuries is immaterial if the act was done in
furtherance of their common intention. Section 34 is clearly found to be applicable
in this case. (State Vs. Montu. 44 DLR (AD) 287; 1992 BLD (AD) 43 (45).
A joint action by a number of eprsons is not necessarily an action performed
witha common object, but It may be performed on the spur of the moment as a
reaction to some incident and such a case would fall within the ambit of section 34,
Penal Code. However, section 34, Penal Code contenplates an act in furtherance of
common intention and not the common intention simpliciter and that there is a
marked distinction between similar intention and common intention and between
knowledge and common intention. Mere presence of an accused at the place of
incident with a co-accused who commits offence may not be sufficient to visit the
former with the vicarious liability, but there should be some strong circumstnce
manifesting a common intention. Generally common intention intr alia precedes by
some or all of the following elements namely, common motive, pre-planned
preparation and concert pursuant to such plan. However, common intention may
undergo change during the commission of offence (Muhammad Akbar Vs. State, PLD
1991. SC 923).
In order to attract section 34 it is not necessary that any overt act must be
'done by the particular accused. The provision shall be applicable if it is established
that the criminal act has been done by any one of the accused persons in furtherance
I. Subs, by the Indian Penal Code Amendment Act, 1870 (XXVII of 1870), section 1, for the original section.
 12 LAW OF CRIMES [See. 34-Syn. No. 1

of the intention of all. Mere distance fromthe scence of crime cannot exclude
culpability. Criminal sharing, over or covert by active presence or by distant
direction, making out a certain measure of jointñess In the commission of the act is
the essence of section 34 (The State Vs. Abdul Khair 44 DLR (1992) 284=1992 BLD
262).
Section 34 does not create a distinct offence; it merely enunciates a principle
of joint liability for criminal acts done in furtherance of common intention of the
offenders. (AIR 1965 SC 264). It means, that if two, or more persons intentionally do
a thing jointly it is just the same as if each of them had done it individually. (1977
SCMR 340). Thus where there was previous enmity between the accused and the
deceased 0' once the position is accepted that taking out his knife the accused
declared that 'G' would be done to death followed by a concerted attack by all of
them, no doubt would be left as to the vicarious liability of others regarding the
murderous act of the accused appelant for having dealt a fatal blow to the deceased.
(1974 PCrLJ 6 Lah).
For application of section 34 it must be established first that a criminal act has
been done by several persons and secondly that all the participants intended that the
criminal act should be done and lastly that the criminal act, has been done in
furtherance of common intention shared by all the offenders. There must be
evidence to show that the accused were present at the scene of occurrence and have
actually participated and there must be a preconcert or pre-arranged plan. Before
finding guilty under section 34 of the Penal code, it must be borne in mind that this
section is not intended to punish the conspirator for the act jointly intended or
common Intention formed by them but it punishes for the act actually committed.
This section has provided punishment for the conspirators where the act shared by
several offenders can not be ascertained though the 'moral culpability Is clear and
identical. This section may be.applied also where It is difficult to distinguish between
the act of individual members of a party who acted in furtherance of their common
intention but it is difficult to prove exactly what part each of the offenders has
played. Once participation with common intention Is established section 34 at once
is attracted (Sk. Baharul Islam Vs. The State 1991 BLD 158; 43 DLR 336.
The section lays down a principle ofjoint liability in the doing of a criminal act.
The section does not say 'the common intention fo all' nor does it say an intention
common to all'. Under the section the essence of liability is to be found inthe
existence of common Intention animating the accused leading to 'the doing of a
criminal act in furtherance of such intention. (PLD 1954 Lah 309). Before section 34
can be applied, it must be shown firstly, that a criminal act was done by several
persons, secondly, that all of them intended that the criminal act should be
committed, and lastly, that the act was done in furtherance of the common intention
shared by all of them. (AIR 1965 sc 257). Thus where three accused demanded back
their goods from the deceased but on his refusal made an armed raid on his house
and killed and injured two of his party and then went back with the disputed
property, it was held that section 34 was applicable and though one of the attackers
did not take part in the assult, hewas equally liable with the others for murder. ( PLD
1957 SC 207). The questioh what injuries were inflicted by a particular accused in
acase to which section 34 applies, in immaterial: the principle underlying the
section being that where two or more persons act with a common intention eacl)is
liable for the act done as if it had been done by himself alone. PLD 1954 Lah 309).
Thus if three men went to commit assault and some of them beat the victim and
others did not hit, all of them would be liable for the assault all the same and each of
them would be liable as if he caused the entire injury alone. (AIR 1950 Kutch 2).
Sec. 34-Syn. No. 11 GENERAL EXPLANATIONS 13
For the application of the section it must be shown firstly, that the act was done
by several persons, secondly, that all of them intended that the criminal act should
be committed and thirdly, that the act was done In furtherance of the common
intention shared by all of them. In cases where there is pre-meditation, some kind of
pre-concert action, some previous design, and several persons combine and act
together they may be deemed to be intending the natural consequence of their
-combined act; but where the occurrence is sudden, there is commonly a cry for
assistance or a call for assault or doing of certain act which is criminal. The person
who asked for assistance or who gave certain order cannot be sure of the reaction of
others. All those who come, may come with different designs and different
intentions. Inference of common intention, therefore, should never be reached
unless it is a necessary Inference from the circumstances of the case (Kabul Vs. The
State 40 DLR 216.
Principle of vicarious liability cannot be invoked in absence of any common
object or common intention to kill. (NLR 198,6 Cr. 326). Necessary conditions for the
applications of section 34 of the Code are common intention to commit an offence
and participation by all the accused in doing the act or acts in furtherance of that
common intention. If these two ingredients are established, all the accused would be
liable for the said offence; that is to say, if two or more persons had common
intention to commit murder and they had participated in the acts done by them In
furtherance of that common intention, ' all of them would be guilty of murder. PU
1980 Cr.C. 458). The 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 AIR 1945 PC 118). Determination of common intention would be
dependent upon inference from motice of accused and his/her act/conduct before or
after occurrence. Mere presence • on spot during occurrence would not justify
accused being imputed with requisite intention under section 34. Where there wasP
no evidence of any .pre-consultation between appellant and her two co-appellants,
she could not be visited with constructive liability under section 34 (NLR 1988 AC
251).
The crucial test as to the applicability of the principle of vicarious liability
under section 34 of the Pen al Code is to be found in .the phrase. "In furtherance of
the common intention of all'. The judicial committee of the privy council on the
interpretation of the scope and meaning of section 34 of the penal Code held in the
case of Mahbub Shah (49 CWEN (PC) 678) that common intention implies a pre -
arranged plan and to convict and accused person applying section 34 of the Penal
Code it must be proved that a criminal act was done in concert pursuant to the pre-
arranged plan and that there should be direct evidence to prove common Intention
or there must be material to infer from the relevant circumstances that there was
such common intention (Kabul Vs. The State. 40 DLR 216).
Common intention is an intention to commit a crime actually committed and
every one of the accused should have participated in that intention. A similar
intention would not be enough to bring the case within the meaning of the section.
Suppose several persons, each' acting independently of the others, intend to commit
a crime and all of them chose the same moment and commit the crime which each
of them intended separately, there would be no common intention in such a case.
Each of them would be liable for his act, but not vicariously for the act of another or
others. Common intention within the meaning of the section implied a pre-arranged
plan, and to convict the accused of an offence, it should be proved that the criminal
act was done in concert pursuant to the pre-arranged plan. The inference of
 14 . LAW OF CRIMES ISec. 34-Syn. No.
common intention should never be reached unless it was a difficult if not impossible
to procure direct evidence to prove the intention of an individual. (AIR 1963 SC
1413). Where there is no evidence to show that there was a common design, the:
section would not apply. (10 DLR 459). It follows that where the accused Is grapling
with the deceased when some other persons came. and stabbed him, the section
would not apply and they would not all be held guilty of murder. ( .PLD 1955 Lah
356). Where forcible possession of land was sought to be taken by the accused and
the other party resisted the attempt. Suddenly one of the accused took out a knif'
and killed one of the persons on the spot. It was held that in all probability, h
pulled the knife out of his dab on the spur of he moment, and his use of it was thu
an individual act, suddenly done which could not be described as the joint act of al
other, accused persons (16 DLR SC 269).
For the applicability of section 34 it is essential that the act of murder is don(
by several persons. In other words, all the persons who were sought to be made
liable by virtue of section 34 must have done some act and those of the accused who
have not taken any part either by word or action in doing the act of murder cann
be made liable under that section (Abu Syed Vs. State 38 DLR 17).
In order to convict a person for an offence with the aid of the provisions o..
section 34 it is not necessary that that person should actually with his. own'hand
commit a criminal act. If several persons have the common intention of doing a:
particular criminal act and 11, in furtherance of that common intention all of them
join together and aid or abet each other inthe commission of the act, then though
one o these persons may not actually, with his own hand, do the act, yet if he helps
by his presence or by other acts in the commission of the act, he would be held to
have himself done that act within the meaning of section 34. (PLD 1960 Lah 822).
Requisite ingredient of common intention within the meaning of section 34 of
the Penal Code is that each shared the intention of other and that mere proof of each
of the participating culprits having same intention to commit certain act is not
sufficient to constitute common intention (Kabul Vs. The Stage. 40 DLR 216). Thus
section 34 lays down the principle of joint liability in the doing of criminal act; the
essence of liability is to be found in the existence of common intention animating the
accuseds leading to the doing of a criminal act in furtherance of such intention
(Ibid)..
2. "Criminal act done by several persons".-For section 34, all accused must
participate in the act in some form or other. It is not enough that one conspirator
does the act (1956 CrLJ 664= AIR 1956 All 245).
A mere direction from one person to anotehr and the carrying out of that
direction by the other may be only instigation of the letter's act and may be a case of
a joint act falling under section 34. But where two persons with their followers, all of
them armed, move about together for a set purpose and one gives Instructions to the
other and keeps himself on the spot in readiness to see it carried out and the other
carries it out, it is hardly possible to say that the act Is not one which was done in
the furtherance of the common intention of both (AIR 1956 SC 177),
The section applies only to cases where several persons both intend to do and
do an act. It does not apply to cases where several persons intend to do an act and
one or more of them does or do an entirely different act in such cases if the number
of persons be five or more and the other act was done in prosecution of the common
object of all. Section 149, may apply. (AIR 1949 All 211; 1954 CrLJ 752: 1966 CrLJ
727).
 Sec. 34-Syn. No. 31 GENERAL EXPLANATIONS 15
When a murderous assault by many hands with many knives has ended fatally, it
is legally impossible to dissect the serious one, from the others and seek to salvage
hose whose stabs have not proved fatal. When people play with knives and lives, the
ircurnstances that one man's stab falls on a less .or more vulnerable part of the
erson of the victim is of' no consequnece to fix the guilt for murder. Conjoint
complicity is the inevitable inference within a group animated by lethal intent
accomplish their purpose cumulatively. Section 34 fixing constructive liability
conclusively silences such a refined plea or extriction (1977 CrLJ 352; AIR 1975 SC
1084).
No general proportion can be made that common intention Implies an
intention that developed prior to the commission of the act itself and not some thing
that happened subsequent to the act. For there may be circumstances where
incident subsequent to the act may also have to be considered in arriving at a
conclusion as to whether or not there was a common intention •provided the
subsequent act is so proximate in point of true that the act and the incident may be
correlated. Where there is no evidence of prior enmity between the parties and
there was no evidence that either party knew that the other would be there at the
place of occurrence, the fact of arrival of the accused together cannot be suggestive
of any common intention as between them (1984 CrLJ 201; 1984 CrLJ 221).
In order that section 34 may be applied the common intention of committing a
'crime must be attributed to more than one individual and if the offence is the result
of a joint act of more than one person then only each one of them can be found guilty
under section 302 read with section 34 of the Penal Code. (PLD 1957 SC .390).
Where the charge is that the accused had committed an offence in furtherance of
their common intention but other person named in the charge are acquitted, the
conviction of the single accused must also be set aside. (PLD '1957 SC 390). Where
the High Court acquitted three of the four accused charged for an offence under
section 302 read with section 34 giving them the benefit of the doubt in view of the
fact that their identity was not established but convicted the fourth under section
302 read with section 34 on the ground that he had committed the offence along
with one or other of the acquitted accused. It was held that the conviction of the
fourth accused was clearly wrong. When the accused were acquitted either on the
ground that evidence was not acceptable or by giving benefit of the doubt to them the'
effect in law would be that they did not take part in the offence. Hence the effect of
acquittal of the three accused was that they did not conjointly act with the fourth
accused in committing the murder. If that was so, the fourth accused could not be
convicted under section 302 read with section 34 for having committed the offence
jointly with the acquitted persons. (AIR 1963 SC 1413). But where it was clear from
the record that more than bne person had committed a murder, but two of the
accused were given benefit of the doubt and the principal offender was not
discovered, the appellate court set aside the conviction of one of the accused under
section 302/34, P.C. convicted him tInder section 302/109 and sentenced him to
transportation for life (1970 PCrLJ 415).
3. "In furtherance of the common intention of all."- The words 'in furtherance
of the common intention of all have introduced, as an essential part of the section:
the element of a common intention prescribing the condition under which each
might be criminally liable when there are several actors (52 Cal 197= 27 Born LR
148). Common intention is an intention to commit the crime actually committed and
each accused person can be convicted of that crime, only if he has participated In
that 'Common intention( AIR'1975 SC 179= 1975 CrLJ 243).
16 LAW OF CRIMES [Sec. 34--Syn. No. 3
It is well established that a common intention presupposes prior concert. It
requires a pre-arranged plan because before a man is made liable vicariously for the
criminal act of another the act must have been done in furtherance of the common
intention of all (AIR 1945 PC 118). It is not enough to have the same intention
independent of each other common intention may be presumed on the fact of the
case. The essence of section 34 is that a person must be physically present at the
actual commission of the crime, actual participation may be passive (AIR 1956 MP
262= 1956 CrLJ 1101).
To convict an accused of an offence, applying section 34, it is necessary to
establish that the criminal act was done in concert pursuant to a pre-arranged plan.
The courts In most cases, have to infer the intention from the act or the conduct of a
particular person or from the other relevant circumstances of the case as it is
difficult if not impossible, to procure direct evidence toprove the intention of a
person, but it is not necessary to attract section 34, that any overt act must be done
by the particular accused. The section will be attracted if it is established that the
criminal act has been done by any one of the accused persons In furtherance of the
common intention. If this is shown, the liability for the crime may be Imposed on
anyone of the persons in the same manner as if the acts were done by him alone (AIR
1973 SC 863(872, 873).
Section 34 lays down the principle of joint liability in the doing of a criminal
act. The section does not say "the common intention of all" nor does it say "an
intention common to all". Under the section, the esence of liability is to be found In
the existence of a common intention animating the accused leading to the doing of a
criminal act in furtherance of such intention. To invoke the aid of section 34
successfully, it must be shown that the criminal act complained against was done by
one of the accused in furtherance of the common intention of all: if this is shown,
then liability of the crime may be Imposed on any one of the persons in the same
manner as if that act was done by him alone ( 1984 PCrLJ 1228). In applying section
34 it is not suficient to show that the accused was present on the scene of
occurrence when the offence was committed. It is essential to provd some individual
act of the accused person done in furtherance of the common intention (PLD 1972
Lah 19). In order to bring case under section 34. Penal Code it is not necessary that
there must be a priOr conspiracy or premeditation, the common intention can be
formed in the course of occurrence (Han Om & 2 others Vs. State of UP 1993 (1)
Crimes 295(SC).
Where the injuries were caused by the accused, and co-accused though present,
neither inflicted any Injury nor did any other overt act, he could not be held liable
under section 34 (PLD 1961 Kar 684). Where the complainant on being hit by
gunshot fell down and although petitioner had ample opportunity to inflict blows on
him yet he did not inflict even a single blow. The fact would point against the
proposition that petitioners shared common intention with co-accused 11982 PCrLJ
448). Where an accused person went to the place of occurrence empty handed and
there was no evidence that he assaulted anybody or that in the circumstances he
could have intended to cause grievous hurt to anybody he could not be convicted of
an offence under section 326/34. Penal Code (1969 PCr.L.J 1007). Where the only
part attributed to accused in dying declaration was that he asked absconding co-
accused to beat the deceased. Record did not suggest sharing of common intention
of absconding co-accused for giving .chhuri blows to the deceased. Common
intention was not proved (1984 PCrLJ 990).
The use of the words "in furtherance of' suggests that section 34 is applicable
also where the act actually done is not exactly the act jointly intended by the
 Sec. 34-Syn. No. 41 GENERAL EXPLANATIONS 17
conspirators to be done, otherwise the words would not be needed at all. The
common intention can be to do one act and another act can be done in furtherance
of the common intention. It may be a preliminary act necessary to be done before
achieving the common intention: or it may become necessary to do it after achieving
the common intention or it may be done while achieving the common intention; If
the act charged is extraneous to the common intention or Is done in opposition to it,
or is not required to be done at all for carrying out the common Intention; It cannot
be said to be in furtherance of it. Whether an act is In furtherance of the common
intention or not, depends upon the common intention and the nature of the act. It is
an incident of fact and not of law (AIR 1953 All 668).
A mere direction from one person to another and the carrying out of that
direction by, the other may be only instigation of the latter's act and may not be a case
of a joint act falling under section 34. But where two persons with their followers, all
of them armed, move about together for a set purpose and one gives instructions to
the other and keeps himself on the spot in readiness to see it carried out and the
other carries it out, it is hardly possible to say that the act is not one which was done
in furtherance of the common intention of both (AIR 1956 SC 177).
Several persons can simultaneously attack a man and each can have same
intention to kill, and each can individually inflict separate fatal blow and yet none
would have the common intention as required by section 34 of the Penal Code
because there was no prior neeting of minds to form a pre-arranged plan. In a case
like that each would be individually liable for whatever Injury he caused but none
could be vicariously convicted for the act of ohter: and if the prosecution cannot
prOve that his separate blow was fatal one, he cannot be convicted of the murder,
however clearly his intention to kill could be proved in this case. Otherwise the
unarnended section 34 of the Penal Code would have covered such a case without
adding the words 'in furtherance of common intention of all acts to the section in
1870 (Kabul Vs The State 40 DLR 216).
4. Common intention.- Common intention is air to commit the crime
actually committed and each accused person can be convicted if he shared the.
common intention. The common intention contemplated by this secction is anterior
to the commission of the crime and it does not refer to the time when the offence is
actually committed (Nurul Haque Mathbar and others Vs. The State, (1994) 4 14 BLD
178). Common intention implies a pre-arranged plan, that the criminal act was done
in concert pursuant, to the pre-arranged plan. Care must be taken not to confuse
same or similar intention with common intention. A pre-concernt in the sense of
distinct previous plan is not necessary to be proved. Common intention to bring
about a particular result may well develop on the spot as between a number of
persons. It is hardly necessary to emphasise that common intention' and similar
intention are not conterminous or coextensive in range. Each case is to be
considered in its own background (Md. Shand Mia @ Chand Miah Vs. State 1989
BLD (AD) 155; AIR 1945 PC 118: 15 DLR (SC) 65).
The common intention referred to in section 34 presumpposes a prior
concert, prearranged plan, i.e. a prior meeting a minds. That did not mean that
there must be a long interval of time between the formation of the common intention
and the doing of the act. It was not necessary to adduce direct evidence of the
common intention. Indeed in many cases, it may be impossible to do so. The
common intention may be inferred from the surrounding circumstances and the
conduct of the parties (Rishideo Pande Vs. State of Uttar Pradesh AIR 1955 SC 331r
1955 CrLJ 873). A person did . not do an act except with a certain intention and the
common intention which was requisite for the application of section 34 was the
Law of Crimes-3
18 lAW OF cr1MES Sec. 34—Syn. No. 4
common intention of perpetrating a particular act. Previous concert which was
insisted upon was the meeting of the minds regarding the achievements of a
crimihal act (Abrahim Sheikh Vs. State of West Bengal AIR 1964 SC 1263; Vijoy
Kumar Mohapatra Vs. State 1982 CrLJ 2162 (2175)).
Common intention within the meaning of section 34 of the Penal Code pr-
supposes prior concert: it also requires pre-arranged plan and care must be taken
not to confuse same or similar intention with common intention, the partition which
divides their bounds is often very thin: nevertheles the distinction is real and
substantial and if overlooked will result in mis-carriage of justice (Kabul Vs. The
Stage. 40 DLR 216).
A common intention presuposes prior concert. There must have been a prior
meeting of minds (Ram Tahal Vs. State of U.P. AIR 1972 SC 254). Common
intention is sole test of joint responsibility under section 34. It must be proved that
there was common intention and that act for whicha ccused are to be made
responsible was done in furtherance of common intention (NLR 1986 CrLJ 572).
Common intention within the meaning of section 34 implies a prearranged plan. To
convict the accused of an offence applying section 34, it should be proved that the
criminal act was done in concert pursuant to the pre-arranged plan ( 1988 PCrLJ
645). Where an offence is neither pre-planned nor premediated, this section is not
attracted (AIR 1955 SC 216). But it is not necessary that there should be such a
previous concert by the offenders a long time before the commission of the offence.
They may concert immediately before the commission of the offence. Such a previous
concert can be inferred from the circumstances in which the offfence. was
committed and from the various acts of the accused (PLD 1964 SC 81= 16 DLR (SC)
177). Whether in a given situation all • the individuals concerned therein have
developed only simultaneous and independent intentions or whether a simultaneous
consensus of their minds to bring about a particular result can be said to have been
developed and thereby intended by all of them, is a question and that has to be
determined on facts AIR 1954 SC 706). The crucial circumstances is that the said
plan must precede the act constituting the offence (AIR 1963 SC 1413). Where the
accused acting high handedly and armed with lethal weapons attacked the victim
and killed him. They were presumed to have knowledge of the consequences of their-
act and were therefore guilty under section 34 ( 1979 PCrLJ 80).
Common intention within the meaning of section 34, Penal Code, implies a
pre-arranged plan and that the criminal act was done pursuant to the pre--arranged
plan. The said plan may also develop on the spot during the course of the
commission of the offence (22 DIR (SC) 297). Thus the common intention to bring
about a particular result may develop on the spot between more than one person
with reference to the facts and circumstances of the situation (PLD 1981 Pesh 23).
Concert and arrangement can, and indeed often must be determined from
subsequent conduct. But the inference of common intention should never be reached
unless it is a necessary inference deducible from the circumstances of the case. This
is no more than the ordinary rule about circumstantial evidence, for there is no
special rule of evidence for this class of cases. At bottom it is a prior concert, or
proof of circumstances which necessarily lead to that inference, or "the
incriminating facts must be incompatible with the innocence of the accused and
incapable of explanation on any other reasonable hypothesis (AIR 1955 SC 216).
Thus where the charge is that 11 persons formed an unlawful assembly to assault the
complainant party. From evidence it appears that three of the rioters took part in
actual assault inflicting three separate injuries on the person of the deceased of
which the first two injuries were found to be simple and the third one to be grievous
Sec. 34—Syn. Nd. 51 GENERAL EXPLANATIONS 19
injury which led to the death of the victim within a few hours of the assault. It was
held that there being no evidence that the three assailants had a preconcerted plan
to cause the death of the deceased witha common intention, conviction under.
section 302/34 P.C. cannot be upheld and therefore, in view of the evidence they can
be held separately liable for particular offence committed by each of the accused
individually (22 DLR 620).
In case of a free fight in which both sides receive injuries, and each side alleges
that the other was the aggressor, it is the duty of the court to find out which side
acted as the aggressor and if there is definite evidence that one of the sides must
have acted as the aggressor and came with a common intention to fight, the question
as to which of the accused inflicted injuries on the members of the other side and
with what weapons, Is not material ( AIR 1951 Sau 22). But where there is no -
evidence as to any of the aprties to the light having come with the common intention
of attacking the other. This section does not apply (1984 PCrLJ 1555).
It is well established that a common intention pre-supposes prior concert and
it requires a pre-arrange plan because before a man can he vicariously convicted for
the criminal act of another the act must have been done in furtherance of common
intention of them all (29 DLR (SC) 246=AIR 1972 SC 254).
Requisite ingredient of common intention within the meaning of section 34 of
the Penal Code is that each shared the intention of other and that mere proof of each
of the participating culprits having same intention to commit certain act is not
sufficient to constitute common intention (AIR 1984 SC 1117). In pandurang Vs.
State of Hyderabad (AIR 1955 SC 216), the Indian Supreme Court observed that
several persons can simultaneously attack a man and each can have the same
intention, namely the intention to kill, and each can individually inflict a separate
fatal blow and yet none would have the common intention required by the section
because there was no meeting of minds to form a pre-arrange plan. In a case like
that, each would be individually liable for whatever enjury he caused but none could
be vicariously convicted for the act of any of the others: and if the prosecution can
not prove that his separate blow was a fatal one he can not be convicted of the
murder however clearly intended to kill could be proved in his case.
In the case of Shankarlal Kachrabhai Vs. State of Gujrat (AIR 1965 SC 1260),
the Indian Supreme Court said that' a mistake by one of the accused as to killing X in
place of Y would not displace the common intention if the evidence showed the
concerted action in furtherance of pre-arranged plan. The dominant feature of
section 34 is the element of participation in actions. This participation need not in
all cases be by physical presence. Common intention implies acting in concert. There
is a pre-arranged plan which is proved either from conduct or from circumstances
or from incriminating facts. The principle of joint liability in the doing of a criminal
act is embodied in- section 34 of the Penal Code. The existence of common intention
is to be the basis of liability. That is why the prior concert and pre-arranged plan is
the foundation of common mention to establish liability and guilt. (Hethubha Vs.
State of Gujrat (1971) 2 SCJ 635: AIR 1970 SC 1266).
5. Proof of common intention.- Whether or not a criminal act is done by several
persons in furtherance of the common intention of all is a question of fact to be
determined on a consideration of the facts in each case and common intention may
also be inferred from the circumstances disclosed in the evidence. The simplest
method to prove common intention is by direct evidence of that: failing which resort
should be had to other circumstances evicencing community of interest. Common
intention may. be proved by direct evidence such as confessions or an approver's
20 . LAW OF CRIMES [Sec. 34—Syn. No. 5,
testimony but in most cases its determination depends upon inference from act
done, motive possessed by the persons concerned and also from the nature of
injuries inflicted upon the victim (Kabul Vs. The Stage. 40 DLR 216). It is well
established that a common intention pre-supposes prior concert and it requires a
pre-arranged plan because before a man can he vicariously convicted for the criminal
act of another the act must have been done in furtherance of common intention of
them all. But the pre-arranged plan need not preceede the commision of the crime
by a great length of time. A pre-concert in the sense of distinguished previous plan is
not also necessary to be proved. The common intention to bring about a particular
result may well develop on the spot as between a number of persons. All that is
necessary is either to have direct proof of prior concert or proof of circumstances
which necessarily lead to that Inference or incriminating acts must be incompatible
with the innocense of the accused and incapable of explanation on any other
reasonable hypathesis. Further it is the essence of section 34 that the person must
be physically present at the actual commission of the crime (Abdur Rahim Mondal
Vs. State. 29 DLR (SC) 246). Where the evidence showed that all the four accused
were acting in concert in dragging the deceased inside the Deli. The evidence
clearly established that all the four persons were concerned in the act of throwing
the victim on the road in front of the Deli after the assault. Of course, no prosecution
witness could have witnesse what transpired inside the Deli because the doors of the
deli were closed after the deceased was dragged inside, accused were acting in
concert and were associated with each other in initially dragging deceased inside the
Deli as also in throwing out deeased on the road in front of their Deli after he was
assaulted inside the Deli. The circumstances which have been established by
satisfactory evidence coupled with the circumstance that as many as 20 injuries of
the nature described earlier were inflicted on the deceased, left no room for doubt
that all the accused had shared the common intention to cause the death of deceased
(Aher Pitha Vajshi Vs. State of Gujrat. AIR 1983 SC 599: (1983) 1 Crimes 1067).
The simplest method to prove common intention is by direct evidence of
conspiracy: failing which resort should be had to other circumstances evidencing
community of interest. Common intention may be proved by direct evidence such as
confessions or an approver's testimony but in most cases its determination depends
upon inference from act done, motive possessed by the persons concerned and also
from the nature of injuries inflicted upon the victim (Kabul Vs. The Stage. 40 DLR
216).
It is true that in order to convict persons vicariously under section 34 or
section 149. Penal Code, it is not necessary to prove that each and every one of them
had indulged In overt acts. Even so, there must be materias to show that the overt
act or acts of one or more of the accused was or were done in furtherance of the
common intention of all the accused or in prosecution of the common object of the
members of the unlawful assembly. In case, such evidence is lacking accused cannot
be held liable for the individual act of anyone of them (Rambilas Singh Vs. State of
Bihar (1989 CrLJ 1782 (1974) SC = AIR 1989 SC 1593 = 1989 (2) crimes 368).
Common intention under section 34, Penal Code is not by itself an offence, but,
it creates a joint and constructive liability for the crime committed in furtherance of
such common intention. When these two appellants were very much known to the
eye-witnesseses, non-mention of their names in the evidence as to their
participation in firing upon the deceased, throws a great doubt. (Hare Krishna Singh
Vs. State of Bihar, 1989 LW (Cr) 397 (406) SC).
Existence of common intention has to be determined from such known facts
and circumstances which existed before commencement of criminal act as well as
Sec. 34—Syn. No. 5] GENERAL EXPLANATIONS 21
from community of interest shown while committing crime. Common intention can
also be assessed from motive, instigation provided during occurrence like exhortation,
acts done and part played by accused during commission of crime (NLR 1988 Cr.
563).Common intention is sometimes proved by direct evidence, such as confessions
or an approver's testimony, but in most cases its determination depends upon
inference from acts done and motives possessed, judged in the light of the habits.
and notions of the class of people concerned. Where for instance 4 armed relatives
burst upon a habitation, kill or injure 2 or 3 persons and early of agirl, the subject of
dispute between the two sides, the only reasonable inference is that these acts are
unified by a Common intention possessed by each, namely to use force even to the
extent of murder In carrying off the girl (PLD 1960 Kar 38: PLD 1962 Dhaka 278: 13
DLR 646 DB).. Similarly where four persons waited by the roadside for their victim to
wreak vengeance on him, and when his rickshaw appeared on the road they pounced
upon him and killed him as well as another person who came there to rescue him. It
was held that the fact that four accused waited on the roadside for the deceased and
the manner in which they attacked him was positive proof of the existence of a
common intention in the four accused to cause death. Application of section 34, was
therefore rightly invoked by the trial court (1968 PCrLJ 235 DB). Similarly section
34 was applied where the evidence clearly showed that all assailants had proceeded
to the place of occurrence after making preparations for assault in furtherance of
their common object, as otherwise there was no reason at all for them to proceed to
the place of incident (NLR 1981 Cr. 241 DB; 1978 PCrUJ 490 (DB).
Prior concert or perarranged plan for proving the Common intention is not
necessary to be proved if the manner of assault as proved by the prosecution
witnesses necessarily lead to the conclusion that the participating accused persons
had developed a Common intention at the time of occurrence (Abdur Rahman
Mondal Vs. State, 29 DLR (SC) 246). It is the essence of section 34 that the accused
persons must be physically present at the place and at the time of commission of the
crime and the incriminating acts and circumstances must necessarily lead to the
inference of common intention to commit the crime (Nazimuddin vs. State 36 DLR
22.) The fact of all the accused being armed with deadly weapons and their physical
presence in the place of occurrence and inflicting of several Injuries on the deceased
clearly proved common intention of all the accused (Hazrat Ali Vs. The state 1984
BLD 257).
In case where section 34 Penal Code, is invoked it is incumbent on the
prosecution to show, in the first instance, the existence of a common purpose,
design or enterprise. If this cannot be done, each of the accused persons is liable
only for what he himself actually did (PLD 1959 Dhaka 36 DB). Where . the
prosecution story does not show that the accused persons were inspired by a
Common intention but merely shows that the accused may have been sinspired by a
similar intention . no constructive liability can be imposed on any one of them on
account of section 34 (ILR (1951) 1 Raj 712 (DB). Direct evidence of proving
common intention is not easily available. It is however an infernece to be drawn from
facts established and surrounded by circumstances (AIR 1955 SC 331). In abdul
Jabber Vs. State 16 DLR (SC) 177, accused Mitha actually stabled the deceased
fatally. Simultaneously. accused Abdul Jabber held of the other inmates of the house
by pointing a pistol at them and sought to suppress their effort to seek asistance
from outside. Held, this was a sufficient indication that Abdul Jabber associated
himself with the act of murder committed by his co-accused Mitha and it follows that
he shared a common intention with him as far as the killing of the deceased was
concered. Section 34 was attracted to the case.
22 LAW OF CRIMES I[Sec. 34—Syn. No. 5
Section 34 applies only when the court can, with certainty, hold that the
accused had premediated or preconceived a certain result or acted In concert with
others, and not where he merely thought that the result was likely to happen (1974
SCMR 251). In other words inference of common intention within the meaning of
the section 34 should never be reached unless it is a necessary inference deducible
from the circumstancs of the case (1968 PCrIJ 1349: 1968 PCrLJ 1123 DB).
The Common intention denotes action in concert and necessarily postulates a
pre-arranged plan or prior meeting of minds and an element of participation in
action. As pointed out above, the Common intention to commit an offence graver
than the one originally designed may develop during the execution of the original
plan e.g. during the progress, of an attack on the person who is intended to be beaten
but the evidence in that beihaf should be clear and cogent for suspicion, however
strong cannot take place of the proof which is essential to bring home the offence to
the accused (AIR 1978 SC 1492 (1495); 1978 CrlJ 1938). Common Intention may
also develop on the spot during the course of the commission of the offence (AIR
1963 SC 1413 = (1963) 2 Cr LJ 351). But there should be cogent meterial on the
basis of which the court can arrive at the finding and hold an accused vicariously
liable for the act of the other accused by Invokin section 34 of the P. Code (AIR 1972
sc 2555 = 1973 cr Li 26).
When the accused knew well that A-i and others were armed and that A-i had
caused sword injuries on the vital part of the body of the deceased in the verandah of
courtyard and he himself aided accused A-i by giving blows to the deceased on some
vital parts of the body like chest, it was held that he clearly shared 'a common
intention to cause death of the deceased (AIR 1978 SC 1529 (1530).
While the evidence on record clearly established the presence of A-3 along with
A-i and A-2 at the scene of occurrence, the evidence was not adequate to hold that
A-3 had shared a common intention with A-i and A-2 in the commission of offence
by them against the other party except that he was on friendly terms with A-i and A-
3 had no scores to settle with the others. A-3 had not assisted A-i and A-2 In any
manner in the attack made by them on that basis. He had not even uttered any words
of instigation when. the two persons were cut. As regards the subsequent conduct of
A-3 in surrendering at the police station it cannot warrant a conclusion that there
was a prior meeting of minds between A-3 on the one hand and A-i and A-2 on the
other, and it was on account of a consensus reached between them, the victims had
been attacked at the Bizar Road and thereafter all the three of them went together
to the police station to surrender themselves. It may well be that A-3 may have
thought that if he did not go to the police station when A-i and A-2 were themselves
going, he would be incurring their displeasure and also inviting the suspicion of , the
police authorities about his complicity in the offences. In such circumstances A-3
cannot be held constructively liable for the acts of A-i and A-2 (Rangaswami Vs. State
of Tamil Nadu, 1989 CrLJ 875 (878) SC = AIR 1989 SC 1137).
When an offence is committed in furtherance of the Common intention of two
or more accused, then every one of them is asmuch guilty as the other and It Is not
necessary that every one of them should have participated in the commission of the
offence to the same extent and degree as the other person or persons accused of the
offence had acted (State of Punjab Vs. Sulit Singh, 1987 CrLJ 845 (84) SC: AIR
1987 SC 1045).
Before fastending vicarious liability, the criminal court must satisfy itself as to
the prior meeting of minds of the prncipal culprit and his companions who are
sought to be constructively made liable in respect of every act committed by the
former. Mere accompanying cannot infer common intention. Existence or otherwise
Sec. 34—Syn. No. 51 GENERAL EXPLANA'IiONS 23
of Common intention depends upon facts and circumstances of each case. The
intention of the principal offender and his companions to 'deal with any person who
might intervene to stop the quarrel must be apparent from the conduct of the
perons accompanying the principal culprit. Otherwise., there must be someother
clear and cogent incriminating piece of evidence. When such materials are absent,
the copanions cannot be justifiably held guilty of every offence committed by the
principal offender. Evidence regarding development . of the Common intention to
commit an offence graver than the one originally designed, during execution of. the
original plan, should be clear and cogent (Dhram pal vs. State of Haryana, AIR 1978
SC 1492 = 1989 CrLJ 1538 SC).
It may be that when some persons start with a pre-arranged plan to commit a
minor offence, they may in the course of then committing the minor offence come to
an understandign to commit the major offence as well. Such an understanding may
appear from the conduct of the persons sought to be made vicariously liable for the
act of the principal culprit or from some other incriminating evidence but the
conduct or other evidence must be such as not to leave any room for doubt , in that
behalf, there is no law which lays down that a person accompanying the prthclpal
culprit shares his intention in respect of every act which the latter might eventually
commit. The existence or otherwise of the Common intention depends upon the
facts and circumstances of each case. The intention of the principal offender and his
companions to deal with any person who might intervene to stop the quarrel must be
apparent from the conduct of the persons accompanying the principal culprit or
some other clear and cogent incriminating , of evidence. In the absence of such
material, the companions cannot justifiably be held guilty for every offence
committed by the principal offender (AIR 1978 SC 1492 = 1978 CrLJ 1538).
The fact that the companion of the accused on whose cycle , the accused was
sitting continued to pedal the cycle after the accused fired a pistol and that he too
ran away with the accused would not necessarily go to show that the shot had been
fired in furtherance of common intention of the two accused (AIR 1975 SC 12;
(1975) 2 SCC 311) =1975 CrLJ 32 = (1975) = SCJ149).
Victim was murdered with gandasa while asleep in his mandi at 10.30 P.M.
while co-accused (his brother) stood by with a spear at the time preventing outside
.interfernece in his murder. Both ran away. It was held that both' had Common
intention to commit murder (1974 crLJ 1393).
Presence on the spot for the purpose of facilitating or promoting the offence is
itself tantamount to actual participation in the criminal act. Every person charged
with the aid of section 34 must in some form or the other participate in the offence
in order to make him liable thereunder (AIR 1956 All 241; AIR 1953 SC 420: AIR
1956 SC 177). Indulgence in overt act by each and every person is not necessary in
conviction of all accused (1982) 2 SCJ 280).
Once it was found that the accused were animated by a Common intention to
cause the death. section 34 Penal Code would be attracted-particularly when the
other three accused also accompanied co-accused at midnight and undoubtedly
shared the Common intention to kill the deceased (AIR 1983 SC 838 = 1983 CrLJ
1111). Where two accused attacked the deceased, one with sharp weapon and
another with lathi. Held, on facts that there was Common intention to commit
murder LAIR 1980 SC 1496). where , a common intention of two or more persons to
kill the deceased established, the questions as to who gave the fatal blow is wholly
irrelevant (AIR 1980 SC 879). ' '


