# B.N.S. 2023 Complete Criminal Law Course - IPC to B.N.S. Full Lecture (LLB, Judiciary, CLAT PG) **Channel:** Law Easy **Source:** https://www.youtube.com/watch?v=lUbiVwltWew **Transcript page:** https://www.withtranscript.ai/video/lUbiVwltWew ## Chapters - 0:00 — Course Introduction and Statutory Context - 4:59 — Meaning of Crime and Legal Principle - 8:16 — Actus Reus, Mens Rea, and Concurrence - 15:09 — Strict Liability and Ignorance - 18:10 — Joint Liability and Common Intention - 24:23 — Common Object and Unlawful Assembly - 30:04 — Introduction to Inchoate Offenses - 33:05 — Attempt: Tests and Leading Cases - 41:47 — Impossible Attempts and Special Limits - 45:09 — Abetment: Instigation, Aid, and Liability - 50:27 — Criminal Conspiracy and Proof - 56:16 — General Exceptions and Their Burden - 58:34 — Excuses, Justifications, and Mistake - 1:03:52 — Accident, Necessity, and Trifles - 1:07:37 — Infancy and Legal Insanity - 1:12:17 — Medical and Legal Insanity - 1:16:50 — Intoxication and Criminal Responsibility - 1:20:20 — Consent, Compulsion, and Necessity - 1:25:40 — Private Defense of Body and Property - 1:35:25 — Transition to Bodily Offenses - 1:36:21 — Culpable Homicide Defined - 1:39:04 — Murder and the Culpable Homicide Divide - 1:46:43 — Murder Tests and Transferred Intention - 1:52:54 — Exceptions to Murder and Punishment - 2:01:02 — Kidnapping from India and Guardianship - 2:09:00 — Abduction and Its Legal Distinction - 2:11:42 — Sexual Offenses and Consent - 2:24:58 — Property Offenses and Core Vocabulary - 2:30:02 — Theft, Possession, and Snatching - 2:33:02 — Extortion and Its Essential Elements - 2:35:54 — Robbery as Aggravated Theft - 2:39:29 — Dacoity and Group Liability - 2:41:52 — Cheating and Dishonest Intention - 2:50:28 — Course Conclusion and Legal Synthesis ## Transcript **[0:00]:** Criminal law under BNS 2023, a complete conceptual course. Welcome everyone. In this lecture, we are going to study criminal law from its foundations. We will begin with a simple question. Why does the law punish one person and let another person go free even when both have done something that looks the same from the outside? Think of two people. The first person pushes a stranger off a crowded platform because he wants that stranger to die. The second person slips on a wet floor, falls against a stranger, and the stranger also falls and dies. In both cases, one human being has caused the death of another human being. Yet, no sensible legal system would treat these two people in the same way. The first person is a murderer. The second person has suffered a terrible accident. So, criminal law is not merely a list of prohibited acts and their punishments. **[0:53]:** To decide whether a person is criminally liable, we must look at what the person did and what was going on in the person's mind. We must also look at the surrounding circumstances, the defenses that the law allows, the part played by other people, and the precise ingredients of the particular offense. That is exactly the journey we will make in this course. We will first understand what a crime is and what the basic building blocks of criminal liability are. Then, we will see how the law deals with crimes that are not yet complete. After that, we will study the situations in which the law excuses or justifies conduct that would otherwise be an offense. Finally, we will apply all these principles to two very important families of offenses, namely offenses against the human body and offenses against property. Before we begin, let us understand the statute that we are studying. **[1:45]:** For more than 160 years, the substantive criminal law of India was contained in the Indian Penal Code of 1860, which we will call the IPC. On 1 July 2024, the IPC was by the BNS 2023. At the same time, the old code of criminal procedure was replaced by the BNSS 2023, and the Indian Evidence Act was replaced by the BSA 2023. In this course, our subject is substantive criminal law. That means we study what an offense is, and when a person is liable for it. We will mention procedure and evidence only where it helps us understand an offense. Now, here is very important for every student. BNS 2023 did not throw away the structure of the IPC. Most of the basic definitions, such as culpable homicide, murder, theft, extortion, robbery, cheating, abetment, and the general exceptions have been carried into BNS 2023 with the same or almost the same words. **[2:47]:** What has changed in many places is the section number. And in some places, the law itself. For example, the general exceptions now begin at section 14. Murder is now in section 101, and theft is now in section 303. The new law also adds some new ideas. These include murder by a group of five or more persons on grounds like race, caste, community, language, or personal belief. They also include the offense of snatching, community service as a punishment for some minor offenses, and a separate offense of sexual intercourse obtained by deceitful means. Because the words are largely the same, the great judgments decided under the IPC continue to guide us. When the Supreme Court explained the meaning of a word in the IPC, and that same word appears in BNS 2023, the explanation remains valuable. But, we must be careful. Wherever BNS 2023 has changed the rule, we will learn the present rule, and we will use the old judgment only for the principle that still survives. **[3:50]:** Let me also tell you how to read a section of BNS 2023 because this skill will help you throughout the course. Most offenses are built in the same way. First comes the definition which states the ingredients of the offense. Then there may be explanations which clarify the meaning of particular words. Then come illustrations, short examples written into the statute itself using persons called A, Z, and so on. Illustrations cannot override the words of the section, but courts treat them as valuable guides to its meaning. There may also be exceptions and provisos which cut down the reach of the definition. Finally comes the punishment, often in a separate subsection. When you study any offense, break it into its ingredients, and for each ingredient ask what exactly the prosecution must prove. One more word before we start. In this lecture, I will often use simple examples with persons called A, B, and C. **[4:47]:** These examples are not decorations. Each example is designed to show one legal ingredient being present or absent. If you understand why A is liable in one example and not liable in the next, you have understood the law. **[4:59]:** So, let us begin with the most basic question of all. What is a crime? Unit one, concept of crime and criminal liability, the meaning of crime. Many great jurists have tried to define crime, and none of them has produced a definition that fits every case. That itself teaches us something. Crime is not a natural object like a stone or a tree. An act becomes a crime because the community, through its law, decides that the act is so harmful to society that the state itself must respond with punishment. Murder, theft, and cheating are crimes in almost every society, but some acts have been crimes in one period and not in another. So, the most reliable way to understand crime is this. A crime is a wrong that the law treats as a wrong against the whole community, and for which the law provides punishment through proceedings brought in the name of the state. **[5:50]:** Now notice how a crime differs from a civil wrong. Suppose A borrows money from B and refuses to repay it. That is a civil wrong. B must go to a civil court and the aim of the case is to put B back in the position he should have been in, usually by making A pay. The state does not prosecute A. But suppose A takes B's money from his pocket with a dishonest intention. Now the state steps in. The police investigate. The prosecution is conducted in the name of the state and the aim is to punish A. The same act can sometimes be both. If A deceives B and takes his money, B may sue A for the money and the state may also prosecute A for cheating. The civil case looks at the loss of the victim. The criminal case looks at the guilt of the offender and the harm to society. **[6:36]:** Students often ask about the difference between a crime and an offense. The word crime is the broader idea. It describes a wrong which society condemns and the law punishes. The word offense is the precise legal word. Section 2, clause 24 of BNS 2023 says that offense means a thing made punishable by the Sanhita and in certain chapters and sections the word also covers things punishable under special or local laws. So in a court we do not ask whether something is morally a crime. We ask whether a law in force makes it a punishable offense and whether every ingredient of that offense is proved. This leads us to a principle that sits at the very base of criminal law. There can be no crime and no punishment without a law. In Latin, this is expressed as nullum crimen sine lege, nulla poena sine lege. It simply means that a person can be punished only for an act that the law already declared to be an offense and only with the punishment that the law already provided. **[7:36]:** Our constitution protects this idea in article 20, clause 1. No person can be convicted except for violating law in force at the time of the act and no person can be given a penalty greater than the one in force at that time. Article 20 also protects a person from being prosecuted and punished twice for the same offense and from being compelled to be a witness against himself. Article 21 adds that no person can be deprived of life or personal liberty except according to procedure established by law which must be fair, just and reasonable. So criminal law is not just a matter of statute. It works inside a constitutional frame. **[8:16]:** The elements of criminal liability, when we study any offense, we can break it into parts. Traditionally writers speak of four elements. There must be a human being who does the act. There must be a guilty mind. There must be a guilty act or omission and there must be an injury meaning harm caused to a person, to society or to property. The two elements that we will study most closely are the guilty act which lawyers call actus reus and the guilty mind which lawyers call mens rea. Actus reus refers to the external physical side of the offense. It includes the conduct of the accused, the circumstances in which the conduct takes place and very often the consequence that follows. Take theft. The conduct is moving the property. The circumstances are that the property is movable, that it is in someone else's possession and that the person in possession has not consented. **[9:08]:** In murder, the consequence is the death of a human being. If any one of these external parts is missing, the actus reus of that offense missing. An act must be a voluntary act. If B grabs A's hand and forces it to strike C, the movement of A's hand is not A's act at all. It is B's act. A has done nothing for which the law can blame him. Similarly, a movement made in a genuine fit or seizure is not a willed act. Now the law punishes not only acts but also some omissions. Section 3, subsection 4 of BNS 2023 tells us that words referring to acts also extend to illegal omissions. And section 2, clause 15 explains that a person is legally bound to do whatever it is illegal in him to omit. So, an omission becomes criminal when the law imposes a duty to act. **[9:55]:** A mother who deliberately refuses to feed her infant can be liable for the result. So, can a jailer who deliberately refuses food to a prisoner in his charge, or a railway gatekeeper who deliberately keeps the gate open when a train is coming. But, a stranger who walks past a drowning person is generally not liable under criminal law, however morally wrong his conduct may be, because the law does not impose a general duty on everyone to rescue everyone. BNS 2023 even gives an example in section 3, subsection 7. A intentionally causes Z's death partly by illegally omitting to give Z food and partly by beating Z. A has committed murder. An act and an omission can together make up one offense. The guilty mind. Let us now turn to mens rea. Mens rea refers to the guilty mental element required for an offense. In simple terms, criminal law often asks not only what the accused did, but also what was happening in the accused person's mind when the act was done. **[10:55]:** The classic statement of this idea is the Latin maxim actus non facit reum nisi mens sit rea. It means that an act does not make a person guilty unless the mind is also guilty. Let us understand this with a simple example. A is driving carefully at a proper speed on the correct side of the road. A child suddenly runs out from behind a parked bus, and before any human being could react, the child is hit and dies. There is an act, and there is a death, but there is no guilty mind. A did not intend harm, did not know harm was likely, and was not careless. So, A should not be punished. Now, change the facts. A sees his enemy B crossing the road and deliberately drives into him and kills him. The physical act is almost the same, but now there is a guilty mind and A is a murderer. **[11:41]:** Mens rea is not a single mental state. The law uses different mental states for different offenses. The highest is intention, which means that the person acts in order to bring about a particular result. Next comes knowledge, which means awareness that a particular consequence is certain or likely. Below that comes rashness, which is running a risk with awareness of it, and negligence, which is failing to take the care that a reasonable person would take. BNS 2023 builds these mental states into the definitions of offenses through words like intentionally, knowingly, voluntarily, dishonestly, fraudulently, and reason to believe. Several of these words are defined in section two. For example, a person acts dishonestly when he intends to cause wrongful gain to one person's or wrongful loss to another. So, the Sanhita does not state mens rea in one general section. Instead, most offenses tell us which mental state is required. **[12:38]:** Students must also understand the difference between intention and more. Intention is the immediate aim of the act. Motive is the deeper reason behind it. Suppose A steals medicine from a shop because his child is dying and he has no money. His motive is good, but his intention is to take the medicine dishonestly and that is enough for theft. A good motive does not erase a guilty intention, although it may matter when the court decides the sentence. In the same way, a bad motive cannot create an offense where the required intention is absent. Concurrence of act and mind. There is one more requirement that students often forget. The guilty act and the guilty mind must exist together. It is not enough that the accused had a guilty mind at one time and did the act at another time. The mental element must accompany the act that causes the prohibited result. **[13:30]:** Suppose A plans to kill B on Monday, but on Tuesday he changes his mind completely. On Wednesday, while driving with full care, A accidentally hits B who dies. A had a guilty mind on Monday and there was a death on Wednesday. But on Wednesday, when the fatal act happened, there was no guilty mind. A is not guilty of murder. A famous decision on this point is Palani Goundan versus Emperor, decided by a full bench of the Madras High Court in 1919. The accused struck his wife on the head with a plowshare and she fell senseless. Believing that she was dead and wanting to make it look as if she had committed suicide, he hanged her from a beam with a rope. The medical evidence showed that the blow had not killed her. She actually died because of the hanging. Was he guilty of murder? The High Court said no. **[14:18]:** When he struck the blow, he intended only to cause grievous hurt, not death. When he hanged her, he did cause her the death. But at that moment, he believed that he was dealing with a dead body. In the court's view, a man who believes he is handling a corpse does not have the intention required for culpable homicide. So, the act that caused death was not accompanied by the guilty mind required for homicide and the blow, which was meant only to injure, did not cause death. He was convicted only of causing grievous hurt. This decision has been much debated. Courts have since taken a different view where the accused intended to kill from the very beginning, treating the attack and the disposal of the supposed body as one continuous transaction. But the basic lesson remains. The guilty mind must accompany the act that causes the prohibited result. **[15:09]:** When mens rea is not required. We said that a guilty mind is normally required, but there are offenses in which the law does not ask about the mind at all or asks about it only partly. These are called offenses of strict liability. They are usually created by special statutes dealing with public welfare such as food adulteration, weights and measures, pollution, customs, foreign exchange, and traffic rules. The reason is practical. These laws protect the public at large. The harm can be widespread. And if the prosecution had to prove a guilty mind in every case, the law could become almost impossible to enforce. But courts do not lightly assume that the legislature wanted to punish people who had no guilty mind. The starting point is a presumption that mens rea is required. That presumption can be displaced only if the statute excludes mens rea expressly or by necessary implication from its words, its subject matter, and its object. **[16:05]:** The leading case is State of Maharashtra versus Mayer Hans George, decided by the Supreme Court in 1964. The accused, a German national, was flying from Zurich to Manila. The plane stopped at Bombay Airport, and he remained on board as a transit passenger. Customs officers searched him and found 34 bars of gold hidden in a specially made jacket. Under the foreign exchange law, gold could not be brought into India without the permission of the Reserve Bank of India. Earlier, there was a general permission for gold passing through India in transit. But a few days before his journey, the Reserve Bank withdrew that permission unless the gold was declared in the aircraft's manifest. The new notification had been published in the official gazette, but the accused did not know about it. He argued that he could not be guilty because he had no guilty mind. The Supreme Court, by a majority of two to one, rejected this argument and restored his conviction. **[17:05]:** The majority accepted that mens rea is ordinarily presumed even in statutory offenses, and that absolute liability is not to be lightly presumed. But looking at the language of the act and its object of protecting the country's foreign exchange and preventing smuggling, the majority held that the requirement of a guilty mind had been excluded. The conscious act of bringing the gold into India was enough. Justice Subba Rao dissented. In his view, the presumption of mens rea had not been displaced and a person should not be punished for breaking a rule that he had no means of knowing. So, the first lesson of the case is this. Mens rea is presumed, but it can be excluded by the words and the object of a statute. The majority drew a second lesson from that case. Ignorance of the law does not excuse. In Latin, ignorantia juris non excusat. **[17:56]:** A person cannot escape liability by saying that he did not know the law because the law, once validly made and published, is taken to be known to everyone. We will meet this principle again when we study mistake of law in the general exceptions. **[18:10]:** From individual liability to joint liability. So far, we have looked at one person, one act, and one mind. But, crimes are often committed by groups. Several persons may plan a robbery together. One may break the door, another may keep watch, and the third may actually take the money. If the law could punish each person only for the physical act done by his own hands, the person who kept watch would escape even though the robbery could not have happened without him. Criminal law solves this problem through the ideas of co-perpetration and constructive liability. Co-perpetration means that two or more persons are together the principal offenders because each of them takes part in committing the offense. Section 3, subsection 8 of BNS 2023, gives one form of this. When an offense is committed by several acts, whoever intentionally cooperates in the commission of that offense by doing any one of those acts commits that offense. **[19:08]:** Its illustration is simple. A and B agree to kill Z by giving him small doses of poison at different times. Each gives the poison and Z dies from the combined effect. Both are guilty of murder, although neither alone gave a fatal dose. Constructive liability goes one step further. It means that a person is held liable for an act physically done by someone else because of the person's connection with that act through a shared intention or a shared object. The two main provisions are section 3 subsection 5 of BNS 2023 dealing with common intention and section 190 dealing with the common object of an unlawful assembly. Common