Module 12

MODULE 12

CHAPTERS XVII-XXIII OF THE INDIAN PENAL CODE, 1860

5.1. CHAPTER XVII

5.1.1. Section 378: Theft

This section defines the offence of theft. It says that- whoever, with the intention of taking
dishonestly any movable property out of the possession of any person without the consent of that
person, moves that property in order to such taking, is said to commit theft. There are five
explanations attached to this section: the first of which states that- as long as a thing is attached
to the earth, it is not a movable property and is, therefore, not the subject of theft; but as soon as
it is severed from the earth, it becomes capable of being the subject of theft.

The second explanation says that- a moving effected by the same act which effects the severance
may be a theft. The third explanation explains that a person is said to cause a thing to move who
either actually moves it, or who moves it by removing an obstacle which prevented it from
moving, or who moves it by separating it from any other thing. The fourth explanation states that
a person who causes an animal to move by any means is said to move that animal and to move
everything which, in consequence of the motion so caused, is moved by that animal. The fifth
explanation explains that the consent mentioned in the definition may be express or implied, and
the possessor of the property may himself give it, or any other person who has express or implied
authority for that purpose, may also give it. It is clear from the definition that there are following
five essential elements of theft:

1. The intention on the part of the offender must be to take the property dishonestly.

2. The property of which theft is committed must be movable.

3. The property must be in the possession of some person.

4. The property must be taken without the consent of its possessor.

5. The property must be moved in order to such taking.

5.1.1.1. Intending to take dishonestly
The intention on the part of the offender must be to take the property dishonestly. The expression
‘dishonestly’ has been defined under section 24 of the Code. According to which- 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. ‘Wrongful gain’ and ‘wrongful loss’ have been
defined under section 23 of the Code which states that ‘wrongful gain’ is gain by unlawful means
of property to which the person gaining is not legally entitled and ‘wrongful loss’ is the loss by
unlawful means of property to which the person losing it is legally entitled.

5.1.1.2. Any movable property
The subject of theft must be a movable property as per the definition under section 378. Theft of
immovable property is not possible. The expression ‘movable property’ has the same meaning as
given by section 22 of the Code. This definition is an inclusive definition which says that this
expression is intended to include corporeal property of every description, except land and things
attached to the earth or permanently fastened to anything which is attached to the earth.

The first explanation shows that- once an immovable property is converted into a movable
property, it becomes a subject of theft, while illustration (a) shows that conversion from
immovable to movable and moving of the property both can be done by a single act also. But,
whether a movable property is subject of theft or not must be judged in the light of section 95 of
the Code; according to which nothing is an offence by reason that it causes, or that it is intended
to cause, or that it is known to be likely to cause, any harm, if that harm is so slight that no
person of ordinary sense and temper would complain of such harm.

§ Crops
Where a disputed land is in possession of the complainant and he grows crops on it, the other
party to the dispute has no right to harvest it, and if he does harvest it, he may be guilty of theft.
The first thing which a court generally does in such cases is to find out who grew the crop. But
that is not decisive. The title of the land and the evidence of past possession also deserve to be
looked into along with other allied matters. Growing crop is not movable property.

§ Idol
An idol is a juridical person. But that does not debar it from becoming a property. As long as an
idol is fixed in a place such as a temple, it is an immovable property and so not subject of theft.
But, as soon as the same is severed, it is converted from immovable to movable and thus is
subject of theft.

§ Bank draft forms
It has been held that bank draft forms are not just ordinary forms. These are valuable documents
and are subject to security accountability. These are thus movable property and their dishonest
removal would amount to theft.

§ Electricity
In Avtar Singh v. State, the appellant was charged with having committed theft of electricity.
The Supreme Court ruled that electricity being an energy, it cannot be movable property vide
section 22 of the Code. But, theft of electricity has been made an offence under section 39,
Indian Electricity Act, 1910 which also says that the same will be deemed to be an offence under
the Indian Penal Code and thus punishable under section 379 of the Code. A fiction is thus
created and an offence which is an offence under an Act has been made punishable under the
Code.

The appellant, however, could not be convicted of theft of electricity as the mandatory
requirement of section 50 of the Act laying down as to who are competent to make such
complaints of theft of electricity could not be complied with. The Electricity Act, 1910 has now
been replaced by the Electricity Act, 2003; section 35 of which provides punishment for theft of
electricity with imprisonment extending up to three years or with fine or with both. Cases of theft
of electricity, therefore, will henceforth be decided in accordance with the Electricity Act, 2003
and not under the Indian Penal Code.

§ Water
Water is movable property as per the definition of movable property in section 22. Unlike
electricity, it is not an energy. Therefore, theft of water is punishable where water is reduced into

possession of someone. But, sea and river being not in the possession of anyone, taking such
water would not amount to theft.

§ Gas
Gas has been held to be movable property by English courts, and as such theft of gas has been
punished as larceny where the accused, in order to avoid paying for the total gas consumed by
him, introduced another pipe at the entry point of the gas which allowed the gas to move without
going into the meter.

§ Human body
Human body, whether living or dead, is not a movable property within the meaning of section 22
of the Code. Stealing a dead body thus does not make the accused guilty of theft. But, where a
human body has been preserved as a mummy, or where any part of it has been preserved with
some purpose, like for research etc., or where a human body or skeleton is being used as an
article, for research or teaching etc., stealing the same would amount to theft.