24 LAW OF CRIMES (Sec. 34—Syn. No. 6.

6. Presence of accused if necessary at time of commissionof offence.- The
essence of section 34 is that the person must be physically present at the actual
commission of the crime. This must be coupled with actual participation. It Is
essential that the accusded join in the actual doing of the act and not merely in
planning its perpetration. Actual participation may be of a passive character such as
standing by a door with the intention of assisting in furtherance of the common
intention of all the accused and with a readiness to play his part when the time
comes for him to act. If the accused was not present, he cannot be convicted with
the aid of section 34 (Fazal v. state 1953 PLW 354). Presence on the spot for the
purpose of facilitating or promoting the offence is itself tantamount to actual
participation in the criminal act (Srce kariti Ia! Rammayya Vs State of Bomisay AIR
1955 SC 287). The actual participation may be of a passive character as where an
accused stood near a part to warn his companions about the approach of danger (AIR
1956 MB 262 = ILR 1956 MB 104). In order to justify the application of section 34.
Penal Code, an element of participation in action need be proved and and physical
presence at the scene of occurrence may sometme5 be dispensed with (Nepal Chosh
& Anr. v. The State 833 (834).
The essence of liability under section 34 is to be found in the existence of a
common intention animating the offenders leading to the doing of a criminal act in
furtherance of the Common intention and presence of the offender sought to he
rendered liable under section 34 is not one of the conditions of its applicability. It
must of course be established that a criminal act was done by several persons; the
participation must be in doing the act, not merely in its planning. A common
intention a meeting of minds-----to commit an offenc and participation In the
commission of the offence in furtherance of that Common intention invite the
application of section 34. But this participation need not in all cases, be by physical
presence. In offences involving physical violence, normally presence at the scene of
the offence, of the offenders, sought to be rendered liable on the pr.incile of joint
liability and may be necessary, but such is not the case in respect of other offence
where the offence consists of divers acts which may be done, at. different times and
places (AIR 1960 SC 889: AIR 1925 PC 1 relied on).
In the case of an offence involving physical violence, however, it is essential for
the application of section 34 that the person who instigates or aids the commission
of the crime must be physically present at the actual commission of crime for the
purpose of facilitating or promoting the offence, the commission of which is the aim
of the joint criminal venture. Such presence of those who in one way or the other
facilitate the execution of the common design, is itself tantamount to actual
participation in the 'crime act'. The essence of section 34 is simultaneous consensus
of the minds of person participating in the criminal action to bring about a particular
result. Such consensus can be developed atthe spot and thereby intended by all of
them. In this case A-2 obviously was acting in concert with A-3 and A-4 in causing
the murder of the deceased, when he prevented P.W. 1 from going to the relief of
the deceased. Section 34 was, therefore, fully attracted and under the circumstances
A-2 was equally responsible for the murder of the deceased (Ramaswami Ayyangar Vs.
State of Tamil Nadu. 1976 CrLJ 1563 (1507-68)SC).
Mere distances from the scene of crime cannot exclude culpability under
section 34, which lays down the rule of joint responsibility for a criminal act
performed by a plurality of peron. In Barendra Kumar Ghosh vs. King Emperor (52
IA 40: AIR 1925 PC I). The judicial committee drew into the criminal act those who
only stand and wait. This does not mean that some form of presence, near or remote,
is not necessary or that mere prsence, without more, at the spot or crime, spells
Sec. 34—Syn. No. 71 GENERAL EXPLANATIONS 25
culpability. Criminal sharing, overt or covert by active presenc or by distant
direction, making out a certain measure of jointness in the commission of the act is
the essence of section 34. (Tukaram ganpat Pandere v. State of Maharashtra AIR
1974 SC 514 (516); 1974 crLJ 469 SC).
7. Inference of common intention.- A Common intention or knowledge cannot
be proved by direct evidence and has to be inferred from the act, conduct of the
accused and attending circumstances of a particular case. No doubt, it pre-supposes
pre-arranged plan, but sometime it can be conceived at the spur of the moment
(Pritam Singh Vs. state. 1974 Punj LR 77 (82). In the instant case, the charge
against all the accused was for committing the murder in prosecution of a common
object and thus they were all charged with the aid of section 149 of the Penal code.
The Supreme court India held that if the evidence could justify the conviction of the
appellant with the aid of section 34, there would have been no difficulty in sustaining
his conviction. But the mere fact that the two accused came together armed with
rifles is not sufficient to indicate that they had come having shared a common
intention to commit the mruder. Only one shot was fired on the head of the
deceased by one accused. No shot was fired by the other on him. He had no grudge
on him. He did fire a rifle shot on another with the intention to kill him but
fortunately he escaped death, admittedly, the deceased was not residing in the
haveli, wherein the occurrence took place. It was perchance that he happened to be
there. It cannot, therfore, be said by any stretch of imagination that the appellant and
his companion had any pre-arranged plan to kill the deceased. On the evidence and
the facts found the inference of sharing the Common intention for the murder is not
possible to be drawn. It may be that he had such Common intention. But it is difficult
LO fill the gap between may' and 'must' and to say that the other accused must have
shared the common intention for causing the death of the deceased (Gajjan sinsh Vs
State of Punjab AIR 1976 SC 2069).
Mere proving that criminal act is done will not be sufficient for finding the
accused guilty under section 34 of the Penal code, but It must be proved or at least
such Common intention could be gathered from the facts and circumstances and
evidence on record that the accused - appellants have committed the offence In
furtherance of Common intention, otherwise charge under section 34 shall fall. (SK.
Baharul Islam Vs. The State. (1991) 11 BLD 15; 43 DLR 336). Inference of Common
intention within the meaning of section 34 should not be readily drawn or pushed
too for unless the same is deducible from the evidence and circumstances of the
case. (SK. Baharul Islam Vs. The State. (1991) 11 BLD 15; 43 DLR 336). There may
be a common intention formed on the spur of moment (Askar Ali Vs. State. 11 DLR
(SC) 226).
It cannot be said that only because the co-accused was a silent spectator took
no part, in the assault, he cannot, therefore, be held guilty of having entertained a
common intention to commit the murder. On this aspect, the time at which the
victim was murdered,the place of mruder, the weapons carried by the appellants,
their relationship and finally their concerted conduct In the wake of murder are all
relevant. The fact that the appellant did not participate in the assault but he played
his part truly by his brother by carrying a spear so as to overcome any , outside
interference with the attainment of their object and lastly immediately after the
victim was murdered the appellants ran away together held to have a sufficient
bearing on the existence of common intention in the commission of the murder,
(Lalai vs. state of Uttar Pradesh, 1974 crUJ 1391 (SC).
It is now firmly established that a pre-concert in the sense of a distinct
previous plan is not necessary to be proved for the application of section 34 of the
Law of Crime"
26 LAW OF CRIMES Sec. 34—Syn. No. 7.
Penal code. The common intention to bring about a particular result may well
develop on the spot. In the instant case, appellants Nos. 3 and 4 armed with lathis,
had come together with appellants Nos. 1 and 2, who were armed with bhalas to the
place of occurrence and started hurling lathis on the deceased who warded off the
lathis blows. Almost simultaneously appellants Nos. 1 and 2 assaulted the .deceased
with bhalas, as a result of which he died near the place of occurrence soon after
receiving the fatal injury as mentioned above. After the occurrence, appellants Nos. 1
to 4 ran away to their house together. Held that these facts and circumstances go to
show that the appellants Nos. 1 to 4 shared common intention in furtherance of
which the deceased was killed, therefore, the provision contained in section 34 of
the Code is attracted so far as appellants Nos 1 to 4 are concerned. (sita Ram Pandey
vs. State of Bihar, 1976 CrIJ.800).
Common intention contemplated in section 34 of the Penal Code, certainly
contemplates a pre-plan or pre-meeting of the minds of the reppetrators of the
crime. An Intention to commit a particular crime, if shared by 'more persons than
one, and If one of such persons commits the intended offence, the others who share
the common intention will also be liable for the offence committed. If there is
common Intention to commit murder although the atual fatal blow is given only by
one of confederates, the others who shared that intention would also be liable even
though their acts did not result In death, the pre-plan or pre-meeting of the minds
before the commission of the offence, need not be preceded by any particular length
of time. Common intention can be developed any time even a few minutes before the
actual commission of the crime. The existence or otherwise of common intention to
commit a particular crime has to be decided on the facts of each case and the
commonness or otherwise of the intention has to be inferred not merely by the
consequences of the acts but also by a reference to the motive which actuated the
offenders, the weapons with which they were armed, the manner of their attack, the
individual acts and the attitud6 of the others with regard to the individual acts.
Where the facts spoken to by the witnesses and found to have been proved that the
three accused attacked the deceased with deadly weapons having been actuated by a
common Intention to kill the deceased, the conjoint and concerted attack of the
three accused delivberateiy armed with lethal weapons and the consequences of
their attack coupled with their motive, unmistakably indicate that all the three
accused were actuated by a common intention to kill the deceased (Public
Prosecutor vs. Gene. Venkatesu, (1975) 2 Andh WR 413 (417-18).
It is settled view that in order to attract section 34 it is not sufficient to prove
that each of the participating culprits had the same intention to commit a certain
act. What Is the requisite ingredient of section 34 is that each must share the
intention of the other. Where the appellants were in the company of the principal
culprit but were shown to be unarmed and they have pelted only stones, it was held
that the conviction of the appellants for an offence under section 302 read with
section 34 of the Penal code could not be sustained and they could be convicted for
an offenc of section 326 read with section 34 of the Penal code. (De'lya Moshya Bhil
Vs. State of Maharshtra, (1985) 1 Mom. CR 413(SC).
After a quarrel had started over the picking of mangoes in the mango tope, the
two appelaints had come from different directions. In the circumstances in which
they had been placed and from their acts and conduct prior to at the time of and
subsequent 1.0 the occurrence, it may not safely be said that both the appellants had
been actuated by the common intention to commit the murder of the deceased. But
in view of the clear and direct evidence that the appellant hid, with the intention of
causing the death of the deceased, caused injuries sufficient in the ordinary course of
 Sec. 34—Syn. No. 71 GENERAL EXPLANATIONS 27
nature to cause death, by firing from gun, he can be convicted under section 302
of the code although charged with the other appellant under section 302 read with
section 34 of the code, even if the other appellant is acquitted of this charge. The
order of conviction passed against the appellant under section 302 read with section
34 of the Penal code, Is set aside and in lieu thereof, he is convicted under section
302 of the Penal code and the sentence to under go imprisonment for life passed
against him is maintained. (Magata Panda vs. State. (1986) 61 CLT 511(522-23).
Common intention within the meaning of section 34 of the Penal Code no doubt
implies a pre-arranged plan and to convict the accused of an offence applying this
section, It should be proved that the criminal act was done In pursuance of a pre-
arranged plan. It is difficult, if not impossible, to procure direct evidence to prove
the intention of an Individual, in most cases It has to be inferred from his act or
conduct of other relevant circumstances of the case (Narasinga Nad vs. State 1985
CrLJ 1397 (1400-01), =
It is the settled position of law that to invoke section 34, Penal Code, the
prosecution must establish common intention and prove that the criminal act was
done in concert pursuant to a pre-arranged plan. In inferring common intention
from the evidence on record, one must keep in the fore front of his mind the
distinction between the common intention and the same or similar intention,
though the dividing line between them Is • often very thin. If this distinction is
overlooked, miscarriage of justice Is likely to occur. It is equally well settled that
inferehce of common intention should never be reached unless it is- a necessary
inference deducible from the circumstances of the case, the mere fact that suddenly
both the accused persons procured their weapons from somewhere would not
necessarily lead to an irresistible inference that both the accused persons had
entered into a pre-arranged plan to murder the deceased, when their subsequent
conduct does not improve the position of the prosecution (State vs. dharanldhar
Mohanty. 1975 OJD 558 (571-72).
Inference of common intention of all the accused-appellants cannot be drawn
from the different nature of injuries attributed to different accused persons; and the
law is that no inference of common intention should be reached unless It is a
necessary inference deducible from the evidence or circumstances of the case (Kabul
vs. The state, 40 DLR 216). -
The distinction between the same or similar intention and the Common
intention is real though at times thin and it assumes importance particularly in cases
where the occurrence is sudden, common intention should be inferred from the
whole conduct of all persons concerned and not only from an individual act actually
done. It cannot be said as a matter of law that in all cases,even though the
occurrence is sudden any particular act of a member would by itself or exclusively
form the basis of the Conclusion about the common intention - ofall (Amar Singh Vs.
State. (1967) 69 PunJ LR 139). After a person was mercilessly beaten and was
thrown in a drain when the same people came back again and seeing - the man still
with life went on beating him with sticks till he died, there Is no difficulty in coming
to the conclusion that they had the common intention of killing him. (AIR 1955 SC
331). It is difficult, if not impossible to procure direct evidence to prove the
intention of an individual: in most cases it has to be inferred from his act or conduct
or other relevant circumstances of the case (Mahbub shah vs. Emperor AIR 1945 PC
118 = 72 IA 148: ILR (1945) 2 Kar PC 210 = 1945 ALT 344).
Common intention to kill - is generally inferred from the manner of attack and
the kind of arms used by the accused persons, where one accused had a 12 bore
 LAW OF CRIMES [Sec. .34—Syn. No. 8
28
SBBL gun while the other a 12-bore pistol and the attack was joint and consert, It
was held that section 34, Penal code, was correctly employed by the court below in
convicting ' the appellant under section 302. Penal code (Mal Singh vs. State of
Rajashtan. (1985) 1 CrDLJ 57 Raj).
The question arises as to whether during the coruse of the incident all the
accused shared the common intention of each other to commit the murder of the
accused or merely to give him grievous injuries. In this regard. It is noteworthy that
the very factum of the accused having come unarmed to the house of the deceased.
clearly shows that they were intending to lodge protest only. because In case they
had intended to kill him, they could have armed themselves with effective weapons
like gandasas. kirpan, etc. Which are usually available with the villagers. It appears
that during the course of lodging protest some unbecoming words or exchange of hot
words took place between the accused and others, which resulted in their entering
the courtyard of the house of the deceased and hurling brick bats on them, after
picking the same from near the hand pumpl. thus at the most, it can be said that all
the accused shared the common intention of each other to cause grievous hurt to the
deceased and not to kill him, especially when the possibility of hiting the brick bats
at the chest of the victim by his movement cannot be ruled out, even though the
accused may not have aimed the same at his chest. It could not be said with certainty
that the cardiac arrest of the deceased was the result of brick batting. Under these
circumstances, even if it is taken that accused had caused injuries on the chest of
the victim, the offence at the most would fall under section 325 P.C. as the accused
never intended to cause him the death or had the necessary knowledge that the
pelting of brick bats would result in his death. He cannot even be attributed with the
remote knowledge that pelting of brick bats would result in cardiac arrest of the
victim. Thus he was held guilty for the offence under section 325/34 P.C. and section
448 P.C. and his conviction for the offence under section 449 and 302. P.C. was set
aside being not legally sustainable (Balwinder singh vs. State of Punjab 1989 CrLJ 718
(721).
This inference can be gathered by the manner in which the accused arrived on
the scene and mounted the attack, the determination and concert with which the
beating was given or the injuries caused by one or some of them, the acts done by
others to assist those causing the Injuries the concerted conduct subsequent to the
commission of the offence for instance that all of them had left the scene of the
incident together and other acts .which all or some may have done as would helf in
determining the common intention. In other words, the totality of the circumstances
must be taken into consideration in arriving at the iconclusion whether the accused
had a common intention to commit an offence with which they could be convicted
(Ram Tehal vs. State of U.P. AIR 1972 SC 254 (257).
8. Mere presence does not raise presumption of complictity.- Although a man is
present when a felony is committed, if he takes on part in it and does not act in
concert with those who commit it, he will not be a principle merely because he did
not endeavour to prevent it, or to apprehend the felon. All who are present do not
necessarily assist by their presence every act that is done in their presence, nor are
they consequently liable to be punished as principals. There must he community of
design to make the person present liable (1973 Ker LT 977). The mere
circumstance of a person being present on an unlawful occasion does not, therefore
raise a presumption of that persons's complicity in an offence then committed (1979
CrUJ 959).
To hold various accused guilty under section 34.. it must be proved that they
had a common intention and that they all participated in the criminal act of which
Sec. 34—Syn. Nc 91 GENERAL EXPLANATIONS 29
they are charged. Mere presence without proof of any act or omission done to
facilitate the offence or at least without .proof of the existence of a common intention
will not be sufficient under section 34, penal code, to support a conviction. But if
common intention is proved, It is no answer to say that the prosecution have not
established which of the acts done in the commission of the crime was done by each
individual accused (1969 SCMR 454 = 1969 PCrLJ 1007).
It was proved in case that all the, three appellants had a motive against the
deceased, but there was nothing on record to show that there was a prior concert
amongst them to kill the deceased at the alleged time and place and In the manner
in which he was done to death, the time of occurrence was such when outsiders
could enter the hospital campus to see indoor patients. It would not be surprising if
the three appellants also happened to reach there in that connection, and when G
saw the deceased, he abruptly took-it into his head to whip out a pistol and fire at
the deceased. In the absence of any other evidence, direct or circumstantial, to
prove the prior concert amongst the three appellants for committing the murder of
the deceased, the mere presence of R and K, when G committed the murder, could
not make them guilty for the murder with the aid of section 34 (1981 crLJ (NOC)
190 All). The presence of 'accused at the scene of the offence and their running away
after occurrence without further materials or without .direct evidence of prior
concert cannot be said to be incompatible with innocence of accused (1974 CrLJ
234 Raj).
Presence of the accused on the spot and then running away after the incident
without any prior concert will not establish common intention (1982 CrLR (SC)
139). From the mere fact that the person was seen even by the side of the accused at
the time when he fired the shot, it is not possible to say that there was a common
intention and that was shared by him. Participation in the criminal act is the gist of
the offence under section 34 (1973 Ker LT 977).
9. Failure to mention section 34 in the charge , - effect.- Failure to mention
section 34 in the charge is not a defect for the section does not creat a substantive
offence which should be mentioned inthe charge (Shivappa Vs Hyderabad State,
1955 crLJ 958: ILR (1954) Hyd 147). The common object of the unalwful assembly
was merely to administer a chastisement to the deceased and the learned- Judges of
the High court did not hold that though the common object was to chastise the
deceased, the members of the 'unlawful asembly knew that the deceased was likely to
he killed in prosecutionof that common object. The conviction under section 302
read with section 149. Penal code, was not justified in law. When the charge framed
against them gave them no notice of any joint liability on the basis of a separate
common intention to kill the deceased. On the finding of the High court none of the
members of the unalwful assembly had the intention of killing the deceased section
34 cannot be applicable (chikarange gowda vs. State of Mysore, AIR 1956 SC 731).
The appellant was convicted of the offences of murder and robbery by the
Sessions Judge by the application of section 34, Penal Code. the charge framed,
however, was one of murder and robbery and there was no mention of these offences
having been committed where in furtherance of a common intention the High Court
found that the appellant along with two others committed these offences and they
shared in the goods robbed. The Suprme Court was satisfied that It establishes the
offences of mruder and robbery against the appellant and not merely the minor
offence of robbery or theft (Wasim Khan Vs. State of U.P. AIR 1956 SC 400).
The charge is a rolled up one involving the direct liability and the constructive
liability without specifying who' aie directly liable and who are sought to be made
 30 LAW OF CRIMES [Sec. 34—Syn. No. 101
constructively liable, the absence of a charge under one or other of the various heads
of criminal liability for the offence cannot be said to be fatal by itself, and before a
conviction for the substantive offence, without a charge, can be set aside prejudice
will have to be made out (AIR 1956 SC 116).
The object of a charge Is to warn the accused person of the case he is to
answer. It can not be treated as if It was a part of ceremonial. The omission to
mention section 34 in the charge can not affect the case unless prejudice Is shown
to have resulted in consequence thereof. Although there is a difference in common
object and common intention, they both deal with combinations of persons who
become punishable as sharers in an offence and a charge under section 149 Penal
code is no empediment to a conviction by the application of section 34 If the
evidence discloses the commission of the offence in furtherance of the common
intention of all (AIR 1958 SC 672 (675); 1958 CrLJ 1251).
If the facts to be proved and the evidence to be adduced with reference to the
charge under section 149 would be the same if the charge were under section 34,
then the failure to charge the accused under section 34 cannot result in any
prejudice and in such cases the substitution of section 34 for section 149 must be
held to be a formal matter (Amar Singh Vs. State of Haryana, AIR 1973 SC 2221
(2224).
Where an accused is charged with others for a substantive offence under
section 201 or under section 302 read with section 34 and the others are acquitted
the accused can nevertheless be convicted of the substantive offence provided the
evidence on record was sufficient to establish the guilt and it is of a consequence
that there was not an alternative charge for substantive offence. It is not necessary to
frame a charge under section 34 for convicting a person under section 498 read with
section 34 provided the facts and circumstances establish common intention
(Alamgir vs. State, AIR 1957 Pat 285). -
Where six persons were placed on trial under sections 302/149 penal Code and
the evidence showed that each of the two accused caused at least one necessarily
fatal injury to the deceased. It was held that each of the two accused could rightly be
convicted either under section 302 Penal code, individually, or under section 302
read with section 34 Penal Code although they were not charged under section 302
read with section 34 of the Penal Code (9 DLR (SC) 7; PLD 1956 FC 425). When out
of the eight persons convicted by the trial court under section 302/149, six were
acquitted by the appellate court. The court changed the conviction of the remaining
two from one udner section 302/149 to one under section 302/34 as the common
intention of those two was proved on. the evidence in the case (PLD 1962 Kar 583
DB).
10. Where co-accused are acquitted of. -Where the evidence examined by the
appellate Court unmistakenly proves that the appliant was auilty under Section 34
having shared a common intention with the other accused who were acquitted and
that the acquittal was bad, there is nothing to prevent the appellate Court from
expressing that view and giving the finding and determining the guilt of the
appellant before it on the basis of that finding (Brathi V. State of Punjab, AIR 1991 SC
318). An act was alleged to have been committed by a number of specified persons,
live or more in number, in furtherance of the common intention of all of them. They
were prosecuted for rioting and for the commission of the alleged act in view of the
provisions of section 149 of the Code. The court acquitted all except the appelnalt
giving them the benefit of doubt, at the same time its definite finding was that the
appellant was asosciated with some . at least of those acquitted persons in the
Sec. 34—Syn. No: 101 GENERAL EXPLANATIONS 31
commission of the alleged act. It accordingly convicted the appellant of the
commission of the alleged act applying the provisions of this section. It was held that
such a conviction could be upheld (Am 1975 SC 2211= 1975 CrLJ 1874). Where an
accused is charged with a substantive offence Invoking section 34,, there is no bar to
his conviction for the substantive offence unless prejudice is caused and it is
incumbent upon the accused to show that it misled him, causing failure of justice
(AIR 1974 sc 778).
Where the accused was charged with co-accused under section 34 and the co-
accused was acquitted, it was held that conviction of accused under section 302
simpliciter or section 325 was possible if no prejudice was caused (1968 All LJ 50).
The acquittal of two out of three named accused does not bar the conviction of
the third under section 302, read with section 34 if.he is shown to have committed
the offence with unknown companions (AIR 1974 SC 1557).
The argument that co-accused having been acquitted and one of the other
brother sbeing dead and one having absconded, It can not be said that prosecution
has established common intention was not accepted in the instant case and it was
held that for the application of section 34 penal Code, there must be evidence
involving several accused persons either specifically named or some specifically
named and others unnamed in the charge. Where charge specifically mentions
named individuals, of whom all are acquitted except one, his liability has to be
established individually and not conjointly, where, however, the charge mentions
that particular act was committed by some named individuals and all are acquitted
except one, but evidence is led as against the named persons as well as the unknown
persons, his joint liability with the unknown persons can still be established by
invoking section 34. (1976 CrLJ 250 (254, 255) Orissa).
When the two accused A and B were individually charged under sections 302
and 436. Penal Code, they were convicted only under the alternative charges under
section 302 read with section 34 and section 436 read with section 34, Penal code,
by the Sessions Judge. Consequently, A;s conviction can be sustained only if the High
court had sustained the convictions awarded to accused B also. Inasmuch as the High
court had given the benefit of doubt of accused B and acquitted it follows that As
Conviction for the two substantive offences read with section 34, Penal Code, cannot
be sustained because this is a case where the co-accused is a named person and he
has been acquitted and by reason of it the appellant cannot be held to have acted
conjointly with anyone in the commission of the offences. This position of law is well
settled (sukhram vs. State of Madhya Pradesh, 1989 CLJ 838 Sc).
When accused were acquitt;d either on the ground that the evidence was not
acceptable or by giving benefit of doubt to them, the result in law would be the same
it would mean that they did not take part in the offence. the effect of the acquittal of
accused 1, 3 and 4 is that they did not conjointly act with accuseds in committing
the murder. If they did not act conjointly with accused 2 could not have acted
conjointly with them (AIR 1963 SC 1413 (1417).
Before one of the accused can be convicted of an offence under section 326
read with section 34, it must he established that some other specified person, whose
intention the accused shared, committed the act resulting in causing grievous hurt.
When the accused alleged to be actual assailtants acquitted, such acquittal means that
there is no such person who took part in the assault resulting in causing grievous
hurt and hence the conviction for the remaining accused under section 326/34
cannot be upheld (AIR 1958 Born 469 = 1958 CrLJ 1385).
32 LAW OF CPIMES [Sec. 34—Syn. No. 11
In order that section 34 may be applied the common intention of committing a
crime must be attributed to more than one individual and if the offence is the result
of a joint act of more than one person then only each one of them can be found guilty
under section 302 read with section 34 of the Penal Code. (PLD 1957 SC 390).
Where the charge is that the accused had committed an offence in furtherance of
their common intention but other person named in the charge are acquitted. the
conviction of the single accused must also be set aside. (PLD 1957 SC 390). Where
the High Court acquitted three of the four accused charged for an offence under
section 302 read with section 34 giving them the benefit of the doubt In view of the
fact that their identity was not established but convicted the fourth under section
302 read with section 34 on the ground that he had committed the offence along
with one or other of the acquitted accused. It was held that the conviction of the
fourth accused was clearly wrong. When the accused were acquitted either on the
ground that evidence was not acceptable or by giving benefit of the doubt, to them the
effect in law would be that they did not take part in the offence. Hence the effect of
acquittal of the three accused was that they did not conjiontly act with the fourth
accused in committing the murder. If that was so, the fourth accused could not be
convicted under section 302 read with section 34 for having committed the offence
jointly with the acquitted persons. (AIR 1963 SC 1413). But where it was clear from
the record that more than one person . had committed a murder, but two of the
aScused were given benefit of the doubt and the principal offender was not
discovered, the appellate court set aside the conviction of one of the accused under
section 302/34, P.C. convicted him under section 302/109 and sentenced him to
transportation for life. (1970 PCrLJ 415).
1L Distinction between common intention and common object.- Section 34
applies In a case where a criminal act is done by two or more persons in furtherance
of the common intention of all while section 149 applies in the case of a member of
an unlawful assembly when a criminal act is committed by any member of the
unlawful assembly in prosecution of the common object of that assembly (Ataur
rahman and others Vs. The State (1994) 14 BLD 391 (392). In the case of section 34
it is well established that a common intention presupposes prior concert. It requires
a pre-arranged plan. accordingly, there must have been a prior meeting of minds.
Common Intention differs from common object in that the latter does not require
prior concert and a common meeting of minds before the attack, and can develop as
an unlawful object after the people get there (Public Prosecutor, Andhra Pradesh vs.
Bolapali Veeraiah-. 1962 MU (Cr) 862) Although there is a difference in common
object and common intention, they both deal with combination of persons which
become punishable as shareers in one offence and the charge under section 149.
Penal Code is no impediment to a conviction by the application of section 34, if the
evidence discloses the commission of the offence In furtherance of intention of all
(Sivapada Senapati Vs. State, AIR 1969 Cal 28; AIR 1956 SC 518).
The essence' of the application of section 34 is the physical presence of the
person of the actual commission of the crime. If the accused is not present section
34 is not attracted. Actual participation is not necessary. It may be passive. It may be
slight (AIR 1925 PC I; AIR 1960 SC 889). Mere presence at the commission of an
offence is not sufficient unless community of design is proved against him (1964) 1
CrLJ 375). For application of section 34 some overt act by each of the accused is
necessary in the commission of the crime by two or more persons but in the case of
appliccationof section 149, if one is found to be a member of the unlawful assembly
Sec. 34—Syn. No: -111 GENERAL EXPLANATIONS . 33.
for the commission of the crime, whether he takes active part In It or not, he comes
within its mischief, and so far as section 109 is concerned, it Is simply for abetment
of the offence committed (Abul Khayer and others Vs. State (1994) 46 DLR 212;
(1994) BLD 391(392). ,. .
Section 34 limits itself to the furtherance of the common intention while
section' 149 goes further and Is more strongly worded than section 34. The words
common object and common intention are not synonymous. They involve a
substantial difference and if this difference is sought to be eliminated, that would
amount to a misdirection tending to misapplication of the law in this regard
resulting in a wrong verdict (AIR 1956 SC 731).
In the case of Barendra Kumar Ghosh Vs. Emperor (AIR 1925 PC 1) It was
observed that section 149 postutated an assembly of five or more persons having a
common object, namely, one of those objects named in section 141, and then the
doing of acts by members of the assembly in prosecution of that Object or such as the
members knew were likely to be committed in prosecution of that object. It was
pointed out that there was difference between common object and common
intention: though the object might be common, the intention of the several members
might differ. The leading feature of section 34 is the element of participation In
action, where as membership of the assembly at the time of the committing of the
offence is the important element in section 149. The two section have a certain
resemblance and may to a certain extent overlap, but it can not be said that both have
the same meaning (AIR 1955 SC 274).
Under section 34 when a criminal act is done by several persons in furtherance
of the common intention of all, each of such persons is liable for that act In the same
manner as if it were done by him alone. The words 'In furtherance of the common
Intention of all' are a most essential part of section .34 of the penal Code. It is
common Intention to commit the crime actually committed. The common mention
is anterior in time to the commission of the crime. Common intention means a pre-
arranged plan. On the other hand, section 149 of the Penal Code speaks of an offence
being committed by any member of an individual assembly in prosecution of the
common object of that assembly. The distinction between 'common intention' .under
section 34 and 'common object' under section 149 is of vital importance. The aspect
of the accused persons being likely to cause death would be relevant under section
149 and not under section 34 of the Penal Code for the obvious reason that under
section 34, it has to be established that there was the common intention before the
participation by the accused (AIR 1971 SC 1444 (1446, 1447).
If the common object which is the subject matter of the charge under section
149 does not necessarily involve a common intention, then the substitution of
section 34 for section 149 may result In prejudice to the accused and should not
therefore be permitted. But if the facts to be proved and the evidence to be adduced
with reference to the charge under section 149 would be the same if the charge
were under section 34; then the failure to charge the accused under section 34 can
not result in any prejudice and in such cases the substitution of section 34 for
section 149 must be held to be a formal matter (Amar Singh Vs. State of H.P. AIR
1973 SC 2221). A common object differs from a common intention, in that it does
not require prior concert and a common meeting minds before that attack, and an
unlawful object can develop after the people get there. The distinction between the
common intention required by section 34 of the Penal Code and the common object
are set out in section 149 lies just there. In a case under section 149 there need not
be a prior meeting of minds. It is enough that each has the same object In view and
Law of Crinies-5
34 LAW OF CRIMES [Sec. 34—Syn. No. 13
that their number is five or more and that they act as an assembly to acheive that
object (AIR 1956 SC 513(516, 518, 519). But common intention presuposes prior
concert, where must have been a prior meeting of minds. (AIR 1955 SC 216).
See also note 5 of section 149 (post).
12.. Section 34 and sections 397, 398. Section 398 is applicable only to actual
offender who is armed with a deadly weapon at the time of attempting to commit
robbery or dacoity, and section 34 cannot be pressed into service, (PLD 1963 Lah
371) because though it is true that when .a man accompanies thieves, one of whom is
armed with a revolver, he must know It to be likely that a murder will be committed
if the attempt to steal is resisted yet further than that it is not safe to go. Therefore,
section 34 would not apply to the case (PLD 1963 Kar 745).
13. Sentence passed on different accused.- Constructive liablity under section
34 P.C. relates to cases where several accused persons do similar diverse acts In
furtherance of their common 'intention and liability is shared by each one of theose
persons In the same manner as if each one of them alone and unaided had done the
whole deed. In such a case each one Of them shall be guilty of "the one offence"
committed by them all in the final result, regardless of any individual conduct or
action, producing a separate offence. In other words, it is not possible in the
application of section 34 P.C. to so grade the offence committed, as to form one
offence in the case of one accused person and another in the case of another on
their separate individual actions, as this would disrupt the unity and commonness of
intention which Is the main requirement of section 34. P.C. For example, in a case of
murderous assault committed in furtherance, of common intention by several
persons, it Is not possible to hold that while committing murder in furtherance of
their common Intention within the meaning of section 34 P.C. 'A' alone is guilty of
murder 'B' of culpable homicide not amounting to murder, and 'C' just of grievous
hurt. To split up individual actions for determining separate offences of several
persons concerned in a crime is possible only where a case goes out of .the ambit of
section 34 and conversely where section 34 P.C. is attracted to a case, an attempt to
discriminate the role of several accused persons in terms of the act committed br
each of them is fruitless (PLD 1959 Lah 950). Thus where both the accused inflicted
hatchet Injuries on the deceased, both of them had come with the Intention to kill
the deceased 'and, therefore, they are jointly liable under section 34 P.C. (1981
PCrLJ 275). But the .other view is that if an accused is found to have played only a
minor role in the commission of murder, he should not be sentenced to death,
Imprisonment for life is sufficient sentence for him (1970 PCrLJ 64). Where the
appellant is not stated to have caused a 'fatal blow to the deceased; the right, elbow of
the deceased, he may be vicariously liable for the murder of the deceased but
keeping In view the quantum of actual physical harm he has specifically done to the
deceased, he should not be awarded the extreme penalty. It is a case eminently fit
for Imposition of lesser penalty. Death sentence was altered to imprisonment for life
(1981 SCMR 597). . .
Where the accused are convicted of the same offence they would ordinary
receive the same punishment. Thus' where the accused are convicted of an offence
under section 302/34 no distinction in sentence could be made on the ground that
some of them were armed ('Ith deadly weapons. If two of them were awarded the
lesser punishment of imprisonment for life, there was equally good reason that the,
others should have been awarded the same 's penalty' (AIR 1963 MP 28). Where
however' there are special mitigating circumstaances, as where the accused is young
and has acted 'under the influence of an old relation and has not inflicted any blow,
though he was present when the offence was committed,', he may, be convicted of the
 Sec. 34—Syn. No. 14] GENERAL EXPLANATIONS 35
offence of which the others are convicted but may be given a lighter sentence. When
a young man of 17 accompanied his uncle when the later went to commit a murder,
but did not Inflict any blow on the'deceased. He was convicted under section 302/34
but was sentenced to transportation for life though the principal accused was
sentenced to death (PLD 1966 Kar 365). Where the accused were real brothers and
the younger one gave only one lathi blow to the deceased and caused only simple
injuries, the court held that there was a possibility that he might have acted under
the influence of his elder brother, the other accused, and altered his death sentence
to transportation for life. (1970 SCMR 220). Where .the three accused persons were
real brothers and the first blow was struck by the elder brother (S). It was held that
keeping in view the fact that if the elder brother had not given the first blow, the
other two who were under his influence, might not have attacked the deceased at all,
the court sentenced (S) to death and the other two to transportation for life.
• In the case all the appellants were convicted under section 302 with the aid of
section 34 as it was not possible to hold definitely as to which particular accused
caused the fatal injuires found on the bodies of the victims. Having regard to all these
factors interest of justice would be fully served by substituting the sentence of
imprisonment for life for the sentence of death. (perveen Kumar Gupla Vs State of
U.P. 1974 CrLJ 57 (60). Where the common intention was to cause grievous hurt to
the deceased and it was on this footing that one of the accused was convicted of the
offence under section 326 read with section 34, the other co-accused also must, on
the same basis, be convicted under section 326, read. with section 34 instead of
section 302, read with section 34 penal code (Ashok Kumar Vs. State of Punjab,
1977 CrLJ 164 (166) SC).
14. Common intention, when not established - effect of.- If there is common
intention established in the case the prosecution would not required to prove which
of the injuries is caused by which assailant. But when common intention is not
proved the prosecution must establish the exact nature of the injury caused by each
accused and more so when one of the accused has got the benefit of the doubt and
has been acquitted (Babulal Vs. State of UP 1968 AWR (HC) 484; AIR 1968. SC 728).
Mere presence at the place of occurrence' without active participation or the
doing of some positive act, which would indicate the sharing of the common
intention, would not make a person liable for the commission of an offence even with
the aid of section 34 of the Penal Code (Shew Mangal Singh Vs. State 1981 crLJ 84).
What is necessary for the prosecution to prove in a case is whether the alleged
assault resulting in the death of the deceased was in furtherance of the common
intention of all the accused and if this is so, then each, one of them would be liable
for this criminal act in the same manner as if it were done by him alone (Dharma Vs.
State 1970 CrLJ 126, 127).
Charge.- . .
The charge under this section should run thus -.
'. 1 ....................... (name of the Session Judge), hereby charge you (give the names
of all the accused persons), as follows :
That on or about...............(date ) ...........(time) ...........(place) in furtherance of
the common intention of you all, to wit ........one (or more) of you. namely ...........(give
details of the offence committed) . and thereby you all committed an offence
punishable under section .................Penal Code read with section 34, Penal Code.
"And I direct that you all be tried by this court on the said charges".
36 LAW OF CRIMES [Sec. 35r38

35. When such an act is criminal by reason of its being done with a
criminal, knowledge or intention.- Whenever an act, which is criminal only by
reason of its being done with a criminal knowledge or intention, is done ty
several persons, each of such persons who joins in the act with such
knowledge or intention is liable for the act in the same manner as if the. act
were done by him alone with that knowledge or intention.
36. Effect caused partly by act and partly by omission. - Whenever the
causing of a certain effect, or an attempt to cause that effect, by an act or by
an omission, is an offence, it is to be understood that the causing of that
effect partly by an act and partly by an omission is the same offence.
Illustration
A Intentionally causes Z's death, partly by illegally omitting to give Z food, and
partly by beating Z. A has committed murder.
37. Co-operation by doing one of several acts constituting an offence.-
When an offence is committed by means of several acts, whoever
intentionally co-operates in the commission of that offence by doing any one
of those acts, either singly or jointly with any other person, commits that
offence.
Illustrations
(a) A and B agree to murder Z by severally and at different times giving him
small doses of poison. A and B administer the poison according to the agreement
with intent to murder Z. Z dies from the effect of several doses of poison so
administered to him. Here A and B intentionally co-operate in the commission of
murder and as each of them does an act by which the death is caused, they are both
guilty of the offence though their acts are separate.
(b) A and B are joint jailors, and as such, have the charge of Z, a prisoner,
alternately for six hours at a time, A and B, intending to cause Z's death, knowingly
co-operate in causing that effect by illegally omitting, each during the time of his
attendance, to furnish Z with food supplied to them for that purpose. Z dies of
hunger. Both A and B are guilty of the murder of Z.
(c) A, ' S jailor, has the charge of Z. a prisoner. A intending to cause Z's death,
illegally omits to supply Z with food; in consequence of which Z is much reduced in
strength. But the starvation is not sufficient to cause his death. A is dismissed from
his office, and B succeeds him. B without collusion or co-operation with A, illegally
omits to supply Z with food knowing that he is likely thereby to cause Z's death. Z
dies of hunger B is guilty of murder, but, as A did not co-operate with B. A is guilty
only of an attempt to commit murder.
38. Persons concerned in criminal act may be guilty of different
offences. - Where several persons are engaged or concerned in the
commission of a criminal act, they may be guilty of different offences by
means of that act.
Illustration
A attacks Z under such circumstances of grave provocation that his killing of Z
would be only culpable homicide not amounting to murder. B having ill-will towards
Z and intending to kill him, and not having been subject to the provocation, assists A
in killing Z. Here, though A and B are both engaged in causing Z's death, B is guilty of
murder, and A is guilty only of culpable homicide.
Sec. 39-431 GENERAL EXPLANATIONS 37

39. "Voluntarily."- • 'A person is said to cause an effect "voluntarily" when

he causes it by means whereby he inteded to cause it, or by means which, at
the time of employing those means, he knew or had reason to believe to be
likely to cause it.
Illustration
A sets fire, by night, to an inhabited house In a large town, for the purpose of
facilitating robbery and thus causes the death of a person. Here, A may not have
inteded to cause death, and may even be sorry that death has been caused by his act:
yet, if he knew that he was likely to cause death, he has caused death voluntarily.
1 140. "Offence. "- Except in the 2 [chapters]and sections mentioned in
clauses 2 and 3 of this section, the word 'offence' denotes a thing made
punishaLie by this Code.
In Chapter IV, 3 [Chapter VA] 'and in the following sections, namely,
sections [64}, [65,] [66,] [67,] [71,] 109, 110, 112, 114, 115, 116, 117,
187, 194, 195, 203, 211, 213,'214, 221, 222, 223, 224, 225, 327 328,
329, 330, 331, 347, 348, 388, 389, and 445, the word 'offence'. denotes a
thing punishable under this code, or under any special or local law as
hereinafter defined..
And in sections 141, 176, 177, 201, 202, 212, 216, and 441 the word
'offence' has the same meaning when the thing punishable under the special
or local law is punishable under such law with imprisonment for a term of six
months or upwards, whether with or without fine.]
Comment
The word 'offence' is to be construed by the general clauses Act which define It
as meaning 'any act or omission, made punishable by any law for the time being in
force (AIR 1956 Cal 233). The word 'offence' as defined in the code connotes acts
and omissions made penal by the Code for which the doer is made punishable under
the Code (1976 CrLJ 1403).
Mens rea is an essential ingredient of a criminal offence. The mental element of
mens rea required is the intention or knwoledge necessary for the criminal offence
(AIR 1970 Ker 98 (102). Mens rea is an integral part of a crime unless it is
specifically or by implication excluded, a person is not guilty unless he is proved to
have a guilty mind. (AIR 1951 ALL 21).
41. "Special law".-A "special law" is a law applicable to a particular
subject. . .
42. "Local law".-A "local law" is a law applicable only to a particular part
of 6 [the territories comprised in 7[Bngladeshj.
43. "Illegal". -The word "illegal" is applicable to everything which is an
offence or which i prohibited by law, or which furnishes ground for a civil
action: and a person is said to be "legally bound to do" whatever it is illegal in
him to omit. .
I. Subs, by the Indian Penal Code Amc'nment Act, 1870.
2. Subs, by the Repealing and Amending Act, 1930.
3. Ins, by the Indian Criminal Law Amendment Act, 1913.
4. Ins, by the Indian Penal Code Amendment Act, 1882.
5. Ins: by the Indian Criminal Law Amendment Act, 1886.
6. Subs, by A.O., 1949, Sch., for "British India."
7. The word 'Bangladesh' was substituted for the word 'Pakistan' by Act VIII of 1973, second Sch.
38 1
LAW OF CRIMES [Sec. 44-52

44. "Injury'.-The word "injury" denotes any harm whatever illegally

caused to any perso1, In body, mind, reputation or property.
45. "Life".- The word "life" denotes the life of a human being, unless the
contrary appears from the context. -
46. "Death". -The word "death" denotes the death of a human being,
unless the contrary appears from the context. -
47. "Miimi1". -The word "animal" denotes any living creature, other than
a human being.
48. "Vessel".-The word "vessel" denotes anything made for the
conveyance by water or human beings or of property.
49. "Yeax".-Wherever the word "year" or the word "month" is used. It is
to be understood that the year or the month is to be reckoned according to
the British calender.
50. "Section!'. -The word "section" denotes one of those portions of a
chapter of this Code which are distinguished by prefixed numeral figures.
51. "Oath".-The word "oath" includes a solemn affirmation substituted by
law for an oath, and any declaration required or authorized by law to be made
before a public servant or to be used for the purpose of proof, whether in a
Court of Justice or not.
Comment
An 'oath is a religious asseveration, by which a person renounces the mercy
and' Imprecates the vengeace of Heaven if he do not speak the truth (Whit'es case
(1786) 11 Leach 430).
The primary object of the oath is an invocation addressed to God as a witness of
truth. All that is required to do is to affirm as follows:
"The evidence that I shall give shall be the truth, the whole truth and nothing
but the truth."
52. "Good f1th".-Nothing is said to be done or believed -in "good faith"
which .is done or believed without due care and attention.
Comment
Definition of 'good faith' in section 52 is a negative. definition. It indicates that
an act is said to be done In good faith when it is done with due care and attention.
Indeed, it does not require logically infalibility. The plea of good faith may be
negatived on the ground of.reeklessness indicative of want of due care and attention
if the imputations in question, have been made as categorical statements of facts.
(AIR 1970 Guj 171; 1970 crlj 100)
In order to act in good faith, a person must act honestly with fairness and the
uprightness (AIR 1969 Born (27). If an opinion is expressed with due care and
attention, honestly, believing it to be true and without malicious motive, it can be
said to have been made in good faith (ILR (1957) 2 Cal 181). A person does not act in
good faith if he does not proceed with due care and attention (1977 MU (Cr) 86). A
Magistrate tendering perdon without complying with the priovisions of the Cr. P.C.
cannot be said to have acted in good faith (1958 CrLJ 233)..
The question of good faith must be considered with reference to the position of
the accused and the circumstances under which he acted. Same care and attention
 Sec. .53 Syn. J6. 1J GENERAL EXPLANATIONS . . . 39
..from all persons regardless of the position they occupy cannot be expected (AIR
1960 Cri 161). Good faith is a matter of evidence. It. Is a question of fact to be
decided on the. particulars facts and circumstances of each case (1981 SCC (Cr1)
698; AIR 1970 SC 1372). The degree of proof that is to be offered by the accused for
proving good faith is not the same as is expected of the prosecution which Is
required to prove its case beyond reasonable doubt, but is a preponderance of
probabilities as In civil proceedings (AIR 1970 GuJ 171 = 1970 crLJ 1100 Guj).
1 [52A. "Harbour".-Except in section 157, and in section 130 in. the case
in which the harbour is . given by the wife or husband of the person
harboured, the word "harbour" includes the supplying a person with shelter,
food, drink, money, clothes, arms, ammunition or means of conveyance, or
the assisting a person by any means, whether of the same kind as those
enumerated in this section or not, to . evade apprehension.] . .