intention. Section 3 subsection 5 of BNS 2020 deals with a criminal act done by several persons in furtherance of the common intention of all. It says that each of such persons is liable for that act in the same manner as if it were done by him alone. **[20:04]:** These are the same words as the old section 34 of the IPC and so the entire body of case law on section 34 still guides us. We can identify three requirements. First, there must be a criminal act done by several persons. Second, there must be a common intention shared by all of them. Third, the criminal act must be done in furtherance of that common intention, which means that each person whom we seek to hold liable must have participated in some way in the criminal act. Let us take an example. A, B, and C agree to beat D to death. A holds D's arms, B keeps watch at the door, and C strikes the fatal blow. All three are liable for murder as if each had struck the blow because the death was caused in furtherance of the common intention of all three and each took part in the act. **[20:51]:** The meaning of participation was explained by the Privy Council in Barendra Kumar Ghosh versus Emperor decided in 1924. A group of men entered the post office at Shankari Tola in Calcutta, demanded money from the sub postmaster, and shot him dead. The accused was caught as he ran away, and the prosecution's evidence was that he was one of the men who fired. His defense was that he had only been standing outside the room and had not fired the fatal shot. He argued that he could not be liable for murder when someone else had fired. The Privy Council upheld his conviction for murder. It held that the criminal act in the section means the whole unified criminal behavior of the group. When several persons do different acts in furtherance of a common intention, each is liable for the result as if he had done the whole of it himself. **[21:42]:** A person who stands guard while his companions commit the crime is very much a participant. So, even if his story were true, it would not save him. Lord Sumner expressed this in a memorable line borrowed from the poet Milton that they also serve who only stand and wait. The lesson is simple. Under common intention, the person who keeps watch, the person who holds the victim, and the person who strikes the blow are all equally liable because each plays a part in one joint plan. The second requirement, common intention, has also been carefully explained by the courts. The leading authority is Mahbub Shah versus Emperor, decided by the Privy Council in 1945. Some men had gone to cut reeds on the bank of a river. A nephew of the landowner demanded the reeds, and a quarrel followed. When the nephew called for help, the accused and another man arrived, both carrying guns. **[22:35]:** And in the shooting that followed, one of the reed cutters was killed and another was injured. The accused had been convicted of murder with the help of common intention. The Privy Council set aside his conviction for murder. It held that common intention implies a prearranged plan, and the criminal act must be done in concert under that plan. Later decisions of the Supreme Court have added that such a plan may be formed suddenly, even on the spot, just before the act, but it must still be a shared plan. In this case, the accused and his companion had come to rescue the nephew. Each may have had the same intention, but there was no evidence that they had formed a common plan to kill. The Privy Council also pointed out that it is difficult, if not impossible, to obtain direct evidence of intention, so it must usually be inferred from the conduct of the parties and the circumstances of the case. **[23:28]:** The easiest way to remember the point is this: Same intention is not common intention. If five people independently decide to hit a man, each because he personally dislikes him, they have the same intention, but not a common intention. A common intention requires that their minds should have met, so that they act as partners in a shared plan. Two more points about Section 3, Subsection 5. First, it does not create an offense. It is a rule of liability. It tells us how to fix liability on several persons when an offense defined elsewhere, such as murder, is committed. So, a charge is framed as murder read with Section 3, Subsection 5. Second, because common intention is a state of mind, it is almost always proved by inference from the conduct of the accused before, during, and after the incident. Examples are arriving together, carrying weapons, acting in a coordinated way, and leaving together. **[24:23]:** Common object and unlawful assembly. Now, let us move to the second form of constructive liability. Section 189, Subsection 1 of BS 2023, defines an unlawful assembly. An assembly of five or more persons is an unlawful assembly if their common object is one of the objects listed in the section. These include overawing the government or a public servant by criminal force and resisting the execution of any law or legal process. They also include committing mischief, criminal trespass, or any other offense, taking possession of property by criminal force, and compelling a person by criminal force to do what he is not legally bound to do. An important explanation adds that an assembly which was lawful when it gathered may later become unlawful. A peaceful crowd that decides to burn a shop becomes an unlawful assembly at that moment. Mere presence in a crowd does not make a person a member of an unlawful assembly. **[25:21]:** Section 189, subsection two says that a person becomes a member when, being aware of the facts that make the assembly unlawful, he intentionally joins it or continues in it. So, a passerby who stops to watch is not a member, but a person who knowingly joins the crowd carrying a stick for the attack is a member. Then comes the key provision of constructive liability, section 190. It corresponds to the old section 149 of the IPC. It deals with an offense committed by any member of an unlawful assembly. Two kinds of offense are covered. One is committed in prosecution of the common object of that assembly. The other is an offense that the members knew to be likely to be committed in prosecution of that object. In both cases, every person who is a member of the same assembly at the time of the offense is guilty of that offense. **[26:13]:** The meaning of these two parts was explained by the Supreme Court in Mizaji versus State of UP, decided in 1958. Five men, armed with a spear, a pistol, and heavy sticks, went together to take possession of a field by force. When the unarmed men in possession came and objected, one of the five, Mizaji, fired the pistol on the order of his father and killed one of them. All five were convicted of murder with the help of the common object provision. The Supreme Court upheld the convictions. It explained that the section has two parts. The first part covers an offense committed in prosecution of the common object, which means an offense committed with a view to accomplish that object and immediately connected with it. The second part covers an offense which the members knew was likely to be committed in prosecution of that object, even if it was not itself the object. **[27:06]:** The word knew means more than a mere possibility. The members must have known that such an offense was likely. On the facts, the party had gone armed with deadly weapons and had warned the unarmed occupants that they would be finished if they did not leave. The court found that their object was to take possession by force, even if it meant killing, so the murder was immediately connected with that object. And in any case, their weapons and conduct showed that they knew a killing was likely. The court also said that a common object does not need a prior meeting or plan among the members. It is enough if the object is adopted and shared by all the members. Common intention and common object compared. This is one of the most frequently tested distinctions in criminal law. So, let us place the two ideas side by side in words. **[27:56]:** First, the number of persons. Common intention under Section 3 subsection 5 needs only two or more persons. Common object under Section 190 needs an unlawful assembly, which means at least five persons. Second, the nature of the mental bond. Common intention requires a prior meeting of minds, a shared plan, even if that plan is formed on the spot. Common object does not require a prior concert in the same sense. It is enough that the members of the assembly share the same object, even if they never discussed a plan with each other. Third, participation. Under Section 3 subsection 5, each accused must participate in some way in the criminal act. Under Section 190, membership of the unlawful assembly at the time of the offense is enough. A member may be liable even if he did nothing with his own hands. Fourth, the nature of the provision. Section 3 subsection 5 only lays down a principle of joint liability and does not create a separate offense. **[28:56]:** Section 190 makes every member guilty of the offense committed by any member and membership of an unlawful assembly is itself an offense under Section 189. Fifth, the range of liability. Under Section 190, members are liable not only for offenses committed in prosecution of the common object, but also for offenses which they knew were likely to be committed in prosecution of that object. Let us test this with one example. Six villagers, armed with sticks, go together to take forcible possession of a field. During the clash, one of them takes out a hidden knife and kills the owner. If the others knew he carried a knife and that killing was likely in getting possession, all six may be guilty of murder through Section 190. If they had no reason to expect killing, the others may be guilty only of the offenses that were within the common object or known to be likely, such as rioting or hurt. **[29:53]:** And if only two persons had gone, Section 190 would not apply at all. The prosecution would then have to prove a common intention under Section 3 subsection 5. **[30:04]:** We have now seen the building blocks of liability, namely act, mind, the need for both to exist together, and the ways in which liability spreads to several persons. But all of this assumes that the offense was actually completed. What happens when a person forms a guilty intention and starts acting on it, but the offense is never completed? That brings us to inchoate offenses. Unit 2, inchoate offenses. The idea of an inchoate offense. The word inchoate means just begun or not yet complete. An inchoate offense is an offense that the law punishes even though the main crime that the accused had in mind was never completed. Why should the law punish a person when no final harm has happened? Because the person has already shown a dangerous intention and has taken real steps towards harm. If the police had to wait until the victim was actually dead, criminal law would fail in its duty to protect society. **[30:59]:** BNS 2023 recognizes three main inchoate forms of liability. These are attempt, abetment, and criminal conspiracy, and we will study them in that order. The stages of a crime. To understand attempt, we must first understand the stages through which a crime usually passes. There are four stages, namely intention, preparation, attempt, and completion. The first stage is intention, the mental decision to commit the crime. The law does not punish a mere intention. A person who only thinks about killing his enemy has done nothing that the law can punish. Thoughts cannot be proved easily, and the law does not punish people for what they merely think. The second stage is preparation. Preparation means arranging the means needed to commit the crime. Buying a knife, collecting poison, or studying the route of the victim are examples of preparation. As a general rule, preparation is not punished. The reason is that preparation is usually ambiguous. **[31:56]:** A person may buy a knife to cut vegetables or to kill someone. And even a person who prepares with a bad intention may change his mind. However, there are a few exceptions where the law punishes preparation itself because the intended crime is extremely serious. Under BNS 2023, collecting men, arms, or ammunition with the intention of waging war against the government of India is punished under section 149. Making preparation to commit decoity is punished under section 310 subsection 4. Making or possessing instruments for counterfeiting coins or currency is another example. The third stage is attempt. Here, the person has gone beyond preparation and has started actually carrying out the crime, but the crime is not completed. The fourth stage is completion where the intended offense is fully committed. So the real legal battle is fought on the line between preparation and attempt. Preparation is usually not attempt is punishable. **[32:58]:** Where exactly does preparation end and attempt begin? That is one of the most difficult questions in criminal law. **[33:05]:** Attempt under BNS 2023. BNS 2023 deals with attempt in two ways. First, some sections punish an attempt specifically. For example, attempt to murder is in section 109. Attempt to commit culpable homicide is in section 110. And attempt to commit robbery is in section 309 subsection five. Second, for all other offenses, there is a general provision, section 62, which corresponds to the old section 511 of the IPC. It applies when a person attempts to commit an offense punishable with imprisonment for life or imprisonment and in such attempt does any act towards the commission of the offense. Where no express provision is made for that attempt, the imprisonment may extend to one half of the imprisonment for life or one half of the longest term provided for the offense. Instead of imprisonment, the court may impose the fine provided for the offense or it may impose both. **[34:04]:** Notice the key phrase, does any act towards the commission of the offense. Section 62 does not define attempt. So the courts have had to explain what kind of act is enough. The illustrations to section 109 on attempt to murder give us a very good starting point. A, intending to murder Z, buys a gun and loads it. A has not yet committed attempt to murder. That is preparation. But when A fires the gun at Z, he has committed attempt to murder. Similarly, A buys poison and mixes it with food which remains in A's own keeping. That is still preparation. But when A places the food on Zeda's table or gives it to Zeda's servants to place on the table, A has committed attempt to murder. The common thread is this, as long as the matter remains within the control of the accused and he can still quietly stop, it is usually preparation. **[34:54]:** When he does an act that sets the crime in motion, it is attempt. The tests for attempt, courts and writers have developed several tests to draw the line. Let us understand the main ones. The first is the proximity test. An act is an attempt when it is sufficiently close to the completed crime. The accused must have come so near to committing the offense that but for some interruption, the offense would have been committed. The difficulty is that close is a matter of degree. The second is the locus poenitentiae test. Locus poenitentiae means a place or opportunity for repentance. The idea is that as long as the accused still has an opportunity to change his mind and withdraw voluntarily, his acts are usually only preparation. Once he has gone so far that the crime would have happened but for outside interference, his acts become an attempt. **[35:44]:** And remember, once an attempt has begun, a later change of heart does not wipe it out. Repentance after the attempt may reduce the sentence but it does not undo the offense. The third is the equivocality test. Here we ask whether the act, looked at by itself, clearly shows the criminal intention. If the act could equally be innocent, it is preparation. If the act speaks for itself and unequivocally points to the crime, it is attempt. Buying a matchbox is equivocal. Pouring petrol on the door of a house at midnight and striking a match is not. No single test answers every case. Indian courts have not adopted any one of these tests as a rigid formula. They use them as aids and they look at the act together with the other circumstances that reveal the intention of the accused. Let us see how the Supreme Court has handled the problem. **[36:34]:** The leading case is Abhyanand Mishra versus State of Bihar, decided by the Supreme Court in 1961. The accused applied to Patna University for permission to sit for the MA examination in English as a private candidate. He falsely claimed that he was a graduate and a school teacher, and he attached certificates which turned out to be forged. The university accepted his claim and sent his admission card. Before he could sit for the examination, the truth came out. He was prosecuted for attempting to cheat the university. His defense was that he had done no more than prepare. The Supreme Court rejected this defense. Justice Raghubar Dayal explained that a person commits an attempt when he intends to commit a particular offense, and having made preparations and with that intention does an act towards its commission. Such an act need not be the penultimate act towards the commission of the offense, but it must be an act done during the course of committing that offense. **[37:34]:** Applying this test, the court said that the preparation was complete when he prepared the application. The moment he sent it to the university, he entered the realm of attempting to commit cheating. So, the case gives us the basic Indian test, and it rejects the idea that only the last act before the crime can be an attempt. On the very same day, the same applied this principle to attempt to murder in Om Prakash versus State of Punjab. The accused had ill-treated his wife, Bimla Devi, for years. He kept her locked in a room and deliberately denied her food for days, so that she became extremely weak. One day, she found the door unlocked, escaped, and reached a hospital where the doctors found her badly emaciated. The accused was convicted of attempt to murder. Before the Supreme Court, he argued that attempt to murder requires the last act, an act that would by itself cause death, and that starvation over a period of time was not such an act. **[38:30]:** The court disagreed. It held that a person commits attempt to murder when, with the intention of committing murder, he does an act towards it, whether or not that act is the penultimate act, and the word act includes a series of acts. A deliberate course of starvation intended to bring about death is an attempt to murder. Even though no single meal that was withheld would have killed her. Her escape was the outside event that prevented the completion of the crime. The other side of the line is shown by Mulkit Singh versus State of Punjab, decided by the Supreme Court in 1968. A law prohibited the export of paddy out of Punjab without a permit, and it also punished an attempt to export. A truck carrying 75 bags of paddy booked for a firm in Delhi was stopped at a check barrier at Samalka. At that point, the truck was still well inside Punjab as it then was, about 14 miles short of the border. **[39:26]:** The driver and the cleaner were convicted of attempting to export paddy. The Supreme Court acquitted them. It explained that preparation consists in devising or arranging the means necessary for the commission of the offense, while an attempt is a direct movement towards the commission after the preparations are made. The court asked whether the acts already done were such that if the accused changed their mind and went no further, the acts done would be completely harmless. Here, the truck could still have turned back anywhere before the border. The accused still had room to change their minds, so their conduct was only preparation, and preparation was not punishable under that law. This is the idea that writers describe as locus poenitentiae. Now, compare this with State of Maharashtra versus Mohammad Yakub, decided by the Supreme Court in 1980. Acting on secret information, customs officers kept watch on a highway near Bombay at night. **[40:24]:** A jeep and a truck left the highway and went along a side road to a lonely creek near the sea. The accused began unloading bundles near the creek and the officers heard the engine of a motorboat from the creek side. They found 43 ingots of silver, which the accused intended to smuggle out of India by sea. The sessions judge acquitted the accused holding that since the silver had not been loaded onto the boat, it was only preparation and the High Court agreed. The Supreme Court reversed this and convicted them of attempting to export silver unlawfully. Justice Sarkaria said that attempt begins where preparation ends. The act need not be the last act, but it must be a deliberate act that clearly shows the intention to commit the offense and is reasonably proximate to its completion. Justice Chinnappa Reddy added an important insight. The measure of proximity is not in relation to time and action, but in relation to intention. **[41:21]:** If the truck had been stopped at the start of the journey, it could have