§ Animals
Animals have been divided into two categories-animals mansuetaenaturae or tame, pet or
domesticated animals, and animals feraenaturae or ferocious, wild, dangerous or non-
domesticated animals. The tame animals have been held to be movable property. Thus, theft of a
dog, cow, goat, bullock, cat, etc. is possible.

But, dangerous animals could not be kept in the possession of someone and hence, these have
generally been held to be not movable property. They are generally not subject of theft.
Shooting of deer in a government reserved forest was, therefore, held to be no theft In view of
the fact that deer belongs to the latter category and until it is shown that an animal belonging to
the latter category was tamed or domesticated, it cannot be a subject of theft.

5.1.1.3. Without that person’s consent
In theft the property must be taken without the consent of the possessor. Consent can be express
or implied and can be given by the possessor or any authorised person on his behalf, explains the
last explanation in section 378. Illustrations (m) and (n) highlight the consent aspect. Illustration
(o) explains that consent under improper circumstances is not valid. Section 90 of the Code,

dealing with consent, states that consent given under fear of injury or under misconception of
fact is not a valid consent if the person taking the consent knows or has reason to believe that the
consent was given under such circumstances.

It also states that consent under unsoundness of mind or under intoxication is also not valid if the
giver of the consent does not understand, because of such state of mind, the nature and
consequences of that to which he gives his consent. It also states that unless the contrary appears
from the context, consent of a person under twelve years of age is not valid.

5.1.1.4. Moves that property in order to such taking
A theft gets completed only when the movable property which is the subject of theft is moved in
order to such taking. Moving of the property is a must, and the moving must be in order to such
taking and not for anything else. Explanations 1, 2 and 3 in section 378 explain as to how
moving could be effected under certain situations.

5.1.2. Section 383: Extortion

This section defines the offence of extortion. It says that whoever intentionally puts any person
in fear of any injury, either to that person or to any other person, and thereby dishonestly induces
the person so put in fear to deliver to any person either any property or valuable security or
anything signed or sealed which may be converted into a valuable security, commits extortion.

The offender must intentionally put any person in fear of injury. This fear of injury may be to
that person or to any other person. The offender must thereby dishonestly induce the person so
put in fear to deliver to any person any property, or valuable security, or anything signed or
sealed which may be converted into a valuable security.

The offence is complete only when the delivery takes place. Proof of dishonest intention, that is
to say, intention to cause wrongful gain or wrongful loss vide section 24, is a must. Extortion can
be committed with respect to any property, movable or immovable, or valuable security, or
anything signed or sealed which could be converted into a valuable security. By using the

expression ‘to any person’ the section makes it clear that it is not necessary that the giver of the
threat and the receiver of the property may be the same person.

The expression ‘valuable security’ has the same meaning as given under section 30 of the Code.
The injury may be intended to the person put in fear or to any person other than him too, and it is
not necessary that they should be related to each other. The word ‘injury’ has the same meaning
as given under section 44 of the Code. The delivery must be made by the person put in fear. The
use of the words ‘anything signed or sealed which may be converted into a valuable security’
shows that incomplete deeds may also be subject of extortion

5.1.3. Section 390: Robbery

This section defines the offence of robbery- which is an aggravated form of either theft or
extortion. It says that robbery consists of either theft or extortion. As to when theft is robbery, it
says that it is so if either in order to the committing of the theft, or in committing the theft, or in
carrying away property obtained by the theft, or in attempting to carry away property obtained by
the theft, the offender, for that end, either voluntarily causes or attempts to cause to any person
either death or hurt or wrongful restraint, or fear of instant death or of instant hurt or of instant
wrongful restraint.

As to when extortion is robbery, it says that it is so if at the time of committing the extortion the
offender is in presence of the person put in fear and commits the extortion by putting that person
in fear of either instant death, or of instant hurt, or of instant wrongful restraint either to that
person or to some other person, and, by so putting in fear, induces the person so put in fear to
deliver up the thing extorted then and there.

The explanation attached to the section says that the offender is said to be present within the
meaning of this section if he is sufficiently near to put the other person in fear of instant death, or
of instant hurt, or of instant wrongful restraint.

Even though a robbery would always be either theft or extortion as shown by the definition, in
practice it may sometimes be quite difficult to identify as to which part is robbery by theft and

which one robbery by extortion. For instance, A enters into the house of В and pointing a
revolver at him asks him to surrender all the valuables. While В starts surrendering the valuables,
A himself starts picking up some of the other valuables.

5.1.4. Section 391: Dacoity
Section 391 defines “Dacoity”. Dacoity is a most heinous crime considered by the people all
over the world. Where robbery is committed by five or more persons, the offence committed is
dacoity.
When five or more persons conjointly commit or attempt to commit a robbery, or where the
whole number of persons conjointly committing or attempting to commit a robbery, and persons
present and aiding such commission or attempt, amount to five or more, every person so
committing, attempting or aiding is said to commit “dacoity”.