CHAPTER - HI
OF PUNISHMENT
53, Punishments.- The punishments to which offenders are liable under
the provisions of this Code are,-
First. - Death;
Secondly.- 2 [Impnisonment for life];
3* * * ** * ** * * * * * * * * * *. . -
Fourthly.- Imprisonment, which is of two descriptions, namely
(1) Rigorous, that is, with hard labour:.
(2) Simple; . .
Fifthly.- Forfeiture of property; . . ., .
Sixthly.- Fine. . . .
4 [Explanation. - In the punishment of imprisonment for life, the
imprisonment shall be rigorous.] . . . . . .
Synopsis. ...
1. Principle and object of punishment. 6. Imprisonment to run from date of conviction.
2. Deterrent punishment. . 7. Nature of imprisonment to be specified.
3. Fine. . . 8. Discretion of court as to punishment.
4. Imprisonment in default of fine. 9. Measure of punishments.
5. Imprisonment till rising of the court.
1. Principle and object of punishment. - Punishment is the mode by which the
state enforces its laws for bidding the doing of something or omission to something.
Punishment may take different forms. It may be a mere reprimand; it may be a fine:.
it may be whipping; it may be imprisonment simple or rigorous: it may even extend
to death. But whatever the form, punishment is always co-related to a law of the state
for bidding the doing or the omission to do something. Unless such a law exists,
there is no question of any act or omission being made 'punishable' (AIR 1962 SC
1246 (1248): (1,962) 2 CrLJ .303).
1. Ins, by the Indian Penal Code (Amendment) Act, 1942.
2. Subs, by Ord. No. XLI of 1985, for "transportation'.
3. Clause Thirdly was omitted by the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949.
4. Explanation was added by Ord. No. XLI of 1985.
 LAW OF CRIMES 15cc. .53 Syn. No. 1
40
Punishment should be commensurate with the gravity of the offence (29 DLR
(SC) 211) and its general effect on public tranquillity. Object of punishment is to
prevent the wrong doer from repeating and to prevent other members from
committing similar offences. Punishment is awarded in order to achieve any or as
many as possible the following objectives :-
Retribution.- Is the oldest theory of any punishment based on vengeance. Eye
for eye, tooth for tooth and blood for blood. The imposition of punishment is not
meant to benefit either the individual or the society. Punishment on this basis Is also
unjustifiable because 'two wrongs do not make a right'.
Deterrent.- The physical exhibition of punishment by performing executions In
public had a deterrent influence. The threat of punishment has also such deterring
effect on some people. Long terms of punishment and death sentences need not
always deter a potential offender. The Supreme Court has. observed in suggesting
norms for the award of death penalty that while deterrence through threat of death
may still be a promising as strategy in some fruitful areas of murderous crimes, to
expouse a monolithic theory of its deterrent efficay is unscientific'.
Prevention.- Though prevention Of crime Is a laudable objective, it cannot be
achieved by severity of punishment. It is. not severity of punishment but certainty of
punishment that would prevent the occurrence of crime. Again extremely severe
punishments are selfw defecating.
Reformation.- The imposition of punishment must serve to reform the offender.
or re-educate him. It should serve as a 'curative or a medicinal fundation'. By a system
of corrective training, the offender should be re-claimed by the society. Reformation
should be the objective for those who commit stray acts of crimes before they
become hardened criminals. The endeavour of punishment should be to see that the
criminal attains the standar of normal humanity and becomes part of the society.
Reformation should be procured through punishment and not procured in
association with punishment.
Modern concept of criminology calls for greater attention to the reformation of
prisoners (macil Manuel Miranda and other etc. Vs. The State 1988 (3) Crimes
777(Bom). .
In Dulla Vs. State (AIR 1958 All 198: 1958 CrLJ 316), the principles of
punishment have been summarised as follows :-
"1. The twin objects of punishment are to prevent a person who has committed
a crime from repeating it and to prevent others from committing similar crimes.
The sentence passed on the offender must be the least that will achieve both these
objects. In deciding the measure of punishment the court ought to take into account
the nature of the offence, the circumstances in which it was committed, the degree
of deliberation shown by the offender and his age, character and antecedents.
2. The prevalence of a particular crime in a particular area or during a
particular period should also be taken into account. One's political, sentimental, or
religious preconceptions should be strictly disregarded. The court must bear in mind
the necessity of proportion between an offence and the penalty. The maximum
penalty as provided in the code for each offence is , mearit only for the worst cases.
3. An excessive sentence de feats its own object and tends further to undermine
the respect for the law. The jails should be reserved to receive those who perform
criminal acts of not merely a technical but of a criminal character. If the law permits
a sentence of fine in the alternative there is no need of the sentence of
imprisonment unless of course the gravity of the, offence or the antecedents of the
offend demand it.
Sec. .53 Syn. No. 31 OF PUNISHMENT 41
4. First offenders or youthful offenders should invariably be treated leniently
and in applying the provisions of law, like. The probation of offenders Act, or section
562, Criminal Procedure Code, it would be better to err on the side of liberality: on
the other hand a person who has taken to a life of crime or who has refused to take a
lesson from his previous conviction should be meted out severe punishment.
5. A deterrent sentence is wholly justifiable when the offence; Is the result of
deliberation and pre-planning, committed for the sake of personal gain at the
expense of the innocent and who is a menace to the safety, health or moral wel-being
of the comunity or is difficult to detect or trace. Unlike those acts which are
universally acknowledge to be of a criminal nature an act which has only recently
been made an offence or which is not unlawful In other parts of the country or states
which is not essentially criminal in character , deserves leniency except in the case of
persistent offender.". .
In a criminal cases while imposing sentences, primary endeavour of the Courts
must be to that corrective methods in order to enable a convict to reform and
rehabilitate himself into the society and avoid imprisonment except in serious cases
(Paljhan and othe,rs Vs. State of UP 1991 (1) Crimes 850 (All. HC).
2. Deterrent punishment.- The following crimes should be' punished with a
deterrent sentence : (a) Arson (AIR 1924 All 781). (b) Crimes relating to coins (AIR
1927 Lah 226). (c) Burglary (AIR 1932 Lah 258: 33 CrlJ 500 DB). (d) Crimes of
violence on women (AIR 1929 LAH 584; 30 CRLJ 699). (E) Illegal traffic in drugs or
liquor (AIR 1950 Ajmer 17; 51 CrLJ 920). (0 Sodomy (PLD 1959 Lah 677). (g) Theft
in railway train (13 CrLJ 531 DB). (h) Cheating by a Railway official (AIR 1950 All
639). (1) A brutal attack by several persons in a. fit of susperstition relating to
suspected sorecery resulting in the death of the person attacked (AIR 1955 SC 583:
1955 CrLJ 1297). (j) Offence with religious complexion (AIR 1964 MP 182 DB) (k)
Repetion of contempt of court' (PLD 1957 BJ 6). (1) Where a gang of desperate men
or unlawful assembly threatens to defy the law (12 CrLJ 260 DB Lah: AIR 1937 Sind
239). (m) Corruption cases (PLD 1957 Lah 251).
An accused person Is not entitled. to get off with a light sentence merely.
because he is a person of high position or because he belongs to a particular caste or
community (PLD 1956 Lah 704), or that he has a certain, reputation (AIR 1962 AP
394). The fact that the accused is a legal practitioner is by no means 'a circumstance
which could be accepted in mitigation or extenuation of his sentence (AIR 1962 AP
394).
In a modern society purpose of imposing sentence on a person found guilty-of
an offence is not only deterrent but also reformative. A long period of sentence such
as imprisonment for life debases a person. (45 DLR 243 (Para 18): 1993 BLD 297).
3. Fine. - In Imposing a fine it is necessary to have as much regard to the
pecuniary clrucmstances of the accused persons as to the character and magnitude
of the offence and where a substantial term of . imprisonment is inflicted, an
excessive fine should not accompoany it except in exceptional cases (AIR 1952 SC
14; 1952 SCR 172; 1953 CrLJ 542). In cases of offences of an aggravated nature a
sentence of imprisonment is more suitable than one. of fine (AIR 1924 Lah 81).
Therefore imposition of fines should be avoided where a death sentence or any
substantial term of imprisonment is given (AIR 1960 ALL 233 DB) It is only in very
exceptional cases that it is suitable to inflict a fine as well as a substantive term of
imprisonment. These are (I) where the court thinks that justice of the case is met by
imposing substantial fine but at the same time thinks that a short term of
imprisonment in addition will serve as a salutary lesson; (ii) Where it is desired to
Law of es-6 . .
42 LAW OF CRIMES '' (See. .53 Syn. No., 5
compensate the complainant; (iii) where the accused had profitedf1nanc1a1ly 'by his
misdeeds (AIR 1957 ALL 764; AIR 1931 . Cal 710 DB). Where long terms of
Imprisonment are given to convicts,it is not desirable that in addition to
imprisonment a sentence of fine should be passed upon them for that the sentence
of fine will be a burden upon the family of the convicts and not upon the convicts
themselves. (1953 CrLJ 1568).
.4. Imprisonment Indefualt of fine. - Imprisonment in default of payment of fine'
should be long enough to induce the accused to pay the fine rather than suffer
imprisonment (AIR .1950 Kutch 73) But where the fine is so heavy that the accused
is unable to pay it, the court should not impose a heavy sentence of imprisonment in
default of payment of fine. (AIR '1953 Tray- Co 233; 1953 CrLJ 1265 DO).
Imprisonment in default of payment of fine does not liberate the accused from
his liability to pay fine (AIR 1953 Tra y -. Co 233) A sentence of imprisonment in
default of fine cannot, be allowed to run concurrently with substantive sentene of
imprisonment (Sukumaran Vs. State of Kerala 1993 (2) Crimes 892(Ker).
It is ,undesirable . to impose a fine where the term of imprisoñemnt to be
undergone In default will bring the aggregate sentence of imprisonment to more
than the maximum term of 'lmprlsonemnt sanctioned by the particular section (AIR
1941 All 310= ILR 1941 All 608). .
Awarding sentence of fine along with sentence of imprisonment for life can not
be said to be illegal In view of the provisions of section 409, Pnàl Code (45 DLR 243.
(Para 18);. 1993 .BLD 297).
A sence of Imprisonment can be awarded in default of the payment of fine even
though no such imprisonment in default of . the payment of fine Is provided for .by a
local or a special statute (Daulat Reghunath . Derale Vs. State of Maharashtra 1991 (1)
Crimes 856(Bom. HC). . . . .
When the offence Is punishable with imprisonment as well as fine and where
offence is punishable only with fine the imprisonment in default of payment of fine
shall be simple and the maximum term is six months. All courts including court of
Magistrate has got power to direct recovery of fine, when the offence Is punishable
only with fine by any, of the three methods, such as by Issuing distress warrants or by
referring the matter to the collector or by committing the offender to the prison
(section 33(1). 386(1) Cr.P.C. and section 67, 68 Penal Code) 1985. BLD 1985 (AD)
166). . . .
5. imprisonment till rising of the court. - A sentence of imprisonment till the
rising, of the court:is a sentence which is In accordance 'with law. A direction by the
court that .a person shall be confined in the court premies till the court rises
constitutes imprisonment within the meaning of the Penal Code , and the criminal
Procedure Code. The court has power to pass such a sentence where the facts of a
case warrant it, but it should only .be imposed in very exceptional cases (Muthu Nadar
(1945) Mad 529; Ramalingayya (1943) 'Mad 230 and.Asan Müsallarakath Kunhhi
Baba (1928) 56 MLJ 550). '. overruled. Public prosecutor V. Kanniappan (1955) CrUJ

The Calcutta High Court has also held that rigorous imprisonment for one day
arid detention till the 'rising of the court are not different punishments and
accordingly in the case of 'imprisonment for one day, the,day on which the sentence
is passed counts-for one day and the accused cannot be detained .injail on 'a warrant
issued for such a period (Mullickchand Sheikh (1948) 53 CWN '106)..
Sec.,.53 Syn. No. 91 OF PUNISHMENT . 43
6. Imprisonment to run from date of conviction.- A sentence of imprisonment
must be made to operate 'from the date of conviction and not from a. date prior to the
date on which the sentence Is passed. Under section 428, Ci-Iminal Procedure Code,
the period of -detention undergone by the accused during. investigation, inquiry or
trial of his case shall be. set off against the term of imprisonment imposed on him on
such conviction (1933) AC 699).. . .
7. Nature of Imprisonment to be specified.- The nature of imprisonment visited
as a penalty should be specified in the judgment itself. It could not be specified for
the first time in the warrant. Where the nature of imprisoiment was not disclosed in
the judgment, it was held that the imprisonment wouid be simple. (Shivaji Narayan
Shinde 1971 Born LR 215= 1971 Mah LJ 864). Imprisonment for life is always'
rigorous imprisonment. Therefore there is no need to specify in the order that it will I
be so. LAIR 1964 Oil 149 DB; AIR 1945 PC 64). The sentence of fine where more
prisoners than one are punished by fine must define by a specific sum the individual
liability of each prisoners.. . ..
S. Discretion of Court as to punishment. - When law does ot provide for•
imposition of minimum sentence of imprisonment discretion Is left with the court it
is for the Court to decide the quantity of sentecne in consideration of the facts and
circumstances and interest of justice (45 DLR. 293; 1993 BLD 297). The court in
passing a sentence should impose such a punishment as the gravity of the crime
warrants and be swayed by considerations whether the sentence would become
appealable or not (AIR 1929 Lah; AIR 1952 SC 14). What should be an .adequate
punishment within the maximum provided for an offence is primarily for the
convicting court to decide, but that direction should show that a reasonable
proportion has been maintained between the seriousness of the crime and the
punishment imposed. No 'hard and fast rule can be laid down. But courtsare
expected to ebserve a desirable proportion between the gravity of the offence and
the punishment for it (1958 andh L.T. 856). It is the duty of every court to award
proper sentence having regard to the nature of the offence and the manner In whih
It was executed 'and committed etc. Undue sympathy to impose inadequate sentence
would do more harm to the justice system (Sevaka Perumal etc. Vs. State of Tamil
Nadu 1991 (2) Crimes 516(SC). .
Apportionment of sentence is left to the discretion of the court. (1961 .Ker U
122).Sentence is a matter. ,of discretion of the trial judge and normally the High.
Court will not interfere. unless the state chooses to apply for enhancement of
sentence (Arathan Sadasivam (1966 CdrLJ 210).
It has been observed in .Hindustan Steel Ltd Vs State of Orissa, AIR 1970 SC
253=( 1970) 1 SCR 753 that : 'The discretion to Impose a penalty must be exercised
judicially. A penalty will ordinarily- be imposed in case where the party , acts
deliberately in defiance of law, or is guilty of contumacious or dishonest conduct. Or
acts in concious disregard of its obligation; but not in cases' where there is a
technical or venial breach of the provisions, of the Act or where the breach flows.
from a bona fide belief, that the offender is not liable to act tnt he manner prescribed
by. the statute (Akbar Badruddin Jiwani Vs. Collector of Customs, Bombay AIR. 1990
SC 1579 (1597). . . . .
9. Measure of punishment.- In judging the adequacy of a sentence the nature of
the offence, the circumstances of its commission, the age and character of the
offender, injury to individuals or to society effect of the punishment on the offender,
eye to correction and reformation of the offender, are some amongst many other
factors which would be ordinarily taken into consideration by courts. Trial courts in
this country already over-burdened with work have hardly any time to set apart .for
44 LAW OF CRIMES ISec. .53 Syn. No. 9

sentencing reflection: This aspect is missed or deliberately ignored by the accused

lest a possible plea for reduction of sentence may be considered as weakening his
defence. In a good system of administration of criminal justice pre-sentence
investigation may be of great sociological value. Throughout the world•
humanitarianism is permeating into a .penology and the courts are expected to
discharge their appropriate rules (Ramashraya Chakravarti Vs. State of MP. AIR 1976
SC 392(93).
The determination of the right measure of punishment is often a point of great
difficulty and no hard and fast rule can be laid down, it being a matter of discretion
which is to be guided by a variety of considerations, but the court has always to bear
In mind the necessity of proportion between an offence and the penalty (Adamij
Umar Dalal Vs. State of Bomby. AIR 1952 SC 14).
The appropriateness of the nature and measure of sentence in each case
depends upon the gravity of offence, the position and status of the offender, the
previous character and the existence of aggravating or extenuating circumstances. A
days Imprisonment to an honourable man will have far. more deterrent effect than a
life spent in durance vile by a hardened criminal. The measure of punishment Is,
therefore, the measure that must be adapted to each case: But there are certain
general considerations which may. be here set out,for they are the basic principles
upon which the enactment has announced the maximum punishments, leaving their
adjustment, in each case, to the discretion of the Judge the appropriateness of the
sentence, court cannot take into account the subsequent notoriety which the
appellant acquired (AIR 1958 ALL 214; 1957 AIJ 857).
In the case of A.M.A. Wazedul Islam Vs.The State (45 DLR 243; 1993 BLD 297)
their lordships observed' But we find from evidence that the appellant is an
educated young man of a respectable family. He is not a habitual offnder. Being
misguided out of greed, he committed the offence for the first, time, should such a
person be allowed to be rotten • In jail under a sentence of imprisonment for life?.......
Justice should be tempered with mercy. In a modern society purpose of Imposing
sentence on a person found guilty of an offence is •notonly deterrent but also
reformative. A long period of sentece such as imprisonment for life debases a person.
When law does not provide for imposition of minimum sentence of imprisonment
and discretion is left with the court, it is for the court to decide the quantum of
.sentence of imprisonment in consideration of the facts and circumstances of the
case and interest of justice. In our view, an educated youngman like the appellant.
'should be allowed to purge his guilt and be rehabilitated in society as a useful citizen
by reducing his sentence of imprisonment for life and ends of justice will be met if
the- appellant is sentenced to suffer simple imprisonment for 6 (six) years apart from
the sentence of fine". .
Where the court awards the maximum punishment it should give reason
therefor '(AIR 1926 Lah 239). An exceedingly light sentence may not be illegal but if
it is inadequate, the High Court will not hesitate to enhance it, II it be of the view
that enhancement is called for (PLD 1956 Lah 704).
The following circumstances have been heldto mitigate against harsh
punishment: (a) First offence (AIR 1933 All 438). (b) Sudden provocation (PLD 1953
Pesh 33). (C) Exceeding right of private defence (PLD 1959 Lah 987: AIR 1927 All
105). (d) Apology in case of defamation (AIR 1914 Low bur 63). (e) Consent of woman
Sec. 5A-55J OF PUNISHMENT 45.
in sexual offnce (AIR 1927 Lah 91). (f) Intimacy of deceased with the sister (PLD
1959 Kar 1) or the wife of the accused (PLD 1954 . NJ 9). (g) When no motive is found
for murder (PLD 1959 Kar 460 DB. (h) When a case is kept pending for an unduly
long time (PLD 1960 .SC 286). (i) An act which ha only recently been made an
offence or which is not unlawful in other parts of the country or a province or which
is not essentially criminal In character (AIR 1958 All 198). (j) Youth of the offender
(PLD 1958 Kar 232). and his having acted under Influence of another (PLD 1960 Lah
739). (k) Old age (PLD 1961 Dhaka 753).
While imposing a sentence It is the duty of court to see that the sentence Is not
excessive, but at the same time It should not be so lenient as to compel the injured
person to resort to violence, in order to obtain the satisfaction which he expected
from the sentence awarded by the court (PLD 1956 Lah 854). The mere fact that the
accused is only 20 years old is not sufficient to justify the court in refraining from
imposing the maximum penalty prescribed by law, a man of twenty being of sufficient
age to be fully able to realize the nature of his acts. (AIR 1935 Cal 526: 36 CrLJ 1220
DB).
4 [53A. Construction of reference to transportation.- . (1) Subject to the
provisions of sub-section (2), any reference to transportation for life in any
other law for the time being in force shall be construed as a reference to
imprisonment for life. . . .
(2) Any reference to transportation for a term or to transportation for a
shorter term (by whatever name called) in any other law for the time being
in force shall be deemed to have been omitted.
(3) Any reference to "transportation' in any other law for the time being
in force shall - .
(a) if the experession means transportation for life, be construed as a
reference to imprisonment for life; . .
(b) if the expression means transportation for any shorter . term, be
deemed to have been omitted.]
54. Commutation of sentence of death.- In every case in which sentence
of death shall have been passed, 5 [the Government] may, without the consent
of the offender, commute the punishment for any other punishment
provided by this Code.
55. Commutation of sentence of 11imprisonmentj for life.- In every case
in which sentence of "imprisonment" for life shall have been passed, 6[the
Government] may, without the consent of the offender; commute the
punishment for imprisonemnt of either description for a term not exceeding
7 Etwentyl years.

4 Section 53A was inserted, ibid.

5. The words 'the Government" were substituted for the words "the Central Government or the
Provincial Government of the Province within which the offender 9hall have been sentenced" by the
Bangladesh Laws (Revision and Declaration) Act, 1973.
6. The words "the Government" were substituted for the words "the Provincial Government of the
Province within which the offender shall have been sentenced", ibid.
7. Subs by Ord. No. XLIof 1985, for "fourteen".
46 LAW OF CRIMES Ism 55A-6
I

1 [55A. Saving foi 3[Presidentl prerogative.- Nothing in section fifty-four

or section fifty-five shall derogate from the right of 2[the President] to grant
pardons, reprieves, respites or remission of funishment.]
56. [Sentence of Europeans and Americans to penal servitude.] Rep. by
the Criminal Law (Extinction of Discriminatory Privileges) Act, 1949.
57. Fractions of terms of punishment.- In calculating, fractions of terms
of punishment, .4[lmprisonment] for life shall be reckoned as equivalent to
5[rigorous imprisonment for thirty years.]
6 [58 and 591
60. Sentence may be (in certain cases of imprisonment) wholly or partly
rigorous or simple.- In every case in which an offender Is punishable with
imprisonment' which may be of either description, it shall be competent to
the Court which sentences such offender to direct in the sentence that such
imprisonment shall be wholly rigorous, or that such Imprisonment, shall be
wholly simple, or that any part of such Imprisonment shall be rigorous and
the rest simple.
61. Rep. by the Indian Penal Code (Amendment) Act, 1921.
62. Rep. by the Indian Penal Code (Amendment Act, 1921.
63. Amount of fine.- Where no sum is expressed to which a fine may
extend, the amount of fine to which the offender is liable is unlimited, but
shall not be excessive.
64. Sentence of imprisonment for non-payment of fine.- 7[In every case
of an offence punishable with imprisonment as well as fine, in which the
offender is sentenced to a fine, whether with or without imprisonment,
and in every case of an offence punishable "[with Imprisonment or fine,
or] with fine only, in which the offender is sentenced to a fine,]
It shall be competent to the Court which sentences such offender to
direct by the sentence, that, in default of payment of the fine, the offender
shall suffer Imprisonment for a certain term, which imprisonment shall be
in excess of any other imprisonment to which he may have been sentenced
Or to which he may be liable under a commutation of a sentence.
• 65. Limit to imprisonment for non-payment of fine, when imprisonment
and fine awardable.- The term for which the Court directs the offender to be
imprisoned in default of payment of a fine shall not exceed one-fourth of the
term of imprisonment which is the maximum fixed for the offence, if the
offence be punishable with imprisonment as well as fine.
1. Ins, by A.O., 1937 by s. 295 of the 0. of India Act, .1935.
2. Subs, by A.O., 1961, Art. 2 and Sch., for "His Majesty, or of the (Governor-General If any) such right is
delegated to him by His Majesty". . .
.3. Subs. ibid., for "Royal". . .
4. Subs, by Ord. No. XLI of 1985, for "transportation".
5. Subs. ibid., for "transportation for twenty years'. . ..
6. Sections 58 and 59 were omitted. ibid. .
7. Subs, by the Indian Penal Code Amendment Act, 1882, s. 2, for "in every case in which an offender is
sentenced to a fine".
8. Ins, by the Indian Criminal Law Arndt. Act, 1886.
 ' Set. 6669) OF PUNISHMENT 47
66. Description of imprisonment for non-payment of ,fine.-The
imprlsonemnt which the Court imposes in default of payment of a fine may
be of any description to which the offender might have been sentenced for
the offence. -
67. Imprisonment for non-payment of fine, when offence punishable
with fine only.- If the offence be punishable with fine only. '[the
imprisonment which the Court imposes in default of payment of the fine
shall be simple, and] the term for which the Court directs the offender to be
Imprisoned, in default of payment of fine, shall not exceed the following
scale, that is to say, for any term not exceeding two months when the
amount of the fine shall not exceed fifty 2 [taka], and for any term not
exceeding four months when the amount shall not exceed one hundred
'taka", and for any term not exceeding six months In any other case.
Comments
Section 65 relates . to a case is which .the offence is punishable with
imprisnment as well as fine, whereas section 67 attiac(s a case in which the offence
is punishable only with fine. REading all these sections of the. Penal Code and the
Criminal Procedure Code together, it is clearly found that all cour' sincluding the
court of a Magistrate got power to direct recovery of fine, when the offence Is
punishable only with fine, when the offence is punishable only with fine, by any of the
three methods, such as by issuing distress warrant or by referring the matter to the
collector of the District or by committing the offender to the prison (State Vs. Abul
Kashem 37 DLR (AD (1985) 91(para-7) = 1985 BLD (AD) 166).
An offence punishable with fine only, awarding of Umprisonment in default is
not, illegal (State Vs. Abul Kashem 37 DLR (AD) 1985 91 (para-7) = 1985. BLD (AD)
166). .
68. Imprisonment to terminate on payment of fine.- The imprisonment
which is imposed in default of payment of a fine shall termiante whenever
that fine Is either paid or levied by process of law.
69. Termination of Imprisonment on payment of proportional part of
fine.- If before the expiration Of the.term of imprisonment
fixed in default of
payment, such a proporation of the fine be paid or levied that the term of
imprisonment suffered In default of payment is not less than proportional to
the part of the fine still unpaid, the imprisonment shall terminate.
Illustration .
. A is sentenced to a fine of one hundred taka and to four month's imprisonment
in default of payment. Here, if seventy five taka of the fine be paid, or levied before
the expiration of one month of the imprisonment, A will be discharged as soon as
the first month has expired. If seventy 'five taka be paid or levied at the time of the
expiration of the first month, or at any latter time while A continues in
i mprisonment, A will be immediately discharged. If fifty taka of the fine be paid or
levied before the expiration of two months of the imprisonments A will be
discharged as soon as the two months are completed. If fifty taka be paid or levied at
the time of the expiration of those two months, or. at any later time while A
'continues in imprisonment, A will be immediately discharged. -
2. Subs .by Act VIII' of 1973, s..3 and 2nd Seh, for the word "rupees".
 LAW OF CRIMES IStc. 7073
48
76. Fine leviable within Six years, or during Imprisonment. Death not to
discharge property from liability.- The fine, or any part thereof whiôh.
remains unpaid may be levied at any time within six years, after the passing
of the sentence, and if, under -the sentence, the offender be liable to
imprisonment for a longer period than six years then at any time previous to
the expiration of that period; and the death of the offender does not
discharge from the liability any property which would, after his death, be
legally liable for his debts.
Comments
Sentence of fine Imposed has to be recovered within 6 years u/s. 70 of Penal
Code but period of suspension of fine has to be excluded from this period. The
limitation is only for commencing the recovery .and not to complete It (State of U. P.
V. Kamal Kishore and Anr. 1991 (3) Crimes 817 (S. C.).
71. LImit of punishment of offence made up of several offences.- Where
anything which is an offence is made up of parts, any of .which parts is itself
an offence, the offender shall not be punished with the punishment of more
than one of such his offence, unless it be so expressly provided.
[Where anything is an offence falling within two or more separate
definitions of any law in force for the time being by. which offences are
defined or punished, or
• Where several acts, of which one or more than one would by itself or
themselves constitute an offence, constitute, when combined, a different
offence. .
The offender shall not be punished with a more severe punishment than
the Court which tries him could award for any one of such offences.]
Illustrations
(a) A gives Z fifty strokes with a stick. Here A may -have committed the offence
of voluntarily causing hurt to Z by the whole beating, and also by each of the blows
which make up the whole beating. If A were liable to punishment for might be
Imprisoned for fifty years, one for each blow. But he is liable only to one punishment
for the whole beating. .
(b) But. if, while A is beating Z. Y interferes, and A intentionally strikes Y, here;
as the blow given to Y. is no part of the act whereby A voluntarily causes hurt to Z, A
is liable to one punishment for voluntarily casuing hurt to Z, and - to another for the
blow given to Y.
72. Punishment of person guilty of one of several offences, the Judgment
stating that it is doubtful of which. - In all cases in which judgment is given
that a person is guilty of one of several offences specified in the judgment,
but that it is doubtful of which of these offences. he is guilty, the offender
shall be pnished for the offence for which the lowest punishment is
provided if.the same punishment is not provided for all.
73. Solitary confinement.- Whenever any person is convicted of an
offence for which under this Code the Court has power to sentence him to
rigorous imprisonment, the Court may, by its sentence, order that the
Offender shall be kept in solitary confinement for any portion or portions of
1. Added by the Indian Penal Code Amendment Act. 1882 (VIII of 1882), s.4.
 Sec. 74-761 . OF PUNISHMENT . 49
the imprisonment to which he is sentenced, not exceeding three months In
the whole, according to the following scale, that is to say -
a time not exceeding one month if the term of imprisonment shall not
exceed six months
a time not exceeding two months if the term of imprisonment, shall
exceed six months and '[shall not exceed one] year
a time not exceeding three months if the term of Imprisonment shall.
exceed one year.
74. Limit of solitary confinement. - In executing a sentence of solitary
confinement, such confinement shall In no case exceed fourteen days at a
time, with intervals between the periods of solitary confinement of not less
duration than such periods, and when the imprisonment awarded shall
exceed three months, the solitary confinement shall not exceed seven days
in any one month of the whole Imprisonment awarded, with intervals
between the periods of solitary confinement of not less duration than such
periods. . . .
75. Enhanced punishment for certain offences under Chapter XII or,
Chapter XVII after previous conviction.- 2 [Whoever, having been convicted,
(a) by a Court In 3 [Bangladesh] of an offence punishable , under Chapter
XII or Chapter XVII of this . Code with imprisonment of either descripton for
a term of three years or upward 4* .
4* * * * . *
shall be guilty of any offence punishable under either of those Chapters.
with like imprisonment for the like term, shall be subject for every such
subsequent offence to 5 [ i mprisonment] for life, or to imprisonment of either
description for a term which may .extend to ten years.]

CHAPTER lv
GENERAL EXCEPTIONS
76. Act done by a person boud, or by mistake of fact believing. himself
bound, by law.- Nothig is an offence which is done by 'a person who is, or who
by reason of a mistake of fact and not by reason of a mistake of law in good
faith believes himself to be, bound by law to do it.
Illustrations
(a)A, a soldier, fires on a mob by the order of his superior officer, in conformity
with the commands of the law, A has committed no offence.
(b) A, an officer of,a Court of Justice, being ordered' by that Court to arrest Y,
and, after due enquiry, believing Z to be Y, arrests Z. A has committed no offence.
1. Subs. ibid. s. 5, for 'be less than a".
2. Subs, by the Indian Penal Code Amendment Act, 1910 (III of 1910), for the original section.
3. The word 'Bangladesh' was substituted for the word 'Pakistan by Act VIII of 1973.
4. The word "or" at the .end of clause (a) and clause (b) were omitted, ibid.
. Subs, by Ord. No. XLI of 1985, for transportation".
Law of Crimes-7
 50 LAW OF CRIMES (Sec. 77-81