been going anywhere. But bringing the silver at dead of night to a lonely creek from where it could be put on a boat revealed the intention with reasonable certainty. He also explained that the harmlessness test in Malkit Singh must be read with the facts of that case. Otherwise, every person caught at the last minute could claim that he might still have changed his mind. **[41:47]:** Attempt to commit the impossible. Now we come to a puzzle. What if the accused does everything he intended, but the crime could not possibly have been completed? A puts his hand into B's pocket to steal his wallet, but the pocket is empty. Has A attempted theft? The Indian position is clearly stated in the illustrations to section 62 of BNS 2023. In the first illustration, A breaks open a box intending to steal jewels and finds there is no jewel in it. He has done an act towards the commission of theft and is guilty of attempt. In the second illustration, A thrusts his hand into Z's pocket to steal, but the pocket is empty. A is guilty of attempt. So, under our law, when the impossibility arises from facts that the accused did not know, such as an empty pocket or an empty box, the accused is still guilty of attempt. **[42:37]:** His dangerous intention and his act are complete. Only luck saved the victim. These illustrations deliberately reject an old English view that a person who tried to steal from an empty pocket committed no attempt, a view that English law itself later abandoned. But an Indian High Court has also recognized a limit. In Asgar Ali Pradhania versus Emperor, decided by the Calcutta High Court in 1933, the accused wanted a woman who was pregnant by him to have a miscarriage. He brought her a liquid and a powder and pressed her to take them, but she refused and raised an alarm. When the substances were examined, the liquid contained no poison and the medical evidence showed that neither substance could cause a miscarriage. The High Court acquitted him of attempting to cause a miscarriage. It drew a distinction. Where the offense fails because of some factor independent of the accused, such as an empty pocket or poison secretly replaced with water by someone else, the accused is guilty of attempt. **[43:40]:** But where the accused himself chooses means that are completely harmless and incapable of causing the result, his act is not an act done towards the commission of the offense. In the same way, a person who tries to kill his enemy by reciting a curse does not attempt murder. This distinction has been debated by writers, but it helps us see that the Indian law of attempt looks at the real nature of the act done, not merely at the wish of the accused. There is one more limit. Section 62 speaks of an attempt to commit an offense. If what the accused intends to do would not be an offense even if everything happened exactly as he imagined, there is no offense to attempt. Suppose A wrongly believes that it is a crime to fly a kite on a public holiday, and he flies one thinking he's breaking the law. **[44:27]:** He has a guilty feeling, but he has not attempted any offense because the law punishes no such act. Criminal law punishes attempts to commit offenses, not imaginary crimes that exist only in the mind of the accused. One more change in the new law deserves mention. The old IPC punished attempt to commit suicide. BNS 2023 contains no general offense of attempting suicide. It punishes in section 226 only an attempt to commit suicide made with the intent to compel or restrain a public servant from discharging his official duty. Abetment of suicide, however, remains a serious offense under sections 107 and 108. **[45:09]:** Abetment. Let us now move to the second inchoate form of liability. Criminal law punishes not only the person who commits an offense, but also the person who encourages, plans, or helps it. Such a person is called an abettor. The law of abetment is contained in sections 45 to 60 of BNS 2023, and its core provisions are in sections 45 to 57. Section 45 says that a person abets the doing of a thing in three ways. First, by instigating any person to do that thing. Second, by engaging with one or more persons in a conspiracy for doing that thing if an act or illegal omission takes place in pursuance of the conspiracy and in order to the doing of that thing. Third, by intentionally aiding by any act or illegal omission the doing of that thing. The first mode is instigation. Instigate means to provoke, urge, encourage, or goad someone to do an act. **[46:03]:** Advice given casually or words spoken in anger without any intention that the other person should act on them are usually not instigation. There must be active suggestion or encouragement. Explanation one to section 45 adds that a person who, by willful misrepresentation or by willful concealment of a material fact which he is bound to disclose, causes or procures a thing to be done also instigates it. The illustration is easy to remember. A police officer has a warrant to arrest Z. A and B knows that C is not Z, but tells the officer that C is Z, and the officer arrests C. B has abetted the arrest of C by instigation. The second mode is conspiracy. Here the abettor joins an agreement to do the thing and some act or illegal omission takes place in pursuance of that agreement. We will see shortly how this differs from criminal conspiracy as a separate offense. **[46:55]:** The third mode is intentional aiding. Explanation two to section 45 says that whoever, either before or at the time of the act, does anything to facilitate its commission and thereby facilitates it, aids the act. The aid must be intentional. If A lends his car to B for a family trip and B uses it to commit a theft without A's knowledge, A has not aided the theft. Mere presence at the also not aiding unless the presence is intended to encourage or support the offender. And aiding can be by an illegal omission. If a watchman who is bound to lock the gate deliberately leaves it open so that thieves can enter, he aids the theft by an illegal omission. Several features of abetment are very important. Section 46 tells us that abetment is complete even if the act abetted is never committed. If A instigates B to murder C and B refuses, A is still guilty of abetting murder. **[47:49]:** It is also not necessary that the person abetted should be capable by law of committing the offense or should share the abettor's guilty mind. Suppose A instigates a child below 7 years of age to put poison in Z's food and Z dies. The child commits no offense, but A is punishable as if the child had been capable of committing the offense and had committed murder. Abetment of an abetment is also an offense and sections 47 and 48 cover abetment that crosses borders, whether a person in India abets an act abroad or a person abroad abets an act in India. The liability of an abettor. How is the abettor punished? BNS 2023 gives a careful scheme. If the act abetted is committed in consequence of the abetment and there is no express provision for punishing that abetment, section 49 says the abettor gets the same punishment as the offense itself. **[48:41]:** So, if A instigates B to commit theft and B commits it, A is punishable as for theft. What if the person abetted does something different? Section 51 says that the abettor is liable for the act done as if he had directly abetted it, provided the act done was a probable consequence of the abetment. Suppose A instigates B and C to break into a house at midnight for robbery and gives them weapons. They kill the owner who resists. A is liable for murder if that killing was a probable consequence of his abetment. But, if A instigates B to burn Z's house and B also steals from the house, A is not liable for the theft because theft was a distinct act and not a probable consequence of burning. Section 52 adds that if the act done is in addition to the act abetted, the abettor can be punished for both. **[49:31]:** And section 53 makes the abettor liable for a different effect caused by the act abetted if he knew that the act abetted was likely to cause that effect. Section 54 deals with an interesting situation. A person who would be liable as an abettor if absent, but who is actually present when the offense is committed is deemed to have committed the offense himself. And sections 55 and 56 provide punishment where the offense abetted is not committed at all. Section 55 covers offenses punishable with death or life imprisonment. It allows up to 7 years or 14 years if hurt is caused. Section 56 covers offenses punishable with imprisonment. It allows up to 1/4 of the longest term or 1/2 if the abettor or the person abetted is a public servant bound to prevent the offense. Section 57 punishes abetting an offense by the public generally or by more than 10 persons. **[50:27]:** Criminal conspiracy. Now, let us understand the third inchoate form, criminal conspiracy. The idea of conspiracy came into Indian law from English common law. When the IPC was first enacted, conspiracy was punished mainly as a form of abetment. In 1913, a separate chapter was added which made criminal conspiracy a substantive offense in itself. That idea is now found in section 61 of BNS 2023. Section 61, subsection 1 defines it. When two or more persons agree with the common object to do or cause to be done an illegal act or a legal act by illegal means, such an agreement is a criminal conspiracy. There is a proviso. If the agreement is to commit an offense, the agreement itself is enough. But if the agreement is to do some other illegal act or a legal act by illegal means, it becomes a criminal conspiracy only when some act besides the agreement is done by one or more of the parties in **[51:24]:** pursuance of it. The explanation adds that it does not matter whether the illegal act is the ultimate object of the agreement or only incidental to it. So, the very heart of conspiracy is the the agreement. Let us take an example. A and B sit in a room and agree to rob a bank next week. They do nothing more. The police arrest them the next day because a third person overheard them. Has any offense been committed? Yes. A and B are guilty of criminal conspiracy because they agreed to commit an offense. They have not attempted the robbery and they have not even prepared for it in a physical sense. But the agreement is itself the crime. Punishment is given in section 61 subsection 2. Take a conspiracy to commit an offense punishable with death, imprisonment for life, or rigorous imprisonment for 2 years or more. A party to it is punished as if he had a betted that offense unless the Sanhitas makes some express provision. **[52:18]:** A party to any other criminal conspiracy is punished with imprisonment up to 6 months or fine or both. Proof of conspiracy. Conspiracies are usually hatched in secret. Conspirators do not sign written agreements. So, how does the prosecution prove an agreement? It may sometimes have direct evidence such as the testimony of a person who took part in the conspiracy and later turned approver. But usually it relies on circumstantial evidence. The court looks at the conduct of the accused persons, their meetings, their communications, their movements, and their acts and asks whether these circumstances, taken together, point clearly to an agreement. It is not necessary that every conspirator knew every detail or took part in every stage or even knew every other conspirator. What matters is that each one agreed to the common design. The Supreme Court reinstated these principles in State NCT of Delhi versus Navjot Sandhu, decided in 2005. **[53:18]:** The case arose from the attack on Parliament House on 13 December 2001 when five armed terrorists stormed the Parliament complex. Nine persons, most of them security personnel, were killed and all five attackers were killed. Four persons were prosecuted on the allegation that they had conspired in the attack. In examining their cases, the court explained that the unlawful agreement and not its accomplishment is the gist or essence of conspiracy. Even if no overt act takes place in pursuance of the agreement, the offense of conspiracy is attracted. A meeting of minds is essential and mere knowledge or discussion is not enough. The court then said that conspiracies are mostly proved by circumstantial evidence because conspiracy is seldom an open affair. Both the existence of the conspiracy and its objects usually have to be inferred from the circumstances and the conduct of the accused. But those circumstances must themselves be proved, must form a chain, and must be considered together. **[54:20]:** A few bits here and a few bits there are not enough. Applying these principles, the court upheld the conviction and death sentence of the main accused, Mohammad Afzal. It set aside the conspiracy conviction of a second accused and convicted him only of a lesser offense, and it upheld the acquittal of the other two, including Navjot Sandhu herself, because the evidence did not prove that they were parties to the agreement. So, the case teaches both sides of the law of conspiracy. Circumstantial evidence can prove an agreement, but suspicion, however strong, cannot take the place of proof. Criminal conspiracy and abetment by conspiracy compared. Now we can clearly distinguish criminal conspiracy under Section 61 from abetment by conspiracy under Section 45. Under Section 61, the agreement itself is the offense when the object is to commit an offense. Nothing more needs to happen. Under Section 45, conspiracy is only a mode of abetment, and abetment by conspiracy requires that some act or illegal omission takes place in pursuance of the conspiracy and in order to the doing of the thing. **[55:27]:** Secondly, criminal conspiracy is a separate substantive offense. Abetment by conspiracy is tied to the thing abetted, and the punishment depends on the offense abetted and on whether it was committed. Thirdly, criminal conspiracy covers any agreement to do an illegal act or a legal act by illegal means. Abetment by conspiracy is concerned only with an offense. Explanation five to section 46 adds that the abettor need not have planned the offense directly with the person who actually committed it. It is enough that he engaged in the conspiracy in pursuance of which the offense was committed. The easiest way to remember the difference is this. In criminal conspiracy, the law punishes the agreement. In abetment by conspiracy, the law punishes the contribution that the agreement makes to the thing being done. **[56:16]:** We have now studied how the law reaches people who have not completed a crime and people who did not commit the crime with their own hands. But criminal law is not only about extending liability. It also recognizes situations in which a person who has apparently done everything the definition of an offense requires is still not guilty. That brings us to the general exceptions. Unit three, general exceptions. Why the law recognizes general exceptions. Imagine a police officer who arrests a person for murder. In doing so, he restrains that person against his will. Imagine a surgeon who cuts open a patient's body. Imagine a woman who strikes an attacker to save her own life. If we read the definitions of offenses mechanically, the officer has committed wrongful confinement, the surgeon has caused hurt, and the woman has caused hurt or even death. Yet everyone knows that none of them should be punished. **[57:10]:** Criminal law needs a set of rules that tell us when conduct which fits the words of an offense is still not an offense. These rules are the general exceptions. BNS 2023 places the general expense in chapter three, from section 14 to section 44. They correspond to sections 76 to 106 of the old IPC. They are called general because they apply to every offense in the Sanhita. Section 3, subsection 1 says that every definition of an offense, every penal provision, and every illustration must be understood subject to the general exceptions, even though the exceptions are not repeated in each definition. So, when we read the definition of theft, we silently add the words, "Unless a general exception applies." There is one practical point you should know at the outset. When an accused claims the benefit of a general exception, the law of evidence places on him the burden of proving the circumstances that bring his case within the exception. **[58:12]:** But, this burden is lighter than the burden on the prosecution. The accused does not have to prove the exception beyond reasonable doubt. It is enough if he shows that it is more likely than not. And even if he cannot fully prove it, the evidence he brings may create a reasonable doubt about whether the prosecution has proved its own case, and that doubt must benefit the accused. **[58:34]:** Excusable acts and justifiable acts. The general exceptions are commonly divided into two groups, excuses and justifications. This division helps us understand why each exception exists. A justification says that the act was right or at least permitted in the circumstances. The law approves of what was done or does not disapprove of it. Private defense is the best example. When a person uses reasonable force to protect himself from a murderous attack, society does not consider his act wrongful. Acts done under a legal duty, judicial acts, and acts done with valid consent also belong broadly to this group. An excuse says something different. It accepts that the act was harmful and undesirable, but it says that this particular person should not be blamed for it. A child of six who sets fire to a house has caused real harm, but the child cannot be blamed in the criminal sense. **[59:27]:** The same is true of a person who, due to unsoundness of mind, could not know what he was doing. Or a person who acted under a genuine mistake of fact. Or a person who caused harm by pure accident. Why does this distinction matter? Here is one very practical consequence. You may exercise the right of private defense against certain excused acts, but not against a justified act. If a person of unsound mind tries to kill you, he commits no offense because insanity excuses him. But section 36 of BNS 2023 says you still have the same right of private defense against him as if he were sane. On the other hand, if a person is lawfully exercising private defense against you because you attacked him, you have no right of private defense against his defensive act. His act is justified. Mistake of fact. Let us begin with mistake. **[1:00:18]:** BNS 2023 has two provisions on mistake of fact. Section 14 says that nothing is an offense which is done by a person who is bound by law to do it. It also protects a person 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. Section 17 says the same thing for a person who is justified by law or who, by a mistake of fact in good faith, believes himself to be justified by law. The difference is simple. Section 14 is about a person who thinks the law requires him to act. Section 17 is about a person who thinks the law permits him to act. The illustrations make this clear. In section 14, an officer of a court ordered to arrest Y. After due inquiry, he believes Z to be Y and arrests Z. **[1:01:07]:** He commits no offense. A sees Z doing what appears to him to be a murder. Acting in good faith, A seizes Z to hand him over to the authorities. A commits no offense, even if it later turns out that Z was actually acting in self-defense. Three conditions must be satisfied. First, the mistake must be a mistake of fact. Second, the belief must be held in good faith. Under section 2, clause 11, nothing is done or believed in good faith if it is done or believed without due care and attention. So, a careless mistake does not help. Third, because of that mistaken belief, the accused must have believed himself bound by law or justified by law in doing the act. Let us take a simple example. Late at night, A hears of thief and sees B running out of a neighbor's shop whose window has just been smashed with a cash box in his hands. **[1:01:57]:** A catches B and holds him until the police arrive. It turns out that B was the shopkeeper's assistant rushing the cash to safety after someone else had broken the window. A acted under a mistake of fact in good faith and with due care believing that the law allowed him to seize a person who appeared to have just committed theft. He is protected. Mistake of fact must be distinguished from mistake of law. A mistake of fact is a wrong belief about what actually happened or what actually exists such as who a person is or whether a thing belongs to someone. A mistake of law is a wrong belief about what the law says. Both section 14 and section 17 expressly exclude mistake of law. This reflects the principle we met in the first unit, ignorantia juris non excusat, which means that ignorance of the law is no excuse. **[1:02:47]:** If A believes that the law allows him to beat his tenant for not paying rent, his mistake is a mistake of law and it gives him no protection. Judicial acts and acts done under court orders. Section 15 protects a judge when acting judicially in the exercise of any power which is or which in good faith he believes to be given to him by law. Without this protection, every judge who sentenced a person to imprisonment could be accused of wrongful