5.1.4.1. Ingredients of Section 391:
1. Where robbery is committed by five or more persons, the offence is dacoity.

2. Even if their attempt is failed, it is also considered as dacoity.

3. “Five or more persons”: It is the most essential ingredient of offence of dacoity. Minimum
number of accused five persons is necessary to constitute this offence.

4. “Conjointly commit or attempt to commit”: Another essential element of dacoity is that the
accused (five or more) must conjointly commit or attempt to commit robbery.

5.1.5. Section 403: Dishonest Misappropriation of property
Section 403 of the Indian Penal Code States:

“Whoever dishonestly misappropriates or converts to his own use any movable property, shall
be punished with imprisonment of either description for a term which may extend to two years,
or with fine, or with both.

Explanation 1:-
A dishonest misappropriation for a time only is a misappropriation within the meaning of this
section.

Explanation 2:-
A person who finds property not in the possession of any other person, and takes such property
for the purpose of protecting it for, or of restoring it to, the owner, does not take or
misappropriate it dishonestly, and is not guilty of an offence; but he is guilty of the offence
above defined, if he appropriates it to his own use, when he knows or has the means of
discovering the owner, or before he has used reasonable means to discover and give notice to the
owner and has kept the property for a reasonable time to enable the owner to claim it.

What are reasonable means or what is a reasonable time in such a case, is a question of fact.

It is not necessary that the finder should know who the owner of the property is, or that any
particular person is the owner of it; it is sufficient if, at the time of appropriating it, he does not
believe it to be his own property, or in good faith believes that the real owner cannot be found.

5.1.6. Section 405: Criminal breach of trust

This section defines the offence of criminal breach of trust. It says that whoever, being in any
manner entrusted either with property or with any dominion over property, either dishonestly
misappropriates or dishonestly converts to his own use that property, or either dishonestly uses
or dishonestly disposes of that property in violation of any direction of law which has prescribed
the mode in which such trust is to be discharged, or of any legal express or implied contract
which he has made touching the discharge of such trust, or wilfully suffers any other person so to
do, commits ‘criminal breach of trust.’

The section requires that the offender must be entrusted with either property or dominion over
property in any manner. He must then dishonestly misappropriate the same or dishonestly
convert the same to his own use, or he must dishonestly use or dishonestly dispose of that
property in violation of law which has prescribed the mode in which such trust is to be
discharged, or any legal express or implied contract which he has made touching the discharge of
such trust, or he wilfully suffers any other person so to do. This offence is also known by the
name ‘embezzlement’ even though that word has not been used in the Indian Penal Code.

5.1.6.1. Difference between criminal misappropriation of property and criminal breach of trust
In the offence of criminal misappropriation, the offender is already in possession of the property
in an innocent manner before he dishonestly misappropriates or converts the same to his own
use; Whereas, in criminal breach of trust, he is entrusted with property or dominion over
property in any manner before the dishonest misappropriation or conversion of the property or
before he dishonestly uses or disposes of that property in violation of any direction of law
prescribing the mode in which such trust is to be discharged, or of any legal contract, express or
implied, which he has made touching the discharge of such trust, or wilfully suffers any other
person so to do. The offence of criminal misappropriation of property can be committed only
with respect to movable property, while criminal breach of trust can be committed with respect
to both movable and immovable property.

5.1.7. Section 415: Cheating

5.1.7.1. Definition
Section 415 defines “Cheating”. It has given 9 illustrations giving the clear picture.

Whoever, by deceiving any person, fraudulently or dishonestly induces the person so deceived to
deliver any property, to any person, or to consent that any person shall retain any property, or
intentionally induces the person so deceived to do or omit to do anything which he would not do
or omit if he were not so deceived, and which act or omission causes or is likely to cause damage
or harm to that person in body, mind, reputation or property, is said to “cheat”.

Explanation:
A dishonest concealment of facts is a deception within the meaning of this Section.

5.1.7.2. Ingredients of Cheating
The ingredients of Section 415 are as follows:

a. The accused must have induced fraudulently or dishonestly a person.

b. The deceived should be induced to deliver any property to any person or to consent that any
person shall retain any property.

c. If the person deceived, must be intentionally induced by the wrong-doer to do or omit to do
anything which he would not do or omit if such deceived person was not so deceived.

d. The deceived should suffer any damage or harm in body, mind, reputation or property by the
deceitful act of the wrong doer.

e. A dishonest concealment of facts is also treated as a cheating.

§ Fraudulently or Dishonestly:
These words in the Section are most important. These words denote the elements of deception
and dishonest intention. A wilful misrepresentation of a fact with intention to defraud another
person is cheating.

When a person cheats another, the deceived person must have suffered or injured in body, mind,
reputation or property. Where no loss or damage was caused to the person deceived, the accused
cannot be punished for the offence of cheating.

§ Property:

Property may be of any kind- movable or immovable. The property need not necessarily belong
to the person deceived. A passport, an admission card to an examination, title deeds, salary of a
person, health certificate, etc., are deemed as property for the purpose of this Section and Section
420.

§ Mens Rea:
Mens Rea (guilty intention) is an essential element of the offence of cheating. The very purpose
and aim of the accused are to procure the property by means of deceiving the victim/
complainant. The accused induces the deceived with fraudulent and dishonest intention.