77. Act of Judge when acting judicially.- Nothing is an offence which is

done by a Judge when acting judicially in the exercise of any power which Is,
or whjch in good faith he believes to be, given to him by law.
78. Act done pursuant to the judgment or order of Court.- Nothing
which is done in pursuance of, or which is warranted by the judgment or
order of, a Court of Justice. If, done whilst such judgment or order stet
remains in force, is an offence, notwithstanding the Court may have had no
• jurisdiction to pass such judgment or order, provided the person doing the
• act in good faith believes that the Court had such jurisdiction. . .
79 Act done by a person justified, or by' misake of fact believing himself
justified,' by law.- Nothing 'Is an offence which Is done by any person' who is
justified by law, or who by reason of a mistake of fact and not by reason of a,
mistake of law in good faith, believes himself to be justified by law,, In doing
it; . .
illustration
A sees Z commit what appears to A to be a murder. A In the exercise, to the
best of his judgment, exerted In good faith of the power which the law gives to all
per of apprehending murderers in the act, seizes Z, in order to bring Z before
the proper authorities. A has committed no offence, though it may turn out that Z
was acting In self-defence. .
80. Accident in doing a lawful act.- Nothing is an offence whichis done
by accident or misfortune, and without any criminal intention or knowledge
in the doing of a lawful 'act in a lawful manner by lawful means and with
proper care and caution.
Illustration,
A Is at work with a hatcher: the head flies off and kills a man who is standing
by Here If there was no want Of proper caution on the part of A, his act is excusable -
and not an offence.
81. Act likely to cause harm, but done without criminal intent, and to
prevent other harm.- Nothing is an. offence merely by 'reason of its being
done with the 'knowledge that it is likely to cause harm, if it be done without
any criminal Intention to cause harm, and in good 'faith fOr the purpose of
preventing or avoiding other harm to person or property.
Explanation.- It is a question of fact in such a case whether the harm to
be prevented or avoided was of such a nature and so imminent as to justify or
excuse the risk of doing the act with the knowledge that it was likely to
cause harm. . .
illustrations .
(a) A. the captain of a steam vessel, 'suddenly and without any fault or
negligence on his part, finds himself in such a position that, before he can stop his
vesel, he must Inevitably run down a boat B, with twenty or thirty passengers on
board, unless he changes the course of his vessel, and that, by changing his course,
he must incur risk , of running down a boat C with only two pasengers on board,
which he may 'possibly clear. Here, If A . alters his course without any intention to run
down the boat 'C and In good faith , for the purpose of avoiding the danger to the
 Sec. 84—Syn. 14o. iJ• GENERAL 'EXCEPTIONS
: 51
passengers In the boat B, heis not guilty of an offence, though he may run down the
bpat Cby doing. an act which he knew was likely to cause that efléct, if It be found as
at matter of fact that the danger which he intended to avoid was such as to excuse
'him Incurring the risk of running down C.
(b) A, in a great fire, pulls down houses In order to prevent the conflagration
• from spreading. He does this with the intention in good faith of saving human 1ilè or
property. Here, if it be found that the harm to be prevented was of such .a nature and
so Imminent as. to excuse A's act, A Is not guilty of the offence.
.82. Act of a child under seven years of age.- Nothing is an offence which
is done by a child under seven years of age. . ..
83. Act of a child above seven and under twelve of immature
understanding.- Nothing is an offence which is done by a child above. seven
years of age and under tweleve, who has not attained ufficlent maturity .f
understanding to judge of the nature and consequences of his .conduct On
that occasion.
84. Act of a person of unèound mind.. Nothing is an Offence which is
done by a person who, at the time of doing it, by reason of unsoundness of
mind, is incapable of knowing the nature Of the act. or that he is doing what
is either wrong or contrary to law. .
Synopsis
1. Scope and applicability. . . 4. Essentials to be proved.
2. What Is insanity.. 5. Burden of proof.
3. Principles to . be considered. 6. Expert opinion.
1. Scope and applicability.- section 84 deals with deficiency of will due to weak
intellect. The concept Incorporated In this section .is as old as the hills. Jurists have
given various reasons for the exemption of unatics or of person of unsound mind
from criminal responsibility. It has been said that a mad man Is best punished by his
own madnes - furiosus furote suo puniter. As has been observed by Blackstone "the
second case of deficiency in will which execused from the guilt of crimes arises also
from a defeótive or vitiated understanding, namely, in an idiot or a lunatic, for the
rule of the law, as to the latter, which may easily be adopted • also to the former Is
that furlosus furore sou puniter". It has further been laid down by the Jurists that a
mad man has no will - Furiosus mulla voluntus est. lie is therefore in all ages an
object of commiseration, but as society has to be protected even against the attack•
of a maniac, the code of Criminal Procedure provides for his detention to prevent.
mischief as in sections 328 (Section 464, 0k) and .339 (Sec. 475 old), Cr. P.C.SUch
detention, however, is not his sentence (Digendra Vs. State, 74 CWN 231 ).;
Every man is presumed to be sane and to possess sufficient degree of reason to
be responsible for his acts unless the contrary is proved. To establish. insanity it must
be clearly proved that at the time of committing the act the, party Is labouring under
such defect of reason as not to know the nature and quality of the act which he is
committing that. lo, the physical nature and quality, as distinguished from the moral
or.. if he does know the nature and quality of the act he is committing that he does
not know that he is doing wrong (State of MP , Vs, Shmadullah AIR 1961 SC 998).
Behaviour antecedent, attendant and subseqeunt 'to the event may be relévànt
,in finding that the mental condition at the time of, the eveht, but not those remote in
time Manna Kunnummal Ahmed Kova Vs. State of Kerala, AIR 1967 Ker 92 (95).
 52 . LAW OF CRIMES (Sec. 84—Syn. No. 1
There is distinction between "medical insanity and legal insanity. According to
medical science insanity is another name for mental abnormality due to various
causes and existing In various degrees. Even an uncontrollable impulse driving a man
to kill or wound comes within its scope. The legal conception of insanity differs
considerably from the medical conception. It is not every form of insanity, or
madness that is recognised by a law as a sufficient excuse. The most elaborate and
authoritative exposition of the English Common Law of insanity was embodied in the
answers of 15 Judges given in June, 1843, to the questions put to them by the Lords
In consequence of the popoular alarm provoked by the acquittal of Daniel Mc
Naüghten. The learned Judges unanimously laid down that 'to establish a defence on
the ground of. insanity it must be clearly proved that at the time of committing the
act the accused was labouring under such disease of the mind as not to know the
nature and quality of the act he was doing or if he did not • know it, that he did not
know he was doing what was wrong (Daniel Mc Naughten 's case (1843) 10 Cl. Fin.
.2001. .
Section 84 must be construed strictly (AIR 1948 Nag 20). In the practical
application of the principle enunciated in section 84, a more progressive attitude
will have to be adopted, for determining criminal responsibility of a person suffering
frOm mental disorders in the light of recent advances in the medical science
especially in the branches of psychiatry (AIR 1959 Madh Pra. 259). A person is
presumed to be responsible for his act and the natural consequences thereof unless
• he affirmatively proves that he is entitled to exemption from criminal liability. One of
the exceptions is provided in section 84 (AIR 1960 MP 102). Therefore it is
necessary for the application of section 84 P.C. to show that (a) the 2ccused was
insance, (b) that he was insane at the time when he did the act and not merely
before or after the act: and (c) that as a result of the unsoundness of mind he was
incapable of knowing the nature of the act or that he was doing . what was really
wrong or contrary to law. There is no rule that once insane ahays insane or that now
sane, he must have been sane before (AIR 1960 Mad 316). .
A claim for relief from criminal liability under section 84 must necessarily be a
defence against an admitted or assumed act which, butfor the existence of such
insanity, would be punishable as an offence. It must always be pleaded by the accused.
No accused person can be discharged merely upon the ground that when or if he
committed the act he was insane (17 C.P.L.R. 113'). On the other hand when .a court
acquits a person on the ground that he was insane or was incapable of understanding
the nature of the act, it should also give a specific finding whether the accused
committed the act charged against 'him (AIR 1961 Cal 436).
According to illustration "A of section 105 of the Evidence Act, the onus of
establishing the plea under section 84 rests on the accused. In order that section 84
may come into play it has to be established that an accused is of unsound mind and
his cognitive faculties are so impaired that he did not know the nature of the act
done by him Or that, what he is doing is either wrong or contrary to law.
The mere facts (I) that an accused is conceited, odd, irascible and his brain is
not quite all right. (II) that the physical and thental ailments from which he suffered
had rendered his intellect weád and had affected his emotions and will, (iii) that he
committed certain unusual acts in the past such as snatching away of huqqas from
people or hurling brick-bats and giving beating to his uncle, (iv) that he was liable to
recurring fits of insanity at short intervals. (v) that he was subject to getting epileptic
fits but there was nothing abnormal in his behaviour, (vi) that he used to quarrel with
his wife on certain occasions and used to lock her up inside the house whenever he
Sec. 84—Syi. No. 2 1 GENERAL EXCEPTIONS 53
used to go to work, • (vii) that his behaviour was queer; have not been held to be
sufficient to attract the application of section 84 of the Penal Code.
It would thus appear that every person who Is mentally diseased is not IpSO
facto exempted from criminal responsibility (Govardhan Vs. Union of India (1961) 2
Cr1J 475 (476).
• Where there is nothing to show that the cognitive faculties of the accused had
been impaired, so that he could not judge the consequences of what he was doing,
section 84, Penal Code, does not apply (State Vs. Lal Din, 1973 CrLJ 829).
• 2. What Is Insanity.- According to medical jurisprudence Insanity Is an
abnormality due to a variety of cause. existing In various degrees. For the prupcse of
criminal law unsuundenss of mind which incapacitates the person froth knowing the
consequences of the nature of the act or the legality of the act alone will be a ground
of exemption (1973 CrLJ 1323: 1976 CrLJ 1416).
• There are four kinds of persons who do not possesses a sound mind, namely,
(I) Idlod, (II) person becoming unsound through disease of mind. (III) Lunatics, and
(v) Drunkards.
Medical and legal standards, of insanity are not Identical (30 DLR 275). The
court is concerned with legal Insanity and not medical insanity (1961) 2 CrLJ 250;
1979 CrLJ 403).
The concept of degree of criminal responsibility of a person whose mind Is
deranged or diseased or unbalanced has undergone progressive and farreaching
changes during the last hundred years or so. Unfortunately, the law In this country
does not recognise such lesser forms of mental abnormality and, apart from
unsoundness of mind which renders a person incapable of knowing either the
nature of the act or that what he is doing is wrong or contrary to law, the plea of
diminished responsibility is not available as a defence in a criminal prosecution as
under, the English Law (1975 . PCrLJ 910). From the medical point of view, It is
probably correct to say that the act of murder by itself denotes an unhealthy and an
abnormal state of mind, but from the legal point of view the accused Is sane as long
as he can understand that his act Is contrary to law. If any accused person is aware
that the actIs one which he ought not to do and the act at the same time is contrary
to law, he is punishable. Therefore, to establish successfully a defence on the ground
Of insanity, it must be proved that the accused person at the time of committing the
act was labouring under such a defect of reason, from diseases of the mind, as not to
know the nature of his act and that what he was doing was wrong and contrary to law.
(1978) 30 DLR 27 15). On this legal concept of insanity no amount of queerness in
habit, morbidity of temper, peculiarities of character or 'eccentricities of behaviour,
or even aberrations of mind resulting in abnormality will .constitute insanity for the
purpose of section 84 although they may be relevant factors for determining whether
or not the accused was Insane (PLD 1974 Pesh 90).
Uncontrollable impulse co-existing with the full possession of the reasoning
powers is no defence in law. Existence of delusions which indicate a defect of sanity
will not be deemed sufficient to attract section 84. It Is not mere eccentricity or
singularity of manner that will suffice to establish the plea of insanity, It must be
shown that the prisoner had no competent use of his understanding so as to know
that he was ,doing a wrong thing in the partiCular act is question (1971 DLC 771);
Being eccentric, slightly weak' in head, or subnormal in intellect, does not amount to
unsoundness. of mind as contemplated by section 84 P.C. which draws a clear
distinction between ordinary unsoundness of mind and legal unsoundness of mind. A
person may be of unsound mind for th purposes of those interested In diseases , of
 54 LAW OF CRIMES .1 Sec. b4—Syn. No3.
the human brain, and yet may not be of unsound mind for the purposes of those who
have to administer the law, because the unsoundness of the mind which the courts
can recognise is that which deprives the perpetrator of a crime of the capacity to
understand the nature of his act and of the knowledge that what he was doing was
wrong or cntrary to law (PLD 1963 Kar 1034). Thus section 84 does not apply on the
mere eccentricity or singularity of manner, (A1R1929 Cal 1). or every kind of frantic
humour or something unaccountable in a man's action that points him out to be a
mad man (29 CrLJ 827). or merely being' subject to uncontrollable impulses or
.insane delusion or even partial'derangement of mind (1976 Law NOtes 250). Under•
the existing law even in a case of impulsive insanity or mania it is necessary to
establish that the maniac was Incapable of knowing what he was doing at that point
of time (1975 PCrLJ 910). or his queer behaviour will not bring a man within this
exception ( 1971 PCrIJ 1285). Even If it be proved that an accused charged with
murder was conceited, odd and irascible, and his brain was not quite all right, It
cannot be said that he was incapable of knowing that murder was wrong (AIR 1927
Lah 567). Similarly a conflicting statement by a person is not necessarily a sign of
Insanity (AIR 1941 Mad 326).
3. Principles to be considered, In dealing with Insanity a number of principles
in this connection have to be borne in mind They are -
(a) Every type of insanity recorgnised is no legal insanity unless the cognitive.
faculty of mind is destroyed as a result of unsoundness to such an extent as to render
one incapable of knowing the nature of his act or that what he is doing is wrong or
contrary, to law: . . .
(b) the court shall presume absence of insanity;
(C) the burden of proof of insanity is on the accused though it is not as heavy as
it is on the prosecution to prove an offence; . . .
(d) every minor mental aberration is not 'Insanity, and circumstances indicating
a mere possibility of legal insanity cannot, however, be sufficient to discharge the
onus resting on the accused;
(e) to attract the ithmunty provided in section 84 of the Penal Code, the Court
has to consider whether the accused suffered from legal insanity at the time when
the offence was committed. In reaching this conclusion the circumstances which
proceeded, attended, and followed, the crime are relevant consideration; and
(fl when 'a plea of insanity is raised, it is not the duty of the 'prosecution to
establish, affirmatively, that. the accused was capable of knowing the nature of the act
or of knowing that what he was doing, was either wrong or contrary to law. Every
person is presumed to know the law. and the natural consequences of his act. The
prosecution in discharging Its burden in the face of the plea of insanity has merely to
prove the basic fact and rely upon the normal presumptions aforesaid. It is then that
the accused is called upon to rebut those presumptions. (1971 Cut LT 565).
Any and every type of Insanity recognized in medical science is not legal
insanity. Every minor mental aberration is not Insanity. There can. be .no legal insanity
unless the cognitive faculty of mind is destroyed as a reuslt of unsoundness Of mind
to such an extent as to redner the accused Incapable of knowing . the nature of the act
or that what he Is doing is wrong or contrary to law (Sarka Gundusa Vs. State 35 Cut
LT 79 (81) = AIR 1969 Ori102). .
When the accused raises a plea of insanity the court should keep the follOwing
principles before it while evaluating it and determining-whether benefit of the
exception should be given to the accused or not. (i) If the accused raised any special
 Sec. 84—Syn. No 51 GENERAL EXCEPTIONS 55
plea or claims exoneration on the basis of any special or general exception, he must
prove his special plea or the existence of counditions entitling him to claim
exoneration. (ii) Irrespective of the success or failure of the special plea raised by the
defence • or its ëlalrn to exoneration, the prosecution must prove its case beyond any
reasonable doubt. (iii) If after an examination of entire evidence the court is of
opinion that there is a reasonable possibility that the defence put forward by the
accused may be true or that the evidence casts a doubt on the existence of the
requisite intention or mens rea which is a necessary ingredient of a particular
offence, this will react on the whole prosecution case entitling the accused to the
benefit of doubt. (iv) Legal insanity as contemplated by section 84 Penal code is
different from medical insanity. If the cognitive faculty is not impaired and the
accused knows that what he is doing is either wrong or contrary to law he is not
insane. Merely being subjected to uncontrollable impulses or insane delusions or
even partial derangement of mind will not do, nor mere eccentricity or singularity of
manner. (v) If there is evidence of premeditation and design or evidence that the
accused, after the act in question, tried to resist arrest, the plea of insanity may be
negatived. (vi) If the facts are clear so far as the act complained of its concerned,
motive is Irrelevant (PLD 1962 Dhaka 467 = 13 GLR 289 (DB).
4. Essentials to be proved.- A defence of insanity under this section will
succeed if the accused establish that by reason of unsoundness of mind he was
incapable of knowing: (i) the nature of the act, or (ii) that he was doing what was
morally wrong, or (iii). that he was doing what was contrary to law (Rambharose Vs.
State of MP 1974 MPLJ 406). . . .
All the ingredients of section 84 must be fulfilled before the plea of insanity.
succeeds. The ingredients which must beproved under the section are -
(a)that the accused was Insane, . .
(b) that he was insane at the time when he committed the act and not merely
before or after the act, and
(c) that as a result of the unsoundness of mind the accused was incapable of
knowing the nature of the act or that he was doing what was really wrong or contrary
to law. .
There Is no rule that once insane always insane or that now sane he must have
been sane before (Saka Gundusa Vs. State, 35 Cut LT 79).
The proof of the insanity of the accused at the . nick of time is highly
improbable. His insanity at the time of occurrence has to be judged from his conduct
at the time of occurrence, previous to the occurrence; and after the occurrence
along with other attendant circumstances. (Tarseern Singh Vs. State, AIR 1978 J&K
53 (58).
5. Burden of proof.- The onues is on the prosecution to prove the entire case at
the trial, and the prosecution could not be allowed to fill up the gaps or lacuna left at
the trial, at the appellate or revisional stage (State of Rajashan Vs. Daulat Ram, 1980
SC Cr. R. 177).
The doctrine of burden of proof in the context of insanity may be stated
follows :- (I) The prosecution must prove beyond reasonable doubt that the accused
had.committecl the offence with the requisite mens rea; and the burden of proving
that always rest on the prosecution from the beginning to the end of the trial; (ii)
there Is a rebuttable presumption that the accused was not insane, when he
committed the crime, in the sense laid down by section 84 of the Penal Code. The
accused may rebut it by placing before the court all the relevant evidence - oral,
56 LAW OF CRIMES (Sec. 84—Syn. i4o 5
documentary or circumstantial but the burden of proof upon him is no higher than
that rests upon a party to civil proceedings: (iii) 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 courts 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 (State Vs. Emerciano Lemos, AIR 1970 Goa 1
(6): (1965) 2 SCK 531 = (1964) 7 SCR 1561 (1563, 1568).
It is a fundamental principle of criminal jurisprudence that an accused is
presumed to be innocent, and, therefore, the burden lies on the prosecution to
prove the guilt of the accused beyond reasonable doubt. The prosecution, therefore,
In a case of homicide has to prove beyond reasonable doubt that the accused caused
the death with the requisite intention described in section 299 of the Penal Code.
This general burden never shifts and it always rests on the prosecution. But under
section 105 of the Evidence Act the burden of proving the existence of
circumstances bringing the case within the exception lies on the accused, and the
court shall presume the absence of such circumstances. (Sakru- Sa Vs. State of Orissa
(1973) 39 Cut LT 322). .
There is a presumption that everyone is of sound mind and responsible for
consequences of his acts and as such burden lies on the person pleadirg insanity to
show that not only he was an insane person but at time of alleged offence he was
suffering from such disease of mind as not to know the nature of his act (1985 PCrLJ
2302: PLD 1960 Lah 111). Where the plea of Insanity Is taken on behalf of the
accused, the burden of proving such a degree of insanity as exempts him from
criminal liability is on the accused ( 1974 SCMR 214; PLD 1974 Pesh 90: AIR 1961
SC 998). Where the accused in his statement under section 342 Cr. P.C. gave rational
answers. Plea of insanity raised by accused was rightly rejected by the trial court
1987 PCrLJ 785; NLR 1987 Cr. 326: PLD 1985 Lah 625).
An accused is not required to discharge the burden of establishing his Insanity
by evidence more cogent than a plaintiff or a defendant in a civil litigation (AIR 1961
Cal 436: AIR 1936 Nag 187). It is not enough for the. defence to rely upon a mere
.possibility that the accused may have been of unsound mind at the time when he
committed an offence: what is requried is that regard being had to the previous
history of the accused, his behaviour before or at the time of the commission of the
act and his subsequent conduct, coupled with other circumstances, the court should
be in a position to hold that there was a reasonable probability that at the time when
the offence was committed the accused was suffering from unsoundness of mind of
the nature or degree mentioned in section 84 (AIR 1961 Pat 355).
According to section 84. Penal Code, nothing is an offence which has been
.done by a person who at the time of doing it by reason of unsoundness of mind, is
incapable of knowing the nature of the act, or that he is doing what is either wrong
or contrary to law. The burden though not as heavy as upon the prosecution in a
criminal case, is upon the accused to prove that he was of unsound mind at the time
of the commission of the offence and as such, incapable of knowing the nature of his
act or that he was doing what was eithr wrong or contrary to law. In the absence of
any evidence or material to discharge that burden, there is no escape from the
conclusion that the conviction of the accused - appellant is well founded. (AIR 1974
SC. 2160.
As it. is well established that the law presumes every person os the age of
discretion to be sane unless the contrary is proved. It would be dangerous to admit a
Sec. 84-Syh. No. 51 GENERAL EXCEPTIONS 57
defence of insanity upon arguments merely derived from the caracter of the crime.
The offenders may sometime show strange and eccentric behaviour before or alter'
the commission of the offence but this does not necessarily take within the
exemption contemplated under Section 84; Penal Code and it will not absolve him
from the liability. In order to earn immunity from criminal liability the decease,
disorder or disturbance of mind must be of such a degree which would obliterate
preceptual or volitional apacity. Feeblemindedness, mere frenzy, . eomotional
imbalance or uncOntrollable anger, jealousy, moral depravity, lack of self' control.
eccentricity and other similar manifestations do not offerrellef from criminal
responsibility, dahayabha.i v. State of Gujarat (AIR 1964 SC 1563), the legal position
with regard to the burden of proof In this context has been stated by the Supeme
Court In the following proposition: .
(I) The 'prosecution/must prove ..beyond reasonable doubt that the accused had
cornitted the offence with the accused had committed the offence with the requisite
mens rea and the burden of proving that always rests upon the prosecutionhrom the
beginning to the end of the trial. . .
(ii)There is a rebuttable resumption that the accused was not insane, when he
committed the crime, in the sense laid down in section 84; the accused may rebut it
by placing before the Court all relevant evidence oral. .docümeñtary and'
circumstantial, but the burden of proof upon him is no higher than that which rests
upon a party in civil proceedings. ..
(iii)Even if the accused is 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 irithe mind of the Court
as regards one or more of the ingredients of the offence, including mens rca of the
accused and in that case, the Court would be entitled to acquit the accused on the
ground that the teneral burden resting on the prosecution has not been discharged."
The sameprinciples have been reiterated by the subsequent dclsions. Bhlkarl v.
State of Uttar Pradesh (AIR SC 1), Ratan Lal v. State of M. B. (AIR 1972 SC 778), S.
W. Mohammed v. State of Maharastra (AIR 1972 SC 2443) (Followed in
Aravindakshan Plllai v, State of kerala 1989 (2) Crimes 336).
"If upon the evidence adduced in the case whether by the prosecution or by the
accused a reasonable doubt is created in the mind of the court as regards one or
more of the ingredients of the offence including mens rca of the accused he would
be entitled to be acquitted. This is very different from saying that the prosecution
must also establish the sanity of the accused at the time of comission of the offence
despite what has been expressly provided for in section 105 of the Evidence Act"
(AIR 1966 SC 1 (3) = (1965) 6 SCR 194).
It is for the accused to discharge the burden of proof that he did not know the
nature of the criminal .acts committed by him (AIR 1970 Goa 1 (4). The position that
onus is on the accused to prove that he is insane is not inconsistent with the rules of
reasonable doubt which pervades our criminal jurisprudence and according to which
a doubt occurring in the matter will react on the prosecution case as a whole
resulting in benefit of doubt to the accused (PLD 1960 Lah 111 DB). It follows that
benefit of the exception may be given to the accused where evidence regarding
insanity is sufficient to cast a doubt on the question whether the act of the accused
was done with the intention or knowledge required to . constitute the offnece (13
DLR 289 (DB) ; PLD 1962 Dhaka 467). To establish successfully defence on the
ground of insanity,, it must be proved thai an accused person, at the time of
committing the act, was labouring under such a defect of reason, from disease of the
Law of Crlmcs-8 . .
 58 LAW OF CRIMES tSec. 84—Srn. No. 5
mind, as not to know the nature of his act and that what he was doing was wrong and
contrary to law (PLD 1960 Lah .111 DB).Merely from the character of the crime, iç
suddenness, cruelty, atrocity and apparent absence of motive, it cannot be presumed
that the offender must have been insane at the time of its commission. It would be
extremely unsafe to admit such plea and it would amount to condoning the crime
because of Its atrocity (30 DLR 275 (DB).
Wheh evidence on record showing that respondent had remained under
treatment for insanity in hospital even before, during: days of occurrence and also
alter occurrence. Relaying on testimony of experts. Appellate Court arrived at the
conclusion that there was a preponderance of probabilities that at the time of
occurrence the respondent had acted under a. fit of unsanity and he was not In full
control of his senses (1988 SCMR 85). When the accused sets up section 84 in
defence and when most of the prosecution witnesses make a statement favourable to
the accused, it Si wrong to discard their statement on a mere supposition that they
may be helping the accused (AIR 1956 Bhopal 57: 1956 CriLJ 1291).
The crucial point of time at which the unsoundness of. mind as defined in this
section has to be established is when the act constituting the offence was committed
(AIR 1964 SC 1563; AIR 1931 Lah 276; PLD 1982 Kar 360). The mere fact that on
one earlier occasion, the appellant had been subject to delusion or had suffered from
derangement of the mind would not be sufficient to bring his case within the
exception. The court is only concerned with the state of mind of an accused at the
time of the act (1987 PCrLJ 785; NLR 1987 Cr. 326). It is not enough for the
defence to rely upon a mere possibility that the accused may have been of unsound
mind at the time when he committed the offence, what is required is that regard
being had to the previous history of the accused, his behaviour before or at the time
of the commission of the act and his subsequent conduct; coupled with other
circumstances,, the court should be in a position to hold that there was a reasonable
-probability that at the time when the offence was committed the accused was
suffeirng from unsoundness of mind of the nature Or degree mentioned in section 84
(AIR 1961 Pat 355).,.W1'iere the accused had failed to prove that he was of unsound
mind at the time of committing the crime and incapable of knowing the nature. of
the act, he was not entitled to the benefit of section 84 ( 1978) 30 DLR 275: PLD
1962 Dhaka 467; AIR 1964 SC 1563). Accused is not to be called upon to prove the
Ingredients of section 84 Penal Code beyond reasonable doubt in order to get
acquittal, though burden lies on accused to prove his insanity at the time of
occurrence and it will be sufficient if the materials on record lead to an inherence
that requirement of section 84 Penal Code may be .reasonably probable (Raghu
Pradhan v State of Orissa 1993 (1) Crimes 430 (On.).
It is not necessary that In order to establish a plea of insanity some scientific
- evidence must be adduced. It the existence of facts is Such as to indicate an unsound
state of mind, that is quite sufficient. In such, case, the question shall be decided on -
its own facts, evidence and the surrounding circumstances (197 . 1 DLC 771). In
considerating .a plea of insanity umider section .84, the : court has to decide first
whether the accused has established that at the time of comitting m the fl act he was of
unsound mind, and secondly, If he was of unsound mind, whether he had established
that the unsoundness was of a degree and nature to satisfy one of the knowledge,
tests laid down by section 84. If he does not establish the first, his plea must,o'
course, fail' (AIR 1947 Pat 222). It is unsafe for the Magistrate to draw süo motu an
Inference that the accused was insane at 'the time of Its committal from the
character of the crime itself, its suddenness, violence and apparent want of motive
(17 CPLI 115). Speaking generally the pattern of the crime, the circumstances
 Sec . 84--Syn. No. J GENERAL EXCEPTIONS 59
under which It has been committed, the manner and method of its execution Ahe
beavjour of the criminal before and after the commission of the crime furnish some
of the Important clues to ascertain whether by reason of unsoundness of mind the
accused was incapable ofknowing the nature of the act, or what he was doing was
either wrong or contrary to law (AIR 1959 MP 259). For that a court may rely not
only the defence evidence but also on what is elicited from the prosecution
witnesses as well as on circumstantial evidence consisting of the previous history of
the accused and his subsequent conduct and also of course on the surrounding
circumstances including an absence of motive. But the court before acquitting the
accused has to record a categorical finding that he was incapable of knowing the
nature of the act committed or knowing that he was doing what was either wrong or
contrary to law (AIR 1932 All 233; AIR 1952 Mad 174). Where all the witnesses
belonging to the village have stated that the accused is known as a pagla (lunatic)
though actually he may not be so. a conclusion may be drawn that the accused has
certainly some derangement in his brain, although not to the extent that he can be
called of unsound mind and, therefore, he is deserving of the benefit of section 84
(AIR 1953 Tripura 9).
6. Expart. opinion.- To prove that the plea of insanity is well founded, it is not
necessary to adduce scientific evidence. If the existence of facts is such as to
indicate unsound state of mind, that is quite sufficient (AIR 1929 Cal 1). The
question whether in given circumstances a man was sane or insane is for the court of
decide. An expert can only furnish a court with data from which Insanity can be
Inferred. It is beside the point whether or not In the opinion of the doctor the man.
was medically insane ( AIR 1949 Nag 66 = hR .1948 Nag 711). Therefore, if on the:
basis of the evidence the trial court can came to a finding that the accused was not
legally insane at the time of occurrence, there is no legal requirement that the trial
court must- refer the accused for medical examination and in the absence of medical
examination judgment of the trial court would not be maintainable, Accordingly Just
because the appellant has not been sent to a doctor for medical examination by the
trial court, its judgment cannot, only on the ground, be set aside if otherwise the
trial court has come to a correct finding on the question of the mental condition of
the accused at the time of occurrence (PLD 1982 Kar 360; PM 1982 Cr.C. 37).
In every case where .a plea of insanity is raised under section 84 P.C. by the
accused, the trial court is not under a legal obligation to get the accused medically
examined. Of course, if a doubt is created whether an accused was Insane in terms of
the provisions contained In section 84 P.C. the trial court should invariably refer the
accused for medical examination as the report of the Medical Officer would assist the
trial court in clearing the doubt (PLID 1982 Kar 360; PM 1982 Cr.C. 37). The opinion
of an expert is relevant under section 45 Evidence Act, when a question of science is
involved in arriving at a finding as. to whether an accused in a criminal case was of
unsound mind at the time of the Commission of the act. or was incapable of knowing
the nature of the act or that he was doing what was wrong ' or contrary to law. The
opinion of an expert in mental diseases Is relevant and such an expert is generally.
examined as a witness in cases Involving a question of insanity (AIR 1946 Nag 321;
ILR 1946 Nag. 946). Even though the Court the court Is at liberty to raise the issue of
insanity Itself and Investigate it, the order declaring the accused to be of unsound
mind and giving him the benefit of general exception embodied u/s. 84 Penal Code Is
not sustainable when there is no medical evidence indicaing that the accused at the
time of the incident was suffering from soem kind of a mental instability or was
actually. insane (State of Karnataka v. Jatti 1993 (1) Crmes 74 (Kar).
The opinion of a medical witness conversant with the disease of insanity,
however eminent he may be, must not be read as conclusive of the fact which the
60 LAW OF CRIMES (Sec. 85-8
court has to try. Such opinion may be invited in exceptional circumstances where
there is no dispute as to facts or their interpretation but it must be considered by
the court as nothing more than relevant. The question whether in given
circumstances a man was sane or-insane is for the court to decide. An expert can
only furnish a court with the data from which insanity can be inferred (AIR 1949 Nag
66). But where such opinion has been taken, it cannot be brushed aside upon the
strength of the lay opinion of the trial Judge (AIR 1935 Oudh 143).
85. Act of a person incapable of judgment by reason of intoxication
caused against his will.- Nothing is an offence which is done by a person
who, at the time of doing it, is, by reason of intoxication, incapable of
knowing the nature of the act, or that he is doing what is either wrong, or
contrary to law . provided that the thing which intoxicated him was
administered to him without his knowledge or. against his will.
86. Offence requiring a particular intent or knowledge committed by
one who is intoxicated.- In cases where an act done is not an offence unless
done with a particular knowledge or intent, a person who does the act in a
stage of intoxication shall be liable to be . dealt with as if he had the sane
knowledge as he would have had if he had not been intoxicated, unless the
thing which intoxicated him was administered to him without his knowledge
or against his will.
87. Act not intended and not known to be likely to cause death or
grievous hurt, doer by consent.- Nothing which is not intended to cause
death, or grievous hurt, and which is not known by the doer to be . likely to
cause death, or grievous hurt, is an offence by reason of any harth which it
may cause, or be intended by the doer to cause, to any peron,: above
eighteen years of age, who has given consent. , whether express or implied, to
suffer that harm; or by reason of any harm which it may be known by the
doer to be likely to cause to any such person who has consented to take the
risk of that harm.
Illustration
A and Z agree to fence with each other for amusement. This agreement implies
the consent of each to suffer any harm which in the course of such fencing, may be
caused without foul. play: and if A, while playing fiarly. hurts Z. A commits no offence.
88. Act not intended to cause death done : by consent in good faith for
person's benefit. - Nothing, which is not inteded to cause death is an Offence
by reason of any harm which i t may cause, or be intended by the doer to
cause, or be known by the_doer to be likely to cause, to any person for whose'
benefit it is done in good faith, and who has given a consent, whether
express or implied, to suffer harm, that or to take the risk of that harm.
Illustration
A, a surgeon, knowing thai a particular operation is likely to cause the death of
Z who suffers under the painful complaint, but not intending to cause Z's death,' 7and
intending, in good faith Z's benefit performs that operation on Z, with Z's consert. A
has committed no offence.
89. Act done in good faith for benefit of child or insane person, by or by
consent of guardian.- Nothing which is done in good faith for the benefit of a
ma

Sec. 90-911 GENERAL'EXCEPTIONS 61

by
person under, twelve , years of agëror 'of iinôiand mind, by 'or consent.
either express or Implied, of the guardian or other person having lawful
charge of that person, is an offence by reason of any harm which It may
cause, or be Intended by the doer-to cause or be known by the doer tote
likely to cause to that.person:
Pro'tid1 •JJ.U.. lisa' . 4- ..- Ji i fl
.fli -- -
Provisos. First.- That this exception shall not extend to the intentional
causing o. death, r to the attempting to cause death: . - .
5.1- . I.. j4'. J j - . - ...... . 1- -.
Secondly. - That this exceptionshall not extend to the doing of:anythlng
which the person doing it knows to be likely to cause death, for any purpose
of other thanthe preventing of death '$ or griev5us hurt or the curing of any
..... . IF -L
grievous dlsese.or-iriflrniity;'' jh.lotrtr i w :. '.? -I.
• Thirdly.- That this exception shall not extend to-the voluntary, causing of
grievous hurt, or tc the attempting to cause grievou& hurt, unless It be for
the purpose of preventing death'or'gheôôs 1 hbrt. of the curing of any
grievous disease oF ihlIfmity: ' j .pJ )J,
- U' 1 ti 1
Fourthly.- That this exception shall not extend to the abetment of any
offence, to the committing of which offence it would not extend:
• fliustration
A.. in good faith, for his child's benefit without his child's consent, has his child,
cut for the ston&by a surgeon. knowing At to be likely that the,operátion will cause
the cbild's death, but.not intending tocau&the child's death. A is within the
exceptiOn, inasmuch as his object was the cure of the child. . .
90. Consent known to be given under fear or misconception.- A consent
is not 'such a consent as is intended by any.sectlon of this Code, If the
consent is given by a person under fear. of injury,, or -under a misconception
of fact, and if the -person doing the act . knows, or has ,reaosn. to believe, that
the consent was given in consequcnce of such fear or misconceptIon or
Consent of insane person.- if -the consent Is given bya person..who. from
unsoundness of -mind or.intoxlcatlon,' is unable to understand the nature and
consequence of that-to which he giveshis consent: or .
Consent of child - unless thecontrai'y á'ppears 'from the context if the
consent is given by a -person'*ho is uhdét twelve y6af g of age..
91. Exclusion of acts which are offences Independently of harm caused.-
The exceptions in sections 87. 88 and 89 do not extend to .acts.which are
offences independently of any harm !Jvhich the5 r may cause, or,be inteded to.
cause, or be known to be likely to cause, to the person giving the consent, or
JL .4 .. I .J&1 .-
on whose behalf the consent is given.' ...
illustration -
Causing miscarriage (unless caused- In good faith for the purpose of saving the
life of the woman) is an offence independently of any harm which it may cause or be
intended to cause to the woman. Therefore, it is not an. offence "by reason of such
harm': and the consent of the woman or of her guardian to the causing of such
miscarriage does nol justify the act.
62'
LAW OFCRIMES sec,/92-9:
:
92. Act done In good faith for benefit of a person without consent.-
Nothing is an offence by reason of any harm which it may cause to a person
for whose benefit it is done in good faith, even without that person's
consent, if The circumstances are such that ills impossible for that person to
signify consent, or if that person is incapable of giving consent, and has no
gi'-Lrdian or. other person In lawful charge of him from whom it is possible to
oLr in ccnsit in time for the thing to be done with benefit.: .
Provided -
Provlos. First. - That this exception shall not extend to the intentional
ausing o r death, or the attempting to cause death;
Secondly.- That this exception shall not extend to the doing of anything
which the person doing it knows to be likely to cause death. for any purpose
other' than the preventing of death or grievous hurt, or the curing of any
grievous disease or infirmity: .
Thirdly. - That this excepticn shall not extend to the voluntary causing of
hurt. o to the attempting to cause hurt, for any purpose other than the
preventing of death or hurt; . .
Fourthly. - That this exception shall not extend to the abetment of any
offence, to the committing of which offence it would not extend.
Illustrations
(a) Z is' thrown from his horse, and Insensible. A. a surgeon, finds that Z
requires to be trepanned. A not Intending Zs death but in good faith for Z's benefit,
performs the trepan before Z recovers his power of Judging for . himself. A has
committed no offence.
(b) Z Is carried off by a tiger. A fires at the tiger knowing it to be likely that the
shot may kill Z. but not intending to kill Z, and In good faith Intending Z's benefit.
A's ball gives Z a mortal wound. A has committed no offence.
(C) A. a surgeon, sees a child suffer an accident which is likely tc, prove fatal
unless an operation be immediately performed. There is not time to apply to the
child's guardian. A performs the operation in spite of the entreaties of the child,
Intending in good faith, the child's benefit. A has committed no offence.
(d) A is in a house which is on fire, with Z, a child. People below hold out a
blanket. A drops the, child from the housetop, knowing it to be likely that the fall
may kill the child, but not intending to kill the child, and intending, in good faith,
the child's benefit. Here even if the child Is killed by the fall, A has committed no
offence..
Explanation,.- Mere pecuniary benefit is not benefit within the meaning
of sections 88, 89 and 92. . .
93. Communication made In good faith.- No communication made in
good faith is an offence by reason of any harm to the person to whom It is
made, if it is made for the benefit of that person..
Illustration . . .
A, a surgeon, in good faith, communicates to a patient his opinion that he
cannot live. The patient dies in consequence of the shock. A has committed no
offence, though he knew it to be likely that the communication might cause the
patient's death. . '. .
 Sec. .96-Syn. N& 1) GENERAL EXCEPTIONS 63
The mere ofAct- that a- deponent has made contradictory statements at two/
ifilferent . stages in a judicial proceeding is not by itself sufficient to justify a
prosecution for perjury u/s. 193 Penal Code but it must/be established that the
deponent has intentionally given a false statêment'in any stage of the judicially
proceeding orJabricated : false e-idence for the purpose of being used in any stage-of
thejudicial Proceeding (K. t M. S. Mhod. & Mr. v. t Unioh .of India .1992 (2) -Crimes
314 (316)...
Act to which a person is compelled by threats.- Except murder; and
offences against the State punishable with death, nothing is an offence which
is done by a person who is compelled to do IVby threats which at the time
of doing it, reasonably cause , the apprehension that instant death to that
person willotherwise be the consep..ence Provided the person doing the
act did not of hil own:acéord, -, or from a réasonable apprehension of harm to
himself shorLof instant death, place himself in the situation by which he
became subject to such constraint. .. . - a. - -. 2

Explanation L;A person-who, of his -own accord, or by reason of a

threat of being beaten, joins a gang of dacoits, knowing their character, is -
not entitled to the benefit of this exception, on the groUnd'of his having -
been
- - compelled
. by . his
- associates to do anything that is an offence by law.1
I j , ,- - --
Explanation 2. A prsdn seized a, by
gang.aco!ts
of d and forced by
threat of instant death to do a thing"whichts an offence by law; forexainple.
a smith compelled tp take..his tools a- nd to forcelthedoor of a house for the -
dacoits to enter and plunder it, is entitled to the benefit.of this exception. -
-. 95. Act causing slight harm.- Nothing is -an offence by reason that it
causes, or that it is intended to cause, or that , is known to be likely to
cause, any harm, if that hanmis so slight that no person of ordinary sence
and temper would complain of such harm.'
- - - - Of the Right of the Private Defence.- -- - - - -
96. Things done In priviate defence-" Nothing - is an bffSbe which is
- done in the exercise of the right- of private defende. - -
Synopsis
- -
4
- - 1. Scope and appliation. - - ;

- 6. Plea of self defence 'andthè plea of alibi.
2. commencement of right. ----- . 7. Proof of private defence. . - --
- - 3. Private defence of Property. 8 Quantum of proof.",''--V 4
4. Defence of possession. - - 9: Extent of rIht of private de1ence. -. -
- 5. Plea of private defence. - - . 10. Free fight. - - -. - ---
• - 1. Stope and applicafton.- The right of self preservation is the basic nucleus
from which the right of private . defence i property and person ha been enacted -In -
the penal Code,. In the ordinary course ofconduct, the accused's uppermost instinct
• when they are threatened with extinction of their pe and property would be to
rson
ward off the threat by whatever means they can adopt. Without permitting an
opoitunity to the complainant's pafty.to succeed in their objective (1978 WLN 101=
1978. Raj LW 245). The right of private defence is Ssentially.a - defensive right
circumscribed by the statute, available only when the circumstances dearly justify it..
-It should riot be allowed to be - pleaded or availed off as a pretext for a-vindictive.
- &ggressive . retributive pupose. This right Is available agaiñst an offence and,
therefore, what an act is done In exercise of the right of private defence such act
 64 LAW OF CRIMES [See. .96-Syn. No, I
can not give rise to any right of.private defence in favour of the aggressor in teturn
This would be so even if the person exercising the right of private defence has the
better of his aggressor provided he does not exceed jils right because the moment
he exceeds it, he commits an offence. If there is no initial right of private defence
then there can hardly be any question of exceeding that right (AIR 1971 SC 1492),
.Under section 96 of the Penal' Code;. nothing th an offence which is done in
exercise of the right of private defence. A right of self defence has been granted to a
citizen to protect himself byjffective;selfj-esistance. against; unlawful aggressor and
no man is expected to fly away 1 when. he Is being attacked.,, He can: fight back and
when he apprehends that death or grievous hurt would be.caused;byhis adversary,
he canretaliate till the adversary Is vanquished. But . he can exercise such right only if
he comes to the conclusion that' the danger to his person is real and imminent. If, he
reaches the conclusion reasonably, then he is entitled to exercise the'right so long
as the reasonable aprehension'has not disappeared; In a given case whether. such à
right exists or not has to be decided reading the evidence as a whole (1989 CrLf
1547(1552) On; relied on AIR 1975 SC 1478 and AIR 1973 SC 473k
- The rlght'of private defence Is a right of defence, not 'of'rétnibution- It is
available in face of imminentperilto.those who act in good faith and, in-nocase can
the right be concluded.to a person who stage manages a situation wherein. theA right
can be, used as a shield to justify an act of aggression. If a-person-goes with a gun to
kill another, the intended victim is entitled 4 to act in self defence and if so acts-there
is no right in the former to kill him in or.dertoprevent him : from ^ acting in self
defence While providing for the right of orivate defence penal 'code has surely
not devised a mechanism ,whereby an attack may be proved as a pretence: for killing
(AIR 1974 SC , 1570 (1574). :'' ' C 'T. ,

The deceased' and this companions prosecution party, going -to, disputed land to
have it tilled. when, the son of the : accused frustrated theIr, effort, A they were annoyed'
and enraged. They wentto the den of the accused and launched' an attack. The
accused and his wife foughi to repel the attack and in the course of the incident
both sides sustained injuries. The accused and his wife were clearly defending
themselves and hencetheyihada right oftiate.defence Accused could not have
weighed in golden scales number of injuries required to disarm assailants. (AIR 1991
SC 1317). ': , • 'i;t' , '

Accused assailing victim on seeing his minor daughter being.e-±ually modested

by victim right of private defence applicable'Accused entitled . to. aêquittal (AIR 1992
SC 1683).
The right of self defence as defined by law must be fostered' in, the citizens of
every free country. If a man Is attacked he need not run away and he would be
perfectly justified in the . eye of law if he holds his ground and delivers a counter
attack to his assailants provided always that the injury which he inflicts in , :self
defence is not out of proportion to the injury with which - he is threatened 4 PLD
1980 Pesth 186). He must'not'use more force:thannecessary. thal'ls to say, he can
use only such force as is necessary to 'secure his safety or avert * the danger (1946
Rang LR 50). Where the accused was hit by the deceased on his head and chest and
the accused gave him a single hatchet blow In self defence. It was held that the
accused acted in the right of private defeiiceiHis conviction': and sentence was set
aside (1977 PCr. LI 181)
The right of private defence is always against an act which is an offence (PLD
'. 1949 Lah.421). Therefore dacoits have no right to shoot In self defence private
persons who are chasing themin an attempt to arrest them (AIR 1951 All 3). An act
 Sec. .96-Syn. No. 31 GENERAL EXCEPTIONS 65
done In exercise of the right of private defence is not an offence and does not
therefore, give rise to any right of private defence in return (PLD 1949 Lah 421)
There can be no right of self-defence to a trespasser even if the inmates are the first
to use force. But the force used should not be more than is sufficient to vacate the
trespass (PLD 1979 SC (AJ&K) 56):
An act done in exercise of the right of private defence is not an offence and
does not, therefore, give rise to any right of private defence to the aggressor In
return (AIR 1974 SC 1550 = 1974 CrLJ 1015). This would be so even if the person
exercising the right of private defence has the better of his aggressár provided he
does not exceed his right, because the moment he exceeds, he commmlts an. offence
(1976 CrLJ 611 On).
2. Commencement of right, There can be no right of self defence against an
anticipated action. It is only a reasonable apprehension of damage or mischief to the
property or harm to person that gives rise to the right of self defence, subject always
to the limitation contained in section 99 of the Penal Code. And there can be no
reasonable apprehension unless an overt act or damage or mischief or harm has not
been set in motion, and no occasion arises for any defensive action ( PLD 1965 Pesh
82). A persons right to private defence arises when 4 blow is struck at him (AIR
1954 Assam 56), or from the moment there is an apprehension that grievous hurt or
death will be caused by the other party. It is not necessary that a person exercising
right of private defence should wait until he himself is attacked. The question in
such a case to be determined is not whether there was an actually continuing danger
but whether there was reasonable apprehension of danger (NLR' 1983 AC 320). But
merely because both the parties where brandishing their sticks in the air as if they
wanted to strike but no one was being actually hit, there is no justification for the
exercise of the right of private defence by any party (AIR 1957 MP 153).
3. Private defence of property.-In the case of right of private defence of
property one accused of murder must prove that the property in question was his
property. When upon evidence, it is found that the primary object of the accused was
to make a forcible attempt to snatch away the paddy of the informant party question
of defending such right cannot arise (43 DLR 269). The onus of proving the defence
plea of the right of private defence of property and the right of defence Of life by the
accused of murder is upon him (1989 BLD (AD) 110). But accused need not to prove
plea of private defence beyond reasonable doubt (PLD 1981 Kar 1841).
When an attack is made on persons acting in the lawful exercise of their right
over property they are entitled to the right of private defence. But where the
accused was the aggressor and commenced beating and he was not acting in the
lawful exercise of his right over property he is not entitled to claim private defence
of person or property (AIR 1934 Oudh . 207). Where a party of men are determined to
vindicate their right or supposed right by unlawful force and they engage in a fight
with anoher aprty of men equally determined to vindicate their right or supposed
right by unlawful force, no question of right of private defence of property can arise
(AIR 1963 Cal 3).
The owner of property has a right to his property and anything done to protect
that property against intruders or persons seeking to take possession of such
property would be protected by this section. The accused and his party pursued
persons who stole grass from their land and two of them were grievously hurt by the
thieves. They gave up pursuit and retreated, whereupon the thieves attacked them:
The accused fired on them and killed oneof them. It was held that the accused had
a right of private defence of property and person. His act came within the exception
Law of Crimes—.9


66 LAW OF CRIMES Sec. .96'6yn. No. S

in section 96 (AIR 1939 Pat 575). In this connection it may be noted that a person
has, a right to collect persons in order to protect his crop being taken away by
another. and if in doing so the first party inflicts injuries on the other party, it could
not be held liable unless it is proved that it exceeded its right ( AIR 1955 NUC'
3285).
• 4. Defence of possession.- An owner is not bound to submit to an act of trespass
(AIR 1953 All 89). A trespasser can be ejected with reasonable violence and force.
- The right of private defence extends, subject to the restrictio ns mentioned in
section 99, to the voluntary causing to the wrongdoer any harm other than death
provided such right is exercised at the 'earliest possible Opportunity (AIR 1914 Cal
623). Therefore where a trespasser enters upon the land of another, the person In
whom the right of possession Is vested, may turn the trespasser out of the land by
force while the trespasser is in the process of acquiring possession, and if In doing
so, he inflicts such. injuries on the trespasser as are warranted by the situation, he
commits no offence ( AIR 1949 All 564). Similarly where a landlord enters the
premises occupied by his tenant to throw out his effects without taking recourse to
• law for his eviction, the tenant has a right to defend his possession by use of force (
1 9. 80 PCr.LJ 59). The person inrightful possession is not debarred from raising a
plea of right .of private defence merely because apprehending an attack upon the
property, he collects his strength , and when the anticipated attack does come,
defends his own, though it may result in afree fight (PLD 1969 Dhaka 991).
• , The fact that a person has title to plot of land does not give him the right to
forcibly eject a trespasser in peaceful possession of the same. His remedy is to eject
him by civil process. The right of private defence of property does not cover a case of
taking or retaking possession by means of criminal force or show of criminal force
(AIR 1924. Pat 143). A trespasser, who is in settled possession of land, is entitled to
defend by force his possession even against the rightful owner, unless he is evicted
in due course of law ( PLD 1965 Kar 637). Where land was allotted to complainant
party during consolidation proceedings, but the allotment was set aside In appeal.
Land in dispute was in physical possession of accused and their family members.
Complainant party came there for taking possession of land. Cqmplainant party
neither resided there nor cultivated disputed land or any land nearby. Right of
• defence of property and self defence was held to have been made out (1987 PCrLJ
1518). Where the trespasser had been in possession for two months when he was
• uprooted by the owner, it was held that the trespasser had the right of self defence
against the owner (AIR 1959 Punj 570).
5. Plea of private defence.-The right of self defence need not be specifically
pleaded by the /accused. A person taking the plea of private defence is also not
required to call ievidence on his side, but he can establish that plea by reference to
circumstances transpiring from the prosecution evidence itslef. The questions in
such a case would be a question of assessing the true effect of the prosecution
evidence and not a question of the accused discharging any burden (Allappa
Ningappa Mugalkhod Vs. State of Mysore (1972) 1 Mays LJ 406).
In a case where the accused persons themselves do not specifically plead self
defence, the plea can only be allowed on. the basis of very clear evidence on the
record, which, would go at least the extent of showing that it was reasonable possible
the accused persons have acted in sefi defence (Al! Zaman Vs. The State 15 DLR (SC)
107 = PLD 1963 SC . 152). , . ' • . ' ' .. '
Despite the fact that no evidence had been led by the accused to prove a plea of
self defence yet if the plea received support to the extend of being reasonable
sec g, p. SiGENERAL EXCEPTIONS 67
possible fromthe circumstances . proved by the prosecution evidence, the accused
was entitled to acquittal (PLD 1964 Pesh 143 (DB). But the accused must at least.
make a case out of which a plea of the right of private defence might arise. The
questionT In such a case would be a questionof assessing the true effect of the
prosecution evidence and not a question of the accused discharging any.burden (AIR
1952 Cal 621). . .. . :
In a case: where the accused persons themselves do not specifically plead self
defence and no evidence is led in defence, the court can not consider the possible
effect of a plea of self defence on the prosecution case (PLD 1973 SC 4181. In such a
case the plea can only be allowed on the basis of very, clear evidence available on the
record, which would go at least to the extent of showing that it was reasonably
possible that the accused persons had acted in self defence (PLD 19639C., 1.52).'
It is well settled that if an accused does not plead self defence it is open to the
court to consider such a plea, if the same arises from the meterial on record (1982
CrLJ 138). The burden of establishing that plea is on the accused and that burden
can be discharged by showing preponderance of probabilities in favour of that plea on
the basis of the material on record . (AIR 1968 SC 702) Where the plea of the
accused that the injuries found on his head were caused by a blow with the latht
given by the deceased appears to have some ring of truth in it. This circumstances by
Itself is not sufficient to establish plea of private defence so as to exonerate the
iccused completely.' in the absence of , circumstancesto indicate that he had not
dealt the blows on the deceased, the latter either would have caused his death or
would have inflicted grievous injuries on his person (State of Orissa Vs. Gollari Damo
(1972) 38 Cut LT 397).. . . . . .
Once it is established that an accused killed another person the onus is on him
to prove that the killing was justified or execusable. It is open to an accused person
at any stage to point out to the court to examine the evidence and ascertain for itself
whether it Is consistent with a plea of self defence AIR 1961 All 38).A plea of the
right of private defence is open to an accused even though he. repudiated his
complicity in the crime provided such a plea could properly be raised u POfl the
evidence and surrounding circumstance of the case (AIR 1962 Cal 85) 65 CWN:
808!.. '. . . . .' ...
• A plea of self defence is not to be discarded on the ground that it is not . proved
or it is false or belated. The truth or falsity of the statement of the appellant is not . a.
correct criterion for coming to a right conclusion In a case; If the plea of self defence
gets reasonable support from the prosecution evidence, It shall not be refused to the
appellant . (23 DLR Pesh 7), merely because the statement given by him -is not in total
consonance with the probabilities of the case (1980 LN 535: PLDF 1962 Kai-495).
While considering whether the right of private defence is available to an
accused: it is not relevant whether he may have a chance to inflict severe and mortal-
injury on the aggressor. In order to find whether the right of private defence is
available to an accused;the entire incident must be examined with care and, viewed
in its proper setting. The injuries received, the imminence of threat to his safety.
the injuries caused by the accused and the circumstance whether the accused had
time to have recourse to public authorities are all relevant factor to be considered on
a plea of privat defence. Sword attack on the deceased cannot be excused by saying
that the severity of the injuries is often a matter of chance. Runing to the house
fetching a sword and assaulting the deceased on his head with that sword are by no
means a matter of chance. These acts bear the stamp of design (Biran singh vs state
of Bihar AIR 1975 SC 87).
 68 LAW OF CRIMES [See. .96-Syn. No. 6
6. Plea of self defence and the plea of alibi.-The defence may take whatever
pleas he likes, including inconsistent pleas, such as an accused, when charged with
an offence. may take the plea of alibi that at the time of commission of the offence he
was not present In the locality and at the same time he may take the plea of private
defence either of life or of pro.poerty. the simple reason for allowing such contrary
pleas is that the accused is not required by law to .prove his innocence, but it is
entirely for the prosecution to prove his guilt, failing which the accused shall be
acquitted (1986 BLD (AD) 1(3) , . Where accused raised an express plea of alibi a plea
of self defence on their behalf is inconsistent with the express plea raised by them.
However, if on the material placed on record the plea of private defence could be
made out consistent with the provision of section 105 of the Evidence Act, there will
be no justification to deny the benefit of it to the accused (AIR 1961 Mys 74 (80) =
(1901) 1 CrLJ 403).
It is open for the accused to plead that he was present else where at the time
• of occurrence and did not commit the act alleged against him but that if it is taken
to be proved that he committed the offence, he acted In his right of private defence
of property. If there Is sufficient material on the record in a case to show that the
accused acted in his right of private defence of 'property, he cannot be deprived of
the benefit of the plea of self defence even though he tried to set up the plea of
absence in vain and pleaded the right of private defence of the propoerty in the
alterative (Karnail sing state of Raysthanl977 CrLJ 1729 (1733).
The fact that the plea of self defence was not raised by accused and that he had
on the contrary pleaded alibi does not preclude the court from giving to him the
benefit of the .right of private defence, if, on proper appraisal of the evidence and
other relevant material on the record, the court concludes that the circumstances in
which he found himself at the relevant time gave him the, right to use his gun in
exercise of this right (AIR 1970 SC, 1079(1088) = 1970 crLJ 1004(SC); 1978 CrLJ
262 (On). . .
7. Proof of private defence.-The onus of proving the defence plea of the right of
private defence of property and the right of defence of life by the accused is upon
them (1989 BLD (AD) 110). The .law governing the plea of the right of private'
defence is laid down in section 105 of the Evidence Act, which throws the burden of
proving the existence of circumstances bringing the case within any of the general
exceptions of which the plea of private defence is one, on the accused. Of course, for
this purpose an accused can rely on evidence directly adduced by him or on facts
,nd Circumstances arising from the prosecution evidence or materials brought out in
cross examination of the prosecution witness by him (1969 SCMR 802; 1969 PCrLJ
1548). The court will also give benefit of this right to an accused person if there are
circumstances on the record from which ' exercise of such a right can be inferred
(PLD 1979 Lah 621 (DB).
It is true that the burden on an accused person to establish the plea of self
defence is not as onerous as the one which lies on the prosecution and that the
prosecution is required to prove its case beyond reasonable doubt, the accused not
establish the plea to the hilt and may discharge his Onus by establishing a mere
preponderance of probabilities either by laying. basis for that plea in the cross
examination of prosecution witnesses or by adducing defence evidence (Salim Zia vs
State of u.p. AIR 1979 SC 391, Munshi Ram vs Delhi Administratian AIR 1968 SC
702).
An accused person who puts forward the plea of private defence will seek to
prove it from the material on record, consisting of defence evidence, oral or
Sec. .9&eyn. No. 81 GENERAL EXCEPTIONS . 69
documentary, and admissions elicited from the prosecution; and he can drive
advantage from such meterial in two ways. In the first place; if this material is
sufficient to show that the plea of private defence is more probable than the
prosecution case, the plea will be taken as proved and the accused will be entitled to
acquittal oil ground that he has discharged the onus laid on - him by section 105 of
the Evidence Act. Alternative1y, if this material (read in conjunction with the other
evidence on record) is found to create a reasonable doubt In the mind of the court
regarding something that is required to he proved by the prosecution in order to
establish the accused' guilt. the accused will be entitled to acquittal on the ground
that prosecution has failed to discharge the primary burden that lies on it in all
criminal cases. In the vast majority of offence mens rea Is one of the essentials that
the prosecution has to establish before the crime can be said to be proved; and a
reasonable doubt as to whether mei'is rea is present or not must inevitable lead to
acquittal. A person who inflicts harm in a lawful manner In order to protect his
person.or property is clearly devoid of mens rea and If the material relied upon by
the accused creates a doubt as to whether he acted in exercise of the right of private
defence, a doubt will simultaneously arise 'as 'to whether he had the mens rea that,
must be proved in order to make his act a punishable offence. In such circumstances
he will have to be given the benefit of the doubt regarding this essential pre -
requisite of the prosecution case and will be entitled, to acquittal (Rishi kesh sing vs
state AIR 1970 All 51(62). '
It is well settled that even if an accused does not pelad self defence it is open
to the court to consider such a plea if the same arises from the material on record
(state of Uttar Pradesh Vs. Mohammad Musheer Khan AIR 1977 Sc 2226(2228).
S. Quantum of proof.- Whether an a ccused person, taking a plea of the right of
private defence is to prove in the same manner as the • prosecution is required to
prove its -case or whether a lower standard proof would suffice, the accused must at
least make a case out of:which a plea of the right of private defence might arise. It is
true that an accused person taking the plea of the right of private defence Is not
required to call evidence but can establish that plea by reference to circumstances
transpiring from the prosecution evidence' itself: But the questions in such a case
would be a question of assessing ,the true effect of the prosecution evidence and not a
'question of the accused discharging any burden,' (Dhlrendra Nath vs state AIR 1952
Cal 621). No doubt where the accused sets up a plea of private defence and the court
is in doubt whether or not the accused has been able to substantiate completely to its
satisfaction the plea set up by him the accused is entitled to the benefit of doubt
(Parbhoo vs Emperor AIR 1941 All 402). That principle, has absolutely no applciation
to a case where an accused person! set up a plea of self defence but completely fails
to establish It or fails to adduce any evidence in support of It (AIR 1948 All 223
(225) = 49 crLJ 436). ' ..'.
It Is not necessary. for the accused to lead evidence to prove their defence
• because such proof can he offered'by relying on the evidence led by the prosecution,
-the material elicited by cross examining the prosecution witnesses and the totality of
• facts; and circumstances emerging out of the evidence in the case (AIR 1974 SC
1570 (1572). .
It is true that the burden on an 'accused person to establish the plea of sell
defence is not as onerous as the one which lieson the prosecution and that while
the prosecution is required to prove its case beyond reasonable doubt, the accused
need not establish the plea to the hilt and may discharge his onus by establishing a -
/ mere preponderance of probabilities either by laying basis for that plea in the cross
 70 . LAW OF CRIMES ,.' (See. SSffSpt. No. 9.
examination of prosecution witnesses or by adducing, defence evidence videnc '(AIR 1976 SC:
966 AIR . 1968SC 702; (1979 CrLJ 323 (328)(SC)
In a criminal case the' accuseds are not required to set up their case hi writing,
such as a'w-ritten statement of the defendant of a civil suit, nor are they required to
give evidence to prove their. Innocence or even to establish their 'pleas, except a
special plea within the meaning of section 105 of the Evidence Act and it is entirely
for the prosecution to.establishflhe guilt of the'accused. The cardinal principle of
criminal Justice that the accused shall b&pres'umed to be innocent until his guilt is
proved shall be followed at all stages of the trial (42DLRAD) 31).
The question of quarifum of proof reqLilred to . prdve self defence fell for
consideration. It.is clearly laid downthat the standard of proof required on,the part
of the accused is not as high as that required on behalf of proseáutlon (AIR J976 SC
966). The accused will be deemed. tohave'discharged the .'burdenff he satisfies the
standard of a prudent man (AIR ' 1964 SC 1563). ...... I ,.