confinement. The protection extends even to an honest mistake about the extent of his power, as long as he believed in good faith that the law gave him that power. Section 16 protects those who carry out the judgment or order of a court, such as a jailer who keeps a convict in custody, or an officer who executes a warrant. Nothing done in pursuance of a judgment or order of a court, while it remains in force, is an offense. **[1:03:39]:** This is so even if the court had no jurisdiction to pass it, provided the person doing the act believes in good faith that had jurisdiction. The officer is not expected to sit in judgment over the court's jurisdiction. **[1:03:52]:** Accident. Section 18 says that nothing is an offense which is done by accident or misfortune and without any criminal intention or knowledge. It must happen in the doing of a lawful act in a lawful manner by lawful means and with proper care and caution. Every part of this sentence matters. The act being done must itself be lawful. The manner and the means must be lawful. There must be proper care and caution and there must be no criminal intention or knowledge. The illustration in the section describes A working with a hatchet when the head of the hatchet flies off and kills a man standing nearby. If A had taken proper caution, his act is excusable. But change the fact slightly. If A knew the head of the hatchet was loose and kept working near people anyway, there is no proper care and caution and section 18 will not protect him. **[1:04:43]:** Similarly, if A was swinging the hatchet at someone in a fight, the act is not lawful and whatever follows is not an accident in the legal sense. Necessity. Section 19 deals with what lawyers call necessity. It says that nothing is an offense merely because it is done with the knowledge that it is likely to cause harm. The condition is that it must 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. The explanation adds that it is a question of fact whether the harm to be prevented was so serious and so imminent as to justify or excuse the risk. The illustrations are memorable. The captain of a ship suddenly finds, through no fault of his own, that he must either run down a boat carrying 20 or 30 passengers or change course and risk running down a smaller boat with two passengers, which **[1:05:37]:** he may possibly clear. If he changes course in good faith to save the larger boat, he commits no offense even if he runs down the smaller boat. In a great fire, a person pulls down houses to stop the fire spreading. If the danger was serious and imminent enough, he commits no offense. Notice the limits. Section 19 protects a person who knows his act is likely to cause harm. It does not protect a person who intends to cause harm. That is why necessity can almost never justify the intentional killing of an innocent person. The classic authorities are Dudley and Stephens, decided in England in 1884. A yacht sank on a long voyage. Four men, the captain Dudley, the mate Stevens, a sailor named Brooks, and a cabin boy of about 17 named Richard Parker, were left in a small open boat with almost no food or water. **[1:06:28]:** After about 20 days, when they were starving, Dudley, with the agreement of Stevens, killed the boy who was the weakest, and the three men survived by feeding on his body. A few days later, they were rescued by a passing ship. The jury found that without this, the men would probably not have survived, and that the boy was likely to have died before them. The question was whether necessity could justify killing an innocent person to save one's own life. The court said no, and held them guilty of murder. Lord Coleridge said that to preserve one's life is generally speaking a duty, but it may be the plainest and the highest duty to sacrifice it. He also asked a powerful question, "Who is to be the judge of this sort of necessity and by what measure is the comparative value of lives to be measured?" The death sentence was later reduced by the Crown to 6 months of imprisonment, but the principle stood. **[1:07:22]:** Under BNS 2023, the same result follows from the words of section 19 itself, because that section protects only an act done without any criminal intention to cause harm, and a deliberate killing is the very opposite of that. **[1:07:37]:** Infancy, next we come to the exceptions based on age. Criminal liability assumes a person who can understand the nature of what he does and choose to do it. Very young children cannot. Section 20 of BNS 2023 says that nothing is an offense which is done by a child under 7 years of age. This is an absolute rule. Even if a child of six appears to understand exactly what he is doing, the law conclusively presumes that he is incapable of committing a crime. This idea is sometimes expressed through the Latin phrase doli incapax, meaning incapable of criminal wrongdoing. Section 21 deals with children above 7 and under 12 years of age. Here, the protection is qualified. Nothing is an offense which is done by such a child who has not attained sufficient maturity of understanding to judge the nature and consequences of his conduct on that occasion. **[1:08:31]:** So, the question is not general intelligence. The question is whether this child understood this act on this occasion. The court looks at the child's conduct. If a 10-year-old child carefully hides stolen property, lies about it, and sells it secretly, the court may conclude that the child understood the nature and consequences of his act. Students should also remember that children below 18 years of age who are alleged to have committed offenses are dealt with under a special law, the Juvenile Justice Act of 2015, which focuses on care, protection, and rehabilitation. But, sections 20 and 21 decide whether the act is an offense at all. Insanity, we now come to one of the most important and most misunderstood exceptions. Section 22 of BNS 2023 says that nothing is an offense which is done by a person who at the time of doing it is suffering from unsoundness of mind. **[1:09:27]:** But, the unsoundness of mind must be such that he is incapable of knowing the nature of the act or that he is doing what is either wrong or contrary to law. This is the same as the old section 84 of the IPC. The roots of this section lie in a famous English case. In 1843, a man named Daniel McNaughton shot Edward Drummond, the private secretary of the British Prime Minister, Sir Robert Peel, in London. McNaughton had mistaken Drummond for Peel himself. He was suffering from delusions that he was being persecuted and followed by his enemies. At his trial, on the basis of medical evidence, he was found not guilty on the ground of insanity. The verdict caused a public outcry and the House of Lords put a series of questions to the judges about the law of insanity. Their answers came to be known as the McNaughton rules. **[1:10:18]:** The most important of them says that every man is presumed to be sane until the contrary is proved. To establish a defense of insanity, it must be clearly proved that at the time of the act, the accused was laboring under a defect of reason from disease of the mind. The defect must be such that he did not know the nature and quality of the act he was doing. Or, if he did know it, that he did not know that what he was doing was wrong. Notice that this test is about knowledge, about the capacity to understand. It is not about emotions or self-control. Our Supreme Court has said that the old section 84, which is now section 22, is in substance the same as these rules. The one difference is that our section also protects a person who is incapable of knowing that his act is contrary to law. **[1:11:06]:** Now, let us read Section 22 carefully because every word carries weight. There are three parts. First, the accused must have been suffering from unsoundness of mind. Second, this must have existed at the time of doing the act. Third, because of that unsoundness of mind, he must have been incapable of knowing either the nature of the act or that it was wrong or that it was contrary to law. Let us take two examples. A, suffering from a serious mental illness, strangles his child believing that he is squeezing a lemon. He does not know the nature of the act. Section 22 applies. B, suffering from a severe delusion, kills his neighbor believing that God has commanded him to do it and that it is a righteous act. He may know that he is killing a human being, but if his delusion makes him incapable of understanding that the act is wrong or against the law, Section 22 may apply. **[1:11:59]:** But C, who has a mental illness, kills his rival in business, hides the weapon, cleans the blood, and creates a false alibi. His conduct shows that he knew exactly what he was doing and knew it was wrong and against the law. Section 22 does not apply to him, whatever his medical condition. **[1:12:17]:** Medical insanity and legal insanity. This brings us to a distinction that students frequently confuse. Medical insanity refers to any mental illness or disorder recognized by doctors. A psychiatrist may say that a person suffers from depression, anxiety, schizophrenia, or a personality disorder. Legal insanity is narrower. It exists only in two cases. In the first, the unsoundness of mind was so severe at the time of the act that the person could not know the nature of the act. In the second, he could not know that it was wrong or contrary to law. Every person who is legally insane is medically unwell, but not every person who is medically unwell is legally insane. The law takes this narrow approach for a reason. Section 22 is concerned with responsibility, not with diagnosis. A person with a mental disorder who can still understand what he is doing and that it is wrong is still capable of choosing not to do it. **[1:13:13]:** That is why medical evidence is important but not decisive. The court decides on all the evidence whether the test of section 22 is satisfied. The Supreme Court made this distinction explicit in Surendra Mishra versus State of Jharkhand, decided in 2011. The accused, who owned a chemist shop, shot a man dead at point-blank range while the man was sitting in his car. He threatened the driver, ran away, and threw the pistol away. At the trial, he pleaded insanity and produced old medical prescriptions, one of which recorded a psychiatric problem with paranoid features. The Supreme Court rejected the plea. It accepted that he may have suffered from some mental instability, but it held that an accused who seeks the protection of this exception must prove legal insanity and not medical insanity. He had to show, on a preponderance of probabilities, that at the time of the act he was incapable of knowing its nature or that it was wrong or contrary to law. **[1:14:12]:** His own conduct in running away and getting rid of the weapon showed that he knew very well that he had done something wrong. The court repeated an earlier statement of the law in clear words. A court is concerned with legal insanity and not with medical insanity. The crucial time is the time of the act. A person may have been mentally ill months before the incident or may become mentally ill afterwards. That does not matter unless the unsoundness of mind existed at the very moment of the act, but the court naturally looks at his condition before and after the act because these help it to understand his condition at the time. The leading Indian decision is Dahyabhai Chaganbhai Thakkar versus State of Gujarat, decided by the Supreme Court in 1964. The accused had married Kalavati in 1958. One night, the couple slept in their bedroom with the door bolted from inside. **[1:15:06]:** In the early hours, Kalavati cried out that she was being killed. Neighbors gathered and called on the accused to open the door, but he refused until until the village headman arrived. When the door was opened, she was found dead with 44 knife injuries. The accused came out with a blood-stained knife, talking irrelevantly and behaving strangely, and at the trial he pleaded insanity. Justice Subba Rao, speaking for the court, laid down three propositions on proof. First, the prosecution must always prove beyond reasonable doubt that the accused committed the offense with the required mental state, and this burden never shifts. Second, there is a presumption that the accused was not insane, which he may rebut by oral, documentary, or circumstantial evidence, and his burden is no higher than that of a party in a civil case. Third, even if the accused does not fully prove insanity, the evidence may raise a reasonable doubt about the mental element of the offense, and in that case he's entitled to be acquitted. **[1:16:07]:** The court also said that the crucial point of time is when the offense was committed, and that this must be judged from the circumstances that preceded, attended, and followed the crime. On the facts, the court found that the accused had a motive, since he was angry that his father-in-law had not come to take the wife away as promised. The weapons in the room, the bolted door, and his reluctance to come out until the headman arrived suggested a planned killing and showed that he feared being beaten by the crowd if he came out earlier. The court also observed that many sane men give more stabs than necessary. Insanity was not established and not even a reasonable doubt arose. His conviction for murder was upheld. **[1:16:50]:** Students should also note what section 22 does not cover. It does not cover what is called irresistible impulse where a person knows the act is wrong but cannot control himself. It does not cover mere emotional disturbance, anger, jealousy, or eccentric behavior. Indian law has kept the cognitive test which asks about knowledge rather than a test based on loss of self-control. Intoxication. Intoxication is closely connected to insanity because intoxication can also disturb the mind but the law treats it very differently depending on whether the intoxication was voluntary or involuntary. Section 23 deals with involuntary intoxication. Nothing is an offense which is done by a person who at the time of doing it by reason of intoxication is incapable of knowing the nature of the act. The same applies if he cannot know that what he is doing is wrong or contrary to law. But there is a condition. **[1:17:46]:** The thing which intoxicated him must have been administered to him without his knowledge or against his will. Notice that the test is the same as for insanity. Suppose B secretly mixes a strong drug in A's tea and A completely unaware of what he is doing breaks B's window. A is protected. Voluntary intoxication is a different matter. A person who chooses to drink cannot use his own drunkenness as a shield. Section 24 deals with offenses that require a particular knowledge or intent. A person who does such an act in a state of intoxication shall be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated. The only exception is where the intoxicant was administered to him without his knowledge or against his will. Read that carefully. Section 24 presumes knowledge. It does not presume intention. So, a drunken man is treated as knowing whatever a sober man would have known. **[1:18:42]:** But, whether he had a particular intention is still a question to be decided on the evidence, and the court considers whether his intoxication was so severe that he could not form that intention. The leading case is Basdev versus State of Pepsu, decided by the Supreme Court in 1956. The accused, a retired military officer of junior rank, attended a wedding where great deal of drinking took place, and he was very drunk. At the meal, he asked a boy of about 15 or 16 to move aside so that he could have a convenient seat. The boy did not move. The accused took out a pistol and shot him in the abdomen, and the boy died. The accused argued that because he was so drunk, he could not have formed the intention required for murder, and so he should be convicted only of culpable homicide not amounting to murder. **[1:19:31]:** The Supreme Court explained the law in two parts. So far as knowledge is concerned, the intoxicated man must be treated as having the same knowledge as if he were sober. So far as intention is concerned, it must be gathered from the general circumstances of the case, paying due regard to the degree of intoxication. If a man was so drunk that he was completely out of his senses, he cannot be fixed with the intention. But, if he still knew what he was about, the ordinary presumption applies that a man intends the natural consequences of his act on the facts. The accused had chosen his seat, asked the boy to move, tried to get away after the shot, and later realized what he had done and begged for forgiveness. He was not so drunk as to be incapable of forming the intention. His conviction for murder was upheld. **[1:20:20]:** Consent. Next, we come to consent, which BNS 2023 deals with in sections 25 to 30. The basic idea is that a person can agree to suffer some harm, and in such cases the person who causes the harm should not be punished. Boxers, wrestlers, and patients all consent to some harm. Section 25 covers acts not intended to cause death or grievous hurt, and not known by the doer to be likely to cause death or grievous hurt. If such an act causes harm to a person above 18 years of age who has consented, expressly or impliedly, to suffer that harm or to take the risk of it, it is not an offense. The illustration is about two persons fencing with each other for amusement. Each impliedly consents to the harm that may be caused without foul play. Section 26 goes further. It covers acts done in good faith for the benefit of the person who consents. **[1:21:13]:** Here the act may even be known to be likely to cause death, as long as it is not intended to cause death. The illustration describes a surgeon who knows that an operation is likely to likely to cause the death of a patient suffering from a painful condition, but performs it with the patient's consent in good faith, intending the patient's benefit. He commits no offense even if the patient dies. Section 27 covers acts done in good faith for the benefit of a person under 12 years of age, or a person of unsound mind, with the consent of the guardian. A parent can consent to a necessary operation on a young child. But this protection does not extend to intentionally causing death or doing anything known to be likely to cause death, or voluntarily causing grievous hurt for any purpose other than preventing death or grievous hurt or curing a grievous disease. **[1:22:04]:** Section 28 tells us when consent is not real consent. Consent is not valid if it is given under fear of injury or under a misconception of fact. But this applies only if the person doing the act knows or has reason to believe that the consent was given because of that fear or misconception. It is also not valid if it is given by a person who, because of unsoundness of mind or intoxication cannot understand the nature and consequence of what he consents to. And unless the context shows otherwise, consent given by a person under 12 years of age is not valid. Keep section 28 in mind because we will use it again in kidnapping and in sexual offenses. Section 29 adds that these consent exceptions do not apply to acts which are offenses independently of any harm they cause to the consenting person. Causing miscarriage except in good faith to save the woman's life is the example. **[1:22:59]:** Her consent does not make it lawful. Finally, section 30 covers acts done in good faith for a person's benefit even without consent when it is impossible for that person to give consent and there is no guardian from whom consent can be obtained in time. A surgeon who operates on an unconscious accident victim is protected. So is a person who fires at a tiger carrying away Z knowing that the shot may kill Z but intending only Z's benefit. An explanation adds that mere monetary benefit is not benefit within these sections. You cannot harm someone and then defend yourself by saying that you did it to make him rich. Section 31 on communication made in good faith belongs to the same family. No communication made in good faith is an offense because of any harm it causes to the person to whom it is made if it is made for that person's benefit. **[1:23:49]:** A doctor who in good faith gives his opinion that a patient cannot live is not guilty if the patient dies of shock. Compulsion by threats. Section 32 deals with compulsion. Except murder and offenses against the state punishable with death itself which is done by a person who is compelled to do it by threats. The threats must at the time of doing it reasonably cause the apprehension that instant death to that person will otherwise be the consequence. But the person must not have placed himself in that situation of his own accord or out of fear of some lesser harm. Each condition is strict. The threat must be of instant death, not of hurt or future harm. The threat must exist at the time of the act, and the exception never covers murder. The law expects a person to give up his own life rather than take an innocent life. **[1:24:39]:** The two explanations make the last condition clear. A person who joins a gang of dacoits, knowing their character, of his own accord or even out of fear of