In Chinthamani vs. Dyaneshwar (1974 CrLJ 542 Bombay) case, the accused sold the property to
the complainant. In fact, they said property was already mortgaged to some other person. The
accused concealed the mortgage and registered it in favour of the complainant and received full
consideration. The High Court held that it was a clear cheating offence.

§ Cheating by Personation:
Section 416 lays down that a person is said to “Cheat by personation” if he cheats by pretending
to be some other person, or by knowingly substituting one person for another, or representing
that he or any other person is a person other than he or such other person really is. The offence is
committed whether the individual personated is a real or imaginary person.

5.1.8. Section 425: Mischief

5.1.8.1. Definition
Sec. 425 defines “Mischief.

Whoever, with intent to cause, or knowing that he is likely to cause, wrongful loss or damage to
the public or to any person, causes the destruction of any property or any such change in any
property or in the situation thereof as destroys or diminishes its value or utility, or affects it
injuriously, commits “mischief”.

Explanation-1:
It is not essential to the offence of mischief that the offender should intend to cause loss or
damage to the owner of the property injured or destroyed. It is sufficient if he intends to cause, or
knows that he is likely to cause, wrongful loss or damage to any person by injuring any property,
whether it belongs to that person or not.

Explanation-2:
Mischief may be committed by an act affecting property belonging to the person who commits
the act, or to that person and others jointly.

5.1.9. Section 441: Criminal Trespass

Trespass (Transgressio) ordinarily is a civil wrong for which the defendant can sue for damages.
Trespass signifies a passing over or beyond our right, i.e., a transgression or wrongful act.
According to Tomlin’s Law Dictionary, ‘trespass’ is any transgression of the law less than
treason, felony, or misprism of either.

A forcible entry on the land of another with strong hand and against the will of the owner
constitutes a trespass. The term ‘Criminal trespass’ has been defined in Black’s Law Dictionary
as “A person who enters on the property of another without any right, lawful authority or an
express or implied invitation or licence”. But, when trespass is committed with a criminal
intention, it is treated as an offence and is made punishable under the Indian Penal Code.

Section 441 of the Indian Penal Code states that:

“Whoever enters into or upon property in the possession of another with intent to commit an
offence or to intimidate, insult or annoy any person in possession of such property, or, having
lawfully entered into or upon such property, unlawfully remains there with intent thereby to
intimidate, insult or annoy any such person, or with intent to commit an offence, is said to
commit ‘criminal trespass’.”

The object behind making trespass a criminal wrong seems to be to keep the trespasser away
from the property of private persons and thereby, to enable them to enjoy their property without
any interruptions. Regarding the object of making criminal trespass an offence, the Draft Penal
Code (Note N.P. 168) provides that:

“We have given the name of trespass to every usurpation, however slight, of domination over
property. We do not propose to make trespass, as such an offence, except when it is committed in

order to commission of some offence injurious to some person interested in the property on
which the trespass is committed, or for the purpose of causing annoyance to such a person. Even
then we propose to visit it with light punishment, unless it be attended with aggravating
circumstances”.

The essence of the offence of criminal trespass lies in an unauthorized entry or an unlawfully
retention of the lawful entry with intention to commit an offence or to intimidate, insult or annoy
the person in possession of the property.

The essential ingredients of criminal trespass are:

1. Entry into or upon property in the possession of another;

2. If such entry is lawful, then unlawfully remaining upon such property;

3. Such entry or unlawful remaining must be with intent-

a) To commit an offence; or

b) To intimidate, insult or annoy the person in possession of the property.

5.1.10. Section 442: House-trespass
This section defines house-trespass. It says that whoever commits criminal trespass by either
entering into or remaining in any building, tent or vessel used as a human dwelling or any
building used either as a place for worship or as a place for the custody of property is said to
commit house trespass. The explanation attached to the section explains that to constitute this
offence the introduction of any part of the body of the person committing criminal trespass is
sufficient entering within the meaning of this section.

The section requires that criminal trespass must be committed either by entering into or
remaining in either- any building, tent or vessel which is used as a human dwelling, or any
building which is used as a place for worship, or as a place for custody of property. As soon as

any part of the criminal trespasser’s body is introduced, it is sufficient to constitute this offence,
says the explanation.

Whereas, previously it was held that going on to the roof of a building was not entering the
building, the Patna High Court holds a different view and says that this is criminal trespass as
well as house trespass. A school is a human dwelling. Even though some judgments maintain
that a courtyard is not a building, the better view seems to be that it should be so because
common sense says that it is part of a building and cannot be separated from it.

The fact that it does not have a ceiling over it and so is not a building does not appeal much,
because there may be a building whose ceiling may have collapsed. Similarly and also a roof
which has a ceiling over it should also be regarded as building as it is part of the same
construction. Entry by a police officer in a house at odd hours with a view to check whether a
person, supposed to remain in the house, is actually in or not has been held to be a house trespass
as the act is intended to annoy that person.

The accused was friendly with a woman who was the concubine of a man with whom she lived
in his house. The woman invited the accused to visit her when the man was not in the house. The
accused went there but the man returned. It was held that he had not committed house-trespass as
his act could not be termed criminal trespass in the absence of the requisite intention. Where the
accused entered unarmed into the house of another person, but subsequently pelted stones at him
as a result of which that person died, it was held that he had committed house-trespass also.