Accused is not required to prove his case to hilt but only to show from material
on record,. including, prosecution evidence, a reasonable . possibility of defence
version being correct, accused may take any plea (grave S and sudden provocation, self -
defence etc.) if spelt out' from. material available on records even at a later stage, If
not taken earlier: No adverse presumption can be raised against accused, ii'no
evidence produced in support of his plea '(1973 PCrLJ 379; P1)3 1953. FC 3). p'

9. Extent of right of private defence.- The right of private defence arises only in
1.

cases where there is an apprehension of hurt or grievous hurl, but the right of
private defence in no case extendstothe'inflicting of more:harm than is necessary
to inflict for. the purpose .of, defence, ( PLD 1 ,964,Lah 677). One can use only such
'force as is necessary to secure his safety or avert .the danger(PcJ 1980 Cr.C.. 411;
PLD 1980 Pesh 186). But when exercising the.right of private defence . it is difficult''
to expect the accused to.wètgh in golden scales what maximum amount of force is
necessary to keep' within the rlght,H(PLD, 1980YPesh 186; PLY 1980 Cr.C.411)'
particularly so when he is exercising the . right in a state' of panic ( PLD 1988 SC 25).
It follows that'a man who is assaulted is not,bound to 'modulate his defence step by
step, according to the attack ,, before there Is reason to believe the attack is over. He
is entitled to secure his victor) as long as the contest is continued. He is not obliged
to retreat, but may pursUe his advenar till he finds himself out of danger : and if in a'
een the
conflict between , he happens(AIRto kill, such' killing
19.64 is Justifiable Ker
222; 10 CrL.J 391) because amanplaced in imminent danger of losing either 'his life
or limb Is dominated solely by, his desire to , secure his safety and if In purstiance of
that desire he uses more force than a cool bystander would; he should, not b held to
have exceeded the right of, private defence. Every allowance should be made for the
stress, danger and excitement' under which he labours, (1946 Rang L.R. 50) and in
such circumstances even-if there be some excuse, it is to be condoned because o: the'.
difficulty in assessing the extent of the excess committed (PU 1980 CrC.' 411: Pj)3'
1980 Pesh 186) Faced' with a dangerous adversary: no. man'can posibly act with a
detached reflection and under such circumstances if he travels a little' beyond 'the'
limit, the law protects him and hence courts should-not place more, restrictions on
him than the law demands (AIR 1964 Ker 222).
The right. .of private defence ,was not exceeded- in the following cases (a)
Where the accused not oniy.apprehended that grievous hurt would otherwise be the
consequence of such an assault but actuallygrievous injury was, inflicted as fracture of
the shaft ulna bone of one of them was caued'(. pLD 1964 Lah 177; PLR 1964 (2)
W.P. 982). (b) Where the accused was caught as a suspected thief and was heavily
 GENERAL EXCEPTIONS 71
Sec. .9643yn. NQ. iai
beaten whereupon he used a firearm and killed one of the attackers (PLD 1966 Sc
432: 13 DLR (SC) 299). (c) Where the deceased appeared to have attacked the
accused with long knives whereupon the accused fired and killed two of the
attackers (PLD 1964 Pesh 143).. (d) Where the accused was attacked with hatchets
and in self defence he used a chhuri and caused an injury to the victim on his thigh,
which is not a vital part of the body but the injury proved fatal ( PLD 1965 Pesh 11)
(e) Where the deceased attacked with a lathi and the accused gave a fatal blow to him
in defence (PLD 1961 Kar 374). (1') Where the accused fired two shots on the
deceased although one shot was sufficient for his defence (PLD. 1964 Pesh 143). (g)
Where murder was committed while resisting sodomy (PLD 1965 Lah 553).
In the following cases the accused was held to have exceeded the right of self-
defence: (a) Where the deceased provoked the quarrel but the accused continued to
beat him even after he had fallen on the ground. (b) Where the accused had more
supporters than the deceased and he hit the deceased from behind (AIR 1947 Par
172). (c) Where the accused .stabbed, an unarmed adversary in a minor scuffle (AIR
1952 Mys; 10). . .
Where the accused had not recieved any injuries an the injuries recieved by
some of defence witnesses were simple, the accused must he said to have exceeded
his right of private defence when he had fired six shots indiscriminately, killing one
and injuring six others (AIR 1991 SC 769). . .
1O. Free fight.- It is well settled . that in a free fight, no right of private defence
Is available to either party and each Individual is responsible for his own acts (1986
CrLJ 1145 (1148) Or!). The right of private defence cannot be successfully invoked
by men voluntarily and' deliverately engaged in fighting with their enemies for the
sake of fighting as opposed to the case where men are reluctantly forced to use
violence in order to protect themselves from violence offered to them ( AIR 1915
Born 213). A free fight takes place "when both sides mean to fight from the start, go
out to fight and there is a pitched battle. The question of who attacks and who
defends in such a fight is wholly immaterial and depends on the tactics adopted by
the rival commanders (AIR 1954 SC 695). Thus if two enemies, each shown to be
determined to injure the other, meet suddently and go to fight. it will be hardly
proper to dispute the existence of a free fight and to assume right of private defence
for both the parties (AIR 1965 Raj 74). Evidence and circumstances where estbalish.
the fact that each party came armed to fight with other,, no question of right of
private defence arises (14 DLR (SC) 316).
There can be no question of a free fight when there is. a clear finding that one
f the parties is the aggressor ( AIR 1954 SC 695). The crucial and the decisive, or
it any rate, a more appropriate test to determine whether a fight is a free one or not,
is that both the parties should voluntarily enter into a fight and there shOuld be
mutual intent to harm each other. A desire to fight and a mutual intent to harm each
other can easily be entertained at the spur of the moment and the resulting fight will.
certainly be a free fight. Cases may arise where in the case of a sudden fight between
Iwo persons one of them may decline to fight further and retreat as far as he can
with safety and then faced with a dangerous situation causing reasonable
apprehension of death or grievous hurt take recourse to violence. He can certainly
claim the right of private defence ( AIR 1965 Raj 74). In cases of free fight the
parties do not generally come out with the true story, it is a normal incident of an
advisary proceeding" to minimise one's own part in the incident. In such a case the
court must not be deterred by the incompleteness of the tale from drawing
inferences that .properly flow from the evidence and circumstances (PLD 1962 SC
502: 14DLRSC 264). .
 72 lAW OFClUMES ,['Se~,97--:-:;yrt, No:.I1
Wherer a mutual conflict develops and there Is no dreliable and acceptabl~,
eVidence as to how It st~rted and as to who was the aggressor. law does not permit
the plea of private defence to be taken on either side (AIR 1957 SC 4691. When a
, free fight took place, on the question of possession and from the state of relations
between the parties. "It was clear that both the parties were prepared to fight and
a
that very tT!vaJ incident was suITIcient to bring them Into conflict. 'It was reasonable
to infer that In entering upon the conflict each party knowingly and deliberately took
, upon itself the rISk of an encounter. In the circumstances such as those no question
of right of private defence would,arlse {l4 DLR 264; 'PLD 1962 SC 5021. Where In
, the case of a SUdden fight between two persons one of them may decline from a
further fight and retreat as far as he can with safety and then faced with a dangerous'
situation causing reasonable apprehension of death' or grievous hurt; recourse to
violence. he can certainly claim t,ht; right of private' defence (AIR 1965 Raj 74
(76.771, ' ".. ,", ,:', ~ , "
Where both sides take up affilS and go Int~ -the open to Indulge In a fight. no ,
question of the exerCise of the right of self~defence arises and It Is Immaterial
whether the fight Is begun by one side or, the other (48 CrW 367-). If two persons or
two factions voluntarily and wlthdeterrnlned Intention come out to fight' and In fact
fight and it Is not pOssible to ascertain with reasonable certainly as to who was the
aggressor or how the fight got started. then'the rule, of law as laid down Inyarious
decisions IS that neither side Is, entitled to claim any benefit arising out of the' '
general exceptions contemplated under section 96 read with section 100 (1970
CrW 97 OUJ: 1982 CrW 1167 Ori).When there Is a free fight. that means. when both'
',the parties come deterrnl~ed to fight without there being any corresponding rights
of private defence. no party Is entitled to the protection of law. Each party and 'the,
members thereof will be responsible for the illegal acts done by them (1970 CrW
114 Orl). Where a free fight takes place and both parties: enter into and engage 'In a
fight of their own free violation; noneofthem can plead self defence [PLD 1962 (SC)
502 = 14DLR (SCI 316), In a free fight neither side has a right of private defence
,(Munnir Ahmed Vs., State of RaJsthan. AIR 1989 SC 705), , , "
97. Right 0: private de,ence, of the' bodY-and of propertY.- Every person
'has a right. subject
. to the restrictions
,". - ;'
contained
, - .
in section
- 99. to' defend~
~ .
,
, ' Flrst.~ His own body. a.nd the body of any other person. ,against any
'offence affecting the human body;'" '" ", _ ": '
, Secondly.- The pr~perty. whether moveable or immove~bie: of himself
or of any other person aga!,nst any act which!s an offence railing under the
definition of theft, robbery. mischief or c,rim!naI trespass. or which !s an,
atternpt to comm!t, theft. robbery. mischief .
or criminal
-
trespass,.
'~.
"
,Synopsis 0 I ,
1. Scope and application. 6. Right of private defence ag,¥nst
2. 'General principles governing exerC\se of trespasser. ~ , ,
right of private defence of body. 7. Limitation on"exercls~~of right or'prlvate
3, Public servant acting Ih official. capacity. ' ,defence, •
'4, When right of private defence of body is 8. When right of private defence of property
not aVailable, • is not available.
',5. General principles governing the exercise 9. Right of defence where exceeded. ,-'
of right of private defence, . 10. Buden of proof.
.' ,

1. Scope and application.- A light of private defence given by the penal Code IS
essentially one, of defence or self' pn:>tection and not .a, right of reprisal or
,
 'qott. 97—Syn. r4o. "U GENERAL EXCEPTIONS. 73
punishment. it is subject to the restrictions indicated in section 99, which are as
important as the right. itself. One of them is that the harm inflicted in self defence
must be no more than is legitimately necessary for the purpose of defence. Further,
the right is conterminous with the commencement and existence. of a rasonabie
apprehension of danger to body from an attempt or a threat to commit the offence. It
avails only against a danger, real, present and imminent (Onkar Singh Vs. State of
UP. AIR 1974 SC 1550 (1559-60).
Section 96 of the Penal Code lays down that nothing is an offence which is
done in the exercise of the right of private defence, and section 97 proceeds to
divide the right of private defence into two parts: the first part dealing with the right
of private defence of person, and the second part dealing with . the right of private
defence of property (AIR 1969 Born 20 (22-23).
Every person has a right to defend himself, his property movable or immovable
against any act which is an offence falling under the definition of theft, robbery,
mischief or criminal tresspass (1965 (2) CrLJ 582: AIR 1979 SC 577 = 1979 CrLJ;
584). An act done in the exercise of this right is not an offence and does not give
rise to any right of private defence in return (Narayan Assan Vs State 1956 CrLJ
276). .
This right commences when he has a reasonable apprehension of danger to his
life or property and continues so long as the offender continues in his commission of
the offence and even there is a risk of harm to innocent person (AIR 1970 SC 1079).
It is not necessary that he should wait until he is assaulted (AIR 1961 Guj 87 =
(1961) 2 CrLJ 54). . . . .
In order that an act may be pleaded as justified by the right of private defence
there must be an offence committed or attempted to be committed. The question of
the accrual of the right of private defence to a person does not depend upon an
injury being caused to him. If the facts and circumstances of a particular case
indicate that, placed as the accused was, he could have had areasonable
apprehension In his mind of a grievious injury being caused to him, then the right of
self defence was available to him (AIR 1966 All 244 (247).
It is not necessary that there should be an actual commission of the offence
roder to give rise to the right of private defence. It is enough if the accused
apprehends that such an offence is contemplated and that It is likely to be
committed if the right of privat defence is not exercised (AIR 1957 Ori 130 (150).
The right of private defence would become negatory if it were to be exercised after
the commissicn of an offence. No right of private defence can arise merely because
an unlawful or wrongful act has been done. It arises only when that unlawful or
wrongful act is an offence (IER 16 Cal 206 (218).
Broadly stated, the right of private defence rests on three ideas: first, that
there must be no more harm inflicted than is necessary for the purpose of defence;
secondly, that there must be reasonable apprehension of danger to the body from the
attempt or the at to commit some offence and, thirdly, the right does not commence
until there is a reasonable appréension (Dominic Varkey Vs. State of Kerala AIR
1971 SC 1208 (1210). the right of private defence only arises against acts which
constitutes an offence except in certain specified circumstances. The right of private
of person extends to acts which amounts to an offence affecting the body of the
person exercising the right or the body of any other person. The right of , private
defence of property covers cases of acts which are offences falling under, the
definition of 'theft 'robbery', 'mischief or 'criminal tresspass' or an attempt to
commit any of these (AIR 1954 All 39 (41)
Lacy of Crime,-0 . .
 15 c. 97--Syn. No. ..2,
74. . .. . lAW OF CRIMES .. .
Under section 97 the right of private defence extends not only to the defence.. •
of one's own body against any offence affecting the human body but also to defending
the body of any other person. The right also embraces the protection . of property,
whether one's own or another person's against specified offences ' namely, theft,
robbery, mischief and Criminal tresspass (AIR 14952 SC 165 = 1952 CrLb848).
2. General principles governing exercise of tight of private defence of body. -
While considering whether the right of private defence is available to an accused, it
is not relevant whether "he may have a chance to inflict severe and mortal injury on
the aggressor". In order to find whether the right of private defence is available to an
accused the entire incident must be examined with care and viewed in Its proper
setting. The injuries received by the accused, the -immense of threat to his safety,
the injuries caused, by the accused and the circumstances whether the accused had
time to have recourse to public authorities are all relevant factors to be considered.
on a plea. of private defence (1975) SCC (Ct) 454 = AIR 1975 SC 87).
The Supreme Court of Inida set out the extent and the limitation on the
exercise of right of private defence of body. It observed
(a) there is no right of private defence aginst an attack which Is not in it self.
an offence under, the code; . ., . . . ..
(b) the right commences as soon as - and not before -. a reasonable
app iehênsionof danger to the body arises from an attempt or threat to commit some
offence although the offence . may not have been committed and it is coterminous
with the duration of such apprehension. accordingly, the right avails only against a
danger. imminent present and real: ..
(c) It is a defensive and not .a punitive or retributive right. Consequently in no..
case, the right extends to the inflicting of more harm than it is necessary to inflict
for the purpose of the defene. At the same. time: it is difficult to expect from a
person exercising this right in ' good faith to weigh golden scales what maximum
amount of force is necessary to keen within the right. Every reasonable allowance
should bç -made for the bonafide defender. if he with the Instinct of self preservation
strong upon him, pursues his defence with a little further than may be strictly
necessax&' in the circumstances, to avert that attack. It would be wholly' unrealistic to
expect of a person undet assault to mOdulate his defence step by step . according to
the attack:
(d) The right extends to the killing of the actual or potential assailant when
there is a reasonable and imminent apprehension of the atrocious crime enumerated
in the six clauses of section 100. The combined "effect of the first two clauses is that
taking the life of an assailant would be Justified on the plea , of private defence, if the
assault ' causes reasonable apprehensiOn Of death Or grievous hurt to the person
exercising right
(e) There must be no safe or reasonable mode of escape by retreat for the
person confronted with an impending peril to or of grave bodily harm except
by inflicting death on the assailant and
(f)the right being in essence a defensive rigl4 does not accrue and avail where
there is time to have recourse to the protection of the public authorities. (AIR .1980.
SC 680; 1980 CrLJ 459(SC; Patil Han Meghjl 1983 CrLJ 82 (SC). .....
No right of private defence can exist against an unarmed and unoffeILdin
individual who was buying to get up and was standing at the time when the fatal
Injury was inflicted upon hfrn by the accused (AIR 1974 SC 496 = 1974 CrLJ 463).
Where there is free fight when both sides indulge in a pitched battle as it were the
 Sec. 97—Syn. No9i GENERAL EXCEPTIONS . 75
question who is the aggressor and who Is the agressee Is immaterial as no right of
p'ivatë defence accrues 'tany -paty IRJ..938 Lah 332; AIR 971 SC 1491).
If both parties go armed to . have a trial of strength, neither party can'put
:
forward the plea of private defence (AIR 1946 Pat 251). In considering whether the
accused Is entitled to exercise the right of private defence, all circumstances should
be weighed but the scales canot be golden scales (AIR 1952 sc 665 = 1952 Cr14
878). .
Right of private defence can not be based on speculation (1968 cut LT 1107).
Where the accused pleaded alibi, the right of private defence will not be available to
him (AIR 1954 Cal 258: 55 Cr14 774).
In order to avail of the exception of self defence, It Is essential to show; (1) that
the occurrence was not due to the fault or act of accused; (11) that there was an
immediate danger to life, in honest belief of accused; (iii) that no reasonable course
was available to accused to escape or avoid the necessity; and (iv) that there was no
Intention to cause more harm than necessary for the purpose (PLD 1988 $C 134
PLJ 1988 SC 66). Thus the accused have a right of private defence where they were
attacked by the complainants and suffered grievous hurt at. their hands (1969 PrW
1355; PLD 1964 Lah 177) or where the accused was caught as a suspected thief and
was heavily beaten whereupon he used a firearm, and killed one of the attackers,
(PLD 1966 SC 432; 18 DLR SC 299) or where the deceased had attacked the
accused with long knives whereupon the accused fired and killed two of the
attackers, ( PLD 1964 .Pesh 143) Or where a lathi blow was given , to the accused,
(PLD 1961 Kar 374) or his companion ( 36 Punj L.R. 300).
Where a private citizen tries to apprehend the accused on a suspicion of theft;
the' accused may evade arrest and to do so may exercise the right of private defence
by inflicting Injuries on the person attempting to arrest him (PCrUJ 1354). Where a
police constable going to the railway station prOmises to take precautions against
commission of crimes prevalent In the locality found some beggars 'sleeping on the
ground. He woke them up without use of force and found himself engaged; in an
argument with one of the beggars during the course of which he was suddenly struck'
by the beggar on his forehead with a heavy implement. While reeling under the effect
of the blow the constable struck his assailant on the head with a hatchet. It was held
,that a good case for exercise of right of private defence was made out in favour of the
constable (AIR 1942 Lah 33).
When a person is apprehending grave danger to himself and his Instinct of self
defence is aroused, he cannot have , the mental balance of measuring the. degree of
assault which he would deal to his opponent (Dassarth sendha v; state-of orissa: .1990r
(1) crimes . 660 =1989 (31) 'OJD 592 (597 (Cr).
'Where there is a fight between the parties, the- court must determine which
party was the aggressor. Once it is clearly established, that one of the parties 'opened
the attack, the other would have a right of private defence. Where the accused had .a
head injury which was caused to 'him by means of a blow with a hatcher, 'which the
deceased carried at the time of occurrence. The possibility of the deceasedhaving'
opened the attack on the appellant cannot be excluded to a moral certainty and In
case of doubt as to who attacked first, the benefit of doubt is to go to the accused
(PLD 1965 (WP) Pesh. 11). Where a fight took place in the common pasture of the
village on a dispute over the grazing of cattle and both the . ' accused and the deceased
Suffered Injuries with sharp-edged weapons. The prosecution evidence was found to
be unreliable. Therefore -the court could not give a definite finding as to who was the
aggressor. it was held that the plea of self 'defence raised by the, accused must be
 76. . LAW OF CRIMES [See. 97—Syn. No. 3
accepted (PLD 1969 Pesh 19). where the deceased went to the accused With a
spade in his hand, with the intention of picking up , a quarrel; it was held that the
deceased was the aggressor and the accused had justifiable reason to apprehend that
the deceased would cause grievous hurt to him and he was within his rights to hit
the deceased In self defence (AIR 1954 Sau 34).
The right of private defence of body commences as soon as a reasonable
apprehension of danger to the body arises from an attempt or threat to commit an
offence though the offence may not have been committed (PLD 1970 Lah 857). If the
accused apprehending immediate danger to his life thinks that it is only if he made a
counter attack that he could save his life, and makes the attack, he is entitled to do
so, because it. is not necessary nor does the law require that the accused should wait
for the purpose of exercising his' right of private, defence till he receives a grievous
Injury. In considering whether the accused is entitled to exercise the right of private
defence, one has to place oneself In the position of the accused in the midst, of
circumsances In which the 'accused 'stood and then form an opinion whether under
the peculiar circumstances the accused had not-the apprehension of such injuries to
his body as would entitle him to exercise his right (AIR 1960 Ker 258). However, it
is not every idle threat that would entitle a man to use arms against others. Before
using this valuable right of self defence he has to consider and 'reflect whether the
threat is :intended to be put into execution or not (PLD 1970 Lah 857). Where the
complainant party fired a shot at theaccused party, the accused though not hit have
a right of private defence and if they retaliated and beat the complainants they were
covered by this exception ( 1978 PCrLJ 515)..
Where the police started the assault and were the aggressors and the accused
used force' to repel the attack the action of the accused could be 'taken to be
protected (AIR 1957 Ori 130). The person exercising the right of private defence is
entitled to overcome the threat' (AIR 1971 SC 1208). The right of private defence
does not extend to chasing and killing a person who is running away from scene.
(AIR. 1963 SC 612 = (1963) 1 CeLJ 493).
3. Public servant 'acting in official capacity.- Where a police officer bonafide
believing ,a ' certain person to be a proclaimed offender, in his endeavour to arrest
him, was attacked by that person with a hatcher and in defending ' himself the
officer fired a shot' which proved fatal to his. assailant. It was held that the police
officer was protected by the right Of private defence which extneded even to the
causing of death of the assailant and that the police officer should not be held
criminally liable for the unfortunate outcome of what he did (AIR 1933 Sind 193).
Similary where an excise officer by force took away the account books of the accused
believing In good faith that he had the authority to do so, and the accused recovered
the books from him by force, it was held that the general right of private defence
given under section 97 Penal Code is subject to the restrictions contained , in section
99 P.C. It is clearly provided in section 99 P.C. that there is no right of private
defence in a case in which there is time to have recourse to the protection of the
public authorities. In the instant case, the applicant could have approached the
superiors of the officer for the return of the registers and if there was no officer
superior, to him posted at the station, the' applicant could have approached senior
officers of otherdepartments and, in any case, could move the police for redress;
-"therefore he had no right of private defence (AIR 1965 All 534).
Where a public servant acts Illegally in the purported exercise of his powers,
the person against whom he acts has .a right of private defence against the police
officer. Where the search, in carrying out which the accused was alleged to have
obstructed the public servant, was itself illegal, the accused has got a right of private
Sec'. 97—Syn. No. 4) GENERAL. EXCEPTIONS 77
delence of his person and If while doing so he caused simple hurt to the public
servant with his teeth or nail or stone chips In order to extricate himself from the
clutches of the public servant holding hifti. It cannot be said that the accused
exceeded his right of private defence ( AIR 1964 Pat .493). Similarly where the
aggressors were a police party and the accused who were. 9 In number began the
attack in desperation, finding 51 persons of the police party advancing against them
with loaded rifles, revolvers and lathis, or where a police officer took the accus ,ed to
a dispensary in order to be medicallyamlned\ex to ascertain whether he was under
the influence of drink, or where a constable wrongfully conlineds a person, such
person has a .right of private defence agaIist him (AIR 1957 On. 130; AIR 1959 Born
284; AIR 1923 All 34). . .
4. When right of private defence of body is not available.- The right of private
defence is available only to one who is suddenly confronted with immediate necessity
of overting an impending danger not-of his creation. The, necessity must be present,
real or apparent (AIR. 1988 SC 83 ,-= 1988 CrLJ ). The right of private defence in no
case extends to the inflicting of more harm than it is necessary to inflict for the
purpose of defence (AIR 1974 SC 1570 (1575). Where the deceased was way laid and
attacked by accused with dangerous weapon, it was held that the question of private
defence did not arise (AIR 1979 SC 1230).
Where it appeared from the evidence that even after the deceased had fallen
down, the accused continued to injure him in a vidictive and revengeful spirit, the
right of private defence was held not available (AIR 1971 SC 1891).
A person who tresspasses on deceased's premises can not claim the right of
self defence even if the fight was started or the first blow was Inflicted by the
deceased, or inmates of his house were the first to use force. Force used however,
should not be more than what is sufficient for vacation of the trespass (NLR 1981
SCJ 210). The aggrssors can not claim the right of private defence(AIR 1979 Sc.
1230 = 1979 CrLJ 1023). -
When in a sudden fight the accused takes an unfair advantage, he can not plead
the right of private defence (PLD 1966 SC 664). Where both sides take up arms and.
goout into the open to indulge in a fight, no question of self defence can arise, and it
is immaterial which side begins the fight first (PLD 1962 SC. 502 14 DLR SC 264).
A person cannot set up a right of private defence if he voluntarily engages himself in
a fight. with a desire to fight instead of being forced to fight to save himself Of
threatened violence (AIR 1915 Born 213). Therefore where two parties were
spoiling for a fight and every person began to pick up stones and throw them at the
other party, then the accused's party cannot plead that because the other party was
also intent on beating them, every blow they gave was given In 'self defence (AIR
1934 Mad 492). If two enemies, each shown to be determined to injure the other,
meet suddently and go to fight, it will be hardly proper to dispute the existence of a
free fight and to assume a right of private defence for both the parties (AIR 1965 Raj
74).
The right of private defence of person Is not available to a person who Is
committing an offence when he is attacked either to stop him or to apprehend him.
Where the accused enters the house of a woman to commit a cognizable offence, any
person can arrest the accused and cause death, if necessary, and the accused has no
right of private defence (AIR 1937 Pesh 92). Where the accused armed with a
gandasa makes a violent attack on another who is unarmed, the fact that certain
persons came to the rescue of the victim would not give the accused any right of
private defence against the rescuers (AIR 1943 Lah 164). One M went to the house
78 LAW OF CRIMES - eec. 97—Syn. No5
of the deceased to commit an offence; he knew that the men of the family of the
deceased might discover him and M went .prepared for this eventuality: He was
armed and had every intention of using his dagger, if discovered. He was discovered
and when pursued by the deceased-he killed him with the dagger. It was held that M
could not be said to have a right of private defence (AIR 1941 Lah 81). Where the
owner of the house tried to arrest a thief who had entered his house and on the thief
retreating, called upon his neighbours to arrest him; it was held that the arrest by
the neighbours was legal and the thieves had no a right of private defence (AIR . 1948
All 103). . ..
Where the deceased is made helpless . by being disarmed by the accused the
accused had no right of private defence by causing Injuries to the deceased for an
assault made previous to the disarming (PLD 1966 SC 664). Where the accused had
overpowered the deceased, thrown him on the ground and disarmed him of the
knife with which the accused then caused fatal injuries to the déceasedjt was held
that right of private defence could not be pleaded in defence (PLD 1966 SC 664).
The law of private defence does not reqire that the person assaulted or facing
an apprehension of an assault must run away for safety. It entitles him to defend
himself and law gives him the right to secure his victory over his assailant • by using
the necessary force. This necessarily postulates that as soon as the cause for the
reasonable apprehension has disappeared and the threat has either been destroyed
or has been put to rout, there can be no occasion to exercise the right Qf private
defence. If the danger is continuing, the right, is there, if the danger or the
apprehension about It h as ceased to exist there Is no longer the right of private
defence (1989 (31) OJD .605 (608) Cr; 1989 ACrR 749 (753. 754).
5.; General prin ciples governing the exercise of right of private defence.- A full
Bench of the Orissa High Court observed with respect to defence of property:
'The law on the point can be summarised thus:
(1) In a civilised society the defence of person and property of every member
thereof is the responsibility of the state. Consequently there is a duty cast on every
person faced with apprehension of imminent danger of his person of property to
seek the aid of the machinery provided by the state but if immediately such aid is not
available, he has the right of private defence. .
(2)Whether or not a case is one in which recourse should be had to the public
authorities depends upon the nature of information regarding the threat of imminent
danger. The right of private defence of property commences and the duty to apply
for protection to public authorities when some information of definite kind as to the'
time and place of danger. Is actually received. Thus, in most of the cases the time lag
between receipt of definite information and the commencement of apprehensiàn of
actual danger would, be one of the determinative features.
(3) After the actual danger has commenced there is ordinarily no question of
applying for protection of the public authorities. -
(4) The law does not require a person in possession of the .propoerty to run
away or retire in the face of attack • on it, to ask for protection of public authorities. If
a reasonable apprension of immient danger to the property has commenced the
exercise of right of private defence is available. At such point of time no duty is cast
on the accused to 'run for protection of public authorities.
(5) A person in possession when attacked by trespasser is entitled 10 maintain•
his possession and drive away the aggressors by use of force without applying for,
protection of public authorities. Where the person in physical possession has been:
SCc 97—Si, Nm'51 GENERAL EXCEPTIONS . 79.
dispossessed by the trespasser, he is even entitled in exercise of the right of private
defenée to drive away the 'intruder, provided there has been, no acquiescence to such
dispossession and the trespasser has not obtained settled possession over the
property. Here alsO there is no duty to run for protection and thereby allow the
trespasser to have settled pOssession over the property. •'
(6) Where the accused is in physical possession of the property but • at the
moment of attack he' is not present at the spot, then on. coming to know that the
trespasser is getting in to possession of the same Or attempting to do so, he is
entitled to come to the spot with necessary force to repel the entry and turn away
the aggressor.
(7) Where there is, imminent danger to the property and the person In
• possession apprehends substantial injury thereto he is entitled to raise his own
arms in defence and retaliate to keep away the attack without applying for state aid.
(8)When no serious lois to the property is threatened and there is no urgency
for driving away the 'trespasser, recourse to state aid must-be taken even if the
trespasser has just entered. the land. This should be the rule where at the time of
trespass, the person In settled possession is not upon the field. Where such person
is present on the property at the time tresspass is - attempted he would ordinarily
have the right of private defence as soon as his possession over the property is
actually threatened, no matter whether there is standing crop on the land or
substantial injury is apprehended or not. An exception to the requirement of seeking.'
state aid may also be made in a case where taking advantage of the temporary
absence ,from the field of the person in settled possession, the trespasser to get into
possession. ' . .
Where A is in settled possession and B trespasses and from the property
• trespassed, A can re-enter the property and maintain his possession by use. of force if
B attempts to get into the property again.
(9) The bare fact that a police station Is not far off from the scene of
occurrence is not by Itself sufficient to deprive a person of his right . of private
defence. The questions in all cases is whether if the police intervention could have
been timely and effective. The effectiveness of the police help depends not only on
the nearness of the police station but also on the possibility giving timely information
to the police and obtaining timely assistance from police. ..
(10) In dealing with' cases of this type a distinction must always be borne in
mind between enforcing a right and maintaining the right. Where the owner, not in
possession tries to' enter upon the property by show of force, the person in
possession, though not the owner is entitled to resist and , also claim right of private.
defence of property.
(11) Mere. preparatiori to meet an apprehended attack does not militate against
the right of private defence if there is no time to have recourse to public authorities
(State Vs. Rabindranath Dalai 1978 CrLJ 1686 On (FB): followed in State Vs.
Bhagabal Mohanta 1978 CrLJ '1566. Oil).
After considering several authorities the Allahabad High Court laid down, the.
following 'propositions relating to 'defence of propoerty
(1)There can be no danger to property lithe accused is not in possession. If he
/has merely a. bare title to the property,, hisremedy is to seek possession from a court
of law and not to enforce it by force himself.
(2) If the accused was previously in peaceful possssIon but the other side has
dispossessed him and, the accused has acquiesced in, the dispossession... for
80 LAW OF CRIMES [Sec. 97—Syn. No,
sometime, then again he must have recourse to law and not enforce his right to take
back poossssion by his own force.
(3) The accused may have lost possession but if immediately on coming to
know of the other side haying on his land or taken possession of his propoerty he
rushes to oust the trespasser, he is entitled to oust him by force. He Is not bound to
have recourse to a lengthy process of a trial in a civil court. But this rule cannot be
applied to a case in which the trespasser has already peacefully established himself
in the enjoyment of the property for some time.
(4) If, however, there is no question of permanent deprivation of one's•
possession over propoerty and the question is of infringment of enjoyment of a mere
right over property, then, in that case unless the injury to be caused by the
obstruction' of the enjoyment to one's right is expected to be enhanced if recourse is
had to public authorities for protection, one is bound to take such recourse.
(5) In ever case, however, if one is already in possession of one's property or
in enjoyment of a right, one is entitled to reach the spot 'earlier then other party
with arms and reinforcements and to wait in readiness to defend to such property or
right from the expected aggression from the other side.
(6) If the information of the expected aggression is of a definite kind it would
be .proper for the party in possession to inform the public authorities and seek their
help but one is not bound to seek such help unless an apprehension of danger to
such property has actually commenced.
(7) If the apprehension of danger has actually commenced and if one can have
recourse to the public authorities before an actual injury is caused to the property or;
right he must do so, or else he will lose his right of private defence, This
contingency usually arises when one has got definite information about the other side
proceeding towards the land in dispute, and the poublic authorities are within such a
reach that one could inform them before the actual damage to the property is done.,
e.g. when the police station falls on the' way to the land in dispute and the accused
can inform the police while proceeding towards it for its protection.
(8)When a fight takes place not because property or person has to be proceed
but because parties want to measure their strength and protection of property is
merely a per-text, no question of sell defence arises, bu this finding can be arrived at
only when the possibility Of either party fighting for the protection of his property
has been excluded.
(9) When the determination to fight is bonafide in the desire to protect one's
property, that would not be a case in which it can be said that the right of self
defence is excluded. In this connection it would be important to note whether one is
fighting for maintaining one's pbssession or maintaining one's enjoyment of a right
which has been enjoyed for some time previously: or one tries to obtain possession Of
a propoerty which he thinks belongs to him, or to inlorce a right which may be his
but which he had never enjoyed, before. In the latter class of cases there is no right
of self defence. In the former class of cases there is.
(10) Again, where a fight takes place in an open field, not on or near the
property to be protected but far away from it, this fight cannot be said to be one for
the protection of that property and there will be no right of self defence in such
cases.
(11)'Again, where' one party challenges the other party for a fight then also the
right of private defence is excluded, even thogh'the fight be near or on the property.
One is however, entitled to say to the aggressor, if you 'attack you will be met by
 Sec. 97—Syn. No. 51 GENERAL EXCEPTIONS 81
force, but it would be challenging another to fight if one were to abuse him and say
come on try strength if you like.
(12) Where there is a dispute over ownership or possession of property and.
parties quarrel, and there Is an exchange of abuses, but the party out of possession
has neither attempted nor threatened to take possession immediately,. nor
attempted nor threatened to cause injury to the party in possession, the party in
possession has no right to strike first, and if he does so, he gives the other party the
right to strike back in self defence (Paras Ram Vs. Rex 1949 All 274 (284) = 50 CrLJ
445).
In another case the Division Bench of the Allahabad High court has laid that
where during the course of an attack by party one member of such party falls down
on the ground due to defensive action of the members of the complainants party it
cannot give, rise to any right of private defence to any member of the party
committing aggression (Shailesh Kumar Vs. State 1968 CrLJ 110 (ALL). There Is
nothing in sections 96 to 106 of the Penal Code which can lend support, to the view
that a person entitled to exercise his right can not exercise it until he has failed
after taking other reasonable steps to avoid causing harm to his assailant (Mozan
Ansari vs. State 1961 BLJR 824).
In order to justify use of force in self defence there must be invasion of
propoerty either actual or threatened. A mere protest from a distance does not
amount to such an invasion ( Sidhu gope Vs. Emperor AIR 1946 Pat 84) (89). When
the apprehension of causing mischief to property ceases to exist or the mischief is
already done the right of private defence ceases to exist or the mischief is already
done the right of private defence to proerty is not available (1989 CrLJ 1980 (1982)
,P&H).
The right of private defence of property comes, into operation only when
certain specified offences against property are 'committed or are attempted to be
committed ( AIR 1934 Cal 610). The right arises not only when the offences
enumerated in the section are committed but also when an attempt to commit or 'a
threat to commit any such offence is made ( PLD 1960 (WP) Lah 62). Where a civil
court of competent jurisdiction had ordered maintenance of status quo regarding.
possession of the disputed land between the parties and in consequence thereof
accused were in possession. In spite of it the complainants went all the way from
their village to land in dispute to restrain the appellants from ploughing the field in
dispute without due course of law. The three appellants, had. full right to protect
their person and property, when they were ,attacked and received grievus Injuries
(KLR 1987 Cr. C. 100). The right of private defence' of property can only exist, in
favour on the person who possesses a clear title to that property ( AIR 1916 Oudh
345). It is preposterous to claim for a judgment debtor, whose property has been
sold in execution of a decree, a right to assault the auction purchaser who had been
put in possession of the property by the civil court and was protected by the criminal
court in keeping that possession when he goes to the land armed' with the delivery
of possession and supported by the orders of the criminal court (AIR 1934 Pat 565).
Under Muslim Law a will in favour of an heir is invalid unless it is consented to
by the other heirs. Therefore, if a transferee' 'of certain lands of the legatee under
such a will digs part of the land, which on evidence is found to be in constructive
possession of other heirs, with a view to appropriate it for his exclusive use, his
action amounts to criminal trespass and the heirs have, under. section 97, a right of
private defence to beat and eject the transferee (AIR 1934 All 829). But this does
not. mean that mere title' is sufficient for having a right of private defence of
property. The party acting in private defence must also be in actual possession, of
Law of Crimes--I i
82 LAW OF CRIMES [Sec. 97—Syn. No. 6
property. The mere right to have possession restored by a civil court does not justify
an individual in taking the law into his own hands (AIR 1927 Sind 92). Thus landlord
cannot take the law in his own hands, and pre-emptorily throw away the household
effects of a defaulting tenant. Faced with this predicament, the tenant and his family
had every right to defend their possession by use of reasonable force against the
defendant (1980 PCrLJ 59).
Private defence of property will not be available to a person who is neither the
owner nor a person in possession (1975 CrLJ 968). The right of private defence
extends to protection of his propoerty whether one's own or that of another and this
normally arises in case of mischief, theft, robbery and tresspass (AIR 1952 SC 1651).
The question ofpossession of the disputed property at the time of occurrence is
material in finding out whether a party has a right of private defence of property
(AIR 1957 Ori 117).
6. Right of private defence against tresspasser.- A rightful owner is entitled to
turn out physically a trespasser or one trying to Infringe upon his rights. A person
exercising this right should, however, not use more force than is reasonable to
defend his possession from a trespass ( 44 CrLJ 172). It is well settled that a true
owner has every right to dispossess or throw out a trespasser, while the tresspasser
is in the act or process of trespassing and has not accomplished his possession, but
this right Is not available to the true owner if the trespasser has been successful in
accompolishing the possession to the knowledge of the true owner. In such
circumstances the law requires that the true owner should dispossess the trespasser
by taking recourse to the remedies available under the law (Ram . Ratan Vs. State of
U.P. (1977) 1 SCC 188).
Where a tresspasser enters upon the land of another, the person in whom the
right of possession is vested, while the tresspasser is in the process of acquiring
possession, may turn the tresspasser out of the land by force and if in doing so he
inflicts such Injuries on the tresspasser as are warranted by the situation he commits
no offence (1972 MU (CtJ 292). If, on the otherhand, the tresspasser had already
accomplished or completed his possession and the person with the right of
possession has acquiesced in this accomplishment. It is not open to the latter to
avail hmself of the doctrine of self defence and by inflicting injuries on the
tresspasser to re-acquire possession of his land (50 CrUJ 868). However no one
including the true owner has a right to disposses the trespasser by force if the
tresspasser is in settled possession of the land and in such a case, unless he is
evicted in due course of law, he is entitled to defend his possession even againt the
rightful owner. The possession which a tresspasser is entitled to defend against the
rightful owner must be settled possession extending over a sufficiently long period
and acquisced in by the true owner (1977 CrLJ (Raj) 200).
Even if a person is a trespasser and has wrongfully cultivated a certain portion
of a field of which he was bound in law to deliver possession to another person, the
latter person has no right to take law into his own hands and beat the former in
order to dispossess him from the field. If the latter person is an aggressor, there is
no doubt that the former person,. though a trespasser, has a right of self defence of
person (1954
. CrLJ 54: 1971 SCC (Cr!) 87). . .
In Ambika Singh Vs. State, AIR 1961 All 38, it was held that it may therefore be
considered setteld law that a trespasser acquires the right to defend his possession
against physical attack only if he has come to it by the acquiescence express or
Implied of the rightful, owner and his possession has become peaceful and settled. If
the rightful owner somehow acts into possession of his land he comits no crime, the
trespasser cannot defend his wrongful possession which Is gone.
 See,, 97—Syn. No. 61 GENERAL EXCEPTIONS . 83
Possession which a trespasser is' entitled to defend against the true owner must
be possession for a sufficiently long period (1969 CrLJ 1260). Where a trespasser
wrongfully cultivates a piece of land, to the knowledge of the true owner, the true
owner can not take the law Into his hands but should take the remedies open to him
to get back: possession (AIR 1975 SC 1674 = 1975 CrLJ 1479). A trespasser can
claim right of private defence of his person only when he has brought to an end his
act of tresspass (PLD 1983 SC 135). .
The nature of possession which may entitle a trespasser to exercise the right of
private defence of property and person should contain the following attributes:
• (i) that the trespasser must be in actual physical possession of the property
over a sufficiently long period:
(ii) . that the possession must be to the knowledge either express or implied of
the owner or without any attempt at concealment and Which contains an element of
anlrnus possidente. The nature of possession of the trespasser would, however, be a
matter to be decided on facts and circumstacnes of each case.
(iii) the process of dispossession Of the 'true owner by the trespasser must be
complete and final and must be acquiesced in by the true owner; and
(iv)that one of the usual tests to determine the quality of settled possession in
the case of cultural land, would be whether or not the trespasser, after having taken
possession, had grown any crop. If the crop had been grown by the trespasser, then
even the true owner has no right to destroy the, crop grown by the trespasser and
take forcible possession, in which case the trespasser will have a right Of private
defence and the true owner will have no right of private defence (Puran Singh Vs.
.State of Punjab. AIR 1975 SC 1674 =1975 CrLJ 1997 AIR 1977 SC 619: 1985 CrLJ
1384 (1386).
A co-sharer may be guilty of criminal tresspass giving his co-sharer a right of
private defence of property. Thus it has been held that one of the co-sharers in
constructive possession of joint land has no right to dig pat of it with a view to
appropriating it for his exclusive use. If he does in the teeth of opposition by another
who is also in constructive possession the act amounts to criminal trespass and his
co-sharers have every right to prevent him from doing so (AIR 1934 All,829 (831).
Where an attack is made on a person acting in the lawful execise of their right'
over property, they are entitled to the right of private defence (AIR 1927 Lah 740).
Where the complainants deliberately prevent the lawful ploughing of a field by the
accused, the latter has a right of private defence against them and can oust them
from his land (55 Runj L.R. 343). Where the complainant party interfered in the
lawful right of the accused to take water from a channel, the accused was held to
have a right of private defence against such interference (AIR 1955 Al 90).
Where the complainant party had no right to 'cut fuel from a certain Jungle but
the other party had such right and therefore the latter resisted the attempt of the
complainants to cut fuel. It was held that the accused were acting In exercise of the
right of private defence (AIR 1947 Pat 51).
Where a party has a right to make use of certain property but that right is
subject to the permission or consent of another person, and he exercises 'that right
,'without obtaining such consent, the other , party has a right to exercise the 'right of
private defence of property and prevent him from exercising that right. Thus' where
a co-owner, without the consent of other co-owners tries to build walls in a shamilat,
the other co-owners may by force stop him' from doing so (PLD 1969 Lah' 114).
 LAW OF CRIMES [Sec. 97—Syn. No. 8
-
7. Limitations on exercise of right of private defence.- The right of private
defence of person or property is to be exercised under the following llmitatons: (1)
that if there is sufficient time for recourse to the public authorities the right is not
available: (ii) that more harm than necessary should not be caused: (iii) that there
must be a reasonable apprehension of death or grievous hurt to the person or
damage to the property. It Is not the law that a person when called upon to face an
assault must run away to the police station and not protect himself or when his
property has been the subject matter of trespass and mischief he should allow the
aggressor to take possession of the property while he should rule to the public
authorities. Where there is an element of invasion or aggression on the property by a.
person who has no right to possession, then there is obviously no room to have
recourse to the public authorities and the accused has the undoubted right to resist
the attack and use even force if necessary.. The right of private defence of property
or person, where there Is real apprehension that-the aggressor might cause death or
grievous hurt to the victim, could extend to the causing of death also, and it is not
necessary that. death or grievous hurt should actually be caused before the right could
be exercised, a mere reasonable apprehension is enough to put the right of private
defence into operaiton (AIR 1963 SC 612 = (1963) 1 CrLJ 495).
Where a landlord without taking possession of his tenanted land in due course
of law or obtaining consent of the tenant for such possession entered on the land.
When the landlord was ploughing the land, the tenants instead of re-entering to
which they were entitled as they had not aquiesced in such entry attacked the
landlord and deliberately shot him dead. It was held that the tenants were clothed
with the right of private defence of property but the law does not permit the killing
of a man outright in the exercise of the right of private defence of property (22 DLR
(SC) 129). They were liable for exceeding the right. A person may collect other
people to protect his property because where a person is otherwise justified in using
force to defend his property against an unlawful aggression, he does. not lose this
right if he prepares and then exercises the right (PLD 1961 Lah 415). -
The extent of injury on one party as against the other is not in every case a
good guide for fixing the quantum Of responsibility for the occurrence. It would not
be a guide at all where the object of the two parties was quite different. The
complainant party had come to demolish the wall. Therefore, they could not be
expected to open an assault. They had to be resisted in committing that mischief and
in the process they used their weapons but the appellant's party who was subjected
to such aggression used the weapons more effectively. Therefore they could not be
said to have exceeded the right of private defence (1973 PCrLJ 656).
The defence plea which has been accepted In the courts below does indicate
that the paddy crop was ripe and ready for harvesting and it had been grown by the
accused persons. The two deceasd persons. and their men had trespassed into the
property and were about to harvest the paddy. Theft and mischief were either being
committed or threatened to be committed When accosted they wanted to forcibly
commit the offence of theft and mischief and when the accused persons .wanted to
exercise their right, grievous blows were given. In the facts of this-case, the right of
private defence of body and property was available to the accused persons and in the
circumstances indicated and on the findings recorded, this right extended causing
of death (Abdul Kadir Vs. State of Assam 1 .985 (2) Crimes 756 (758) SC).
S. Where right of private defence of property is not available.- Private defence of'
,property will not be available to a pelson who . is neither the owner nor a person in
pOssession (1975 CrLJ 968). Where neither party was in possession of the and in
dispute and the accused was found to be attempting to obtain possession and a
 GENERAL EXCEPTIONS 85
Sec. 97—Syn. No. 81
dispute was pending in a revenue court and the deceased while obstructing the
accused was struck dead by the accused: It was held, that he was not protected by
the right of private defence ( AIR 1962 Oudh 148). But where a person is In lawful
possession of property, he has a right of private defence against all trespassers.
Where the land in dispute was in the possession of the opposite party who had
grown crops and the accused came to reap paddy with the help of a large armed
'mob to enforce their supposed right and claim over the produce and a riot followed.
• The accused could not claim any right of private defence (AIR 157 Orissa 117).
• In Chând Mia Vs. The State (42 DLR (AD) 3), an order of temporary injunction
was in force but no action was taken to have this order vacated by the deceased
Mzal. Afzal violated the inunction by sowing 'Kaut' in the land which grew for over
two months and thereby forcibly dispossessed the appellant. The appellant had a
right of private defence of property which he could have exercised when Afzal first
went to grow the 'Kaun' but he did not do so. But after two months he went to plough
up the land to destroy the crop for the purpose of re-establishing his possession.
This is not permitted by law as during this period he could have resort to public
authorities. His plea of right of private defence of propoerty was rejected.
A trespasser cannot be the very act of trespass immediately and without
acquiescence acquire what the law recognises as possession against the person
whom he ejects and the latter may if he does not acquiesce, -re-enter and reinstate
himself provided he does not use more force than is necessary. A trespasser cannot
• turn his offence into an advantage and plead the right of private defence against a
person in de facto possession. Thus a casual act of possession by a trespasser not
acquiesced in by the person in possession would not have the effect of dispossessing
• the person in de facto possession (PLD 1961 Lah 415). In such a case the owner has
a right to regain possession in the absence of the, trespasser (AIR 1961 All 38). But
where the trespasser was in peaceful possession over the property for two or three
weeks, theaccused had no right to take possession of the property by using force,
and where he did so, he had no right of private defence ( 1959 All LJ 340). Thus
where the tenant continued in possessiOn in spite of the fact that the landlord had
taken delivery of possession in execution of an ejectment decree, and the tenant had
sown a new crop on the land; it was held that the tenant had a right of private
defence if the landlord tried to effect entry into land (AIR 1949 All 564).'
The accused were forcibly taking their loaded carts through the field of A on
which crops were standing. A had the right to prevent th accused from committing.
criminal trespass however, short the distance was and the right of private defence
did not come to an end till accused left the field (AIR 1961 SC 1541; (1962) 1 SCR
601). The deceased was In actual possession of the field and as such he had a right
to go and plant paddy thereon the date of occurrence because he had not been
dispossessed, legally nor by force. The accused in exercise of his supposed right
went there along with number of other accused and all of them were armed with
deadly weapons and assaulted that the land in despute was their field and they
attacked the deceased killing four of them injuring six others. It was held that the
accused had absolutely no right of private defence of property (1982 CrLJ 1633 AB).
Where the* accused who were in possession of a plot of land as tenant caused
some injuries to the complainants party who had purchased the land in question In
public auction, it was held that the accused persons had right of private defence and
did not exceed the right in view of the fact that both issue- of warrant of delivery and
alleged actual delivery were unauthorised (AIR 1968 SC 702).
 86 JAW OF CRIMES (Sec. 97—Syn. No. 9
9. Where the right of private defence held to be exceeded.- Use of force in
exercise of the right of private defence to the property must not be disproportionate
to the act which calls for exercise of such right. Killing a trespasser in the right of
private defence cannot be justified when no apprehension of injury to life is
imminent from the trespasser (22 DLR (SC) 129). Where in a dual (both accused and
deceased armed ) the deceased threw down the accused but became disarmed and
the accused struck the deceased with knife and the latter died from the shock.
accused was held to have execeeded the right of private defence (AIR 1934 Lah 332
= 35 CrLJ 1319). In a case where the trespasser is unarmed and there Is no threat of
grievous injuries to the person who is resisting the trespass he is not entitled to use
such force as may result in the killing of a person. If he does so, he can not claim
that he was acting in the right of private defence and had only exceeded the right
22 DLR (SC) 129). The right of private defence is a right of defence and not of
retribution (Dvilal Anr, v. State of M. P. 1991 (3) Crimes 536 (M. P.).
The right of private defence of property under sections 103 and 104 does not
extend to the voluntary causing of death. The exercise of right of private defence of
property is itself subject to restrictions mentioned in section 99 which prescribes
that the right of private defence in no case extends to the inflicting of more harm
than it is necessary to inflict for the purpose of defence. Therefore the accused in
the exercise of right of private defence of property are entitled to cause any harm to
the wrongdoer other than death (NLR 1979 Cr. 121). In a case where the trespasser
is unarmed and there is no threat of grievous injuries to the person who is resisting
the trespass, he is not entitled to use such force as may result in the death of a
person. If he does so, he cannot claim that he was doing so in the exercise of his
right of private deence and has exceeded in his right (PL 1974 Cr.L 186).
Where, the deceased was digging he field of the accused and when asked to
desist he raised his Kalso to strike one of the accused persons and the latter warded
off the attack by sitting down. The accused were justified in apprehending, from the
attack with the Kalso, that grievous hurt might be caused to them. The deceased
had, also damaged their field. The accused had, therefore, this right of private
defence, both of person and property, against the deceased. But by inflicting injuries
with darants on the head of the deceased, and thereby causing his death, they had
used more force than was reasonably necessary in the circumstances of the case. The
accused were liable for the excessive harm caused (AIR 1965 Him Pra 49). Where
accused or any of their companions, received no injury at the hands of complainant
party. There was no evidence of any apprehension of death or fear of suffering
grievous injury. Right of private defence was held, tohave been exceeded (1987
PCrUJ 1518). The land lord without taking possession of his tenanted land in due
course of law or obtaining consent of the tenant for such possession entered on the
land. When the land lord was ploughing the land the tenants instead of re-entering
(to which they were entitled as they had no acquiesced in such entry) attack the
land lord and deliberately shot him dead. .Held that the tenants in the present case
are no doubt clothed with the right of private defence of property. but the law does
not permit to kill a man outright in exercise .of the right of 'private defence of
property. In a case where the trespasser is unarmed and there is no threat of
grievous injuries to the person who is resisting the trespass he is riot entitled to use
such force as may result in the killing of a person. If he does so he can not claim that
he was doing so in the right of private defence and he has exceeded his right (22
DLR SC 129). Right of private defence to property to be inferred from circumstances
even if not pleaded specifically. In the absence of .proof of exact role of the persons
making the defence can not be held liable for exceeding such right (AIR 1989 SC
1173 = 1989 CrLJ 1149 (1155). -
Sec. 97—Syn. No.. 10 1 GENERAL EXCEPTIONS 87
10. Burden of proof.- Burden of proof rests entirely on the prosecution to
establish beyond reasonable doubt all the Ingredients of the offence alleged including
the actus reas and the mens rea. Burden of proof resting on the prosecution to
establish, a case beyond reasonable doubt is neither taken away nor discharged, nor
shifted merely because the accused sets up a plea of private defence. The question of
right of private defence arises only after the initial burden resting on the prosecution
is discharged. The burden of establishng circumstances leading to exercise of right
of private defence rests on the defence. But the nature of the burden resting on the
defence is different from the nature of the burden resting on the prosecution. The
former Is not as onerous as the latter. The burden resting on the defence can be
discharged as in any other case, by adducing direct evidence or by establishing
porobabilities with regard to circumstances pleaded by him. For this purpose he , may
rely on evidence or defence, answers elicited from prosecution witnesses,
presumptions, defence statement and porobabilities. Even if the defence fails to
discharge the burden, the matter does not end there and the prosecution can not
automatically succeed. The defence may marshal and rely on circumstances, which
though not sufficient to establish the defence case, may suffice to raise a reasonable
doubt regarding the exitence of one or the other of the ingredients of the offence
charged. The totality of the circumstances placed before the court may create
reasonable doubt in the mind of the court regarding the mens rea or other
ingredients. There can be no rule as to under what circumstances such a reasonable
doubt can be said to arise. The circumstances may be as varied, as there are cases
(1982 CrLJ 173 Ker).
When the evidence in the case clearly shows that the accused was responsible
for the infliction of two injuries on two victims, he can be exonerated from the blame
only if he shows that he had justification for inflicting those injuries or rather that he
acted in self defence and the burden is clearly on the accused (Lunka Ulahannan Vs.
State of T. C. AIR 1955 T.C. 104 (DB). The onus proving the defence plea of the
right of private defence of property and the right of defence of life by the accused of
murder is upon them (1989 BLD (AD) 110). But the accused need not to prove plea
of private defence beyond reasonable doubt (PLD 1981 Kar 184). The onus is on the
accused who has establish his right of private defence by showing preponderance of
probability (AIR 1979 SC 577 = 1979 CrLJ 584).
In order that the prosecution should succeed, its evidence must be such as to
negative conclusively the plea of self defence. Even if the plea of self defence is not
positively established but the court is left in doubt that the killing may well have
been in sell defence, the accused is entitled to be acquitted (Sumran Vs. State, 1959
MPLJ (Notes) 101; Holia Budhoo Gowara Vs. Emperor, AIR 1949 Nag 163).
The burden of proof is always on the prosecution and it is only when a good
prima fade case has been made out against the accused sufficient to justify his
conviction for that offence, that burden shifts on to the accused to prove that he is
not guilty of any such offence. It is not right for a criminal court to convict an
accused person because the defence theory appears to it to be unreasonable or does
not appear to it to have been established (PLD 1958 SC 242; PLD 1964 Dhaka 480
15 DLR 615). Therefore though the acucsed did not adduce any evidence to
substantiate their plea, they could establish their plea by relying on the
circumstances transpiring from the prosecution evidence . 4tself (PLD 1964 Pesh 143
(DB). An accused pleading the right of self defence need not prove It beyond all
reasonable doubt. It is enough if he establishes facts which on the test of
preponderance of probabilities made his defence acceptable (1975 SCC (Cri) 512;
1972 crLJ 835).
88 LAW OF CRIMES [See. 98-99
Even if the accused does not plead self defence it is oopen to consider the
defence when raised (AIR 1957 Ker 53). If upon a consideration of the evidence
reasonable doubt is created • in the mind of the court the accused is entitled to the
benefit of doubt (Parbhoo Vs. State, AIR 1941 All 402 (FB): AIR 1964 Ker 222).
The onus to establish the plea of right of private defence of life and property is
upon the accused as specifically provided in section 105 of the Evidence Act and the
court will presume the absence of any circumstances which bring the action of the
accused within the exceptions described in section 300 of the Penal code. accused
did nothing to discharge the onus and their plea was rejected (Tayeb all Vs. State.
1980 BCR (AD) 86). Prosecution can not take advantage of plea of private defence
taken by accused, being either false or suffering from infirmities. Burden of proving
its case beyond doubt invariably remains on the prosecution (1982 PCrLJ 781 DB).
98. Right of private defence against the act of a person of unsound
mind, etc.- When an act, which would otherwise be a certain offence is not
that offence, by reason of the youth,: the want of maturity of understanding,
the unsoundness of mind or the intoxication pf the person doing that act, or
by reason of any misconception on the part of that person, every person has
the same right of private defence against the act which he would have if the
act were that offence.
Illustrations
(a) Z, under the influence of madness, attempts to kill A: Z is guilty of no
offence. But A has the same right of private defence which he would have if Z were
sane.
• (b) A enters by night a house which he is legally entitled to enter Z. in good
faith, taking A for a house breaker, attacks A. Here Z, by attacking A under this
misconception, commits no offence. But A has the same right of private defence
against Z, which he would have if Z. were not acting under that misconception.
99. Acts against which there Is no right of private defence.- There is no
right of private defence again'st an act which does reasonably cause the
apprehension of death or of grievous hurt, if done, or attempted to be done
by a public servant acting in good faith under colour of his office, though that
act may not be strictly justifiable by law.
There is no right of private defence against an act which does not
reasonably cause the apprehension of death or of grievous hurt, if done, or
attempted to be done, by the direction of a public servant acting in good
faith under colour of his office though that direction may not be strictly
justifiable by law.
There is no right of private defence in cases in which there is time to
have recourse to the protection of the public authorities.
The right of the private defence in no case extends to the inflicting of
more harm than it is necessary to inflict for the purpose of defence.
Explanation 1 : A--person is not deprived of the right of private defence
against an act done, or attempted to be done, by a public servant, as such,
unless he knows, or has reason to believe, that the person doing the act is
such public servant.
Sec. 99—Syn. No. 21 GENERAL EXCEPTIONS. - 89