a beating, cannot later claim that the gang compelled him. But a blacksmith who is seized by a gang of dacoits and forced under threat of instant death to break open the door of a house is protected. Trivial acts. Section 33 expresses an old principle, de minimis non curat lex, which means that the law does not concern itself with trifles. Nothing is an offense by reason of harm that is so slight that no person of ordinary sense and temper would complain of it. Taking a sheet of paper from a colleague's desk to note a phone number or brushing against a stranger in a crowded bus may technically fit some definition, but the harm is too slight to deserve punishment. **[1:25:30]:** Whether harm is slight depends on all the circumstances, including the nature of the injury, the position of the parties, and the knowledge or intention with which the act was done. **[1:25:40]:** The right of private defense. We now come to the most important justification in criminal law, the right of private defense. It is contained in sections 34 to 44 of BNS 2023. The basic idea is simple. The state has the duty to protect life and property, but the police cannot be everywhere. When a person faces an unlawful attack and there is no time to obtain the help of the authorities, the law allows him to protect himself and others. Section 34 says that nothing is an offense which is done in the exercise of the right of private defense. Section 35 tells us what may be defended. Every person has a right, subject to the restrictions in Section 37, to defend his own body and the body of any other person against any offense affecting the human body. And every person may defend his own property or the property of any other person, whether movable or immovable, against theft, robbery, mischief, or criminal trespass, or an attempt to commit them. **[1:26:41]:** Notice that the right is not limited to protecting oneself. A stranger may defend a victim being attacked on the street. Restrictions on the right. Section 37 places important limits on the right. First, there is no right of private defense against an act done by a public servant or by his direction, acting in good faith under color of his office, even if the act is not strictly justifiable by law. But this holds only if the act does not reasonably cause apprehension of death or grievous hurt. Second, there is no right of private defense when there is time to have recourse to the protection of the public authorities. Third, and most important, the right in no case extends to inflicting more harm than is necessary for the purpose of defense. These restrictions express the true nature of the right. Private defense is a right to defend, not a right to punish. **[1:27:32]:** It is preventive, not punitive. Once the danger has passed, the right ends. If A is attacked by B, overpowers him, and then, while B lies helpless, beats him further to teach him a lesson, A is no longer defending himself. He is retaliating, and retaliation is revenge, not defense. When death may be caused. Can a person cause death in private defense? Yes, but only in serious situations listed in the Sankita. For defense of the body, Section 38 says that the right extends to voluntarily causing death or any other harm to the assailant if the offense that occasions the right is one of the following: an assault that may reasonably cause the apprehension of death, an assault that may reasonably cause the apprehension of grievous hurt, an assault with the intention of committing rape, an assault with the intention of gratifying unnatural lust, an assault with the intention of kidnapping **[1:28:27]:** or abducting. An assault with the intention of wrongfully confining a person in circumstances that may reasonably make him fear that he will be unable to get help from the public authorities for his release. And an act of throwing or administering acid or an attempt to do so which may reasonably cause the apprehension of grievous hurt. In all other cases, section 39 says that the right extends to causing any harm other than death. For defense of property, section 41 says that the right extends to causing death in four situations. The first two are robbery and housebreaking after sunset and before sunrise. The third is mischief by fire or explosive on a building, tent or vessel used as a human dwelling or for keeping property. The fourth is theft, mischief or house trespass in circumstances that may reasonably cause apprehension of death or grievous hurt. In other cases of theft, mischief or criminal trespass, section 42 allows any harm other than death. **[1:29:27]:** When the right begins and ends, section 40 says that the right of private defense of the body begins as soon as a reasonable apprehension of danger to the body arises. The danger may arise from an attempt or threat to commit an offense even though the offense has not been committed and it continues as long as that apprehension continues. So, a person does not have to wait to be struck first. This was clearly explained by the Supreme Court in Dave Narayan versus State of UP, decided in 1972. There was a long dispute over possession of some land. The accused was in possession and was cultivating it and the complainant's party came to obstruct the cultivation unlawfully. In the clash, the accused was struck on the head with a lathi, which caused only a minor injury. He then struck one of the attackers in the chest with a spear, and that man died. **[1:30:19]:** The Sessions Judge acquitted him on the ground of private defense, but the High Court convicted him of culpable homicide, reasoning that since his own injury was minor, he had used more force than necessary, and that the right to use such force arises only after serious injury. The Supreme Court called this a complete misunderstanding of the law and acquitted him. It held that the right of private defense begins as soon as a reasonable apprehension of danger arises from an attempt or threat, even if the offense has not yet been committed. A person need not wait to be seriously injured before defending himself. A lathi blow on the head can reasonably cause an apprehension of death or grievous hurt. The court said that the right is preventive and not punitive. And it added that a person facing grave aggression cannot be expected to coolly weigh, as if in golden scales, the exact force needed to repel it. **[1:31:14]:** Section 43 gives similar rules for property. The right begins when a reasonable apprehension of danger to the property begins. Against theft, it continues until the offender has escaped with the property, or the help of the public authorities is obtained, or the property is recovered. Against robbery, it continues as long as the offender causes or attempts to cause death, hurt, or wrongful restraint, or as long as the fear of instant death, hurt, or restraint continues. Against criminal trespass or mischief, it continues as long as the offender continues the trespass or mischief. Against housebreaking after sunset and before sunrise, it continues as long as the house trespass that began with the housebreaking continues. Finally, Section 44 deals with a hard situation. If a person facing a deadly assault cannot effectively defend himself without risk of harm to an innocent person, his right extends to running that risk. **[1:32:11]:** The illustration describes a man attacked by a murderous mob who cannot defend himself without firing into the mob, although young children are mingled in it. If he fires and harms a child, he commits no offense. Proportionality and reasonable apprehension. Two ideas run through the whole law of private defense. The first is reasonable apprehension. The question is not whether the danger was actually as serious as the defender believed. The question is whether, in the circumstances, a reasonable person in his position would have apprehended that danger. The second is proportionality. The force used must not be more than necessary. But the courts have repeatedly reminded us that a person facing sudden danger cannot be expected to measure his response with perfect precision. A good modern example is James Martin versus State of Kerala, decided by the Supreme Court at the end of 2003. On the day of a nationwide bund in 1988, the accused and his father were running a flour mill and a bread factory inside their own compound near Kochi. **[1:33:16]:** A group of bund supporters entered the compound by climbing over the walls, demanded that the mill be shut, and attacked an employee. They were in a violent mood, and some were armed. The accused fired a gun from a window of the house, and two of the intruders died. The trial court and the high court held that he had exceeded his right of private defense and convicted him of culpable homicide not amounting to murder. The Supreme Court set aside his conviction and acquitted him. It held that his acts were within the reasonable limits of the right of private defense of person and property. The court repeated that the right is one of defense, not of retribution, meant to repel unlawful aggression. But it also said that it is a very valuable right serving a social purpose and should not be construed narrowly. The court also recalled that a person facing a violent mob in the spur of the moment cannot weigh his response in golden scales. **[1:34:12]:** The court added a strong observation that no one has any right in the name of a band or strike to destroy another person's property or threaten life. What happens if a person had the right of private defense but used more force than necessary and caused death? He does not get a complete acquittal, but he is not treated as a murderer either. Exception two to section 101 reduces such a killing from murder to culpable homicide not amounting to murder. This happens if the person acted in good faith without premeditation and without any intention of doing more harm than necessary for defense. Two more points complete the picture. First, the right of private defense is not available to the aggressor. A person who starts a fight cannot claim private defense when his victim fights back. And when two groups deliberately come together to fight, neither can usually claim the right because both are aggressors. **[1:35:08]:** Second, the accused need not always plead private defense in so many words. If the evidence on record, including the prosecution's own evidence, shows that he acted in private defense, the court can consider the plea. The burden is on the accused, but only on a balance of probabilities. **[1:35:25]:** We have now seen the defenses that can protect a person whose conduct fits the definition of an offense. With this complete toolkit of general principles, namely act, mind, joint liability, inchoate liability, and defenses, we are ready to study specific offenses. We begin with the most serious ones, offenses against the human body. Unit four, offenses against the human body. We now move from general principles to specific offenses. BNS 2023 arranges offenses in a new order. Offenses against women and children, including sexual offenses, are placed in chapter five, starting from section 63. Offenses affecting the human body, including culpable homicide, murder, hurt, kidnapping, and abduction are in chapter six, starting from section 100. In this unit, we will study culpable homicide and murder first, then kidnapping and abduction, and then sexual offenses. **[1:36:21]:** Homicide and culpable homicide. Homicide simply means the killing of a human being by a human being. Not every homicide is a crime. A person who kills in the lawful exercise of private defense, or who causes death by a pure accident, commits homicide, but it is not punishable. When homicide is punishable, criminal law grades it according to the mental state of the killer. That grading is the key to this entire topic. The starting point is section 100 of BNS 2023, which corresponds to the old section 299 of the IPC. It says that whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, commits the offense of culpable homicide. The same is true if he acts with the knowledge that he is likely by such act to cause death. **[1:37:12]:** So, the offense has two parts. The physical part is causing the death of a human being by doing an act. The mental part has three alternative forms. First, intention to cause death. Second, intention to cause such bodily injury as is likely to cause death. Third, knowledge that the act is likely to cause death. If any one of these three mental states accompanies the act and death results, there is culpable homicide. The illustrations help. In the first, A lays sticks and turf over a pit, intending to cause death or knowing that death is likely, and Z falls in and dies. A commits culpable homicide. In the second, A knows that Z is behind a bush, but B does not know it. A, intending Z's death or knowing it is likely, induces B to peer at the bush, and Z is killed. B may be guilty of no offense because he had no guilty mind, but A commits culpable homicide using B as an innocent instrument. **[1:38:05]:** In the third illustration, A shoots at a fowl intending to kill and steal it, and kills B who is hiding behind a bush without knowing that B was there. Although A was doing an unlawful act, he is not guilty of culpable homicide because he neither intended death nor knew that his act was likely to cause death. Three explanations complete section 100. The first says that if a person causes bodily injury to someone's already suffering from a disorder, disease, or bodily infirmity, and thereby hastens that person's death, he is deemed to have caused the death. The second says that where death is caused by bodily injury, the person causing the injury is deemed to have caused the death, even if proper treatment might have prevented it. The third says that causing the death of a child in the mother's womb is not homicide, but causing the death of a living child, any part of which has been brought forth, may be culpable homicide even if the **[1:39:02]:** child has not breathed or been completely born. **[1:39:04]:** Murder. Now we come to murder. Section 101 of BNS 2023, which corresponds to the old section 300, says that except in the cases excepted, culpable homicide is murder in four situations. BNS 2023 labels them as clauses A, B, C, and D. In the old IPC, the same clauses were called firstly, secondly, thirdly, and fourthly, and you will still find those names in judgments. The first clause applies if the act by which death is caused is done with the intention of causing death. The second clause applies if the act is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. This clause focuses on the special knowledge of the offender about the victim. The illustration explains it. A knows that Z is suffering from a disease such that a blow is likely to cause his death. **[1:39:59]:** A strikes Z intending to cause bodily injury and Z dies. A is guilty of murder, although the blow might not have killed a healthy person. But if A did not know about Z's disease and gave him a blow that would not ordinarily kill a healthy person, A is not guilty of murder. The third clause applies if the act is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. The illustration describes A intentionally giving Z a sword cut or club wound sufficient to cause the death of a man in the ordinary course of nature. A is guilty of murder, although he may not have intended to cause Z's death. The fourth clause applies if the person knows that act is is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and he must do the act without **[1:40:53]:** any excuse for incurring that risk. The illustration describes A who, without any excuse, fires a loaded cannon into a crowd and kills one person. A is guilty of murder, even though he had no premeditated design to kill any particular person. The relationship between culpable homicide and murder. Now we come to the question that confuses students more than any other. If culpable homicide includes intention to cause death and murder also includes intention to cause death, what exactly is the difference? The answer is that culpable homicide is the genus and murder is the species. Every murder is culpable homicide, but not every culpable homicide is murder. Think of it as a large circle called culpable homicide. Inside that large circle is a smaller circle called murder. A killing that falls inside the large circle but outside the small circle is called culpable homicide not amounting to murder. **[1:41:48]:** How do we decide whether a culpable homicide falls inside the smaller circle? There are two routes. First, we compare the mental state with the four clauses of section 101. If none of the four clauses is satisfied, it is culpable homicide not amounting to murder. Second, even if one of the four clauses is satisfied, we check whether any of the five exceptions to section 101 applies. If an exception applies, the killing is again culpable homicide not amounting to murder. The real difficulty lies in comparing the mental states. Let us place each limb of section 100 next to the matching clause of section 101. The first limb of section 100, intention to cause death, matches the first clause of section 101 exactly. If a person intended to cause death and none of the exceptions applies, it is murder. The second limb of section 100 is intention to cause bodily injury likely to cause death. **[1:42:46]:** This is matched by two clauses of section 101. The second clause adds the element of special knowledge about the particular victim. The third clause raises the degree of probability. It requires bodily injury sufficient in the ordinary course of nature to cause death. So, the key difference lies in the words likely to cause death in section 100 and sufficient in the ordinary course of nature to cause death in section 101. Both speak of probability, but the second needs a higher degree of it. Likely means that death is a probable result. Sufficient in the ordinary course of nature means that death is the most probable result, what would normally follow unless something unusual intervened. The third limb of section 100, knowledge that the act is likely to cause death, is matched by the fourth clause of section 101. Again, the difference is one of degree. Section 100 needs knowledge that death is likely. **[1:43:44]:** The fourth clause of section 101 needs knowledge that the act is so imminently dangerous that it must in all probability cause death. And also that the act was done without any excuse for running that risk. The classic explanation of this difference was given by Justice Melvill of the Bombay High Court in R versus Govinda, decided in 1876. The accused, a young man of 18, kicked his wife, a girl of 15, and struck her with his fists. When she fell, he put one knee on her chest and struck her two or three times on the face with his closed fist. The blows caused bleeding on the brain and she died. The sessions judge convicted him of murder and sentenced him to death. Justice Melvill set out the two sections side by side. He found that the accused did not intend to cause death, nor was the injury one that was sufficient in the ordinary course of nature to cause death because a blow with the fist would not ordinarily kill, but a **[1:44:42]:** violent blow on the face of a person lying with her head on the ground was certainly likely to cause death. So, the case fell within the second limb of culpable homicide and not within the third clause of murder. He reduced the conviction to culpable homicide not amounting to murder. In his words, if death is a likely result, it is culpable homicide, and if it is the most probable result, it is murder. He added that in practice, the question will often turn on the nature of the weapon used. A century later, the Supreme Court gave this analysis its modern shape in State of Andhra Pradesh versus R Punnaiah, decided in 1976. In a village divided by bitter factions, the accused followed the leader of a rival faction, a man of 55, when he got off a bus. They picked up heavy sticks and despite his pleas beat him repeatedly on his legs and arms. **[1:45:33]:** He suffered 19 injuries including many fractures and died the next morning from shock and bleeding. The High Court reduced the conviction from murder to culpable homicide not amounting to murder partly because no blow had been aimed at a vital part of the body. The Supreme Court restored the conviction for murder. Justice Sarkaria explained that in the scheme of the code culpable homicide is the genus and murder its species. He identified three degrees of culpable homicide, compared the two sections limb by limb and suggested a three-stage approach. First, did the accused do an act that caused the death? Second, if so, does it amount to culpable homicide? Third, does it fall within any clause of murder and if so, does any exception apply? On the facts, the injuries had been intentionally inflicted and together they were sufficient in the ordinary course of nature to cause death. **[1:46:28]:** That brought the case within the third clause of murder even though no single blow was aimed at a vital part. The court warned that the distinction between these offenses is fine but real and if it is overlooked, it may result in a miscarriage of justice. **[1:46:43]:** So we have three degrees of culpable