5.2. CHAPTER XX

5.2.1. Section 494: Marrying again during lifetime of husband or wife

Marrying again during the lifetime of husband or wife, that is to say, bigamy, has been made a
punishable offence under this section. The section says that whoever, having a husband or wife
living marries in any case in which such marriage is void by reason of its taking place during the
life of such husband or wife, shall be punished with simple or rigorous imprisonment for a term
extending up to seven years, and shall also be liable to fine.

The section contemplates that the offender’s husband or wife, as the case may be, must be living
and the offender must marry in any case in which such marriage is void because of the reason
that it has taken place during the life of such husband or wife, as the case may be.

There is an exception attached to the section which states that this section does not extend to any
person whose marriage with such husband or wife has been declared void by a court of
competent jurisdiction. It also does not extend to any person who contracts a marriage during the
life of a former husband or wife, if at the time of the subsequent marriage such husband or wife
shall have been continually absent from such person for the space of seven years, and shall not
have been heard of by such person as being alive within those seven years, provided the person
contracting such subsequent marriage shall, before such marriage takes place, inform the person
with whom such marriage is contracted of the real state of facts so far as the same are known to
him or her.

In other words, this section is inapplicable to two cases. Firstly, it does not apply to a person
whose marriage with such husband or wife, as the case may be, has been declared void by a
competent court. Secondly, it does not apply to a person who marries when the husband or the
wife, as the case may be, is alive but has been continually absent from such person for at least
seven years and has not been heard of by him as being alive during that time.

This section does not apply to Mohammedan men. But, it does apply to Mohammedan women.
By virtue of section 17, Hindu Marriage Act, 1955, it does apply to all Hindus whose marriage
has been solemnised after the coming into existence of the Hindu Marriage Act, 1955. It is
applicable to Christians by virtue of Act XV of 1872, to Parsis by virtue of Act III of 1936, and
to all whose marriages have been solemnised under the Special Marriage Act, 1954.

5.2.2. Section 498: Enticing or taking away or detaining with criminal intent a married
woman

Enticing or taking away or detaining a married woman with a criminal intention has been
punished under this section. The section states that whoever either takes or entices away any

woman who is and whom he knows to be or has reason to believe to be the wife of any other
man, from either that man, or from any person who has the care of such woman on behalf of that
man, with the intention that she may have illicit intercourse with any person, or conceals or
detains with that intention any such woman, shall be punished with simple or rigorous
imprisonment for a term extending up to two years, or with fine, or with both.

The section contemplates that the offender must take or entice away a woman. Such woman must
be the wife of another man. The offender must either know or have reason to believe that the
woman is the wife of another man. The taking or enticement of the woman must be from the man
to whom she is married or from any other person who has the care of that woman on behalf of
her husband. The intention of the offender must be that the woman may have sexual intercourse
with any person. Or, the offender must conceal or detain with such intention any such woman.

As stated under the comments of the preceding section, an offence punishable under sections 493
to 498 can be taken cognizance by a court, under section 198, Code of Criminal Procedure, 1973
only upon a complaint made by a person aggrieved by that offence, and such person generally is
the husband of the woman, and in his absence anyone else who has the care of the woman on his
behalf and with the leave of the court.

Where marriage by custom with a widow is valid, taking away or enticement of such a woman is
punishable within this section. But, the woman victim must be the wife of another man, and if
such marriage is voidable, this section is not attracted. Where the complainant’s father used to
ill-treat the complainant’s wife as a result of which she left his house one day and went to her
first cousin, living next door, and refused to return when the complainant went there to fetch her,
it was held that this section was not attracted at all as the essential elements of this offence were
not present.

5.3. CHAPTER XXA

5.3.1. Section 498A: Husband or relative of husband of a woman subjecting her to cruelty-

This section punishes a husband of a woman or any relative of the husband subjecting her to
cruelty. It says that whoever, being either the husband of a woman or the relative of the husband
of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term
extending up to three years and shall also be liable to fine.

The section contemplates that the offender must be either the husband of a woman or a relative
of his. The offender must subject such woman to cruelty. The explanation attached to this section
defines cruelty by saying that for the purposes of this section cruelty means (a) any wilful
conduct which is of such a nature as is likely to drive the woman either to commit suicide or to
cause grave injury or danger to life, limb or physical health or mental health of the woman, or (b)
harassment of the woman where such harassment is with a view to either coercing her or any
person related to her either to meet any unlawful demand for any property or valuable security or
is on account of failure by her or any person related to her to meet such demand. In other words,
the concept of cruelty under this section has a two-fold dimension; first, it is a wilful conduct of
such a nature as to drive a woman to such a desperate situation as to commit suicide or grave
injury or danger to life, limb or physical or mental health of the woman, and secondly, it is a
harassment of the woman with a view to coerce either her or any person related to her to meet
unlawful demand for any property or valuable security or is on account of she or her relative
having failed to meet such demand.

A new section, section 113-A, relating to presumption as to abetment of suicide by a married
woman, has been added in the Indian Evidence Act, 1872. The section states that when the
question is whether the commission of suicide by a woman had been abetted by her husband or
any relative of her husband and it is shown that she had committed suicide within a period of
seven years from the date of her marriage and that her husband or such relative of her husband
had subjected her to cruelty, the court may presume, having regard to all the other circumstances
of the case, that such suicide had been abetted by he husband or by such relative of her husband.

