Law of Crimes- 1Indian Penal Code

Module- IIntroduction to Substantive Criminal

Law

Extent and Operation of Indian Penal Code

• The Indian Penal Code was passed in the year 1860. However, it came into effect from January 1, 1862.

• The Indian Penal Code applies to the whole of India except for the state of Jammu & Kashmir. It contains 23 Chapters and 511 Sections. Before the Indian Penal Code came into effect, the Mohammedan Criminal Law was applied to both Mohammedans and Hindus in India.

Crime-Meaning

• The Indian Penal Code, 1860 uses the word 'Offence' in place of crime. Section 40 of the IPC defines Offence as an act punishable by the Code. An Offence takes place in two ways, either by commission of an act or by omission of an act.

• When a Crime is done, any member of the public can institute proceedings against the person accused of the offence. Only in certain exceptional cases, the persons concerned alone can institute the criminal proceedings. Example of such crimes include Matrimonial cases, dowry cases, defamation etc.

Elements of CrimeFour main Elements :-• 1. Human Being

The first essential element of a Crime is that it must be committed by a human being. In case, the crime is committed by an animal, its owner is subject to Civil/Tortious liability.

• 2. mens reaA crime is done with a criminal intent. Mens rea is the mental intention, ill intention, or fudge the defendant's state at the time of offense, sometimes called the guilty mind. In the IPC, 1860, Mens rea is expressed as "ACTUS NON FACIT REUM NISI MENS SIT REA" as a fundamental principle for penal liability. Intent and Act, both must concur to constitute a crime. An act itself is no crime, unless it is coupled with an evil / criminal intent.

• 3. actus reusThere should be an external act. The Act and the mens rea should be concurrent and related.

• 4. InjuryThere should be some injury or the act should be prohibited under the existing law. The act should carry some kind of punishment.

Various stages of crime

• (i) Conceiving the idea of performing a legally defined harm or Mens Rea :- At this stages, a person consolidates his devious ideas and identifies ways of doing it. There is no action taken and there is no harm done to anybody nor is there any intention to cause injury to anybody. So, it is not a crime in itself. But this an essential ingredient of crime because without bad intention to cause harm or do wrong, there can be no crime. Also, even a thoughtless act, without any deliberation, can be crime if there is an intention to cause crime.

• Actus non facit reum nisi mens sit rea :- a guilty act together with a guilty mind.

Various stages of crime

• (ii) Preparation for crime :- Preparation consists of arranging or building things that are needed to commit the crime. At this stage, the intention to cause harm starts manifesting itself in the form of physical actions. At this stage, it is however possible for the person to abandon his course of action without causing any harm to anyone. Generally, preparation is itself alone not a crime because it cannot be proved beyond doubt the goal of preparation.

Various stages of crime

• (iii) Attempt to commit an offence :- This stage is attained by performing physical actions that, if left unstopped, cause or are bound to cause injury to someone. Since the intention of the person can be determined without doubt from his actions, an attempt to commit a crime is bound to happen and prevention of crime is equally important for healthy society.

Differences between Preparation & Attempt

• Both preparation and attempt are the physical manifestations of the criminal intention.

• An attempt goes a lot farther than preparation towards the actual happening of crime.

• In preparation, there is a possibility that the person may abandon his plan, but attempt leaves no room for that.

• In general, preparation involves collecting material resources, and planning for committing an act while attempt signifies a direct movement towards commission after the preparations are made.

Tests to distinguish Attempt and Preparation

• (i) Proximity Rule or Last step Test : As per this test, anything short of last step is preparation and not attempt. This is because as long as there is a step remaining for completion of the crime, the person can abandon it.

• Case laws :- R Vs. Riyasat Ali, 1881 Abhayanand Mishra Vs. State of Bihar, AIR 1961.

• (ii) Theory of Impossibility or Indispensable Element Test : As per this test, all of indispensable elements must be present to equal attempt. If there is something a person needs to commit the crime but it is not present, then there is not an attempt.

• Case laws:- Queen Vs. Collins R Vs. king 1892 ) Rule Bypassed

Tests to distinguish Attempt and Preparation

• (iii) Interruption Test:- If the action proves that the person would have gone through with the plan if not for the interruption such as arrest, then it is an attempt. At means if a person has not been interrupted, he would have committed the crime, he is guilty of attempt even though the past step of the crime has not been performed.

• (iv) On the Job or Unequivocality Test:- If a person does something that shows his commitment to follow through and commit the crime then it is an attempt. So, attempt is done when the offender takes deliberate and overt steps that show an unequivocal intention to commit the offence even if the step is not the penultimate one.

• Case law:- State of Maharashtra vs. Mohd. Yakub 1980.

Types of Punishments according to IPC

• Section 53 of the Indian Penal Code, 1860 prescribes five kinds of punishments.

• Death Penalty • Life imprisonment • Imprisonment – Rigorous – Simple

• Forfeiture of property • Fine

Theories of Punishment• (1) Deterrent TheoryThe aim of this theory is to inflict various penalties on the offenders

with a view to deterring them from committing crime. This theory also seeks to create a sense of fear in the mind of others with a view to keep them away from committing such crime. The rigor of the punishment acts as a warning to others.

• (2) Retributive Theory'Retributive' means 'punitive; to re-compensate; to payback'. Retribution is by way of punishment. This theory says that the

wrong doer should be given the same punishment as that will be suffered by the victim.

'a tooth for a tooth' and 'an eye for an eye'

Theories of Punishment

• (3) Protective or Preventive TheoryThis theory says that all criminals should be imprisoned and

kept them far away from the normal society without any connection to it. Thus, the society will be protected from the criminals.

This theory feels that protecting the society from criminals is better that curing the minds of the criminals.

• (4) Reformative TheoryThis theory uses social, economic, physical and psychological

methods in bringing about change in the minds of the criminals.

Offences punishable with death sentence

• Section 121 of Indian Penal Code, 1860: Waging War against the Government

• Section 132 of Indian Penal Code, 1860: Abetment of Mutiny • Section 194 of Indian Penal Code, 1860: Giving or fabricating false

evidence leading to procure one's conviction for capital offense. • Section 302 of Indian Penal Code, 1860: Murder • Section 305 of Indian Penal Code, 1860: Abetment of suicide by

child or insane person • Section 307 of Indian Penal Code, 1860: Attempt to murder by a life

convict, if hurt is caused • Section 396 of Indian Penal Code, 1860: Dacoity with murder • Section 364A of Indian Penal Code, 1860: Kidnapping for ransom