Explanation 2: A person is not deprived of the right of private defence

against an act done, or attempted to be done, by the direction of a public
servant, unless he knows, or has reason to believe, that the person doing the
act is acting by such direction, or-unless such person states the authority
under which he acts, or if he has authority in writing, unless he produces
such authority, if demanded.
Synopsis
1. Reasonable apprehension of death or 4. Time to have recourse to the protection
grievous hurt, of the public authorities.
2. Right of private defence against act 5. Commencement and extent of right of
done by public servant, private defence.
3. Act not strictly justifiable. 6. Explanations.
1. Reasonable apprehension of death or grievous hurt.-There is no right of
private defence against an act which does not reasonably cause apprehension of
death or grievous hutt, if done or attempted to be done by the direction of a public
servant acting in good faith under colour of his office (AIR 1965 SC 871=1965 CRLJ
367). The right arises as soon a reasonable apprehension of danger to the body arises
from a threat to commit any of the enumerated offences and the peron need not
wait till he is hit or actually injured. (AIR 1973 SC 473 = 1973 CrLJ 77; AIR 1975 SC
1674 = 1975 CrLJ 1479).
A person has no right of private defence when mischief is caused to his
property but it is not caused under such cirumstances as may reasonably cause
apprehension in his mind that death or grievous hurt would be consequence if such
right of private defence was not exercised. A mere claim of such apprehensiort is not
enough. The court on objective test and on the facts and clrumstances of each case
must arrive at the conclusion that the situation was such as was likely to reasonably
cause such apprehension (Mohinder PaliJally Vs. State of POunjab AIR 1979 SC 577
(581). Accused on being injured by sonof deceased gave Lathi blows to deceased
mother who was unarmed during the fight. Acts of accused vis-a-vis deceased was
not covered by right of self-defence 91993 CR1. L. J. 57 (SC).
It is not necessary that there should be an actual commission of the offence In
order to give rise to the right of private defence. It is enough if the accused
apprehends that such an offence is contemplated and that it Is likely to be
committed if the right of private defence Is not exercised (AIR 1957 Ori 130 (150).
The right of private defence has been provided for self protection. Therefore, if by
exercise of this right a person escapes grievous hurt or death, It can not be said that
he had no apprehension that grievous hurt or death would follow even if he did not
act in self defence (1958 MPLJ (Notes) 119). If a man has a reasonable apprehension
of danger to his lfie he is justified in disabling his aggressor and in the process even
if a slight excess force more than what is necessary is used he can not be held liable
(AIR 1961 MP 241). The law gives a person the right to cause death in order to save
himself or another from the commission of rape. Where his mother and sister
attaked and killed the deceased when he was actually committing rape on his sister,
and when he was asked to refrain from this nefarious act he refused to listen to
them, they were held to have committed no offence (PLD 1961 BJ 32 (DB).
2. Right of private defence against act done by public servant.- The first clause
of the section protects a public servant against the right of private defence even if
the authority be defective in minor particulars or even if the officer exceeds his duty
in a minor particular, and it merely leaves the right of private defence open when
the alleged authority is no authority at all and is wholly defective in form or the
Law of Crimes-12
 90 LAW OF CRIMES [Sec. 99—Syn. No. 2
officer goes clearly and widely ouside the duties imposed on him. Even in such cases,
where the right of private defence is open, it is not lawful for any person to offer , to
the public servant more violence than in strictly necessary to resist the unlawful act
.and if the authority has no defect, the section has no operation (1932) 11 Patna
743).
Where a police officer • acting bonafide under colour of his 'office arrests a
person but without authority, the person so arrested has no right of self defence
against the officer (41 CrLJ 250: (1939) 2 MM 776). Thisexception applies where a
public servant acts irregularly in the exercise of his powers, and not where he acts
outside the scope of his powers (1956 Cr14 987: 1960 CrLJ 214). A police officer
attempted without a search warrant to enter into a house in search of property
alleged to have been stolen, and was obstructed and resisted. It was held that, even
though the officer was not strictly justified in searching the house without a warrant,
the person obstructing and resisting could not set up the illegality of the officer's
procedlng as a justification of his obstruction, as it was not shown that the officer
was acting otherwise than in good , faith and without malice (1964 CrLJ 592).
• Section 99 rests partly on the probability that the acts of a public servant will
be lawful, in which case resistance must necessarily be unlawful; partly on the theory
that 'resistance to unnecessary since the law will set right what has been rongly
done in its name, and, lastly, on the ground that it is good for soceity that a public
servant should be protected in the execution of his duty ever where he is in error
(AIR 1953 Mad 936). The object underlying para (1) is that where an act is done by
or attempted to be done by a public servant acting in good faith under colour of his
office, it does not give' a right of private defence even though act not justified AIR
1963 SC 612 = (1963)1 Cr14 495: (1975) 1 CrlJ 132).
Where a police constable saw the appellant carrying a pistol, it was his duty to
arrest him by using all means short of death. Deceased though inpolice uniform but
empty handed chased the appellant. Right of private defene of body could not be
claimed by appellant against the constable (PM 1987 ,Cr.C. 453). The provisions of
section 99are inapplicable, where the act is not done by a public servant in good
faith' ( AIR 1935 All 913). The mere fact that a Sub-Inspector is dressed up in his
uniform does not justify one is saying that he was acting in good faith when as a
matter of fact he was acting in entire bad faith and in the most illegal and
reprehensible manner (AIR 1934 Oudh 124).
If an act is done or is attempted to be done by a public servant acting in good
faith under colour of his office, there is no right of private defence unless it is
apprehended' that death or grievous hurt would follow in spite of the fact that the act
which the public servant was doing was not strictly justifiable by law (PLO 1951 Lah
"279). Where constables are acting under colour of their office in executing a search
warrant in a village even if their act is not strictly justifiable by law, the villagers have
no right of private defence, since the constables were acting in good faith. Any
technical flaw In the warrant Is immaterial In considering 'the question whether the
villagers have a right of private defence (AIR 1936 All 306).
A persór appointed or deputed by a court to perform the functions of a Public
servant is entitled to the protection given to a public servant under this section.
Thus where the court employed a vakil to secure an attachment as the application
required immediate attachment and the court could not secure an àmin or bailiff to
make the attachment. It was held, that at the time of securing the attachment thefl
vakil was a public servant acting in good faith under colour of his office and the mere
Sec. 99—Syn. No. .31 GENERAL EXCEPTIONS 91
omission to record the reason-In the order appointingi'iad no bearing in the
case arising out of a quarrel and attack on the muharrir of the vakil and others
during the attachment, and did not give rise to any right of private defence, as the
provision under 0.21, R. 105, Civil Procedure Code, for recording reasons may be
taken to be not mandatory (AIR 1935 All 490): .
The words 'colour of -office' refer to irregular as distinguished from illegal acts.
They show that the act was within jurisdiction but that jurisdiction had been
exercised irregularly or on insufficient grounds (AIR 1952 Mad 936). There is no
right of private defence against an act of a public servant, like a police officer.
arresting an accused in good faith under colour of his office. It is immaterial whether
the arrest was strictly legal, or-was not strictly Justifiable by law (AIR 1940 Mad 18:
29 CrLJ 69). Where a public servant has a distinctive dress or badge and he wears
such dress or badge it is clear as to who he is and. any one dealing with such person
knows that he is dealing with a public servant. If, however, police officers move
without putting their dress on it can, not be aid that they are public servant and they
can not validly seek protection (AIR 1942 All 74).
Where a court makes an order which is not stirctly justified in law. the public
servant executing the order is protected under section 99. The duty of an officer
who goes to carry out the orders of the court is limited to seeing that the orders are
on he face of them within the power of the court and that they exhibit no defect in
form. Apart from this it is no part of his duty to review the discretion of the court. It
is his duty . to carry out the orders given to him and not to go behind such orders
Where however there is no defect in the authority issuing a warrant of arrest and,
resistance is offered to persons carrying out the orders of such an authority, a right
of private defence cannot be pleaded (AIR 1932 Pat 315). Thus where a notice and
warrant for arrest of the judgment debto were Issued simultaneously by the
executing court, the apprehension of the judgment debtor by the peon executing the
warrant of arrest is a lawful app rehension however mistaken the executing court may
have been in exercising its discretion to direct that apprehension and escape from
and obstruction to that apprehension are unlawful acts under section' 225B, Penal
Code and the pushing of the peon' by the accused not being justified in law amounts
to an assault justifying his conviction under section 353 (AIR 1 ,932 Pat 315).
Where a police 'officer arrests a suspected thief under section 54 Cr. P.C. the
arrest is legal even when ultimately the person is found to be not a thief. The arrest
having been made in good faith and under colour of his office by the constable, there,
was no right'of private defence even if the arrest might not be strictly justifiable by
'law 1AIR 1964 Ker 185 (DB). But there is no such protection available to the
members of the public who arrest a suspected thief and beat him on their own. Thu's'
where the accused was caught as suspected thief and was heavily beaten whereupon
he used a, firearm and killed one of the attackers, it was held that the acccused had
the right of self defence by use of a firearm to the point of killing a person, in the
circumstances in which he was placed (PLD 1966 SC 432 = 18 DLR (SC) 299).
Where a person was mercilessly beaten with lathis by policemen during
investigating and he reasonably apprehended that he would recieve grievous hurt at
,the hands of the police. He was justified in fatally stabling a police constable and
making good his escape in the exercise of the right of private defence (AIR 1936
Nag 234).
3. Act not strictly justifiable. - Section 99 extends to acts which are not strctly
by law (AIR 1965 SC 871). The expression means that there must be jurisdiction,
though the act complaint 'of may not be within jurisdiction (AIR 1940 Pat 696)."
92 LAW OF CRIMES [t 99. SYN. 4
Where a constable effect,an arrest under colour of his office, It was held that there
was no right of private defehce against him even though the arrest was not strictly
justifiable by law (1927 CrLJ 69).
The section leaves the right of private defence open only when the alleged
authority is no authority at all and is wholly defective in form or the officer goes
clearly and widely outside the duties imposed on him. If the authority has no defect
the section has no application LAIR 1932 Pat 315). Section 99 applies to cases where
there is excess of jurisdiction as distinct from a complete absence of jurisdiction. It
applies where an official does wrongly what he might have done rightly; but not to
•cases where the act could not possibly have been done rightly ( PLD 1951 Lah 142).
It follows that while the protection of section 99 extends to acts that are not strictly
justifiable by law, it does not extend to acts which are ultra vires and have no legal
basis (PLD 1968 Lah 1423).
4. Time to have have recourse to the protection of the public authorities.- When
there is an ample opportunity to have recourse to law, there is no right of private
defence (AIR 1970 SC 1093). Where the accused who knew before hand that the
deceased had gone to the field to cut the crop, could have gone to the police station
to inform the proper authority of the intentions of the deceased and ask for police
helf (AIR 1955 SC 257). If a person prefers to use force in order to protect his
property when he could for the protection of such property, easily have recourse to
the public authorities, his use of force is made punishable (1970 SCC (Cri.) 59). It
may be that going to civil or criminal court would take time but even so the law
enjoins that if there is time to have recourse to public authorities, then these public
authorities must be approached first before resorting to force to defend oneself or
one's property (1968 SCD 293). There is no right of private defence where there is
time to move the authorities for protection (AIR 1952 sc 165). In the instant case
an order of temporary injunction was in force but deceased Afzal violated the
injunction by sowing 'Kahn' in the land and thereby forcibly dispossessed the
appellant. The appellant had, a right of private defence of property which he could
have exercised when Aizal first went to grow the 'Kaun' but he did not do so. Alter
two monthes he went to plough up the land to destroythe crop for the purpose of re-
establishing his possession. This is nor permitted by law as during this period he
could have resort to public authorities (Md. Chand Mia @ chand Miah vs. state 1989
(AD) 155).
Where an individual citizen or his property is faced with danger and immediate
aid from the state machinery is not readily available, the individual citizen is entitled
to 'protect himself and his property (AIR 1963 SC 612). Where the accused are
molested and attacked while they are engaged in doing a legal act, they need not
abandon the enjoyment of their legal rights and run away to seek the protection of
the authorities ( AIR 1925 Oudh 425). It is a necessary corollary to the doctrine of
private defence that the violence which the citizen defending himself or his
property is entitled to use must not be unduly disproportionate to the injury which is
to be averted or which is reasonably apprehended and should not exceed its
legitimate purpose. The exercise of the right of private defence must never be
vindictive or malicious' ( AIR 1 .963 SC 612). But where the circumstances make it
necessary, the accused is entitled to use his gun to defend himself (AIR 1915. Mad
532). Where in a communal riot a crowd was beating on the door of the shop of the
accused, it was held that the accused had no time to have recourse to the authorities.
Therefore firing on the mob by the accused was justified (AIR 1952 SC 165).
It is not the law that the rightful owner In peaceful possession of property
must run away, if there is an actual invasion of his right and an attempt on his
(Sec. 99—Syn. No. 5 GENERAL EXCEPTIONS 93
person. The person in possession of property is entitled to defend himself and his
property by force and to collect such numbers and such arms as are necessary if he
sees an actual invasion of his rights. whláh invasion amounts to an offence under the
Penal Code and when there Is no time to get police help. It is lawful for a person
who has seen an invasion of his rights to go to the spot and object. It is also lawful for
such person, if the opposite party is armed, to take suitable weapons for his defence
(MR 1945 Pat 283: AIR 1933 Pat 434;AIR 1914 Cal 623).Thus where a man is
uprooting another man's trees he cannot go to the police station for help because by
the time he comes back all the trees would be gone. In normal conditions he would.
be well advised to protect his property by using all force necessary to stop the
uprooting .of the plants. In defending his property, he can under section 104 P.C.
cause any harm short of death. He is,. therefore, Justified in attacking the man
uprooting his trees with his gurzu and the fact that he did so does not give the
person attacked a right of private defence of person (AIR 1940 Pesh 6: 41 Cr.LJ
561). similarly where a man believed that a trespaser is cutting his crop and sent
information of that offence to the police, but he also collected some men and went to
the place to oust the trespasser: it was held that the trespasser having forced a
breach of public tranquillity on the accused, the accused was justified in assaulting
him in private defence (AIR 1918 Pat 308: 3 Pat. LJ 653). The right of private
defence against an act of tresspass on one's property is not lost by reason of not
resorting to the police station which is at some distance from the place of
occurrence (18 CrLJ 663). The true owner can dispossess the trespasser by taking
recourse to the remedies available under the law (1980 CrLJ 138).
5. Commencement and extent of right of private defence.-The right of private
defence of property commences when a reasonable apprehension of danger
commences (AIR 1971 SC 1208). In the case of injuring another in self defence,
there must be two things: there must be no more harm inflicted than is necessary
for the purpose of defence, and there must be a reasonable apprehension of danger
to the body from the attempt or threat to commit some offence: and the right does
not commence until there is the reasonable apprehension (AIR 1971 SC 1208). The
amount of force necessary depends on the circumstances of the case, and there is no
protection if the harm is caused by excessive violence quite unnecessary to the case
(AIR 1971 SC 2143 = 1971 CrUJ 1467).
Section 99 provides that the right of self defence arises only in cases where.
there is an apprehension of hurt or grievous hurt, but the right , of private defence in
no case extends to the inflicting of more harm than is necessary to inflict for the
purpose of defence. Where the right of private defence is being exercised and in the
exercise of that right more harm is caused than is necessary, the person exceeds
the right of self defence (PLD 1964 Lah. 677: AIR 1955 Sau 1). Where the right of
self defence does not exist or has ceased to exist, for it exists so long as the
apprehension lasts, as provided in section 102, P.C. there can be no right of self
defence nor a situation leading to the exceeding of the right arises (NLR 1980 AC
326). The question whether an accused has or continues to have a right of private
defence and when or whether it has come to an end is in every case essentially a
question of fact, to be decided according to the circumstances of each case (PLD
1964 Lah 677).
In order that a person may avail himself of the right of self defence tothe
extent of causing death, it must be proved that the assault by the other side was such
as may reasonably cause apprehension of death or grievous hurt and the right ceases
when such apprehension .ceases (4 Sau. LR 249). The restrictions contained in
section 99 and section 300(u) read together, lead to the following results : (1). That
 94 LAW OF CRIMES Sec. 99—Syn. No. 6]
the right of private defence extends only to the Inflicitng of harm which it is
necessary to inflict for the purpose of defence; (2) that If the offender in the
exercise in good faith of the right of private defence of person exceeds the power
given to him by law and causes the death of the person against whom he is
exercising such right of defence, without any Intention of causing more harm than is
necessary the offence would be culpable homicide and not murder, (3) that if the
offender exercises his right of private defence of person not in good faith and
exceeds that power, his case would not be covered by section 11, and (4) that if the
offender, while exercising his right of private defence of person, though he may
exercise it in good faith, exceeds that power with the intention of doing more harm
than is necessary for the purpose of self defence, the benefit of section 300 (11) will
not be available to him. It will thus be noticed that a case will be covered by section
300(11) and the offence would be reduced to culpable homicide only, if two
requirements are fulfilled, namely, that the right is exercised in good faith and that
the offender has no intention of doing more harm than is necessary for the purpose
of his defence. Conversely, if he has not exercised his right in good faith or having
exercised that right in good faith, he did It with the intention of doing more harm
than was necessary, his act would amount to murder (PLD 1960 Pesh 194).
The right of private defence is Only a right of protection and not of aggression.
Such a right cannot extend to the inflicting of more harm than is necessary to inflict
for the purpose of defence. If under the guise of such a right the limits prescribed by
law for the exercise of that right are exceeded and more harm than is really
necessary is caused then the act would become an offence. No doubt the extent of
force which would be justifiable depends upon the circumstances of each case. The
nature of the attack, the danger apprehended, the imminence of the apprehended
danger and the real necessity of inflicting harm by retaliation for the purpose of self
defence are an matters to be taken into consideration in deciding whether the right
of self defence has been exceeded ( 1931 Mad . WN. 646). A person on whom lathi
blows were being showered is justified in striking the assailant with a spear and he
does not exceed his right of self defence ( AIR 1928 Lah 900). Where a person is
being attacked by a party of aggressors, he is not in a position to distinguish which
person in the party is his real assailant and which person is merely an onlooker, and
he is not deprived of his right of private defence merely because a person in, the
attacking party has not attacked him (AIR 1948 Oudh 25).
If a person, while acting in self defence uses greater force than he is entitled
to use, he makes himself liable to punishment (AIR 1916 Lah 215). In that event the
case is likely to fall under Exception 2 to section 300, Penal Code. But even if the
accused were to cause more harm than is absolutely necessary in repelling the attack
it cannot be said that he exceeded the right given to him by law (PLD 1957 Pesh
122). But if the court comes to the conclusion that what an accused person intended
to do. could not be considered to be an act done for the prevention of harm, it
cannot hold it to be a case of exceeding the right of private defence and should hold
it to be a case of committing the offence which was committed by reason of t he act
done (PLD 1960 Lah 88). once the exercise of the right of private defence is
established, it is not to weighed, as it were in golden scales (PLd '1983 SC 225).
6. Explanations.- A right of private defence exists in a case where the alleged
offender does not know and has no reasonto believe that the person doing the act
was a public servant (AIR 1924 All 645). Therefore it is not only proper and advisable
but really necessary that when police officers act in the discharge of their official
duty they should be clothed in their official uniform so that the public may know
them to be public servants acting in the discharge of their duty. Even in emergent
 S