The explanation attached to this section states that for the purposes of this section ‘cruelty’ shall
have the same meaning as in section 498-A of the Indian Penal Code.

Where death of a newly married woman by burning happened but the circumstances could not
establish murder or abetment of suicide, section 498-A was held to be attracted in view of the
fact that essential elements of this offence were established beyond doubt.

Where a married woman was asked by her husband and other relatives of his to give them her
jewellery and valuables so that the marriage of her husband’s sister could take place, but the
woman refused to do so and the matter was not further pursued, it was held that this section did
not apply. Drinking habits of the husband and his coming home late at night have not been held
to amount to cruelty.
But, where the same is accompanied with beating and demanding dowry, section 498-A is
attracted. Vexatious litigation on the part of the husband because of his vindictive attitude
towards his wife coupled with her humiliation and torture by reason of execution of search
warrant and seizure of personal property, have been held to be cruelty on the part of the husband.

Where the wife was being harassed for yet outstanding items of dowry, and the demands were
met and the matter was settled thereafter, and there was no evidence of further demand for dowry
or torture, but the wife committed suicide within one and a half months of the settlement of the
matter, the conviction of the accused under this section deserved to be set aside.

A wife was harassed, tortured, assaulted and was never loved, appreciated or allowed to be
happy, and there was continuous and incessant harassment driving her to commit suicide. In her
dying declaration she had absolved her husband and his other relatives. The incident had
happened when she was cooking on stove. This along with other evidence proved the case.

It was held that even though section 306 did not apply, section 498-A was definitely attracted.
Where the husband accompanied his wife to the parental home of his wife and asked for not only
the unpaid amount of the dowry but also put additional demands, the section was held to apply.
Mere demand of dowry is an offence under this section by virtue of part (b) of the explanation,
but for the purposes of sections 2 (1) and 4 of the Dowry Prohibition Act, 1961 it is necessary
that dowry must have been either given or agreed to be given.

5.4. CHAPTER XXI

5.4.1. Section 499: Defamation

This section defines defamation. It also provides four explanations and as many as ten exceptions
wherein one is not guilty of this offence. In addition to these, the fourth and sixth exceptions
carry an explanation each, and fifteen illustrations in all have been provided under the section.

All these factors have immensely contributed to the volume of the section. The section says that
whoever, either by spoken words or by words that are intended to be read, or by signs or by
visible representations, either makes or publishes any imputation which concerns any person,
either with the intention to harm the reputation of such person or with the knowledge or having
reason to believe that such imputation will harm the reputation of such person, is said to defame
that person, except in the cases which have been provided as exceptions under this section.

The section contemplates that the offence of defamation can be caused only by spoken words or
words that are intended to be read or by signs or by visible representations. In the absence of
these, a charge of defamation fails. By any of these four ways stated above, the offender must
either make or publish any imputation which concerns any person.

This must be done either with the intention of harming the reputation of such person or with the
knowledge or having reason to believe that such imputation will harm the reputation of such
person. Whether the reputation of such person is really harmed or not is of no consequence as far
as the liability of the offender is concerned. Under the ten exceptions provided in this section, the
accused is not guilty of this crime.

Four explanations have been attached to the main part of the section. According to the first,
defamation of a dead person is also possible if the imputation against such person is such as
would harm the reputation of that person if he were living and the intention of the offender is to
be hurtful to the feelings of his family or other near relatives.

The second explanation says that imputation concerning either a company or an association or
collection of persons as such may amount to defamation. The third explanation states that
imputation in the form of an alternative or ironical expressions may amount to defamation.

According to the fourth explanation, a person’s reputation is not harmed by any imputation
unless that imputation, whether directly or indirectly, lowers either the moral or intellectual
character of that person, or his character in respect of his caste or his calling, or his credit, or
causes it to be believed that the body of that person is either in a loathsome state, or in such a
state as is considered disgraceful.

As many as ten exceptions have been provided under this section, wherein guilt of the accused is
negatived. According to the first, imputing anything true concerning a person is not defamation if
it is made or published for the public good, and what is public good is a question of fact, which
in effect means that facts and circumstances of each case would decide whether it is for public
good or not.

The second exception states that expression of any opinion whatever with respect to the conduct
of a public servant in the discharge of his public functions, or with respect to his character, so far
as the same appears in his conduct and no further is not defamation provided it has been done in
good faith, an expression defined under section 52 of the Code.

According to the third exception, which is worded like the second exception, an expression of
any opinion whatever with respect to the conduct of any person, not restricted to that of a public
servant as under the second exception, touching any public question and with respect to his
character so far as the same appears in his conduct and no further, is not defamation provided it
has been done in good faith.

The fourth exception states that publishing a substantially true report of either the proceedings of
a court of justice or of the result of any such proceedings is not defamation. The explanation
attached to this exception, explains that a justice of the peace or other officer who holds an
enquiry in an open court before a trial is to begin in a court of justice, is a court under this
section.