homicide. The highest degree is murder punished under section 103. The middle degree covers culpable homicide not amounting to murder done with an intention to cause death or to cause bodily injury likely to cause death where an exception applies or the injury intended falls short of the murder clauses. This is punished under the first part of section 105 with imprisonment for life or imprisonment of not less than five years which may extend to Nisha and fine. The lowest degree is culpable homicide where there was only knowledge that the act was likely to cause death without any such intention. This is punished under the second part of section 105 with imprisonment up to 10 years or fine or both. Let us apply this with simple examples. A shoots B in the chest from close range wanting him dead. B dies. **[1:47:37]:** That is murder under the first clause. A, knowing that B has a very fragile skull because of a recent operation, deliberately slaps B hard on the head. B dies. That is murder under the second clause because A knew that injury was likely to kill this particular person. A stabs B in the abdomen with a long knife intending to cause that wound. The wound is found to be sufficient in the ordinary course of nature to cause death. B dies. That is murder under the third clause even if A says he only wanted to injure. A hits B once with a light stick on the arm in a quarrel. Unexpectedly, B falls, hits his head on a stone, and dies. A did not intend death, did not intend an injury likely to cause death, and did not know that death was likely. This is not culpable homicide at all. **[1:48:23]:** A may be guilty only of causing hurt. The third clause and the test in Virsa Singh. The third clause of section 101 is the one most often used in practice because killers rarely admit that they intended death. So, it is important to understand how courts apply it. The authoritative test was laid down by Justice Vivian Bose in Virsa Singh versus State of Punjab decided by the Supreme Court in 1958. The accused thrust a spear into the abdomen of Khem Singh. The wound was so deep that three coils of the intestine came out and Khem Singh died the next day. There was only this one injury. The trial court found that the accused had not intended to kill. The question was whether he could still be guilty of murder under the third clause. His argument was that the prosecution must prove that he intended to inflict an injury that was sufficient to cause death. **[1:49:15]:** The Supreme Court rejected this argument and upheld his conviction for murder. It laid down four steps that prosecution must prove. First, it must establish quite objectively that a bodily injury is present. Second, it must prove the nature of the injury. Third, it must prove that there was an intention to inflict that particular bodily injury, that it was not accidental or unintentional, and that some other kind of injury was not intended. Fourth, it must prove that the injury of that type is sufficient to cause death in the ordinary course of nature. The fourth step is purely objective and has nothing to do with the intention of the accused. Once these four elements are proved, the offense is murder, and it does not matter that there was no intention to cause death. The court put it memorably, "No one has a license to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature, and claim that they are not guilty of murder." **[1:50:14]:** The beauty of this test is that it separates two questions. The first question, whether the accused intended to inflict the particular injury, is a subjective question about his mind. The second question, whether that injury was sufficient in the ordinary course of nature to cause death, is an objective question decided mainly on medical evidence. The accused cannot escape by saying that he did not know the injury was so serious. Once he intended that particular injury, and that injury was objectively sufficient to cause death in the ordinary course of nature, the law treats the killing as murder. The fourth clause, and imminently dangerous acts. The fourth clause covers cases where there is no intention to cause any particular injury to any particular person, but the act is so dangerous that death is almost certain. Firing into a crowd, driving a vehicle at high speed into a procession, or setting fire to an occupied house at night are classic examples. **[1:51:11]:** The phrase without any excuse is important. If a person runs such a risk for a lawful and pressing reason, the fourth clause may not apply. A striking example is Garasi Bai versus the state decided by the High Court of Madhya Bharat in 1952. The accused lived with her husband, their three young children, and her sister-in-law, and there were constant quarrels in the house. One day, after her sister-in-law told her to leave, she went out with her three children saying that she would jump into a well, and she did so with all three children. A few hours later, she was found alive holding on to the side of the well, but all three children had died. She had no intention of killing the children. Her intention was to end her own life. So, the first three clauses of murder did not apply, but the High Court held her guilty of murder under the fourth clause. **[1:52:04]:** Every sane person is presumed to have some knowledge of the nature of his act, and only insanity takes it away. She must have known that jumping into a well with small children was so imminently dangerous that it would in all probability cause their death. Was there any excuse for incurring that risk? The court said, "No." The harassment at home could have been escaped by other means without taking the children into the well. The court explained that an imminently dangerous act is not murder if it is done to prevent a greater evil, but this was not such a case. Recognizing the tragic circumstances, the court recommended to the government that her sentence be reduced. The case shows how the fourth clause works. Knowledge of extreme danger, combined with the absence of any excuse, makes the killing murder even without any intention to kill. **[1:52:54]:** Transferred intention. Before we go to the exceptions, let us note section 102, which deals with what is called transferred malice. Suppose a person does something which he intends or knows to be likely to cause death and thereby causes the death of a person whose death he neither intended nor knew to be likely. The culpable homicide is of the same description as if he had killed the intended person. So, if A shoots at B intending to kill him, misses, and kills C who was standing nearby, A is guilty of murder of Susie just as he would have been if he had killed B. The intention moves with the bullet. The exceptions to murder. We now come to the five exceptions in section 101. Each describes a situation where even though the killing satisfies one of the four clauses, the law reduces it from murder to culpable homicide not amounting to murder. **[1:53:46]:** The exceptions do not acquit the accused. They reduce the seriousness of his offense because his blameworthiness is reduced. Exception one is grave and sudden provocation. Culpable homicide is not murder if the offender, while deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation. The same applies if he causes the death of any other person by mistake or accident. There are three provisos. The provocation must not be sought or voluntarily provoked by the offender as an excuse for killing or harming anyone. It must not be given by anything done in obedience to the law or by a public servant in the lawful exercise of his powers. And it must not be given by anything done in the lawful exercise of the right of private defense. The explanation adds that whether the provocation was grave and sudden enough is a question of fact. **[1:54:40]:** Notice the requirements. The provocation must be grave, which means serious enough to make a reasonable person lose self-control. It must be sudden, which means it comes without warning, and the killing follows before there is time to cool down, and the offender must actually have been deprived of the power of self-control at the time of the killing. If there was time for his passion to cool and he killed after deliberation, the exception will not help him. The leading case on this exception is K.M. Nanavati versus State of Maharashtra decided by the Supreme Court in 1961. The accused, a naval officer, learned from his wife that she had been having an affair with his friend Prem Ahuja. He dropped his wife and children at a cinema, went to his ship and took a revolver and cartridges on a false pretext. He then went to the office of Ahuja and from there to his flat, entered his bedroom and shot him dead. **[1:55:35]:** About 3 hours had passed between the confession of his wife and the killing. He pleaded grave and sudden provocation. The jury had found him not guilty, but on a reference the High Court convicted him of murder and the Supreme Court upheld that conviction. The court laid down four principles that still guide us. First, the test of grave and sudden provocation is this, would a reasonable man belonging to the same class of society as the accused and placed in the same situation be so provoked as to lose his self-control? Second, in India words and gestures may also amount to grave and sudden provocation. Third, the mental background created by the previous act of the victim may be taken into account. Fourth, the fatal blow must be clearly traced to the influence of passion arising from that provocation and not to a time after the passion has cooled down and there has been room for premeditation and calculation. **[1:56:31]:** On the facts, the accused had enough time to cool down. His conduct in arranging for his family, collecting the revolver on a false pretext and searching for Ahuja showed a deliberate and calculated killing. So, the exception did not apply. The court also said that no abstract standard of reasonableness can be laid down because what provokes a reasonable person depends on the customs, manners and social background of the community. Exception two covers private defense exceeded. Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes death. He must act without premeditation and without any intention of doing more harm than is necessary for defense. We met this exception at the end of the previous unit. The illustration describes Z attempting to horsewhip A not in a way likely to cause grievous hurt. **[1:57:27]:** A draws a pistol, Z continues the assault, and A, believing in good faith that he can prevent the horsewhipping in no other way, shoots Z dead. A has not committed murder, but only culpable homicide. Exception three covers a public servant or a public aiding a public servant acting for the advancement of public justice, who exceeds his legal powers and causes death. The exception applies if he did the act in the good faith belief that it was lawful and necessary for the due discharge of his duty and without ill will towards the person killed. Exception four covers a sudden fight. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. The explanation says it does not matter which party offered the provocation or committed the first assault. **[1:58:22]:** Students often confuse exception four with exception one. The difference is this: In exception one, one person provokes and the other loses self-control. In exception four, there is a mutual fight, both parties are in the heat of passion, and there is no question of who provoked whom. But the protection is lost if a person takes undue advantage, such as attacking an unarmed man with a weapon, or continues to strike a person who has fallen down, or acts in a cruel manner. Exception five covers consent. Culpable homicide is not murder when the person whose death is caused, being above the age of 18 years, suffers death or takes the risk of death with his own consent. A classic example is a suicide pact where one partner kills the other at the other's genuine request. The illustration adds that if A instigates a child to commit suicide, the child, because of his youth, cannot give consent and so A has abetted murder. **[1:59:18]:** Punishment for murder and related provisions. Section 103 subsections that whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine. Under settled law, the death penalty is imposed only in the rarest of rare cases when the alternative of life imprisonment is unquestionably ruled out. BNS 2023 adds a new provision in section 103 subsection two. This applies when a group of five or more persons, acting in concert, commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground. Each member of the group shall be punished with death or imprisonment for life and shall also be liable to fine. This responds to the problem of murders committed by mobs. Section 104 provides that a person who commits murder while already under a sentence of imprisonment for life shall be punished with death or with imprisonment for life, which shall mean the remainder of that person's natural life. **[2:00:22]:** And section 106 covers causing death by a rash or negligent act not amounting to culpable homicide. This is a separate offense and not a degree of culpable homicide. A person who causes death through careless driving without any intention or knowledge of the kind required by section 100 falls here. The punishment is up to five years and for a registered medical practitioner causing death by negligence while performing a medical procedure up to 2 years. A new subsection 2 for a driver who causes death and escapes without reporting it provides up to 10 years, but the central government has not yet brought it into force. **[2:01:02]:** Kidnapping. Let us now move to offenses that interfere with a person's liberty and with the authority of guardians. The first of these is kidnapping. Section 137 subsection 1 of BNS 2023 says that kidnapping is of two kinds. Kidnapping from India and kidnapping from lawful guardianship. Kidnapping from India is defined in clause A. Whoever conveys any person beyond the limits of India without the consent of that person or of some person legally authorized to consent on behalf of that person is said to kidnap that person from India. Notice that this applies to a person of any age. If A secretly carries an adult across the border without that adult's consent, A kidnaps him from India. Kidnapping from lawful guardianship is defined in clause B. Whoever takes, or entices any child or any person of unsound mind out of the keeping of the lawful guardian without the consent of that guardian is said to kidnap that child or person from lawful guardianship. **[2:02:02]:** Here BNS 2023 has made an important change. Under the old IPC, the age limit was different for boys and girls. A boy was protected only if he was under 16, while a girl was protected if she was under 18. BNS 2023 uses the word child, and section 2 clause 3 defines a child as any person below the age of 18 years. So today the age limit is 18 for every child, whatever the child's gender. Let us take the ingredients one by one. First, the person must be a child or a person of unsound mind. Second, the accused must take or entice that person. Taking means causing the child to go with the accused and it does not require force. Enticing means inducing the child by persuasion, promises, or temptation to leave the guardian. Third, the taking or enticing must be out of the keeping of the lawful guardian. **[2:02:54]:** Fourth, it must be without the consent of the guardian. What is the keeping of the lawful guardian? It does not mean that the child must be physically sitting inside the guardian's house. A child who has gone to school, to the market, or to a friend's house remains in the keeping of the guardian because the guardian's control and protection continue. The explanation adds that a lawful guardian includes any person lawfully entrusted with the care or custody of the child. So, a school teacher, a hostel warden, or a relative who has been entrusted with the child can be a lawful guardian for this purpose. The most important point is this, the consent of the child is irrelevant. The offense protects the right of the guardian and the law assumes that a child cannot give a meaningful consent to leaving the guardian's protection. So, if a 16-year-old girl says that she went with the accused willingly, that does not help the accused if he took or enticed her. **[2:03:51]:** The only consent that matters is the consent of the guardian. There is an exception, the clause does not extend to a person who in good faith believes himself to be the father of an illegitimate child or who in good faith believes himself entitled to the lawful custody of the child. But this exception is not applied if the act is committed for an immoral or unlawful purpose. Kidnapping is punishable under section 137, subsection two with imprisonment up to seven years and fine. More serious forms are punished separately. For example, kidnapping a child for begging under section 139 and kidnapping or abducting for murder, ransom, secret confinement, or slavery under section 140. Taking and enticing. The biggest difficulty in kidnapping is to decide when the accused can be said to have taken or enticed the child. What if the child leaves home on her own and the accused only goes along? **[2:04:48]:** The Supreme Court has considered this question in three well-known decisions. The first is State of Haryana versus Rajaram, decided by the Supreme Court in 1972. A girl of about 14 lived with her father. A man named Jai Narayan wanted to seduce her and when her father came to know of it, he forbade him from visiting the house. Jai Narayan then used the accused, Rajaram, a neighbor, as his go-between. Rajaram persuaded the girl and arranged for a message asking her to come out at midnight. When she came, he took her and handed her over to Jai Narajan. The High Court acquitted Rajaram mainly because the girl had gone willingly. The Supreme Court restored his conviction. It explained that the object of the law is to protect minors from being seduced for improper purposes and to protect the rights of their guardians. The word keeping implies the guardian's charge, protection, and control and it is consistent with the child's freedom to move about. **[2:05:47]:** The consent of the minor is wholly immaterial. Only the consent of the guardian takes the case out of the offense and force or fraud is not necessary. Persuasion by the accused which creates willingness on the part of the minor to leave her guardian is enough. Here the accused had actively participated in forming her intention to leave. The second decision shows the limit of the offense. In S. Varadarajan versus State of Madras, decided by the Supreme Court in 1964, the girl was a college student who was only a few weeks short of 18. She had told her sister that she wished to marry the accused, a neighbor. Her father moved her to a relative's house. One day, she left that house on her own, telephoned the the and asked him to meet her on a road. She got into his car, and they went and registered an agreement to marry. **[2:06:37]:** The accused was convicted of kidnapping by the lower courts. The Supreme Court acquitted him. It drew a distinction between taking a minor and merely allowing a minor to accompany a person. Where a minor, who understands what she is doing, voluntarily leaves the guardian and joins the accused, the accused cannot be said to have taken her. It must be shown that he held out some inducement or took an active part in forming her intention to leave. Here, the initiative came entirely from the girl, who was mature and on the verge of majority. The court was careful to say that it was deciding on these facts alone. The third decision takes the idea of enticing further. In Thakorlal D. Vadgama versus State of Gujarat, decided by the Supreme Court in 1973, the accused, a wealthy businessman, became friendly with the family of a school-going girl below 15 years of age. **[2:07:30]:** Over many months, he gave her gifts, took the family on trips, and kept in touch with her through letters. Her mother became suspicious and warned her. Eventually, at his instance, the girl left her parents' home and went to him. The accused relied on the earlier case and argued that the girl had come to him on her own. The Supreme Court rejected the argument and upheld his conviction. It explained that the word entice involves the idea of inducement or allurement by giving rise to hope or desire in the other person. Enticement may work gradually over a long period. If the accused has laid the foundation by earlier inducements, he cannot escape by saying that at the final moment, the minor came voluntarily. The act of the accused need not be the immediate cause of her leaving. So, the position can be summarized in this way. If the accused played an active role by persuading, inducing, promising, or arranging for the child to leave the guardian, he has taken or enticed the child even if the child appeared to go willingly. **[2:08:32]:** But if the child with full knowledge and capacity decided on her own to leave and the accused did no more than allow her to accompany him, there is no taking. One practical point remains. The prosecution must prove that the child was below 