Sec. 1001 GENERAL EXCEPTIONS 95

cases in which the police officers might act without being clothed in their uniform It
is their duty to take some steps to make it clear to the person whom they intend to
arrest that they are officers of the law. If they fail to do so they cannot validly seek
the protection of the court. Hence, where a police officer who has no right or
authority to arrest a person seeks to arrest the person without being in uniform and
not declaring to such person that he Is a police officer, such person is entitled to a
right, of private defence and his right is not taken away by section 99 (AIR 1942 All
74). Where the accused went armed to the house of a friend • with the object of
subsequently going to the house of his enemy to kill him. But his friend secretly
informed the police who arrived at his house. The accused thinking that his enemies
had come to kill him, fired at the police party which resulted In the death of one of
the policemen. It was held that the accused was labouring under a mistake of fact
with regard to the identity of the person and by reason of that mistake of fact Exp1n
I to section 99 applied and the accused committed no offence (AIR 1947 Läh 249).
The section merely gives a right of private defence to accused, but if he
exceeds the right and kills an unarmed public servant, he cannot be held to have -
committed no offence. Where the right of private defence is being exercised and . in
the exercise of that right more harm is caused than Is necessary, the person exceeds
the right of self defence. In such a case, Exception 2 to section 300 P.C. is available if
there is no intention to cause more harm than is necessary for purposes of defence.
Where the right of self defence :does not exist or ha ceased to exist for It exists as
• long.., as the apprehension lasts, as provided in section 102, P.C, there can be no
• right of self defence nor a situation leading to the exceeding of the right arises (PLD
1964 Lah 677). Thus where the accused not knowing that the unarmed person
seeking to arrest him was a public servant killed him by stabbing him several, times
with a knife; it was held that the accused was guilty under section 302 but as the
accused could not be expected to make a balanced judgment; sentence of
imprisonment for life would meet the ends of justice (AIR 1960 Pat 62). Explanation
2 applies to acts done or attempted to be done by the direction of the public servant.
There is no right of private defence if the warrant of arrest is wholly illegal (AIR
1930 Lah 348). Act of the pooIièe officer in attempting to 'make arrest in pursurance
of an invalid warrant issued without jurisdiction is a wholly unathorised act, (51 Cal 1;
AIR 1924 Cal 667).
• 100. When the right of private defence of the body extends to causing
death.- . The right of private defence of the body extends under the
restrictions mentioned in the last preceding section, to the voluntary
causing 'of death or of any other harm to the assailant, if the offence which
occasions the exercise of the right be of any of the descriptions hereinafter
enumerated, namely :-
First: Such an assault as may reasonably cause the apprehension that
death will otherwise be the consequence of such assault:
Secondly : Such an assault as may reasonably cause the apprehension•
that grievous hurt will otherwise be the consequence of such assault:
Thirdly : An assault with the intention of committing rape:
Fourthly: An assault with the .intention of gratifying unnatural lust;
Fifthly : An assault with the intention of kindapping or abducting:
Sixthly: An assault with the intention of wrongfully confining a person,
under circumstances which may reasonably cause him to apprehend that he
will be unable to have, recourse to the public authorities for his release.
96 LAW OF CRIMES [Sec. 100—Syn. No.. 21
Synopsis
1. Scope and applicability. 4. Rape.
2. Reasonable apprehension of death or grievours hurt. 5. Aduction.
3. Extent of right of private defence under the section. 6. Wrongfully confining.
1. Scope and applicability.- Under this section the right of private defence
arises against the human body, namely, assault, and if the assault is of an aggravated
nature as enumerated in section the right extends even to causing of death (AIR
1960 SC 67). Section 100, Penal Code, provides the circumstances when the right of
private defence of the body extends to the voluntary causing of death. This section
provides for a right of private defence to the voluntary causing of death or of any
other harm to the assailant, if the offence. which occasions the exercise of the right
is such as may reasonably cause the apprehension that death will otherwise be the
consequence of such assault (AIR 1969 Cal 23(30). The right arises only when an
offence to human body is attempted or committed (AIR 1960 SC 67). Where there
was gap between the attack on the acused and the counter attack made by other
party and the accused did not permit the injured persons of the other party to be
taken to the dispensary for treatment, the accused persons were not found entitled
to any right of private defence (AIR 1989 SC 1515; 1989 CrLJ 1482).
The question whether the accused had the right of private defence is in every
case essentially a question of fact to be decided according to the circumstances of
each case ( 1982 PCrLJ 138). In such cases, decided cases are not of much help
except as indicating generally the principles which should be borne in mind in
deciding the question (PLD . 1970 Pesh 6). Four cardinal conditions must exist before'
the taking of life of a person is justified on the plea of self defence. Firstly, the
accused must be free from fault in bringing about the encounter; Secondly, there
must be present and impending peril to life of great bodily harm, either real or so
apparent as to create honest belief of an existing necessity; Thirdly there must be no
safe or reasonable mode of escape by retreat;, and Fourthly, there must have been a
necessity or taking life (1978 MU (Cr) 2'24; AIR 1959 Punj 332). Where the
complainant party were first to open an attack, on the accused, the complainant party
went to the scene of occurrence with arms and the accused had reasonable cause to
apprehend that at least grievous hurt would be the consequence of complainant's
assault. It was held, that the accused's right of private defence extended to causing of
death of their assailants (1968 PCrLJ 948). But where the complainant .party which
was unarmed, much smaller in number and non-provocative was attacked by the
accused party which was larger in number and armed with spears, leja, lathi, etc. No
one was hurt on the accused's side but on the complainant's side one , person was
killed and two others injured. The accused could not take the defence that they had
exercised the right of private defence (1969 DLC 668). Where the accused party had
a motive to attack the deceased. They had armed themselves and were hiding before
starting a deliberate and fatal attack by giving them repeated blows with the sharp
side of the hatchet and one blow by a lathi, having an iron ring at the bottom. The
plea of right of private defence is not available to the accused.(PLJ 1981 Cr. C 283.
DB); 1981d SCMR 223).
2. Reasonable apprehension of death or grievous hurt.- The right of private
defence of person extends to the causing of death only if there is . a reasonable
apprehension that the assault upon a person will cause death or grievdus hurt (PLD
1970 Pesh 6). It is very difficult to establish and mark the line of distinction between
a fight and the right of self defence, though it does exist in fact, and it is settled law
that the right of self defence is available and accrues to the victim not on the
infliction of the actual harm but on a bonaftde apprehension of sufferance of hurt,
Sec. 100—Syn. No. 21 GENERAL EXCEPTIONS 97
etc. and the same extends to the causing of death if the apprehension is that of
grievous hurt etc. as recognized in section ioo. P.C. (1985 PCrLJ 32). The extent of
injuries on one party as against the other is not Invariably a good guide for
determining question of responsibility nor by-itself a conclusive criterion to judge
whether accused were aggressors. The question whether accused acted in exercise
of their right of private defence was to be determined by keeping in view all relevant
facts and circumstances of the case (1982 PCrLJ 138).
The right arises as soon as reasonable apprehension of danger to the body
arises from a threat to commit any of the enumerated offences and the person need
not wait till he is hit or actually injured (AIR 1973 SC 473; 1973 CrLJ 77; AIR 1975
SC 1674: 1975 CrLJ 1479). The deceased was the aggressor, and the accused had
received serious injuries inflicted on him by the deceased with chopper. He had
reasonable apprehension of death and that the entire incident took place in one and
the same place and time. The accused, therefore, succeeded In proving his defence
under section 100 of the Penal Code (1989 (1) Crimes 532 (536 Ker). To claim right
of private defene it is necessary to prove that reasonable apprehension which was
created In the mind of accused as a result of the act of aggression had continued at
the time when he inflicted the injury onthe aggressor/accused (Kochu Pillai Nair Vs.
State of Kerala 1992 (3) Crimes 1096).
A person exercising the right of private defence in good faith, is not expected
to weight with golden scale. (Mukul Chand Mandal Vs. State of UP 1989(3) Crimes
671A11). .
Whether the apprehension was reasonable or not Is always a question of fact.
The weapon used, the manner of using It, the nature of assault and the other
surrounding circumstances will be taken into accunt for this purpose. It is always
necessary that the apprehension of such injury must be natural and probable (1982
PCrLJ 138). Thus if a person has genuine apprehension that his adversary is going to
attack him and reasonably believes that the attack will result In grievous hurt, he can
go to the length of causing the latter's death in the exercise of the right of private
defence even though the latter has not inflicted any blow on him. A subsequent blow
will also be justified on the same ground if there is every probability that the latter,
if not all together disabled, will try to hit the former (1985 PCrLJ 59). Where a
person charged with murder asserts that she killed in self defence, her state of
mind at the time of the killing becomes material, and an Important element in
determining her justification for her belief in impending attack by the deceased. The
reputation of the deceased is a 'circumstance which would cause such a belief (AIR
1952 On. 37). Where the deceased, a strong man of dangerous character and brutal
nature and reputed to have killed, a man previously had some quarrel with the
accused, but was taken back to his house. Later he returned armed with a stick,
entered the shop of the accused who was comparatively a weaking, threw him on the
ground, pressed his neck and hit on his hand and chest. When the accused was
extricated he took up a light hatchet and struck three blows on the head of the
deceased as a result of which he died. It was held that even though no grievous hurt
was actually caused the circumstances were sufficient to raise a strong apprehension
of receiving such injury unless he succeeded in disabling his adversary therefore he
did not exceed the right of private defence (AIR 1933 Lah 1.67).
Deceased had initiated aggression by inflicting an injury on head of accused
with an air-pump-Accused in self defnece had inflicted head injury on deceased with
a brick. After receiving injury on his head accused was justified in apprehending
another blow from deceased who was still armed with air 7pump. Accused being sole
judge of his own danger was permitted under the law to repel the attack even to the
Law of Crimes-13
 98 LAW OF CRIMES [See. 100—Syn. No. 2
extent of taking life of deceased. Accused having had acted in exercise of his right of
private defence had not. exceeded his right of self-defence in circumstances (Aizal
Vs. State 1990 PCrLJ 540).
The killing of an assailant is justified when the victim of the assault apprehends
either death or grievous hurt. The only restriction Imposed is that the person
exercising the right should not use more force than is reasonably necessary and
should not Inflict an Injury out of all proportion to the injury with which he was
threatened (PL 1985 Cr.C. 242). However a person cannot be expected to weigh his
blows in golden scales while exercising the right of private defence, nor could It be
reasonably expected of him to modulate his defence step by step in the heat of the
moment. A person faced with apprehension of bodily harm from the deceased cannot
be expected to weigh In golden scales the amount of force which would suffice to
allay the apprehension of danger from the aggressor (PL 1986 SC 199). Therefore
where an attack Is made on a person with deadly weapons, the right of private
defence extends to use of similar weapons even to the extent of killing the
aggressors (1971 PCrLJ 956).
Where the deceased was the aggressor, and both he and his friend not only
followed the prisoner but inflicted injuries upon him and the deceased felled the
prisoner on the ground and caught him by the throat and the latter then inflicted
one wound with the knife on his assailant. It was held that the act of the prisoner in
taking out the knife and stabbing his-adversary was covered by the provisions of
section 100 (AIR 1923 Lah 172). Where the accused was caught as a suspected thief
and was heavily beaten whereupon he used a firearm and killed one of the attackers.
It was held that the accused had the right.of self defence by use of a firearm to the
point of killing a person. In the circumstances in which he was placed (PLD 1966 SC
432) Where the accused suffered grievous hurt from an attack by the complainants,
they were held to be justified in killing one of the attackers in sel-defence (PLD
1964 Lah 177). Where the deceased squeezed the testicles of the accused, or those
of his father. the accused was justified in causing his death. (AIR 1937 Lah 108: 6
Sau LR 205: PW 1986 SC 199). Where a fight possibly arose in between the deceased
and the accused respondent oversome incriminating letters and photographs
relating to love affairs with a girl with whom the deceased was earlier betrothed and
'Magne' of the girl was formally celebrated and as those incriminating letters and
photographs were in possession of the accused respondent, the deceased tried to
take them back. Fight with first might have ensued and as a result the deceased was
overpowerd, thrown to the floor and disarmed, the killing by respondent accused
with the knife in this circumstances is not at all justified although he migh have
received provocation nor he can raise a plea of self defence when there is no
apprehension of death or grievous hurt (State Vs. Monzoor Ahmed,18 DLR 1970
(SC) 444).
Where the accused was caught as a supected thief and was heavily beaten
whereupon he used a firearm and killed one of the attachers. It was held that the
accused had the right of self-defence by use of a firearm to the Point of killing a
person, in the circumstances in which he was placed (PLD 1966 SC 432).
Where there 11fas a sudden fight between the aprties and an injury caused to
one of the victims was very serious although it did not cause any grievous hurt. Such
injury on a vital part of the body must have ccaused a reasonable apprehension in the
mind of N that his life was in danger or his body in danger of grievous hurt. Such
Injury on a vital part of the body must have caused a reasonable apprehension in the
mindof N that his life was in danger or his body in danger of grievous hurt.
 See. 100--Syn. No. 21 GENERAL EXCEPTIONS 99
Accordingly, he had the right of private defence of his person which. under section
100 of the Penal Code. exended to the cuasing of death (1971 SCMR 284)..
Where there was a sudden fight between the parties and the Injury caused by
one of the victims was very serious, although it did not cause any grievous hurt. Such
injury on a vital part of the body must have caused a reasonable apprehension In the
mind of the accused that his life ws In danger, or he was likely to suffer grievous
hurt. Accordingly he had the right of private defence of his person which extended
to causing of death or grievous hurt. Other accused had also recieved such Injuries
and they also had a similar right of private defence (1971 SCMR 284).
Where complainant party went to the place of occurrence, carrying with them
sharp edged weapons which were used in causing injuries to one of the accused:
right of private defence not only accrued to accused but it extended to voluntary
causing of death of assailants (1988 Law Notes 255).
Where the deceased attacked the accused with a dah and. was going to give a
second blow when the accused hit him to protect himself, and killed him. It was
held that the accused did not exceed the right of private defence (AIR 1939 Rang
225). Where the deceased who had two dahs in his possession threw one at the
accused and advanced to attack with the other weapon. The accused became alarmed
and finding that the only way In which it was possible to defend himself was to ward
oil the attack, struck at the deceased with his spear causing fatal wound. It was held
that the accused acted in the right of private defence of the body (AIR 1941 Rang
175).
Where the deceased appeared to have attacked the accused with long knives
whereupon the accused fired and killed two of the attackers. The accused was held
to have acted in exercise of his right of private defence (NLR 1987 CrLJ 561). Where
the deceased who was armed with a cane, got down from his bicycle, launched an
attack on the appellant and gave him two or three cane blows. The appellant took out
a knife from the fold of his trousers and the deceased started snatching the same
from the appellant. The two grapled and fell down on the ground during the course
of which the appellant also received a muscle deep knife injury on one of his legs.
The two again stood up and were still struggling over the possession of the knife.
The deceased had at no stage tried to give up the fight or his efforts to snatch the
knife from the appellant. Prior to the infliction of the fatal blow the balance of the
injuries on the persons of the deceased and the appellant did not indicate, that the
appellant was having the upper hand. In these circunstances, there could be no
assurance. that the deceased would not have used the knife against the appellant if
he had succeeded in snatching it away from him. It cannot be said for certain that
the appellant had, in giving the fatal blow to the deceased, exceeded his right of
private defence (1968 PCrLJ 602). If the knife was in the waist of the deceased and
if he took out the knife to stab the accused, the accused would be justified In
snatching the knife and in that state of mind to Inflict Injury on the deceased to
avoid further attack by the deceased (1970 CrLJ 547:1982 CrLJ 213). The accused
are entitled to right of private defence of body so as to cause death. Where the
multiple injuries inflicted on them with gun shot and other lethal weapons like
gandasi and kirpan were enough to create a reasonable apprehension in their minds
that grievous hurt would otherwise be the consequence (1979 CrLJ 498 (501).
Where the complainant party had come armed with spades to illegally divert
waterto their own fields and the accused party went to stop them from doing so and
to protect their legal right, it was held that the accused did not exceed his right
when he used force to defend his person and property and killed two men of the
complainant party (1969 PCrLJ 740).
 100 LAW OF CRIMES [Sec. 100-Syn. No. 3
The word 'assault" in this section does not mean the assault, if any, already
committed, but it is an assault of which an apprehension can reasonably by caused
and that assault must be one which would amount to an offence. The right is a
defensive one. It is granted to a citizen to be exercised for the purpose of preventing
an offence affecting his body being committed. It is not a right of retaliation against
the completed offence of assault. If after the Commission of an assault of a simple or
grievous nature, there is no further apprehension of assault, occasion for the
exercise of the right of private defence of the body should not arise (AIR 1952 On.
37). Where appellant had previously sustained two danda injuries on his head, a
pistol shot fired by him while deceased was locked up in security room could not be
hold to have been fired by appellant In self defence (PL 1986 Cr. C. 175). Thus If the••
complainant was holding on to the accused person's wife in order to outrage her, his
shooting the complainant with a firearm would be covered by the right of private
defence but his giving a blow on the head of the complainant after the complainant
!'ell down by the shot would be punishable under section 334 (3 Sau L.R. 70). Where
-lathi blows were given to the accused, he is justified in hitting back in self defence
and causing death of the assailant (1985 PcrLJ 59). Thus the accused finding
themselves amongs hostile people belonging to a dangerous tribe, who had started
using their lathis would have an apprehension of receiving grievous hurt and would
therefore be entitled to the right of private defnece which would extend to the
causing of death (1968 PrLJ 1058).
3. Extent of right of private defence under this-section.- The right of private
defence of person or property is to be exercised under the following limitations
(I) that if there is sufficient. time for recourse to the public authorities, the
right is not available:
(ii)that more harm than necessary should not be caused, and
(iii) that there must be a reasonable apprehension of death or of grievous hurt
to the person or damage to the property concerned.
The right of private defence of property or person, where there is real
apprehension that the aggressor might cause death or grievous hurt to the victim,
could extend to the causing of death also, and it is not necessary that death Or
grievous hurt should actually be caused before the right could be exercised. a mere
reasonable apprehension is enough to put the right of private defence into operation.
The question whether a person having a right of private defence has used more force
than is necessary would depend upon the facts and circumstances of a particular
case (Puran Singh Vs. State of Punjab AIR 1975 SC 1674: 1977 MPL.J 539). While
prosecution party attacking accused and her brothers wth lathis and sharp
instruments causing injuries and tried to enter into house, accused constrained to
fire shot at crowd resulting in death of deceased. Held, accused fired shot in
exercise of his right of private defene of his person and his brother (1993 CrLJ 190
SC). . .
The law relating to self defence makes the accused the judge of his own
danger. and permits him to repel the attack, even to the extent of causing death.
The courts are to judge him by placing themselves in the same position in which he
was placed (PLD 1960 Lah 990). Thus where an individual citizen or his property is
faced with danger and immediate aid from the state machinery is not readily
available, the individual citizen is entitled to protect himself and his property. But it
is a necessary corollary to the doctrine of private defence that the violence which
the citizen defending himself or his property is entitled to use must not be unduly
disproportionate to the injury which is to be averted or which is reasonably

GENERAL EXCEI 7I'IONS 101
Sec. ..100—Syn. No. 31
apprehended and should not exceed its legitimate purpose. The exercise of the right
of private defence must never be vindictive or malicious (AIR 1963 SC 612). No hard
and fast rule can be laid down to determine the amount of harm which is legally
justifiable or permissible in law in' the exercise of the right of private defence.
Individual cases have to be considered on their own facts, keeping In view the
principal that as soon as a person apprehends danger to his life he could act in self
defence and he should not wait till aggressor actually attacks him (1985 PCrLJ 32).
Where the right or private defence Is being exercise and in the exercise of that
right more harm is caused than is necessary the person exceeds the right of self
defence. In such a case. Exception 2 to Section 300 P.C. Is available if there is no
intention to cause more harm than is necessary, for purposes of defence. Where the
accused who had stopped after causing a single Injury to deceased in a sudden fight.
The injury proved harder than it was held to have exceeded the right of self defence
(NLR 1985 Cr,LJ 3). But where the right of sell defence does not exist or has ceased
under section 102 P.C., there can be no right of self defence nor a situation leading
to the exceeding of the right arises (PLD 1964. Lah 677). Therefore if a person uses
force when the right of private defence has come to an end, he cannot claim to be
treated mr if he had acted in the exercise of the right of private defence or merely
exceeded that right. He should be held guilty of the offence committed by him (PLD
1955 Lah 575). Where accused was responsibile for causing death of a tender aged
child of 8 years after having armed himself with a hatchet while complainant party
who were found to be aggressors, were not armed with any deadly weapons. The
accused, certainly exceeded her right of self defence (1982 PCrLJ 930).
An accused is perfectly justified in resisting an aggressive murderous attack on
him by taking the weapon from the deceased and Inflicting Injuries on him to the
extent that may be required according to his assessment of the circumstances at the
time, for the purpose of preventing any further assault on himself by the deceased. If
in the course of it he kills the original aggressor, section 100 completely protects
•him. The apprehension of danger to the accused may not always come to an end by
the fact that the weapon had been taken away from the deceased. It may be difficult
to judge acurately the moment when the right of private defence comes to an end.
but so long as the apprehension of hurt or grievous hurt continue 1.0 exist, the right
of self defence continues, and an accused person cannot be penalised for not
weighing in golden scales the amount of force, which should suffice to allay the
apprehension of danger from the aggressor (PLD 1965 Lah 177). Even though the
appellant has not sustained any injuries still he was justified in warding of the danger.
against his father, particularly when the danger so posed had a very high potentially
of een killing his father. The right of private defene Is available not only to the
eprson who is facing the danger, but also to a person who Is seeing others facing the
dangers of high potentiality. Here is a son who is seeing with his own eyes an assault
of very serious nature on his father. He has a right to defend his father Irrespective of
the fact whether he sustains any injuries or not. The trial Court was not justified in
coming to the conclusion that either the appellant had no right of private defence or
tha1he exceeded the right by inflicting severe Injury. To repeat It once again, the
appellant was never expected to sit quietly with a golden scale in his hand to weigh
the apprehension vis a vis danger to his father. If there was a justifiable apprehension
in his mind that his father is being subjected to murderous assault, then he Is
entitled to use that much force which may even kill the aggressor. Act would be
justified under section 100 (Sheikh Muntijim Vs. Stat of Maharashtra 1988 (3)
Crimes 675 Born). When the apprehension has disappeared and ceased to exist the
right of private defence comes to an end (1984 PCrLJ 2515) Thus where the
 102 LAW OFCRIMES [Sec. 100—Syn. No. 3
accused had overpowered the deceased, thrown him on the ground and disarmed
him of the knife and then with It he caused fatal injuries to the deceased, it was held
that the accused could not plead justification in the exercise of the right of private
defence (PLD 1966 SC 664: 1982 PCrLJ 1279; 18 DLR (SC) 444). Where the
accused who when attacked by deceased and his brothers received eight injuries as
against seven injuries received by the complainant and deceased,the question fo
exceeding right of private defence did not arise (1982 PCrLJ 1150). Where acused
suffered eight injuries, out of which two were on his head which Is a vital part of the
body. Held. in the circumstanes, it can safely be inferred that the appellants had a
genuine apprehension that at least grievous hurt would be the consequence of the
assault on them if the attack was not repelled (KLR 1986 CrC 155).
Where a person is attacked by two or three men and he has every reason to
apprehend that grievous hurt would be inflicted, he has a right of private defence
which extends to the voluntary causing of death or of any other harm to the assailant,
if the offence which occasions the exercise of the right is such assault as may
reasonably cause the apprehension that grievous hurt will otherwise be the
consequence (AIR 1933 Sind 138). Defence in cases of an aggressive attack by
several armed persons cannot be minutely planned in calculated marrner to be
modulated step by step according to the attack, nor can the blows in such
circumstances be weighed in golden scales ( PLD 1965 Quetta 33). Where the
complainant party were armed and they were the first to open attack on the accused
and the accused had a reasonable cause to apprehend that at least grievous hurt
would be the consequence of the complainant's assault, the case was covered by
section 100 and the accused's right, of private defence extended to causing of death
or heir assailants (1968 PCrLJ 948).
The accused finding themselves amongst hostile people belonging to a
dangerous grievous hurt and would therefore be entitled to he right of private
defence which would extend to the causing of death (PLD 1963 Kar 857). Where four
persons armed with sticks and bichuvas came to the place where the two accused
were sitting. They were drunk and one of them started the fight by hitting one of the
accused. Another person of injuries to the four persons which resulted in death of
three of them. It was held that the circumstances fully justified the accused to
entertain a reasonable apprehension that death or grievous hurt was likely to be
caused to him unless he himself dealt with the persons in the exercise of his right of
private defence. He was therefore entitled, to acquittal (1957 All WR 17). Where the
pursuing party consisting of 60 to 70 persons were fully armed with 'Kulharis' and
'Kirpans', etc. They were all brandishing their weapons. One of them who was ahead
of the party was armed with a 'Kulhari'. On reaching the accused the pursuit party
surrounded them. One of the accused's party was attacked and injured with sharp -
edged weapons and was killed on the spot. One of the accused was found to have
received eight injuries when he was arrested. It was held that the killing of one of
the aggressors by the accused was justified in view of section 100 P.C. (AIR 1959
Punj 122). Where the accused has a right of private defence but it is doubtful as to
whether he has exceeded the right or not, the benefit of the doubt should be given
1.0 the accused, and he should be acquitted (PLD 1963Kar 771 DB); 1968 PCrLJ
602).
Where a person is in peaceful possession of land or premises, no one,
including the owner has a right to forcibly evict him from 'it. If any attempt at
forcible eviction is made, the person in possession has a right to use force in defence
of property. If while doing so they receive injuries on vial parts, they acquire the
right of private defence of person as well and if, in the course of exercise of this
Sec. 100—Syn. No. 31 GENERAL EXCEPTIONS 103
right, they caused an injury which ultimately led to the death of the victim if cannot
be said that they had exceeded that right or were criminally liable (1974 SCMR 22).
Where some co-owners of a piece of land attacked the co-owners in possession to
evict them from the land and to stop their ploughing of the land. A fight ensued and
one of the attackers was killed, it was held that the accused had acted in the
exercise of their right of defence of property and they were not guilty of any offence
(PLD 1956 Pesh 71).
Where the accused were in possession of certain shamilat land. The
complainant party also claimed to be in possession of the land. On knowing that the
complainant party were ploughing the land the accused party armed themselves and
went on the spot to stop the trespass. There was a free fight and one of the
complainant party was killed and many of the accused party were injured. It was held
that the complainant party being in the wrong, the accused had the right to turn
them out of the land of which they were in possession for a long period and no
criminal liability could be put upon the accused. The complainant party were in force
and armed and It therefore needed force and arms to trun them out '(PLD 1962 Kar
495). If five persons go to a shop, some of whom are armed with sticks, and ask the
occuipier of that shop to vacate It and their conduct displays that they are in a very
excited and angry mood, then the occupier of the shop will have a reasonable
apprehension of death or grievous hurt at the hands of those- five persons. The
occupier may cause injuries to them in the exercise of the right of self defence
irrespective of the fact whether he caused the injuries before or after he was himself
injured (PLD 1960 Lah 62). Where the accused is in possession and the other party
makes an attempt to take possession by force and the free fight results In one death
on each side: the accused would be held to have exercised the right of private
defence (1972 PCrLJ 789).
Where the accused does not . apprehend death or grievous hurt at the hands of
his adversaries but he uses a lethal weapon, such as a gun to cause death, he cannot
take the plea of private defence 11977 SCMR 450). If a person Is armed with a
hatchet and disables his adversary by the infliction of one blow on his head, it cannot
be urged that he has any reasonably apprehension left that if he did not repeat his
blow, grievous hurt will he the consequence (AIR 1934 Lah 748). Where the
deceased had been directed by •a police offier to apprehend the accused. The
deceased came across the accused and asked him to come with him to the police
station. The accused told the deceased not to come near him but despite warning
the deceased advanced towards the accused. Whereupon the accused fired a shot
from his gun, which hit the deceased, who fell down and died. It was held that the
case did not come within this section (PLD 1967 Lah 588). Similarly where the
accused is only threatened and he brings a heavy stick and strikes a person on his
head he cannot claim to have acted in the exercise of the right of private defence
(AIR 1939 Rang 225).
Where the brother of the wile of the accused tried to take her away forcibly
from him, whereupon the accused shot at and killed him. It was held that the
accused had exceeded his right of private defence (AIR 1937 Pesh 86). Where In a
first fight the accused received some minor injuries, whereupon he drew his knife
and stabbed the accused, it was held that he had exceeded the right of private
defence (AIR 1933 Lah 227).
Where it could be reasonably inferred that the fight between the parties who
were not in any armed, began with grappling: they extricated themselves and
resorted 1.0 mutual stone throwing. During he stone throwing the accused as well as
the deceased received injuries. The accused being overawed drew out his loaded
104 LAW OF CRIMES [See. 100—Syn. No. 4
revolver, which was slinging round his waist and fired at least two effective fatal
shots at the deceased felling him dead. Under these circumstances the accused was
not justified as agianst the equally matched stone hurling adversary to hold of his
loaded revolver and fire at the deceased dropping him dead because he could not
reasonably expect to be killed or receive grievous injury and could put an end to the
aggravation of stone pelting by use of much lesser force or even retreating from the
scene. For these reasons the accused was not justified in killing the deceased and he
exceeded his. right of self defence. As such he was guilty of culpable homicide not
amounting to murder (PLO 1970 Pesh 6). Where the deceased abused the sister of
the accused and his son hit her with a stick, whereupon the accused hit the
deceased with a pitch fork, it was held that, though the deceased and his son acted
in a high handed manner the action of the accused in causing death was not justified
and could not, be brought within section 100 (AIR 1916 Lah 419). Where the
deceased came to the accused, and demanded repayment of his debt, he abused the
accused In a filthy manner and attacked him with a stick. Actually the accused was
not hit and did not receive any injury. The accused thereupon got hold of an axe and
hit the deceased on his head as a result. of which the deceased died; it was held that
the accused had exceeded his right of private defence (AIR 1939 Lah 534). Where
there was no cogent. evidence to indicate that mother of accused was being beaten by
deceased when accused arrived and stabbed him nor did the plea of self defence find
corroboration from prosecution evidence.' Accused had also suffered no injury at all
during occurrence which negatived accused's apprehension of death or any grievous
injury at the hand of deceased. Plea of self defence would not prevail in the
circumstances (1982 PCrLJ 58). To surround and attack a person in retreat is not an
act protected by the right of private defence (28 DLR 341).
4. Rape.- The right of private defence of the body of a person's wife extends to
the voluntary causing of death, if the offence which occasioned the exercise of the
right was an assault . with the intention of committing rape (AIR 1934 Lah 620= 36
CrLJ 287). Where the husband and other relations of a girl assaulted a man while he
was In the very act of violating her, it was held that they were justified in assaulting
him (13 CrLJ 905= 34 CrLJ 882). The accused had every right to save her honour
even by causing the death of the person who either- committed rape on her or
attempted to commit the same. Even who is entitled under law to protect herself
from attacks of intending rapist. (1989 CrLJ 62 1(623) Cri). Right of private defence
is available to an accused under section 100 of the Penal Code in a situation in which
he wanted to prevent the molestation of his wife at the instance of the complainant
(Salikram Vs. State of Madhya Pradesh: 1990 (1) Crimes 631 (MP). When place of
occurrence was an open public place and not any secluded spot. Accused thus could
not have any apprehension that deceased was about to commit an assault on his
sister with intention of committing rape. Accused, held, had no right of private
defence of person of his sister to the extent of causing deceased's death under part.
Thirdly of section 100. Penal Code (Muhammad Akram Vs. State 1990 PCrLJ 574).
5. Aductlon.- The fifth clause of this section requires that there should be an
assault which is an offence against the human body and that assault should be with
the intention of adducting and whenever these elements are present the clause will
be applicable. This clause contempalt.es only that kind of abduction in which force Is
used and where the assault is with the intention of abducting: the right of private
defence that. arises by reason of such assault extends even upto the causing death
(1960) 1 SCR 646: 1960 CrLJ 154). In the case of Mst Sakhu Vs. Crown, AIR 1951
Nag 349, the husband had assaulted his wife, who was major, with a view to abduct
her from her father's house. The wife, inflicted injuries with a knife on her husband,
Sec. 1031 GENERAL EXCEPTIONS - 105
which resulted in his death. It was held that she had not exceeded the right of self
defence.
6. Wrongfully confining.- Section 100 must be read with section 101 and the
effect of so reading is not to render an Individual entirely helpless in the matter of
his unlawful arrest, but to limit the force which he may exercise to hurt, which is
something less than voluntarily causing .death (AIR 1946 Sind 17= 47 CrIJ 487).
Where the deceased had forcibly taken away and wrongfully confined the sister of the
accused In his house against her wishes, the accused was within his right to use
necessary force in view of clause 'sixthly' to section 100. But where he killed his
unarmed victim with a Chhurt the force used by him was not proportionate in
circumstances of the case and he had certainly exceeded his right of private defence
(NLR 1985 CrLJ 91). Where, the appellant who was wrongfully confined but not
attaked by anybody, fired his gun and killed a person It was held that pela of self
defence under section 100 (sixthy) was not available (1966 All Cr. R 144).
101. When such right extends to causing any harm other then death.- If
the offence be not of any of the descriptions enumerated In the last
preceding section, the right of private defence of the body does not extend
to the voluntary causing of death to the assailant, but does extend, under the
restrictions mentioned in section 99 to the voluntary causing to the assailant
of any harm other than death.
102. Commencement and continuance of the right of private defence of
the body.- The right of private defence of the body commences as soon as a
reasonable apprehension of danger to the body arises from an attempt or
'threat to commit the offence though the offence may not have been
cmmitted: and it continues as long as such, apprehension of danger • to the
body continues.
103. When the right of private defence of property extends to causing
death.- The right of private defence of property extends, under the
restrictions mentioned in section 99, to the voluntary causing of death or of
any, other harm to the wrong doer, if the offence, the committing of .which
or the attempting to commit which, occasions the exercise of the right, be
an offence of any of the descriptions hereinafter enumerated, namely :-
First: Robbery;
Secondly: House-breaking by night:
Thirdly : Mischief by fire committed on any building, tent or vessel,
which building, tent or vessel, is used as a human dwelling or as a place for
the custody of property;
Fourthly: Theft, mischief or house-trespass, under such circumstances
as may reasonably cause apprehension that death or grievous hurt will be the
consequence, if such right of private defence is not exeicised.
Comments
Under section 103 of the Penal Code, the right of private defence of property
extends, under the restrictions mentioned in section 99, to the voluntary causing of
death in case of theft or mischief,when such theft or mischief is committed in succh
circumstances as may reasonably cause an apprehension that deatty or grievous hurt
will be the consequences if such right of private defence is not exercised (AIR 1968
Pat 258 (264).
Law of Crimes-14
 106 LAW OF CRIMES [Sec. 102
This section recognizes the right of a person to kill a person committing
offences attended with force or surprise. Where there were absolutely no
circumstances as may reasonably cause apprehension that death or grivfous hurt will
be the consequence to the acused, if the right of private defence is not exercised, it
was held that section 103, the clause, had no application. The right of private
defence of property could not, therefore, extend to the causing of death (1969) 35
Cut L.T. 322 (325).
A person in possession of property is protected even if he causes death in
safeguarding his property when there is reason to apprehend that the son whose
death is caused was about to commit one of the offences mentioned herein (1968
CrLJ 1676; 1970 UJ (SC) 559).
In the case of the plea of reasonable apprehension of death, whether the
apprehension was reasonable or not Is a question of fact. The weapon used, the
manner of using it, the nature of assault and other surrounding circumstances will be
taken Into consideration in determining, the question of reasonable apprehension.
Where the assault has once assumed a dangerous form, every allowance should be
made for one, who with the instinct of self preservation strong upon him pursues his
defence a little further than to perfectly cool bystander would seem absolutely
necessary. The question in such cases will be not whether there was an actually
continuing danger but whether there was reasonable apprehension of danger (PLD
1957 Dhaka 281).
Where several accused commit the murder of a person by doing an act or acts
in furtherance of common intention they would not be liable for the said, act or acts
only if they are able to establish that they had the right of private defence to
voluntarily cause the death of the person. Ijence all the accused would be liable for
murder if they are not able to establish that the offence which made them voluntarily
cause death fell in one of the categories enumerated in the section as all of them
participated in the offence pursuant to the common intention to murder (AIR 1965
SC 257).
Where the deceased was cutting the crops under p101cc protection and none of
the deceased was in possession of a deadly weapon cutting of rops will not amount to
robbery and the right of private defence was held to be not available (AIR 1965 SC
257). In the case of robbery, the causing of death, may be justified as having been
done in private defence but the measure of self defence must be In proposition to
the quantum of force used to repell the attack. It is not in every case of robbery that
the accused will be entitled to cause death of the assailants. (AIR 1919 Pat 534).
It is only when the act whicl1 amounts to theft, mischief or house tresspass
causes reasonable apprehension that death or grievous hurt will result that the
causing of death or grievous hurt in exercise of the right of private defence will be
justified. It is not every house tresspass that will justify causing of death or grievous
hurt in exercise of the right of private defence. It will not apply when the
apprehension of death arose by reason of the Intervention of the person exercising
the right of private defence (AIR 1966 Pat 464= 1967 CrLJ 102=1979 CrLJ 502).
The owners of a property is entitled to defend the possession by force against
any sudden attempt by trespassers to take forcible possession of it. If in defending
the property he knows he is In danger of receiving grievous hurt he is justified In
carrying the force even to the extent of killing one of the trespassers who had come..
to take forcible possession (AIR 1948 Lah 117). Where the accused were in peaceful
possession of heir property, and some men attacked them disturbing such
possession they were held to be justifed In resisting the attack in exercise of their
Sec. 1041 GENERAL EXCEPTIONS 107
right of private defence under section 103 to the extent of causing death (NLR 1980
Cr. 9). A person is entitled to round up cattle trespassing on his land for taking them
to the cattle pound. Therefore where the complainant who was dispossessed of his
cattle went with his party to the field of the accused armed. with hatchets to take
them back by force and in resisting the attempt of the complainant party the
accused caused death of one of them: they could not be held to have exceeded the
right of private defence of property which was in their possession (1980 PCrLJ 40).
A person entitled to the land but not in possession has no right to dispossess
even a trespasser by force if the tresspasser is in settled possession of the land. In
such a case unless he is evicted by due process of law the tresspasser is entitled. to
defend his possession even against the rightful owner (AIR 1968 SC 702). Where
there was reasonable apprehension that the person who was using the bhala against
him may cause his death or cause grievous hurt to the owner, the accused who used
his bhala reasonably apprehended grievous hurt or death of his companions he would-
be entitled to acquitteal (AIR 1972 SC 244).
When the act which amounts to theft, mischief or house tresspass it is per se
sufficient to cause of a reasonable apprehension that death or grievous hurt will
result, then the causing of death to prevnt the commission of the act 'I's justified
(1971 .CrLJ 1595). Where the accused went to therescue of woman whose husband
forcibly dragged her from her father's house against her will and in the attempt
caused the death of the husband, there was no such apprehension as stated in clause
(4) of this section and the accused could not claim the right of private., defence under
the said clause (AIR 1957 All 714 (716); '1957 CrLJ 1195).
104. When such right extends to causing any harm other than death.- If
the offence. the 'committing of which, Or the attempting to commit which.
occasions the exercise of the right of private defence, be theft, mischief, or
criminal trespass, not of any of the descriptions enumerated in the last
preceding section, that right does not extend to the voluntary causing of
death, but does extend, subject to the restrictions mentioned in section 99.
to the voluntary causing to the wrong doer of any harm other than death;
Comments
When aperson is committing or attempting to commit criminal tresspass,.
upon his property the owner or the person in possession in exercise of the right of
private defence is entitled to defend his property and in doing so is entitled to cause
any harm to the wrong doer other than death. Where death is caused to the wrong.
doer this section is inapplicable (AIR 1973 SC 665: 1976 CrlJ 1347). Where .a police
constable knocked the premises of a person who was regarded by the police as of . a
suspicious character whereupon the person came out, abused the constable and
lifted his stick to strcke him. It was held that the constable was not exercising his
right as a public servant but was technically guilty of house tresspass and that the
person alleged to be of suspicious character was justified in inflicting harm on the
constable (27 Mad 52).
A right of private defence of property extends to the causing of grievous hurt in
case of criminal tresspass (1969 PCrLJ 533). But in a case where the tresspasser is
-unarmed and there is no threat of grievous injuries to the person who is resisting,
the tresspasser, he is not entitled to use such force as 'may result in killing such
person. If he does so, he can not claim that he was doing so In the right of private;
defence and he has exceed that right (1980 PCrLJ 420).
The harm which is intended in section 104 should be of such a nature as may
be helpful in defending the property and not any other kind of harm (1955 All-L. J.
108 LAW OF CRIMES [Sec. 105
264). A person in lawful possession of land has every right to defend his possession
against persons committing criminal trespass thereon and in doing so, he is entitled
to cause any harm other than death (48 CrLJ 590). If a man is uprooting another
man's trees, the owner cannot go to the police station for help because by the time
he cpmes back all the trees would be gone. In normal conditions he would be. well
advised to protect his property by using all the force necessary to stop the uprooting
of the plants'. In defending his property he can under section 104 cause any harm
short of death (AIR 1940 Pesh 6). Where aZamindar's men on protest from the
tenants abandoned an attempt to saw a tree but made a second attempt in which
they got serious injuries. It was held that zamindar's men were not justified in
cutting the tree and the tenants had .a right of private defence which they should not
have exceeded (AIR 1924 All 441).
If it does not appear that the harvesting party is armed with any deadly
weapons and there can not be any fear of death or grievous hurt on the part of the
party of the accused under section .104. Penal Code, their right Is limited to the
causing of any harm other than death (Nathan Vs. State of Madras AIR 1973 SC
665(667). The .rightful owners of the land has the right to eject the tresspassers
with the use of minimum amount of force in exercise of the right of defence of
property. As soon as attempt of rightful owner to eject the tresspasser, was resisted
by force and violence was used, the rightful owner acquired the right of defence of
person also (PLD 1959 WP (Lah) 606).
105. Commencement and continuance of the right of private defence of
property.-The • right . of private defence of property commences when a
reasonable apprehension of danger to the property commences.
The right of private defence of property against theft continues till the
offender has effected his retreat with the property or either the assistance of
the public authorities is obtained, or the property has been recovered.
The right of private defence of property against robbery continues as
long as the offender causes or attempts to cause to any person death or hurt
or wrongful restraint or as long as the fear of instant death or of instant hurt
or of instant personal restraint continues.
The right of private defence of property against criminal trespass or
mischief continues as long as the offender continues in the commission of
criminal trespass or mischief.
The right of private defence of property against house breaking by night
continues as long as the house trespass which has been begun by such house
breaking continues.
Comments
Private defene of property cease to exist where the offender has effcted retreat
with the property.
The right of private defene of property against the thief continues till the
offender has effected his retreat with the property and once this has happened the
right ceases to exist. Although the third alternative in para 2 of section 105 of the
Penal Code provides that the right of private defence of property continues until the
property, has been recovered yet this third altornative cannot override and render
nugatory the first alternative.. . .
Under section 105 of Penal Code as soon as the offender has effected retreat
with the property no right of private defene of that property against theft subsists
Sec."1O7—Syn. No. 11 ' GENERAL EXCEPTIONS 109
and the clause 'till the property has been recovered' is subject to the clause till the
offender has effected his retreat with the property (Allah Bachayo Vs. State (1964)
16 DLR (WP) 194).
106. Right of private defence against deadly assault when there Is risk of
harm to Innocent person.- If in the exercise of the right of private defence
against an assault which reasonably causes the apprehension of death, the
defender be' so situated that he cannot effectually exercise that right without
risk of harm to an innocent person, his right of private defence extends to
the running of that risk.
mustration
A is attacked by a mob who attempt to murder him. He cannot effectually
exercise his right of private defence without firing on the mob, and he cannot fire
without risk of harming young children who are mingled with the mob. A commits
no offence if by so firing he harms any of the children.