Thus, the meaning of the expression ‘Court of Justice’ used in this exception has been widened.
The fifth exception says that expression of any opinion whatever with respect to the merits of
any civil or criminal case decided by a court of justice, or with respect to the conduct of any
person either as a party, witness or agent in any such case, or with respect to the character of

such person as far as the same appears in that conduct and no further, is not defamation provided
it has been done in good faith.

According to the sixth exception, expression of any opinion with respect to the merits of any
performance submitted by its author to the judgment of the public, or with respect to the
character of the author so far as the same appears in such performance and no further, is not
defamation provided it has been done in goods faith.

The explanation attached to this exception says that an author may submit a performance to the
judgment of the public either expressly or by acts on his part which imply such submission. The
seventh exception states that if a person has any authority over another, such authority having
been conferred either by law or arising out of a lawful contract made with that other person, to
pass any censure on the conduct of that other person in matters to which such lawful authority
relates, is not defamation provided it has been done in good faith.

According to the eighth exception, to prefer an accusation against any person to any of those
persons who have lawful authority over that person with respect to the subject-matter of
accusation is not defamation provided the same is done in good faith. The ninth exception says
that to make an imputation on the character of another person in good faith for the protection of
the interest either of the maker of the imputation, or any other person, or for public good is not
defamation.

According to the tenth exception, which is the last exception, to convey a caution in good faith to
one person against another in good faith is not defamation provided the intention behind such
caution is either the good of the person to whom it is conveyed, the good of some other person in
whom that person is interested, or for the public good.

Composing, dictating, writing or contributing in any other way to the making of a defamation
comes within the word ‘makes’ under this section, and thus, one who does any of these is a
maker of it. The maker is the originator of the imputation.

The word ‘publishes’ means brings it to the knowledge of at least one more person than the
person defamed. It means communicating the matter to another person. Communicating

defamatory matter to the person defamed is not publishing the same because reputation is what
others think about a person. A mechanic, compositor or press has been held not guilty of making
or publishing the matter.

5.5. CHAPTER XXII

5.5.1. Section 503: Criminal intimidation

This section defines the offence of criminal intimidation. It says that whoever threatens another
with any injury either to his person, reputation or property, or to the person or reputation of
anyone in whom that person is interested, with the intention of causing alarm to that person, or to
cause that person to do any such act which he is not legally bound to do, or to omit to do any act
which that other person is entitled to do, as the means of avoiding the execution of such threat,
commits criminal intimidation. There is an explanation attached to the section according to
which a threat to injure the reputation of any person who is dead in whom the person threatened
is interested, is within this section.

The section contemplates that the offender must threaten another with any injury to his person,
reputation or property, or to the person or reputation, and not to property, of any one in whom
that person is interested. The intention of the offender must be to cause alarm to the person
threatened, or to cause the person threatened either to do any act which he is not legally bound to
do, or to omit to do any act which he is legally entitled to do, as the means of avoiding the
execution of such threat.

The explanation that a threat to injure the reputation of any deceased person in whom the person
threatened is interested within this section, is similar to the provisions in the first explanation of
section 499 dealing with defamation. The threat under this section is not dependent on the nerves
of the victim because the section nowhere says so.

It may not necessarily be direct; it is sufficient if it reaches the victim through third parties. A
mere advice to another not to deal with a person cannot constitute threatening because the

threatening must be with any injury to the person, reputation or property of another or the person
or reputation of anyone in whom the victim is interested.

5.6. CHAPTER XXIII

5.6.1. Section 511: Punishment for attempting to commit offences punishable with
imprisonment for life or other imprisonment

This section provides for punishment for attempting to commit offences punishable with
imprisonment for life or other imprisonment. It says that whoever attempts to commit an offence
punishable by the Code with imprisonment for life or imprisonment, or to cause such an offence
to be committed, and in such attempt does any act towards the commission of the offence, shall,
where the Code has not made any express provision to punish such attempt, be punished with
imprisonment of any description provided for the offence, for a term extending up to one-half of
the imprisonment for life or, as the case may be, one-half of the longest term of imprisonment
provided for that offence, or with such fine as is provided for the offence, or with both.

The section contemplates that the offender must attempt to commit such an offence which is
punishable by the Code either with imprisonment for life or with imprisonment. This means that
the section is not applicable to cases of attempt of any such offence which is not punishable with
imprisonment, such as, for instance, an offence which is punishable with fine only. Or, the
offender must cause such an offence to be committed. In such attempt he must do any act
towards the commission of the offence. One-half of imprisonment for life which the section
provides as one of the punishments would , by virtue of section 57, be one-half of imprisonment
for twenty years, that is to say, ten years.

5.6.1.1. Abduction
Where a married woman sleeping on the roof of her home was asked by the accused persons to
accompany them, and on her refusing to do so was physically lifted to be taken away, but on her
raising an alarm was dropped there, the accused making good their escape, it was held that they
had committed the offence of attempt to abduct the woman and thus were guilty under section
366 read with section 511.

5.6.1.2. Kidnapping
Where in a town S, the second accused directed the first accused to take a minor girl away to
another town T in the Nizam territory to be dedicated to the goddess there and the first accused
did the same with the intent or knowledge that she would be forced into prostitution, it was held
that while both the accused were at the place S, their intention did not constitute any offence and
their going with the girl to the place T did not by itself constitute abetment because beyond the
mere intention and indirect preparation, there was no distinct offence by way of instigating the
act committed out of British India, and mere intention not followed by any act could not amount
to an offence while an indirect preparation not amounting to an act which amounted to a
commencement of an offence did not constitute either a principal offence or an attempt or
abetment of the same.

5.6.1.3. Miscarriage
Where the accused with the intention of causing miscarriage of a pregnant woman administered a
harmless substance to her or administered a substance which was not proved capable of causing
miscarriage at all or in the quantity administered, he could not be convicted of attempt to cause
miscarriage as his act was not an act ‘done towards the commission of the offence’ under section
511 of the Code.

5.6.1.4. House-breaking
Where the accused after having reached the roof of a house started to go down a ladder into the
courtyard of the house when he suddenly changed his mind, retraced his steps and jumped out
from the back of the roof, it was held that he could not be said to have entered into the house but
was guilty of attempting to cause house-breaking.

5.6.1.5. House-trespass
Where a person went at night with another person on the roof of a house taking a stick and an
instrument used for house-breaking along with, they would be guilty of house-trespass and not of
attempt to commit house-breaking by night because mere passing on the roof of a house could
not be termed as ‘an act done towards the commission of the offence’ under section 511, and
further while being on the roof they could yet make up their mind to recede, and thus their act
was still in the stage of preparation only.

5.6.1.6. Theft
Where the accused pushed his hand into the pocket of the complainant with a view to remove his
purse but the complainant held the purse from outside his pocket by one hand while holding the
accused’s wrist by the other, it was held that the accused had attempted to commit theft and
would consequently be punishable under section 379 read with section 511.

5.6.1.7. Smuggling:
The accused persons were moving towards the international border carrying a tin box in their
hands. But, when they saw the police build up sealing all routes they immediately turned around
and ran away. They were chased into the house of one of the accused persons where they were
found hiding the tin box in a heap of wheat.

5.6.1.8. Cheating:
Taking the thumb impression of someone on a blank paper by itself may not amount to attempt
to cheat as it may fall only on the preparatory stage. But, where the same is done with the
requisite guilty mind as given in section 415 of the Code, it would then amount to attempt to
cheat. The Supreme Court has held that an offender would be guilty of attempting to cheat even
though the intended victim does not believe in the representations made to him and is not misled
by him but only feigns belief in order to trap the offender.

5.6.1.9. Debtor sending less or no money under registered insured post:
The courts have given different decisions with respect to the liability of a debtor who allegedly
has sent to the creditor less or no money by registered insured cover.

5.6.1.10. Purchasing stamped paper in another’s name:
Even though the Allahabad High Court had first ruled that purchasing a stamped paper in the
name of the person in whose name it was intended to forge does not constitute an attempt,
subsequently the same High Court on similar facts and situations gave a contrary decision. A
abetted B to personate C and purchase a stamp paper in the name of C. As a result, the stamp
vendor endorsed the name of C on it as the purchaser. Vs intention was to use such endorsement
against C in a judicial proceeding. It was held that B had committed the offence of fabricating

false evidence and A was guilty of abetting the same. In another case, A went lo a stamp vendor
with C and purchased a stamped paper from him in the name of B. A and C then went to a
petition writer and asked him to write for them a bond for fifty rupees payable by C. The petition
writer began to write and then became suspicious and took them to a police station. It was held
that C was guilty of attempting to commit the offence of forgery of valuable security etc. under
section 467 and A of abetment of such attempt. In both these latter mentioned cases, the
Ramsarun’s case decided earlier was distinguished.

5.6.1.11. Rape:
Where the accused caught hold of a girl, dragged her by force by the side of I he bushes, threw
her down on the ground, removed her undergarments, got over her and attempted to penetrate,
but before he could succeed the girl started bleeding, it was held that the accused was guilty of
attempted rape.

5.6.1.12. Robbery or dacoity:
Where persons from whom money was demanded were not injured though fired at, nor was any
money taken from them, it was held that the accused were guilty under section 397 read with
section 511 and not under section 397 simpliciter.

5.6.1.13. Honest belief:
Where the accused made certain alterations in his affidavit under the honest belief that this was
necessary for clearance by the customs, it was held by the Supreme Court that his conviction
under section 420 read with section 511 deserved to be set aside.

5.6.1.14. An offence punishable by this Code:
The use of the words ‘an offence punishable by this Code’ in section 511 shows that the section
is limited to offences punishable by this Code only, and does not apply to acts which have been
made offences under some special or local laws. Naturally, this section is not attracted if an
offence under some special or local law is attempted.

5.6.1.15. Impossible attempts:
An attempt has sometimes been divided into possible and impossible attempts. A possible
attempt is that where if the attempt is successful, the main offence would result, like where A

fires at B with the intention of killing him. Here if the bullet hits B, there is every possibility that
he would die. Such attempts have already been discussed above. An impossible attempt, on the
other hand, is such an attempt where an attempt would never bring about the main crime
whatever the efforts be on the part of the accused, like where A fires at a statue believing it to be
his enemy, or A thrusts his hand in B’s pocket with intention to steal but there is nothing in B’s
pocket