CHAPTER V
OF ABETMENT
107.. Abetment of a thing.- A person abets the doing of a thing, who -
First : Instigates any person to do that thing: or
Secondly Engages with one or more other person or persons in any
conspiracy for the doing of that thing, if an act or illegal omission takes place
in pursuance of that conspirary, and in order to the doing of that thing: or
Thirdly Intentionally aids, by any act or illegal omission, the doing of
that thing.
Explanation 1. : A person who, by wilful misrepresentation, or by wilful
concealment of a material fact with he is found to disclose, voluntarily causes
or procures. or attempts to cause or procure. a thing to be done, is said to
instigate the doing of that thing.
Illustration
A, a public officer, is authorized by a warrant from a Court of Justice to
apprehend Z, B, knowing that fact and also that C is not Z wilfully represents to A
that C is Z. and thereby intentionally causes A to apprehend C. Here B abets by
instigation the apprehension of C.
Explanation 2: Whoever, either prior to or at the time of the commission of an
act, does anything, in order to facilitate the commission of that act, and thereby
facilitates the commission thereof. Is said to aid the doing of that act.
Synopsis
1. Scope and application. . 4. Abetthent by aid.
2. Abetment by instigation. 5. By illegal omission.
3. Abetment by conspiracy.
1. Scope and application.-Abetment Is an instigation to a person to do an act in
a certain way or aid some other person in doing an act which is an offence. In other
words', it is a preparatory act and connotes active complicity on the part of the
abettor at a point of time prior to the actual commission of the offence (1981 MU
 110 LAW OF CRIMES [Sec. 107—Syn. No. 1
287 (289). Abetment of a thing as defined in section 107 will become an offence if
the tMng which is abetted is an offence and the offence of abetment is constituted a
separate and distinct offence (AIR 1924 Mad 487). In order to amount to abetment
there must be mens rea. There can be no abetment without knowledge or intention
and knowledge and intention must relate to the crime (AIR 1930 Sind 64). The
assistance must be something proximate to be something more than a passive
acquiescence (ILR 47 All 268). Intentional aiding and active complicity is the gist of
the offence of abetment (Annandah Thandavan & others Vs. Udaya Sundaram
1989(3) Crimes 209 Mad).
According to this sectiona person abets the doing of a thing when (I) he
instigates any person to do that thing or (ii) engages with one or more other person
or persons in any conspiracy for the doing of that thing or (iii) intentionally aids, by
any act or ilelgal omission, the doing of that thing. In either of the first two cases it
is immaterial for the Conviction of the abettor whether the person instigated
commits the offence or not, or the persons conspiring together actually carry out the
objects of the conspoiracy. A person abets by aiding when by the commission of an
act he intends to facilitate and does facilitate the commission thereof (AIR 1959 SC
673 (676); 1959 SCJ 643).
Abetment can be committed only when there Is positive evidence of either
instigation or conspiracy or intentional aid. If none of these three elements stated
above is available then abetment does not stand proved (NLR 1986 Cr. 861).
The definition of abetment in section 107. includes not merely instigation,
which is the normal form of abetment, but also conspiracy and aiding, and those
three forms of abetment are dealt with in the proviso to section 111 (AIR 1940 Born
126). For convicting a person of abetment it must be shown that he instigated the
person who committed the offence or that there was an agreement to commit the
offence btween him and the person committing the offence (67 Cal LJ 41). It is
however to be noted that where a person who abets the commission of an offence is
present and helps In the commission of the offence, he is guilty of the offence and
not merely of abetment except in few cases like rape or bigamy (AIR 1955 Tray-Co
266).
The principal can be made responsible for and found guilty of the acts of his
agent under the criminal law only where it is .proved that he has. instigated or
other-wise abetted the acts of the person who actually committed the crime. The law
of abetment was enacted to deal with such cases (AIR 1937 Rang 117).
Ordinarily where a charge is not proved against the principal offender, his
abettor cannot be convicted (22 DLR(1974) 572). Where the accused was alleged to
have held the legs of a dead body when it was ripped open by another. It was held
that as the person was already dead when his dead body was ripped open, the
accused was not guilty of having committed any offence as the other person alleged
to be the principal offender did not commit any offence (1970 PCrUJ 1172). But it
cannot be said that In every case where an abettor and principal are tried together
the abettor if charged with having abetted the principal in the commission of the
offence must be acquitted if the principal is acquitted. In the majority of cases this
would necessarily follow but there might be exceptions to the general rule (PLD
1966 Dhaka 269: 16 DLR 147). There may be a case where an abettor on his own
confession or plea of guilty to the charge may be convicted of the offence of abetment
although the principal is acquitted for insufficient evidence. Another type of such
case may be where it is held by the Appellant Court that the substantive offence was
committed by an unknown person or persons Is consequence of abetment of the
culprit (PLD 1966 Dhaka 269: 17 DLR 222).
Sec. 107—Syn. NO. 21 OF ABETMENT 111
As a general rule a charge of abetment fails if the substantive offence is riot,
established against the principal. But there may be an exception where the
substantive offence was undoubtedly committed, and there is evidence, such as a
retracted confession by the abettor, on which the injury might have been found, as
against him, that the offence was committed by the principal, though, as against the
latter, the confession would be sufficient for a conviction of murder (1924) 52 Cal
112). The Indian Supreme Court has held that it can not be held in law that a
person cannot ever be convicted of abetting a certain offence when the person
alleged to have committed that offence in consequnece of the abetment, has been
acquitted. The question of the abettor's guilt depends on the nature of the act
abetted and the manner in which the abetment was made. If a person instigates
another or engages with another in a conspiracy for the doing of an act which Is an
offence, he abets such an offence and would be guilty of abetment under section 115
or section 116, even if the offence abetted Is not committed in consequnece of the
abetement. The offence of abetment Is Complete when the alleged abettor has
instigated another or engaged with another in a conspiracy to commit the offence. It
is not necessary for the offence of abetment that the act abetted must be committed.
It is only in the case of a person abetting an offence by Intentionally aiding another to
commit that offence that the charge of abetment aglnst him would be expected to
fail when the person alleged to have committed the offence is aquitted of that
offence (AIR 1967 SC 553=1967 CrLJ 541).
Thus where the accused persons were charged with aiding and facilitating the
theft of railway coal and the original accused were acquitted of the charge of theft,
the Court said that as the accused persons were charged with aiding the
commitment of the offence they could not be convicted of abetment when the
original accused were acquitted. The position however would have been otherwise
had it been added in the charge that the accused had aided and abetted certain
other unknown accused persons. In such cases the charge should always provide that
the offence in question had taken place not only by aiding and assisting the named
persons but other unknown accused persons also (1975) Guj LR 994). In th case of
Gullu .Sha, AIR 1958 SC 813, one G who was a member of an unlawful assembly was
said to have abetted one B to set fire to a house. One of the merndbers of .the unalwful
assembly had set fire to the house in question though it was not proved that B had
set fire to.the hOuse. It was held that the conviction of G under section 436 read
with this section was not badin law.
For the purposes of the first two clauses of this section it is immaterial whether
the person instigated commits the offence or not or the persons conspiring
together actually carry out the object of the conspiracy (1959 CrLJ (SC) 917).
Abetment by itself being a substantial offence an abettor can be convicted in the case
of abetment by instigation even if the offence Is not committed. In the case of
abetment by aiding if the offender is acquitted of the main offence, the abettor, can
be convicted (1969 MU (cr) 842; AIR 1959 SC 673; 1959 CrLJ 617).
2. Abetment by Instigation.- A person is said to instigate another to an act,
when he actively suggests or stimulates him to the act by any means or language,
direct or indirect, whether it takes the form express solicitation, or of hints.
insinuation or encouragement (23 CrLJ 466; AIR 1923 Born 44). The word 'instigate'
means to goald or urge forward or to provoke, inceite, urge or encourage to do an
act. A mere intention or preparation to instigate is neither instigation nor 'abetment
(1953 CrLJ 995).
To constitute abetment person must instigate any other person to do a
particular thing or he must engage himself . with one or more persons in a
112. LAW OF CRIMES (Sec. 107—Syn. No. 31
conspiracy of doing that thing or he must intentionally aid by any, act or illegally omit.
the doing of that thing. The definition of abetment under section 107 of the Penal
Code portrays that to constitute abetment, the abettor must be shown to have
intentionally aided the commission of the crime (1989 LW (Cr) 190 (191) Mad).
Instigation' necessarily indicates some active suggestion or support or
stimulation to the commission, of the act itself which constitutes an offence. 'Advice'
can become 'instigation' only if it is found that it was meant actively to suggest or
stimulate the commission of an offence (AIR 1920 Pat 502) Adivce per se or
temptation to do a forbidden thing does not amount to instigation (AIR 1920 Pat
502: AIR 1918 Mad 738).
Instigation must have reference to the thing that was done and not to the thing
that was likely to alive been done by the person who is instigated. It is only if this
condition is fulfilled that a person can be guilty of abetment by instigation (AIR 1953
Tray-co 251) Therefore to ask a person as a mere threat to fire , a gun without
intending that he should really fire it, is not to instigate him to fire the gun. The
threat would become Instigation only if it is found* that in the event of the threat
having no effect, the gun should in fact be fired (AIR 1953 Madh. 155=1953 CrLJ
995 DB). .
In the case of abetment by aid, a person can be said to abet by aiding only when -
by the commission of an act he intends to facilitate the commission of the offence
and does facilitate the commission thereof. Therefore where a person is charged.
with abetment by aid of an offence under section 161 and the principal offender is
acquitted on the ground that he had not committed the offence, no question of
intentionally aiding by any act or omission the commission of that offence arises, and
the conviction of the abettor cannot be allowed to stand (AIR 1959 SC 673).
Abetment to get accused arrested : Where a person instigates another to
commit a crime with the object of catching him in the act of committing the crime,
the instigation amounts to abetment (AIR 1938 Mad 893). It follows that the offer of
a bribe to public servant to lay a trap for him and expose his dishonesty and bring
him to justice constitutes the offence of abetment of bribery under sections 109 and
161 (AIR 1918 Mad 738). It is further to be noted in this connection that any act
committed by a person which amounts to instigation as defined in section 107 would
attract the provisions of section 165A. Penal Code (AIR 1955 Born 61).
3. Abetment by conspiracy.- In order to constitute abetment, by conspiracy it is
essential, (1) that the person abetting must engage with one or more persons, (ii)
that the conspiracy must be for doing the thing. abetted, (iii) an act or illegal
omission must take place in pursuance of conspiracy. Under the second limb of the
section it is seen that where the abetment is by conspiracy the elements to be
established are - (1) two or rnroe persons must combine in conspiracy, and (2) an
act or illegal omission must take place in pursuance of that conspiracy. If one or two
persons charged .is acquitted the conviction of the other can not stand (ILR 4 Cal 10;
AIR 1956 SC 33=1956 CrLJ 138).
Abetment by conspiracy consists in combination and agreement of persons to
do an illegal act or to do a lawful act by illegal means (AIR 1944 Lah 380). The
agreement to do an unlawful act may be inferred from circumstances. If the abettor
is a party to an agreement in pursuance of which the offence is committed it will be
sufficient (43 CrLJ 227).
Where two person conspired to do away with deceased while sitting in
company of main culprits, one of them asked accused to kill deceased immediately
on his entering the village while the other one, a police officer, undertook to look
 113
Sec. 107—Syn. No. 4} OF ABETMENT

after police side. Prima facie such persons appeared to have instigated main accused
to commit murder (1987 PCrLJ 226). Where several persons combine to attack with
lathis a common enemy each can be said to be abetting the conduct of the other
within the meaning of section 107. When each of them is present. Section 114
applies and although none of the parties thought of causing grievous hurt to the
enemy yet under section 114 such of them as were not directly responsible for the
grievous hurt caused to the enemy can be deemed to have abetted the causing of
grievous hurt by the person who actually caused it provided grievous hurt was the
probable consequence of the assault. The test is whether in the circumstances of a
given case, grievous hurt should have been forseen as the probable result of their
concerted action (AIR 1936 All 437).
It is very difficult to obtain direct evidence of conspiracy which is generally
inferred from certain criminal acts of parties accused, done in pursuance of an
apparent criminal purpose in common between them. In order to constitute the
offence of abetment by conspiracy there must be a combining together of two or
more persons in the conspiracy and an act, or illegal omission must take place in
pursuance of that conspiracy, and in order to the doing of that thing when parties
concert together, and have a common object, the act of one of the parties done in
furtherance of the common object and in pursuance of the concerted plan, is the act
of them all (AIR 1951 Raj 89).
4. Abetment by aid.- The third mode of abetment described in the section is by
intentionally aiding any act or illegal omission in the doing of a thing. Any facility
afforded to the doing of an act is, as the explanation has it. equivalent to aiding in the
doing of the thing. Intentional aid may then consist of (i) either the doing of an act,
directly assisting the commission of the crime: (ii) it. may consist of an act which,
though not directly assisting its commission, affords facilities for its commission: or
again (iii) it may not be an act at all, but an illegal omission resulting in the same
consequence.
In order to constitute abetment, the abettor must be shown 'intentionally' aided
the commission of the crime. Mere proof that the crime charged could not have
been committed without the interposition of the alleged abettor is not enough
compliance with the requirements of section 107. A person may, for example, Invite
another causally or for a friendly purpose and that may facilitate the murder of the
invitee. But unless the invitation was extended with intent to facilitate the comission
of the murder, the person inviting can not be said to have abetted the murder. It is
not enough that an act on the part of the alleged abettor happens to facilitate the
commission of the crime. Intentional aiding and therefore active compolicity is the
gist of the offence of abetment under the third paragraph of section 107 (AIR 1975
SC 175: 1977 CrLJ (SC) 254). In the case of abetment by aid a person can be said to
abet by aiding only when by commission of an act he intends to facilitate the
commission of the crime and does facilitate the commission thereof (AIR 1959 SC
673).
In order that there may be abetment by intentional aid, the commission of the
crime must have been facilitated by either an act on the part of the abettor or by his
illegal omission. The act may be one which directly assists the commission of the
crime or one which merely affords facilities for its commission. In either case the
person who does such an act is an abettor (36 Tra y -co 46). Where a crowd which was
accompanying a funeral procession encouraged the wife of the deceased to commit
sati by shouting slogans in her favour and surrounded her so that the police could not
stop her from committing sati. It was held that all those persons who joined that
procession were aiding the widow in committing sati (AIR 1958 Raj 169). Similarly
Law of Crimes-15
 114 LAW OF CRIMES Ise. 107—$yn. No. 5
where a police constable ace.sipanied by two civic guards attempted to extort.
money from a person and though khe civic guards did not actually demand any money
yet they did push about the man so as to make him pay up. It was held that they were
guilty of abetment by aiding the accused to extort money (AIR 1948 Cal 47).
The mere fact that a person omitted to do a • thing would not be sufficient, to
make him an abettor. Thus. merely allowing' one's premises to be used for the
purpose of a bigamous marriage does not prove abetment of bigamous marriage (AIR
1960 Born 393). Similarly mere receipt of an unstamped instrument, or receipt from
another does not make the person receiving an abettor in the offence of executing an
unstamped Instrument (7 Born 82: 1 All .18).
5. By Wegal omission.- For proving abetment by illegal omission under section
107 the accused must be shown to have intentionally aided the commission of the
offence by his non-interference (24 Suth WR (Cr.) 26). The prosecution must be able
to establish that such illegal omission was likely to have lent support to or to have
encouraged the principal offender to commit the offence in question. (36 Tra y LI
46).A person, who identified another, who intended to cheat the Treasury Officer by
personation, made the identification on the assurance of another in whom he had
confidence, but did not tell the Treasury Officer that he identified only on such
assurance, could not be convicted of abetting the offence unless it is definitely
proved that he knew that an offence was being committed, that is to say that the
man whom he identified, was not the same (AIR 1929 Pat 157). To prove abetment
by "illegal omission" it iè necessary to show that the accused intentionally aided the
commission of the offence by his non-interference (1975) 24 WR (Cr) 26), and the
omission involved ,a breach of a legal obligation (AIR 1928 Nag 257). Thus evry police
officer is bound to shelter a person in custody, and to arrest persons committing
assaults likely to cause grievous bodily injury and if he omits to perform this duly, he
is guilty of abetment (20 Born 394).
Abetment by omission would only be puishable if the omission were an Illegal'
omission that is in disobedience of an obligation imposed by law .(33 Pat 901: AIR
1947 Nag 113). Thus where some persons were being beaten' in the thana by the
police and officer incharge did not take notice of the beating. It was held that he
Intentionally by illegal omission committed the abetment of the assault on those
persons. He may therefore, be convicted' under section 323/109 (9 DLR 41:. PLR
1957 Dhaka 260). Where the wife, knowing that her paramour was likely to waylay
and kill her husband did not warn the latter when he was going out. It was held that
In the circumstances the conduct of the wife in not warning her husband though
certainly open to censure did not amount to abetment of murder committed by the
accused (AIR 1955 HP 15).A newly married girl who was 3 to 5 months pregnant
committed suicide. The atmosphere in the house prior to sücide was very tense and,
the girl had no food for three or four days before committing suicide. The husband
and in laws did not persuade the girl to take food. It was held that due to his
omission the accused cannot be held guilty of abetting the crime of suicide and the
deceased must be deemed to have dropped down as a sensitive girl not able to
withstand the normal Jolts of the (1981 CrLJ (NOC) 178 P&H).
Abetment by aiding or instigating necessarily means some active suggestion or
support or stimulation to the commission of the offence itself. If the offence had
already been completed before anything was done by the alleged abettor, any
subsequent action of his which might, in any way help the main offender, will not be
abetment within section 107, being an accessory after the fact which is no offence
under law (PLD 1986 Lah 418). ' . '
Sec; OF ABETMENT 115
108. Abettor.- A person abets an offence, who abets either the
commission of an offence, or the commission of an act which would be an
offence, if committed by a person capable by law of committing an offence
with the same intention or knowledge as that of the abettor.
Explanation 1: The abetment of the illegal omission of an act may
amount to an offence although the abettor may not himself be bound to do
that act.
Explanation 2 : To constituting the offence of abetment it is not.
necessary that the act abetted should be committed, or that the effect
requisite to constitute the offence should be caused.
Illustration
(a) A instigates B to murder C. B refuses to do so. A Is guilty of abetting B to
commit murder.
(b) A Instigates B to murder D. B in pursuance of the Instigation stabs D. D
recovers from the wound. A is guilty of Instigating B to commit murder.
Explanation 3 It is not necessary that the person abetted should be capable by
law of committing an offence, or that he should have the same guilty Intention or
knowledge as that of the abettor, or any guilty intention or knowledge.
Illustrations
(a) A. with a guilty Intention, abets a child or a lunatic to commit an act which
would be an offence, if committed by a person capable by law of committing an
offence, and having the same intention as A. Here A. whether the act be committed
or not. Is guilty of abetting an offence.
(b)A. with the intention of murdering Z. instigates B. a child under seven years
of age, to do an act which causes Z's death. B. in consequnece of the abetment, does
the act in the absence of A and thereby causes Z's death. Here, though B was not
capable by law of committing an offence. A is liable to be punished In the same
manner as if B had been capable by law Df committing an offence, and had committed
murder, and he Is therefore subject to the punishment or death.
(C) A instigates B to set fire to a dwelling house. B. in consequence of the
unsoundness of his mind, being incapable of knowing the nature of the act, or that
he is doing what is wrong or contrary to law, sets fire to the house in consequence of
A's instigation. B has committed no offence, but A is guilty of abetting the offence of
setting fire to a dwelling house, and is liable to the punishment provided for that
offence.
(d) A intending to cause a theft to be committed, instigates B to take property
belonging to Z out of Z's possession. A induces B to believe that the property belongs
to A. B takes the property out of Z's possession in good faith, believing It to be A's
property. B. acting under this misconception, does not take dishonestly, and
therefore does not commit theft. But A is guilty of, abetting theft, and is liable to the
same punishment as if B had committed theft.
Explanation 4: The abetment of an offence being an offence, the
abetment of such an abetment is also an offence.
Illustration
A instigates B to Instigate C to murder Z. B accordingly instigates C to murder
Z. and C commits that offence in consequence of B's instigation. B is liable to be
116 LAW OFCRIMES [Sec. 108A-109
punished for his offence with the punishment for murder; and, as A instigated B to
commit the offence, A is also liable to the same punishment.
Explanation 5: It is not necessary to the commission of the offence of
abetment by conspiracy that the abettor should concert the offence with the
person who commits it. It is sufficient if he engages in the conspiracy in
pursuance of which the offence Is committed.
Illustration
A concerts with B a plan for poisoning Z. It is agreed that A shall administer the
poison. B then explains the plan to C mentioning that a third person Is to administer
the poison, but without mentioning A's name. C agrees to procure the poison, and
procures and delivers it to B for the purpose of its being used' In the, manner
explained. A administers the poison: Z dies In consequence. Here, though A and C
have not conspired together, yet C has been engaged in the conspiracy In pursuance.
of which Z has been murdered. C has. therefore committed the offence defined in
this section and Is liable to the punishment for murder.
1 [108A. Abetment in Bangladesh of offences outside it.- A person abets
an offence within the meaning of this Code who, in 2113angladesh]. abets the
commission of any act without and beyond '[Banglades h] which would
constitute an offence committed in 2[Bangladesh.]
Illustration
A. in 2[Bangladesh], instigates B. a foreigner in Goa, to commit a murder In Goa.
A is guilty of abetting muder.J
109. Punishment of abetment if the act abetted is committed in
consequence and where no express provision is made for its punishment.-
Whoever abets any offence shall, if the act abetted is committed in
consequence of the abetment, and no express provision is made by this Code
for the punishment of such abetment, be punished with the punishment
provided for the offence.
Explanation: An act or offence is said to be committed in consequence
of abetment, when It is committed in consequence of the instigation, or In
pursuance of the conspiracy, or with the aid which constitutes the abetment.
Illustrations
(a) A offers a bribe to B, a public servant, as a reward for showing A some favour
in the exercise of B's official functions. B accepts the bribe. A has abetted the, offence
defined in section 161.
(b) A instigateds B to give false evidence. B. in consequence of the instigation
commits that offence. A is guilty of abetting that offence and is liable to the same
punishment as B.
(c) A and B conspire to poison Z. A, in pursuance of the conspiracy, procures
the poison and delivers it to B in order that he may administer It to Z. B. in
pursuance of the conspiracy, administers the poison to Z in A's absence and thereby
causes Zs death. Here B is guilty of murder. A is guilty of abetting that offence by
conspiracy, and is liable to the punishment for murder.
1. Section 108A was added by Indian Penal Code Amendment Act, 1898.
' word 'Bangladesh' was substituted for the word 'Pakistan by Act VIII of 1973.
2. The
Sec. 109-Syn. No. 11 OF ABETMENT 117
Synopsis
1.Scope and applicability. 3. Charge and conviction.
2. Section 109 and 120B. 4. Acquittal of principal offender; - effect.
1.Scope and applicability.- This section deals with punishment for abetments
where punishment therefore have not been separately provided In the . Code.
Punishment for abetments are stated to be the same as that for the main offence
(AIR 1933 Born 162). A person who aids and abets the performance of the crime at
the time the crime is committed, Is punishable under this section (42 CrLJ 796).
In order to make this section applicable the act abetted must in consequence
have been committed of the abetment and there are no other provisions In the Coide
making the abetment punishable (12 CrLJ 495). Abetment of an offence which was
not ultimately committed can not be punished under this section (AIR 1925 Oudh
499).
Section 109, Penal Code may be attracted even if the abettor is not present
when the offence abetted is committed provided that he has instigated the
commission of the offence or has engaged with one or more other persons in a
conspiracy to commit an offence and pursuant to that conspiracy some act or illegal
omission takes place or has intentionally aided the commission of an offence by an
act or illegal omission (AIR 1971 SC 885 (888. 889). The offence of abetment falls
through if the principal offence is not substantiated (61 I.C. 800 Cal ; ILR 52 Cal
112).
To sustain the charge of abetment of an offence, it is necessary that there must
be some evidence of an overt act or omission so as to suggest a preconcert or a
common design to commit a particular offence. So long as the design rests in
intention only short of overt act directed to the commission of the offence, it is not
indictable in law (PLD 1970 Kar 15). Section 109 has no application where the
offence is never committed (AIR 1933 Rang 297).
Unlike the proviso to section 111, Penal Code in which the expression
probable consequence of abetment' and 'that act done or committed under the
influence of the instigation or with the aid or in pursuance of the conspiracy which
constituted the abetment appear, and will have to be given their proper meaning.
there is no such requirement in section 109 P.C. Further more. section 109 P.C. is
obviusly a residuary section whereas section 111 P.C. is a special section applicable
only to the facts of the case of present kind. Section 109 P.C. from its language
contmeplates the abetted act to have been completed that is, if murder is instigated
and the victim is killed, only then it provides for the punishment of abetment but
only when there is another specific provision in this behalf; whereas section 111
deals with the case where a different act has been committed as a probable
consequence of abetment. The different act in section 111 would include an offence
under section 301 P.C. or for that matter any other section of the Penal Code. The
distinction thus is apparent between the two sections In one the abetted act is
completed and in the other a different act Is committed as a probable consequence
of abetment: and where the code provides a specific penal provision for dealing with
a situation where a different act is committed. section 109 will have no application;
for, that is a residuary provision.. It is section 111 which will be applicable.
Accordingly, it is idle to contend that the abettor can be convicted under section
301 read with section 109 (PLD 1979 SC 53).
This section is attracted even if the abettor is not present at the place where
the offence Is committed provided he had instigated or conspired with one or more
persons to commit the offence and even on failure of that conspiracy did some act or
 118 LAW OF CRIMES [Sec. 109—Syn. No.2
illegal omission had taken place or that he aided the commission of the offence (AIR
1971 SC 885=1971 CrLJ 793). Where two persons are charged for abetment and the
case against them is inextricably mixed up and can not be separated, on the acquittal
of one, the other should be given the benefit of doubt and should also be acquitted
(1978 CrLJ 256). What the law punishes is only abetment of an offence and not
abetment of mere acts which are not offences by themselves (1978 CrLJ 555).
A person by mere offering of bribe in detecting a crime cannot be said to be an
abettor as there Is no mens rea (157 CrLJ 127: AIR 1954 SC 322). If in consequence
of abetment by a person murder is committed section 109 is attracted (AIR 1939
Born 452).
In order to make an accused liable for commission of any crime, it must be
shown that he had committed the crime or aided or instigated in the same form or
manner as other accused did. It is settled principle of law that mere presence of the
accused near at the place of occurrence does not constitute the offence under
section 109 of the Penal Code. Intentional aiding and active complicity is the gist of
the offence of abatement committed by the accused, otherwise charge for abatement
must fail (Mostain Mollah Vs. The State (1991) 11 BLD 552).
A person is said to instigate another to an act when he actively suggests or
stimulates him to do an act by any means or language direct, or indirect whether It
takes the form of express solicitation or of hints, insinuation or encouragement. It Is
not necessary that express and direct words should be used to indicate what exactly
should be done by the persons to whom directions are given (AIR 1953 Tra y Co
251).. The instigation must have reference to the thing that was done and not to the
thing that was likely to have been done by the person who is instigated. It is only If
this condition is fulfilled that a person can be guilty of abetment by instigation (AIR
1953 'Tray -co 251).
Abetment is an offence under the Penal Code and a person may be charged for
abetting an offence punishable under a special law even though the word 'abetment'
may not be mentioned as an offence under the Special Act (Hussain Mohammad
Ershad vs. The State: (1994) 14 BLD (AD) 178).
2. Sections 109 and 120B.- Offences created by sections 109 and 120B. Penal
Code, are quite distinct. There is no analogy between section 120B and section 109.
Penal Code. There may be an element of, abetment in a conspiracy but conspiracy is
something more than an abetment. Conspiracy to commit an offence is itself an
offence and a person can be separately charged with in respect to such conspiracy. -
(AIR 1970 Cal 110 (116). Conspiracy to commit an offence is Itself an offence and
person can be separately charged with respect to such conspiracy. There may be an
element of abetment in a conspiracy, it is something more than an abetment (AIR
1961 SC 1241=(1961) 2 CrLJ 302). .
There is vital difference between the two crimes (I) abetment in any
conspiracy. (ii) criminal conspiracy. It may be sufficient to state that the gist of the
offence of criminal conspiracy created under section 120A is a bare agreement to
commit an offence. It has been made punishable under section 120B. The offence of
abetment created under the second clause of section 107 requires that there must
be something more than a mere conspiracy. There must be some act or illegal
omission in pursuance of that conspiracy that would, be evidence, by the wordings of
section 107 "Secondly - engages in any conspiracy for the doing of that thing, if an
act or illegal omission takes place In pursuance of that conspiracy ........... .The
punishments for these two categories of crimes are also quite different. Section 109
Penal Code is concerned only- with the punishment of abetments for which no
Sec 109—Syn. No. 31 OF ABETMENT 119
express provision Is made under the Penal Code. A charge under section 109 should,
therefore, be along with some other substantive offence committed in consequnece
of abetment. The offence of criminal conspiracy is on the other hand, an
independent offence. It is made punishable under section 120B for which a charge
under section 109, Penal Code, is unnecessary and Indeed, inappropriate (1989 CrLJ
1 (66. 67): AIR 1988 SC 1983=1988 (3) Crimes 209).
When an offence is committed in pursuance of a conspiracy to commit it, the'
conspiracy amounts to an abetment, and where conspiracy amounts to an abetment
under section 107. it is unnecessary to invoke the provisions of section 120A and
120B, because the code has made specific provision for the punishment of such a
conspiracy (AIR. 1936 Pat 346(348)=1937 CrLJ 893).
Abetment need not be by instigation. It may be by conspiracy, the proof of
which Is generally a matter of inference (AIR 1948 All 168). Abetment be conspiracy
presupposes a deliberate and previous act on the part of the abettor (AIR 1935 Oudh
468).
There, is no bar to prosecuting an offender for abetting under section 109 Penal
Code, an offence which has in fact been committed in pursuance of a conspiracy
notwithstanding the fact that a prosecution under section 120B. Penal Code could
not be launched without previous complaint or consent (AIR 1945 Sind 51). Section
120B applies where any other crime has not been actually committed. Where the
matter has gone beyond the stage of mere conspiracy, and offences are alleged to
have been actually committed in pursuance thereof, sections 120A and 120B are
wholly irrelevant. Conspiracy is one form of abetment and where an offence is alleged
to have been committed by more than two persons such of them as actually took part
In the commission should be charged with the substantive offence, while those who
are alleged to have abetted it by conspiracy, should be charged with the offence of
abetment under section 109 (1957 CrLJ 234).
3. Charge and conviction.- It is open to the prosecution to charge abetment
generally and then if the evidence does not establish abetment other than in one
particular form, to rely on that particular form for a conviction (AIR 1938 Cal 125).
Where more than one offence appear to have been committed, the charge must be
for the more serious offence. Thus where the case for the prosecution is that the
person abducted was in fact murdered, there can be noscope for a charge under
• section 364 of the Penal Code and the abductor should be charged either with
murder or at least with the abetment of murder (54 Cal WN 68).
An abettor cannot the convicted for the same offence that of principal offender,
If principal offender could commit' the offence for which he is held punishable even
without aid: he (Abettor) can be convicted in such a case for abetment of a lessor
offence than that for which principal offender is convicted (Sattar Abdul Gafar Sipat,
Vs. State of Gujarat: 1990 (1) Crimes 587 Guj).
A mere mention of the relevant section in the charge to which the accused
persons are called upon to plead or when entering Conviction against them, will not
satisfy the appellate court that the lower court has applied its mind to the question
whether the elements attracting the application of .the rules relating to constructive
liability for crime are prc sent in the case, nor would such mere mention of the
sections clothe the accused with proper notice of the crimes for which they are
sought to be made constructively liable. These remarks apply with equal force to a
charge relating to the abetment of an offence (AIR 1956 Tra y-Co 230).
It cannot be laid down as an inflexible rule that a convictin for abetment cannot
be made in a case where the accused Is charged with the main offence only, and no
 [Sec. 109-Syn. No. 3
120 LAW OF CRIMES

!separate charge has been framed under section 109. If the accused had notice of the
facts, which constituted abetment, although the charge was one for the main offence
and if there has been no prejudice to the accused by the omission to frame a
separate charge for abetment, he can be convicted for abetment even though the
charge for the main offence fails (PLD 1961 Lah 212).Sectlon 114, Penal Code
applies to a case where a person abets the commission of an offence some time
before it takes place and happens to be present at the time when the offence is
committed, and is not applicable to a case where the abetment is at the time when
the offence takes place and the abettor helps the commission of the offence. The
evidence against the second accused álearly shows that he has abetted in
committing the crime 'and actively participated in the whole Incident. When charge
has been filed against him for the substantive offence, it is permissible for the court
to convict him for the offence under section 109, Penal Code. No prejudice Is caused
to the accused by altering his conviction from section 302 to an offence under
section 109 Penal Code 1989 Crimes 771 Ker).
Where the court frames a charge for substantive offence but It is found that
some of the accused had conspired with others to commit the offence, persons In
consipracy to do that offence should be tried for abetment under section 109 P.C.
(AIR 1938 Mad 130). Where the High Court finds that the accused ought to have
been convicted for abetment but had wrongly been convicted for a substantive
offence, it can alter convlctin for principal offence to one for abetment thereof (AIR
1931 Oudh 274). Where however the accused were tried for murder and acquitted
on their proving alibi. The High Court found that there was a conspiracy to murder, in
which they took part though not -in actual murders. The High Court did not convict
them but the case was sent back to retrial (PLD 1951 Lah 66). A ordered B to set fire
to the hut and the hut was accordingy burnt. A was charged under section 436. Bwas
acquitted of the charge as the evidence that B set fire to the hut was not believed.
The evidence that A ordered B to set fire to the hut and that hut was accordingly
burnt by one of the members of the unlawful assembly was believed and was
convicted under section 436 read with section' 109. The Indian Supreme Court held
that the conviction of B under section 436 read with section 109 was legal (AIR
1958 SC 813= 1958 CrLJ 1352).
Where it is doubtful as to whether an offence of kidnapping or of abetment of
kidnapping has been committed the accused can be charged in the alternative with
kidnapping as well as abetment of kidnapping. Where the accused is not charged In
the alternative but is charged with the substantive offence of kidnapping, he 'Can be
convicted of abetment only and not the actual offence of kidnapping If the evidence
proved is only abetment (1957 CrLJ 688). Where there is a charge under section
12013/467 and section 109/467 the charge under section 120B/467 can be
cancelled if no sanction for prosecution has been obtained and the accused can be
convicted under section 109/467. It is hoever to be noted that if there is only one
charge under section 12013/467, It cannot be changed to one under section 109/467
because the offence under section 120B is a An accused charged with having abetted
a known person may be convicted of having abetted an unknown principal, subject
hoever, to the limitation only that when such conviction is likely to.cause prejudice
to the accused, the charge should be formally amended in suitable terms and the
accused should be given the benefit of a retrial so as to afford him due opportunity to
meet the amended charge properly (16 DLR 147). Where in the original complaint
there was no allegation of abetment of an offence, but subsequently the evidence
discloèd that there was abetment. It was held that although in the complaint there
is no allegation that one of the accused abetted the other in the commission of any
oflence, the court can frame proper charges for offences disclosed in the allegations


ec. 109—Syn. No. 41 OF ABETMENT .121

and in proper cases even alter. It at any stage of the trial In accordance with the
evidence, provided no prejudice 1s caused to the accused. There Is no question of
prejudice when the case is still at the stage of charge (AIR 1962.. Born 21).
- 'charge.- The charge should run as follows:
I, (name and office of the Magistrate) hereby charge you (name of the accused)
as follows :-' -
That A ( name of the principal offender on the..............day of ..............at ...........
committed the offence of ..............punishable under section ........................Penal Code
and that you ..................on ...............at ..................abetted the said. A in the commission
of the above said offence of ............................which was committed in pursuance of your
abetment and that you have thus committed an offence punishable under section 109
read with section .............................Penal Code and within my cognizance.
I hereby direct that you be tried on the said charge by the said court.
• When the abettor is charged with the principal offender, the charge should run
as follow:
That you ............................on or about the ............................day of ............................at
............................abetted the ............................'commission of the offence of .............................
by ............................which offence was committed in consequences of your abetment.
and that you have thereby committed an offence punishable under section 109 Penal
Code and ............................of Penal Code and Within the cognizance of any court (or the
court of session) and I hereby direct that you be tried on the said charge.
4. Acquittal of principal offender; effect,- There Is no rule to the effect that if
the principal offender is acquitted, an abettor must also be acquitted. There may be a
case where an abettor on his own confession or plea of guilty to the charge may be
convicted of the . offence of abetment although the principal 'Is acquitted for
.insufficient evidence. Another typ.e of such case may be where It is held by the
Appellate Court that the substantive offence was committed by an unkown person or
persons In consequence of abetment by the culprit (PLD 1966 Dhaka 269). In such
cases the criterion' for convicting the .abettor Is not the fact of acquittal of the
principal but the grounds thereof. As a rule of general application it Is limited only to
those cases in which the acquittal is founded on the- ground that the prosecution fails
to prove the commission of the alleged substantive offence Itself. In all other, cases; it
will depend upon the nature of the evidence appearing against him and if it is found
sufficient' and satisfactory to so warrant, there can be no reason why the abettor.
cannot be convicted of the offence of abetting the commission of the substantive
offence by the principal, even though the principal may be acquitted (16 DLR 147).
Conviction of the abettor is ordinarily not dependent upon the conviction o! the
principal offender. Abetment by Itself is a substantive offence. So the ãbettorcan be
convicted before the principal is apprehended and put on trial (1969) 13 MU
842(844). A charge of abetment fails ordinarily when' the substantive offence Is not
established against the principal offender (AIR 1959 SC 673: AIR 1970. SC 436).
Unless the substantive offence against the principal offender Is established, the
question of abettor being held guilty under the circumstances does not arise (AIR
1990 SC 1210).
A'person can be convicted of abetting an offence if the person 'alleged to have
committed that offence in consequence of the abetment has been acquitted. It is
only in the case of, a person abetting an offence by, intentionally aiding another to
commit that 'offence that the charge .of abetment might fail whenthe person alleged
to have committed the offence isacquitted.(AIR 1967 SC 752).
Law of crimes-16 ''
 122 i .. LAWOFCRIMES . L&c. 1I0-I1$

110 Punishment of abetment If person abetted does act with different

Intention from that.ofabettor Whoever abets the commission of an offence
shall, if the person abetted does the act with a different intention or
knowledge from that of the abettor, be punishd with the punishment
• provided for the offence which would have been committed if the act had
been done with the intention or knowledge of the abettor and with no other.
111. LIability of abettor when one act abetted and different act done.
When an act is abetted and different act is done, the abettor is liable for the
act done, in the same manner and to the same extent as if he had directly
abetted it:.
• Proviso.- Provided the act, done was a probable consequence of the
abetment, and was committed under the influence of the instigation, or with
the aid or in pursuance of the conspiracy which constituted the abetment.
- . musuons
(a)A instigates a child to put poison Into the food of Z, and gives him poison for
that purpose. The child, in consequence of the Instigation by mistake puts the
poison into the food of Y. which is by the side of that of Z. Here if the child was
acting under the influence of As instigation, and the act done was under the
circumstances a probable consequence of the abetment. A is liable in the same
manner and to the same extent as if he had Instigated the child to put the poison,
Into the food of y
(b) A instigates B to burn Z's house. B sets tire to the house and at the same
time commits theft of property there. A, though guilt of abetting the burning of the
house, is not guilty of abetting the theft; foi the theft was a distinct act, and nota
probable consequence of the burning. . .
.(c) A instigates B and C to break into an inhabited house at midnight for the
purpose of robbery, and provides them with arms for that purpose, B and C break
Into the house and being resisted by Z. one of the inmates, murder Z. Here, if that
murder was the probable consequence of the abetment. A is liable to the punishment
provided for murder. .. . ..
112. Abettor when liable to cumulative punishment for act ibettèd and
for act done.-If the act for which the abettor is liable, under the last
preceding section Is committed in addition to the act abetted, and
constitutes a distinct offence, the abettor is liable to punishment for each of
the Offeñces. . ..... ,
fliustration . .. .. ..
• A instigates B to resist by force a distress made by a public servant. B, in
consequence, resist that distress. In offering the resistance, B voluntarily causes
grievous hurt to the officer executing the distress. As B has committed both the
offence of resisting the distress, and the offence Of voluntarily causing grievous hurt.
B Is liable to punishment for both these offencés; and if A knew that B was likely
voluntarily to cause grievous, hurt in resisting the distress A will also be liable to
punishment for each of the offences. . .
113. Uabllite of abettor for an effect caused by the act abetted • different,
from that Intended by the abettor.- When act is abetted with the intentiOn
on the part of the abettor of causing. a particular effect, and an act for which
 '
OF ABETMENT : 123
Sec. 1144161
( the abettor is laible in consequence of the abetment, causes a different effects
'from that intended , , by the abettor, the abettor is liable for the effect caused.
In the same manner and to the same extent as if he had abetted the act with
the intention of causing that effect, prOvided he 'knew that the act abetted
was likely to cause that effect. -
mustratlon
.A instigates B to cause grievous hurt to Z B, in consequence of the instigation,
causes grievous hurt to Z. Z dies in consequence. Here, If A knew that the grievous
hurt abetted was likely to cause death, A is liable to be punished withthe
punishment provided for murder.
c 114. Abettor. present when offence Is commItted.- 'Whenever any
person, who if absent would be liable to be punished as am abettor, is present.
when the act or offence for which he would bé punishable In consequence of
the abetment is committed, he shall be deemed to have committed such act'
or offence.
115. Abetment of offence punishable with death or 'IimprIsonmntJ for
life If offence not committed; If act causing harm be done In consequence.-.
Whoever abets the commission of an otfence punishable with death or
[imprisonment] for life, shall, if that offence be not c'omrnitted in
consequence of the abetment, and no express provision ishiade by thJ. Code,
for the punishment of such abetment, be punished with imprisonment of
either description for a term which may extend to seven years, and shall alsO
be liable to fine;
and if any act for which the abettor is liable in consequence of the.
abetment, and which causes hurt, to any person, 1 done, the abettor shall be
liable to imprisonment Of either description for a term which may extend to
fourteen years, and shall alsobe liable to fine. .
fliustration
A. instigates B to murder Z. The offence is not committed. If B had murdered
Z, he would have been subject to the punishment of death or imprisOnment' for life',
Therefore A is liable to Imprisonment for a term which may extend to seven years
and also to a fine: and,. if any hurt be done to . in consequence of the abetment, heil
will be liable to imprisonment for a term which may extend to fourteen years. and .to
fine.
116.Abetment of offence punishable' with Imprisonment - If offflcc be
not committed.- 'Whoever abets an offence punishable with',imprionment
shall, if that offence be not committed in consequence of th abetment, and,'
no express provision if made by this Code for 'the punishment of such
abetment, be kunished with imprisonment of any description provided for
that offence for . term which may' extend to onefourth part of the longest
term provided for that offence; 'or with such fine as is provided for. that
offence, or with both;
If abettor or person abetted be a public servant whose duty It I is to
provent offence. - and if the abettor or., the person abetted is a public servant.
whose duty it is to prevent the commission of such offence; the abettor shall
be punished with imprisonment of any description' providea for that offence.
. Subs, by. Ord. No. XL! of 1985, for "transportation".
 124 LAW OFCRIMES. tsc. 117-118
for a term which may extend to one-half of the longest term provided for
that offence, or with such fine as is provided for the offence, or with both.
Illustrations
(a) A offers a bribe to B. a public servant, as a reward for showing A some favour
in the exercise of B's official functions; B refuses to accept the bribe. A is punishable
under this section.
IN A instigates B to give false evidence. Here; if B does not give false evidence,
A has nevertheless committed the offence defined in this section, and is punishable
accordingly.
(c) A. a police-officer, whose duty it is to prevent robbery, abets the
commission of robbery. Here though the robbery be not committed. A is liable to
one-half of the longest term of imprisonment provided for that offence, and also to
fine.
(d) B abets the commission of a robbery by a, A police-officer, whose duty it is
to prevent that offence. Here though the robbery be not committed, B is liable to
one-half of the longest term of imprisonment provided for the offence of robbery,
and also to fine.
117. Abetting commission of offence by the public or by more than ten
persons.- Whoever abets the commission of an offence by the public generally
or by any number, or class of persons exceeding ten, shall be punished with
imprisonment of either description for a term which may extend to three
Years, or with fine, or with both. -.
Illustration
A affixes In a public place a placard instigating a sect consisting of more than
ten members to meet at a certain time and place, for the purpose of attacking the
members of an adverse sect; while engaged in a procession. A has committed the
offence defined In this section.
118. Concealing design to commit offence punishable with death or
[imprisonment) for life - if offence be committed; if offence be not
committed.- Whoever intending to facilitate or knowing it to be likely that he
• will thereby facilitate the commission of an offence punishable with death or
[imprisonment] for life,
voluntarily conceals, by any act or illegal omission, the existence of a
design to commit such offence or makes any representation which he knows
to be false respecting such design,
• shall. if-that offence be committed, be punished with imprisonment of
either description for a term which may extend to seven years, or, if the
offence be not committed, with imprisonment of either description for a
term which may extend to three years: and in either case shall also be liable
to fine..
illustration
A. knowing that dacoity Is about to be committed at B, falsely informs the
Magistrate that a dacoity , is about to be committed at C. a place in an opposite
direction and thereby misleads the Magistrate with intent to facilitate the
 . OF ABETMENT 125
[Sep. 1 19-2O
commission of the offence. The dacoity is committed at B in ptirsuance of the design.
A is punishable under this section.
119. Public servant concealing design to commit offence which it is his
duty to prevent.- Whoever, being a public servant intending to facilitate or
knowing it to be likely, that he will thereby facilitate the commission of an
offence which It' is his duty as such public servant to prevent,
voluntarily conceals, by any act or illegal omission, the existence of a
design to commit such offence,' or makes any representation which he
knows to be false respecting such design,
if offence be committed.-shall., if the offence be committed, be punished
with imprisonment of any description provided for the offence, for a term
which may extend to one-half of the longest term of such imprisonméht.,
with such fine as Is provided f6f that offence, or with both;
if offence be punishable - with death, etc.-or, if the offence be
punishable with death or Imprisonment for life, with [imprisonment] of
either description for a term which may extend to ten years;
if offence be not committed. -or, If the offence be not committed, shall
b&punished withimprisonment of any description provided for the offence
for a term which may extend to one-fourth part of the longest term of such
imprisonment or with such fine as. is provided for the oiTence, or with both.
Illustration
A, an officer of police, being legally bound to give Information of all designsto
commit robbery which may come to his knowledge, and knowing that B designs to
commit robbery, omits to give such information, with intent to facilitate the
commission of that offence. Here A ihas by an illegal omission concealed the
existence of ifs design, and is liable, to punishment according to the provision of this
section.''
120. concealing design to commit offence punishable with
imprisonment. - Whoever, intending to facilitate or knowing It to be likely
that he will thereby facilitate , the commission of an offence punishable with
imprisonment,
voluntarily conceals, by any act or Illegal omission, the existence.r. of. a
design to commit such offence or makes any representation which he
knows to be false respecting such design,
Jf offence beCommitted ; if offence be not committed. -shall, if the
ommitted,
offence 'be corn ' be punished . with Imprisonment of the description
provided for the offence, for a term which may extend to one-fourth, and If
the offence be not committed, to one-eighth, of the longest ,term of such
lmprisonment, or with such fine as is provided for the offence, or with
both