18 years of age at the time of the taking or enticing. In many real cases, the age of the girl or boy proved through school records, birth certificates or medical opinion decides whether the offense is made out at all. **[2:09:00]:** Abduction. Section 138 defines abduction. Whoever by force compels or by any deceitful means induces any person to go from any place is said to abduct that person. So abduction has two ingredients. First, the person must be compelled or induced to go from any place. Second, the means used must be either force or deceitful means. Force means physical force used to make the person go. Deceitful means includes any trick or false representation. For example, if A tells B, an adult woman, that her mother is seriously ill in hospital and on this false story B gets into A's car and goes with him, A has abducted B by deceitful means. Unlike kidnapping, abduction by itself is not punished as an offense. It becomes punishable only when it is done with a particular purpose. For example, section 140 punishes abduction in order to murder for ransom, for secret and wrongful confinement, or for grievous hurt or slavery. **[2:09:56]:** Section 87 punishes kidnapping or abducting a woman to compel her marriage against her will or to force or seduce her to illicit intercourse. Another important feature of abduction is that it is a continuing offense. A person is abducted not only when he is first moved, but also every time he's moved from one place to another by force or deceit. So if A forcibly takes B from one city to another and then to a third city. The abduction continues throughout. Kidnapping from lawful guardianship, on the other hand, is complete the moment the child is taken out of the keeping of the guardian. It does not continue. Kidnapping and abduction compared. Let us now place the two offense I side by side because this distinction is very commonly tested. First, the age of the victim. Kidnapping from lawful guardianship can be committed only against a child under 18 or a person of unsound mind. **[2:10:50]:** Abduction can be committed against a person of any age. Second, the means. Kidnapping needs only taking or enticing and no force or deceit is required. Abduction requires force or deceitful means. Third, consent. In kidnapping, the consent of the child is irrelevant and only the guardian's consent matters. In abduction, if the person freely consents to go with full knowledge of the facts, there is no abduction. Fourth, whose interest is protected? Kidnapping from guardianship protects the right of the guardian. Abduction protects the liberty of the person abducted. Fifth, the nature of the offense. Kidnapping is complete as soon as the child is removed from the keeping of the guardian and it is a substantive offense by itself. Abduction is a continuing offense and is punishable only when it is done with one of the purposes stated in the Samhita. **[2:11:42]:** Sexual offenses. We now come to sexual offenses. Before we begin, let me say something about the approach. These offenses concern some of the most serious violations of a person's dignity and bodily autonomy. We will study them as lawyers with precise attention to the ingredients and with respect for the persons affected. The central idea running through the entire topic is consent. The definition of rape is in section 63 of BNS 2023, which corresponds to the old section 375 of the IPC as amended in 2013. The definition is gender specific. It applies to an offense committed by a man against a woman. Section 2 clause 35 defines a woman as a female human being of any age. The section describes in four clauses a range of penetrative and other sexual acts. The definition is deliberately broad. It is not limited to one particular physical act and penetration to any extent is enough. **[2:12:40]:** But the physical act alone is not the offense. The act becomes rape only if it is done in any of the seven circumstances listed in the section. These are first, against her will. Second, without her consent. Third, with her consent when the consent was obtained by putting her or any persons in whom she is interested in fear of death or hurt. Fourth, with her consent when the man knows he is not her husband and she consents because she believes he is another man to whom she is or believes herself to be lawfully married. Fifth, with her consent when at the time of giving it she is unable to understand the nature and consequences of the act. This must be because of unsoundness of mind, intoxication, or a stupefying substance given by him or through another person. Sixth, with or without her consent when she is under 18 years of age. **[2:13:31]:** And seventh, when she is unable to communicate consent. Look closely at these seven circumstances. The first two deal with the absence of will or consent. The next three deal with consent that is not real consent because it was obtained through fear, through a mistake about identity, or from a person who could not understand what she was agreeing to. You will notice that these closely follow the general rule on invalid consent in section 28. The sixth circumstance makes consent legally irrelevant for a girl below 18 years of age. So the age of consent under the present law is 18 years. And the seventh covers a woman who cannot communicate her consent at all. The meaning of consent, explanation two to section 63 defines consent. Consent means an unequivocal voluntary agreement when the woman by words, gestures, or any form of verbal or nonverbal communication communicates willingness to participate in the specific sexual act. **[2:14:29]:** And the proviso adds that a woman who does not physically resist the act shall not by reason only of that fact be regarded as consenting. Notice three important features of this definition. First, consent must be unequivocal, which means clear and not ambiguous. Second, it must be voluntary, which means free from force, fear, or pressure. Third, it is consent to the specific sexual act. Agreeing to one thing does not mean agreeing to everything. And the absence of physical resistance does not mean consent. This brings us to the distinction between consent and submission. Consent is a free and positive act of the will given with knowledge of what is being agreed to. Submission is merely yielding because a person feels helpless, frightened, or overpowered. Every consent involves a kind of submission, but not every submission is consent. A woman who stops resisting because she is terrified, or because she is in the custody of the person who is assaulting her, has submitted. **[2:15:28]:** She has not consented. The law was reformed to reflect this distinction only after a decision that caused a great public debate. That decision is Tukaram versus State of Maharashtra, decided by the Supreme Court in 1978. A young girl, an orphan who worked as a laborer, was brought to a police station at night in connection with a complaint filed by her brother. After the others were asked to leave, she alleged that two police constables on duty had sexually assaulted her inside the police station. The Sessions Court acquitted them. The High Court convicted them, holding that mere passive or helpless surrender of the body and earth fear in police custody could not be treated as consent. The Supreme Court reversed the High Court and acquitted both constables. It reasoned that there were no marks of injury and that she had not raised an alarm. It added that the prosecution had not proved that her consent was obtained by putting her in fear of death or hurt as the definition then required. **[2:16:29]:** The judgment caused a nationwide outcry. Legal scholars wrote an open letter to the Chief Justice criticizing it. Parliament responded in 1983 by introducing stricter punishment for custodial rape and a presumption about the absence of consent in certain aggravated cases. That presumption is now found in section 120 of BSA 2023. In 2013, the law went further and defined consent itself. That definition, which we have just read in explanation two, directly rejects the reasoning of that decision. The absence of physical resistance does not mean that there was consent and a woman in the custody of the police who submits out of helplessness has not consented. The two exceptions, section 63 has two exceptions. Exception one says that a medical procedure or intervention shall not constitute rape. Exception two says that sexual intercourse or sexual acts by a man with his own wife, the wife not being under 18 years of age, is not rape. **[2:17:31]:** The words not being under 18 years of age in exception two did not appear in this form in the old IPC. They reflect a decision of the Supreme Court. In Independent Thought versus Union of India, decided by the Supreme Court in 2017, a public interest petition challenged the old marital exception. At that time, the exception protected a husband whose wife was not under 15 years of age. This created a strange contradiction. Sexual intercourse with any girl below 18 years of age was rape. But if the girl was married and was between 15 and 18, the exception protected the husband. Laws protecting children, such as the law against child sexual abuse, treated every person below 18 as a child. The Supreme Court held that a married girl between 15 and 18 is still a child, and that the exception created an arbitrary and discriminatory distinction between a married and an unmarried girl child. **[2:18:29]:** The court did not strike down the exception. Instead, it read it down so that it would apply only where the wife is not under 18 years of age. The court made it clear that it was not deciding the larger question of marital rape of adult women. BNS 2023 has now written this ruling into the statute itself, which is why exception two today uses the words not being under 18 years of age. Two further points must be noted. First, section 67 separately punishes a husband who has sexual intercourse with his wife without her consent while she is living separately, whether under a decree of separation or otherwise. Second, the question whether the marital exception for adult wives is constitutionally valid is pending before a three-judge bench of the Supreme Court, which in September 2026 listed the matter for final hearing. Until the Supreme Court decides, exception two remains part of the law. **[2:19:27]:** Consent obtained by deceit. What about consent obtained by deception? Section 28 already tells us that consent given under a misconception of fact is not valid consent if the accused knew or had reason to believe that it was given because of that misconception. Courts have long struggled with cases where a woman agrees to a sexual relationship because the man promises to marry her and he later refuses. The courts have drawn a careful line. If the promise to to was false from the very beginning, made only to obtain consent with no intention of keeping it, then the consent may be vitiated by a misconception of fact. But if the man genuinely intended to marry her at the time and later could not or did not do so because of changed circumstances, that is a broken promise, not a false promise. It does not convert a consensual relationship into rape. **[2:20:18]:** A long consensual relationship between two adults does not become rape merely because it ends without marriage. BNS 2023 now deals with this area directly through a new provision, Section 69. Whoever by deceitful means or by making a promise to marry a woman without any intention of fulfilling it has sexual intercourse with her not amounting to rape shall be punished with imprisonment up to 10 years and fine. The explanation says that deceitful means includes inducement for or false promise of employment or promotion and marrying by suppressing identity. Notice the key words, without any intention of fulfilling the same. For a promise to marry, the offense again depends on the man's intention at the time he made the promise. Punishment and aggravated forms. Section 64 subsection 1 punishes rape with rigorous imprisonment of not less than 10 years, which may extend to imprisonment for life and fine. **[2:21:16]:** Section 64 subsection 2 lists aggravated situations where the offender abuses a position of power or the victim is especially vulnerable. Some of these concern the position of the offender. They include rape by a police officer within his police station or on a woman in his custody and by a public servant on a woman in his custody. Next is rape by a member of the armed forces in an area of deployment. They also include rape by the staff of a jail, remand home, hospital or similar institution and by a relative, guardian, teacher or person in a position of trust, authority, control, or dominance. Others concern the victim or the circumstances. These include rape during communal or sectarian violence, rape of a woman known to be pregnant, and rape of a woman incapable of giving consent or suffering from mental or physical disability. Also covered are rape causing grievous bodily harm or endangering life, and repeated rape of the same woman. **[2:22:15]:** For these, the punishment is rigorous imprisonment of not less than 10 years, which may extend to imprisonment for life, meaning the remainder of the person's natural life, and fine. Section 65 deals with young victims. Rape of a woman under 16 years is punished with rigorous imprisonment of not less than 20 years, which may extend to imprisonment for the remainder of natural life and fine. Rape of a woman under 12 years carries the same minimum and may also be punished with death. Section 66 applies where a person guilty under Section 64 inflicts, in the course of the rape, an injury that causes the death of the woman or leaves her in a persistent vegetative state. The punishment is not less than 20 years, up to the remainder of natural life or death. Section 68 deals with a person in a position of authority or in a fiduciary relationship, a public servant, or a person managing a jail, remand home, institution, or hospital. **[2:23:13]:** If he abuses his position to induce or seduce a woman in his custody or charge to have sexual intercourse that does not amount to rape, he is punished with rigorous imprisonment of not less than 5 years, which may extend to 10 years, and fine. Gang rape. Section 70 deals with gang rape. Where a woman is raped by one or more persons constituting a group or acting in furtherance of a common intention, each of those persons is deemed to have committed rape. The punishment is rigorous imprisonment of not less than 20 years, which may extend to imprisonment for the remainder of natural life and fine. Where the woman is under 18 years of age, each person shall be punished with imprisonment for the remainder of natural life and fine or with death. Notice how this connects to what we learned in the first unit. Section 70 is a provision of constructive liability. **[2:24:06]:** It is not necessary to prove that each member of the group personally committed the physical act. If the persons formed a group or acted in furtherance of a common intention and the woman was raped by one or more of them, each member is deemed to have committed rape. This is the same logic as common intention applied with special force to a grave offense. Another change in BNS 2023 is that the old separate categories of gang rape on a girl under 16 and under 12 have been replaced by one category, a woman under 18. Students should also remember that sexual offenses against children are dealt with in great detail by a special law, the Protection of Children from Sexual Offences Act of 2012. That act is gender neutral and protects every child below 18. In practice, both laws are often applied together. **[2:24:58]:** We have now completed offenses against the human body. We have seen how the law grades killing according to the mind of the killer. We have seen how it protects children from being taken from their guardians, how it protects every person's liberty against force and deceit and how it protects bodily autonomy through the law of consent. Let us now turn to the last family of offenses in this course, offenses against property. Unit 5, offenses against property, the basic vocabulary. Offenses against property are found in chapter 17 of BNS 2023. In this unit, we will study five of them, namely theft, extortion, robbery, dacoity and cheating. Before we begin, we need a small vocabulary from section 2, because these words appear again and again. The first word is dishonestly. Under section 2 clause 6, a person does a thing dishonestly when he does it with the intention of causing wrongful gain to one person or wrongful loss to another person. **[2:25:57]:** Wrongful gain under clause 36 means gain by unlawful means of property to which the person gaining is not legally entitled. Wrongful loss under clause 37 means loss by unlawful means of property to which the person losing it is legally entitled. And clause 38 adds something very important. A person gains wrongfully not only when he acquires property wrongfully, but also when he retains it wrongfully. And a person loses wrongfully not only when he is wrongfully deprived of property, but also when he is wrongfully kept out of it. Remember this last point. It means that even a temporary deprivation can be a wrongful loss. The second word is fraudulently. Under clause 9, a person does a thing fraudulently if he does it with intent to defraud, but not otherwise. Dishonestly is about wrongful gain or loss of property. Fraudulently is about deceit. As the courts explain it, the deceiver aims at some advantage for himself or some injury to the deceived, which need not always be a loss of property. **[2:26:59]:** The third expression is movable property. Under clause 21, movable property includes property of every description, except land and things attached to the earth or permanently fastened to anything attached to the earth. And the fourth is valuable security. Under clause 31, a valuable legal right is created, extended, transferred, restricted, extinguished, or released. It can also be a document by which a person acknowledges that he is under a legal liability or does not have a certain legal right. A promissory note, a check, a bond, and a sale deed are examples. Theft, section 303, subsection one of BNS 2023 defines theft. Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, moves that property in order to such taking, is said to commit theft. We can identify five ingredients. First, dishonest intention to take. Second, the property must be movable. **[2:28:00]:** Third, it must be in the possession of some person. Fourth, it must be taken without that person's consent. And fifth, there must be some moving of the property in order to such taking. Let us take them one by one. The first ingredient is dishonest intention. This is the heart of theft. The intention must exist at the time of moving the property. If A takes Z's umbrella from a stand, honestly believing it to be his own, A does not commit theft because there is no dishonest intention. But, dishonest intention does not require an intention to keep the property permanently. If A takes Z's property, intending to keep it until Z pays a reward for its return, A has taken it dishonestly and has committed theft. The leading case on this point is Pyarelal Bhargava versus State of Rajasthan, decided by the Supreme Court in 1962. The accused was a superintendent in the office of the Chief Engineer at Alwar. **[2:28:54]:** A friend of his had a matter pending with the government, and the relevant file contained some of his friend's papers. At the friend's request, the accused got the file from the office through a clerk and took it home. There, the friend removed some papers and substituted others. The next day, the accused returned the file to the office. He argued that he could not be guilty of theft because he had only taken the file temporarily and had returned it. The Supreme Court rejected this argument and upheld his conviction for theft. It held that the file was in the possession of the government department, not of the accused personally. To commit theft, one need not take movable property permanently out of the possession of another. Wrongful loss need not be caused by permanent deprivation of property. It may be caused even by a temporary dispossession. By taking the file out of the department's possession, even for a day, the accused caused wrongful loss to the department, and he did so dishonestly. **[2:29:54]:** So, remember this principle well. Under Indian law, an intention to deprive the owner permanently is not necessary for theft. **[2:30:02]:** The second ingredient is that the property must be movable. Land cannot be stolen, but explanation one says that a thing attached to the earth becomes capable of being stolen as soon as it is severed from the earth. And explanation two adds that the moving affected by the same act which causes the severance may itself be theft. So, if A cuts down a tree on Z's land intending to take it dishonestly, A commits theft the moment the tree is severed. The third ingredient is possession. Theft is an offense against possession, not just against ownership. The property must be taken out of the possession of someone. This leads to a surprising result. Even an owner can commit theft of his own property. If A pawns his watch with Z, and then takes it back without Z's consent before repaying the loan, A commits theft because Z was in lawful possession, and A took it dishonestly. **[2:30:54]:** On the other hand, a ring lying on the public road is not in anyone's possession, and a person who picks it up commits no theft, although he may commit criminal misappropriation if he dishonestly keeps it. Section 3, subsection 3 of BNS 2023 adds that property in the possession of a person's spouse, clerk, or servant on account of that person is in that person's possession. The fourth ingredient is the absence of consent. Explanation five says that consent may be express or implied, and may be given by the person in possession or by anyone authorized by him. So, if A's friend takes a book from A's shelf to read believing that A would not mind, there may be implied consent and no theft. The fifth ingredient is moving the property. Theft is complete as soon as the property is moved however slightly with the dishonest intention. The thief does not need to carry it away. **[2:31:48]:** Explanation three says that a person causes a thing to move by removing an obstacle that prevented it from moving or by separating it from another thing as well as by actually moving it. Explanation four says that a person who causes an animal to move is said to move that animal and everything that moves because of it. So, if A puts bait in his pocket to make Z's dog follow him intending to take the dog dishonestly, theft is complete when the dog begins to follow. Theft is punishable under section 303, subsection two with imprisonment up to three years or fine or both. A second or subsequent conviction carries rigorous imprisonment of at least one year and up to five years with fine. BNS 2023 also introduces a humane innovation. Where the value of the stolen property is less than 5,000 rupees and the person is convicted for the first time, he shall be punished with community service. **[2:32:45]:** This applies when he returns the value or restores the stolen property. The new law also creates a separate offense of snatching in section 304 which covers theft where the offender suddenly, weekly or forcibly seizes or grabs movable property from a person. **[2:33:02]:** Extortion. Now, let us understand extortion. Section 308, subsection one defines it. Whoever intentionally puts any person in fear of any injury to that person or to any other and thereby dishonestly induces the persons 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 commits extortion. So, the ingredients are these. First, the accused must intentionally put a person in fear of injury. Second, the injury may be to that person or to anyone else. Third, by putting him in fear, the accused must dishonestly induce him to deliver property, a valuable security, or something signed or sealed that may be converted into a valuable security. Fourth, there must be actual delivery of the property. The word injury here is defined in section 2, clause 14 as any harm whatever illegally caused to any person in body, mind, reputation, or property. **[2:34:00]:** So, the fear need not be fear of physical harm. A threat to publish a defamatory statement about Z unless Z pays money is extortion. A threat to keep Z's child in wrongful confinement unless Z signs and delivers a promissory note is extortion. BNS 2023 has also added an illustration for the modern world. A sends Z a message through an electronic device saying that Z's child is in his possession and will be put to death unless Z sends 1 lakh rupees. If Z sends the money, that is extortion. Notice the important requirement of delivery. Extortion is complete only when the person put in fear actually delivers the property. It is punished under subsection 2 with imprisonment up to 7 years or fine or both. If the victim refuses, the accused has not committed extortion, though he may be punished for putting the person in fear in order to commit extortion under section or 6. **[2:34:57]:** Another illustration is very useful. If A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign a blank paper and deliver it to A, A commits extortion because the signed blank paper may be converted into a valuable security. Theft and extortion compared. Now, we can compare theft and extortion. First, in theft the property is taken without the consent of the owner. In extortion, the owner does consent and deliver the property, but his consent is obtained by putting him in fear. Second, in theft the offender himself moves the property. In extortion, the victim delivers it. Third, theft can only be of movable property. Extortion is not limited to movable property because the section says any property and it also covers a valuable security or a signed or sealed document. Fourth, fear is not an element of theft at all, while fear of injury is the very core of extortion. **[2:35:51]:** The easiest way to remember the difference is this. **[2:35:54]:** In theft, the thief takes. In extortion, the victim gives, but he gives because he is afraid. Robbery. To understand robbery, first remember what theft and extortion mean because robbery is not a completely separate idea. Section 309, subsection 1 says that in all robbery, there is either theft or extortion. Robbery is an aggravated form of one of these two offenses. When does theft become robbery? Section 309, subsection 2 answers this. Theft is robbery if the offender, for that end, voluntarily causes or attempts to cause to any person death, hurt, or wrongful restraint, or fear of instant death, instant hurt, or instant wrongful restraint. This must be done in order to commit the theft, or while committing the theft, or while carrying away or attempting to carry away the stolen property. Notice two key elements. First, the violence or fear must be used for the purpose of the theft. **[2:36:49]:** The words used are for that end. Second, the violence or fear must be at the time of the theft. That is, in order to commit it, while committing it, or while carrying away the property. If A steals Z's bag and an hour later meets Z on the street and beats him because of an old quarrel, the theft does not become robbery because the violence was not for the purpose of the theft. But if A holds Z down and takes money from his clothes, A has committed theft and has caused wrongful restraint in order to commit it. That is robbery. When does extortion become robbery? Section 309, subsection 3 answers this. Extortion is robbery if the offender at the time of committing the extortion is in the presence of the person put in fear. He must commit the extortion by putting that person in fear of instant death, instant hurt, or instant wrongful restraint to that person or someone else. **[2:37:43]:** And by so putting him in fear, he must induce him then and there to deliver the thing extorted. The explanation says that the offender is present if he is sufficiently near to put the other person in fear of instant death, hurt, or restraint. So, three elements convert extortion into robbery. The offender must be present, the fear must be of instant harm, and the delivery must be then and there. The illustrations make this very clear. If A meets Z on the highway, shows a pistol and demands Z's purse, and Z hands it over, A has committed robbery by extortion. But suppose A sends a message saying that Z's child is with his gang and will be killed unless Z sends 10,000 rupees, and Z sends it. That is extortion, not robbery, because the threat is not of instant harm in Z's presence. And the delivery is not then and there. **[2:38:31]:** Let us now compare robbery with theft and with extortion. Robbery differs from simple theft because of the added element of violence or fear of instant violence used for the purpose of the theft. Robbery differs from simple extortion because of the presence of the offender, the instant nature of the threat, and the immediate delivery. Robbery is punished under section 309, subsection 4 with rigorous imprisonment up to 10 years and fine. And if it is committed on a highway between sunset and sunrise, the imprisonment may extend to 14 years. An attempt to commit robbery is punished under subsection five and under subsection six, if any person voluntarily causes hurt in committing or attempting robbery, that person and every other person jointly concerned in the robbery can be punished. The punishment is imprisonment for life or rigorous imprisonment up to 10 years and fine. Notice again the idea of joint liability. **[2:39:29]:** Dacoity. Dacoity is robbery committed by a larger group. Section 310 subsection one says that when five or more persons conjointly commit or attempt to commit a robbery, every person so committing or attempting commits dacoity. The same is true where the persons conjointly committing or attempting the robbery together with the persons present and aiding amount to five or more. In that case, every person committing, attempting or aiding is said to commit dacoity. So, the first requirement is that there must be robbery or an attempt to commit robbery. The second requirement is the number five or more persons. And the third is that they must act conjointly, meaning together in concert for the common purpose of the robbery. The persons counted include not only those who actually take the property, but also those who are present and aiding, such as a person keeping watch outside or waiting in a vehicle to help the others escape. **[2:40:26]:** Let us test this. Four persons enter a house and rob the owner, while a fifth waits outside in a car to drive them away. All five are guilty of dacoity because the fifth person is present and aiding. But if only four persons are involved, it is robbery, not dacoity. However, I'll add the easiest way to remember the relationship is this. Every dacoity is a robbery, but a robbery becomes dacoity only when five or more persons conjointly take part. Dacoity is punished under section 310 subsection two with imprisonment for life or rigorous imprisonment up to 10 years and fine. Subsection 3 contains one of the strictest rules of constructive liability in the Sanhita. If any one of five or more persons who are conjointly committing decoity commits murder in so committing the decoity, every one of those persons shall be punished. The punishment is death, imprisonment for life, or rigorous imprisonment of not less than 10 years and fine. **[2:41:25]:** It does not matter that the others did not intend the murder or did not take part in it. The law also punishes preparation to commit decoity under subsection 4, assembling for the purpose of committing decoity under subsection 5, and belonging to a gang associated for habitually committing decoity under subsection 6. Notice that preparation for decoity is one of the rare cases where the law punishes preparation as we saw in the second unit, cheating. **[2:41:52]:** Now, we come to the last offense of this course, cheating. It is defined in section 318, subsection 1 of BNS 2023, which corresponds to the old section 415 of the IPC. 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 is said to cheat. So also, whoever by deceiving a person intentionally induces him to do or omit to do anything which he would not do or omit if he were not so deceived is said to cheat. But this holds only if that act or omission causes or is likely to cause damage or harm to that person in body, mind, reputation, or property. The explanation adds that a dishonest concealment of facts is a deception. This is a long definition, so let us break it into parts. **[2:42:44]:** The foundation of every case of cheating is deception. The accused must deceive the victim by a false statement, false conduct, or a dishonest concealment of facts. Then the definition has two branches. In the first branch, the accused by deceiving the victim fraudulently or dishonestly induces him to deliver property to any person or to consent that any person shall retain property. For example, A falsely pretends to be a government officer and thereby induces Z to give him goods on credit which A never intends to pay for. A cheats. In the second branch, the accused intentionally induces the deceived person to do or omit to do something that he would not otherwise have done or omitted and that act or omission must cause or be likely to cause damage or harm to that person in body, mind, reputation, or property. Here, there need not be any delivery of property. **[2:43:35]:** If A, by falsely claiming to be a qualified doctor, induces Z to undergo a dangerous treatment that harms Z's health, A cheats under the second branch. Cheating is punishable under section 318, subsection two, with imprisonment up to 3 years or fine or both. Subsection three gives a higher punishment up to 5 years or fine or both. It applies where the cheat knows that wrongful loss is likely to a person whose interest he was bound by law or by a legal contract to protect. Subsection four corresponds to the old and well-known section 420. It punishes cheating by which the person deceived is dishonestly induced to deliver any property or to make, alter, or destroy a valuable security with imprisonment up to 7 years and fine. Section 390 deals with cheating by personation. Where the accused cheats by pretending to be some other person, real or imaginary, or by representing that he or another person is someone else. **[2:44:35]:** The time of the dishonest intention. The most important question in cheating is when such honest intention must exist. The answer is at the time of making the representation or inducement. If the accused intended to deceive from the beginning, it is cheating. If he was honest at the beginning and only later failed to keep his promise, it is not cheating. This principle was applied by the Supreme Court in Mahadev Prasad versus State of West Bengal, decided in 1954. The accused, a trader in Calcutta, agreed to buy 25 ingots of tin from the complainant. The agreed term was cash against delivery, which meant that the price was to be paid when the goods were delivered. The complainant's employee delivered the ingots at the accused's shop. The accused took delivery, kept the employee waiting, then went away and never returned, and the price was never paid. His defense was that the sale was on credit and that this was a civil dispute. **[2:45:33]:** The evidence showed that he was heavily overdrawn at his bank and had offered his other tin to the bank as security on the same day, so that he had almost no means to pay. The Supreme Court upheld his conviction for cheating. It accepted the test that if the accused had an intention to pay at the time he promised, his later failure to pay would not convert the transaction into cheating. But if at the time he took delivery, he had no intention whatsoever to pay and merely promised cash against delivery to induce the complainant to deliver the goods, he was guilty of cheating. That intention could be inferred from the circumstances surrounding the transaction. Cheating and breach of contract. This leads us to one of the most practically important distinctions in criminal law. The difference between cheating and a mere breach of contract. Every day, people fail to pay money they promised, fail to deliver goods, or fail to complete work. **[2:46:30]:** Many of them are then accused of cheating because a criminal case puts more pressure than a civil suit. BNS 2023 itself answers this question in an illustration to section 318. A intentionally deceives Z into believing that A means to deliver a certain quantity of indigo plant which A does not intend to deliver and thereby dishonestly induces Z to advance money. A cheats. But if A, at the time of obtaining the money, intends to deliver the indigo plant and afterwards breaks his contract and does not deliver it, he does not cheat. He is liable only to a civil action for breach of contract. So, the test is simple to state though not always easy to apply. Was there a dishonest intention at the very beginning of the transaction? If yes, it may be cheating. If the intention was honest at the beginning and the failure came later, it is a breach of contract and the remedy lies in a civil court. **[2:47:25]:** Courts look at all the circumstances to infer the intention at the beginning. For example, a person may use a false name, give a false address, issue a check from a closed account, disappear immediately after receiving the money, or make the same promise to many people knowing that he cannot keep it. From such conduct, the court may infer that he never intended to perform. But a mere failure to pay or perform without more does not prove a dishonest intention at the start. The courts have repeatedly warned that the criminal law should not be used as a tool to recover money in what is really a civil dispute. The Supreme Court explained this distinction clearly in Hriday Ranjan Prasad Verma versus State of Bihar decided in 2000. Three brothers sold their land to a housing society. A large part of the price was paid and the sale deed was registered, but some checks given by the buyer later bounced. **[2:48:20]:** The buyer's side then filed a criminal complaint against the sellers alleging cheating on the ground that the sellers had not disclosed that a family partition suit was pending. The Supreme Court quashed the complaint. It said that the distinction between a mere breach of contract and the offense of cheating is a fine one and that it depends on the intention of the accused at the time of the inducement. That intention may be judged from his later conduct, but later conduct is not the only test. A mere breach of contract cannot give rise to a prosecution for cheating unless a fraudulent or dishonest intention is shown right at the beginning of the transaction. In the words of the court, it is the intention which is the gist of the offense. Here, the complaint did not show any such intention at the beginning. So, continuing the criminal case would have an abuse of process. **[2:49:13]:** Deception can take many forms. One unusual decision deserves mention. In Shri Bhagwan Samarth Shri Pad Vallabh Venkat Vishwanand Maharaj versus State of Andhra Pradesh, decided by the Supreme Court in 1999, the accused was a self-styled god man. He claimed that he had divine powers and could cure the complainant's daughter, a girl of 15, who had been unable to speak since birth. He demanded a large amount in installments, and the father paid part of it. The girl was not cured, and the promised date kept being postponed. When a criminal case for cheating was started, the accused asked the courts to quash it. The Supreme Court refused. It said that praying to God for the cure of an ailment is not fraud. But if a person represents to another that he has divine powers and makes the other believe it, and thereby induces him to pay money, that is the kind of inducement the definition of cheating speaks of. **[2:50:08]:** The court did not convict the accused because the case had only reached the stage of quashing. It held that the case must go to trial, where the accused could try to show that he had not cheated. The lesson is that a false representation about any fact, even a claimed supernatural power, can be a deception if it is used to obtain property. **[2:50:28]:** With cheating, we complete our study of offenses against property, and with it the specific offenses of this course, bringing it all together. Let us now step back and look at the whole map of what we have studied because the real strength of criminal law lies in seeing how its parts fit together. Every criminal case begins with two questions. What did the accused do and what was in his mind when he did it? The first question is about actus reus, the external conduct, circumstances and consequences. The second is about mens rea, the guilty mind, which may take the form of intention, knowledge, rashness or negligence depending on how the particular offense is defined. And the two must exist together. A guilty mind on one day and a harmful act on another day do not make a crime. Only in offenses of strict liability created for special reasons of public welfare does the law sometimes dispense with the guilty mind and even then the courts presume that mens rea is required unless the statute clearly excludes it. **[2:51:29]:** The next question is, who is liable? Criminal law reaches beyond the person whose hand did the act. Through common intention under section 3 subsection 5, it holds partners in a shared plan equally liable for what any of them does in furtherance of that plan. Through common object under section 190, it holds every member of an unlawful assembly liable for offenses committed in prosecution of its object or known to be likely. Through abetment, it reaches those who instigate, conspire or intentionally aid. And through criminal conspiracy under section 61, it punishes the very agreement to commit an offense. Then we asked, how early can the law step in? We saw that intention alone is never punished, that preparation is usually not punished and that the line is crossed when the accused moves from preparation to attempt. We saw the tests of proximity, locus poenitentiae and equivocality. And we saw that under our law even a factually impossible attempt, like picking an empty pocket, is still an attempt. **[2:52:32]:** Then we asked, "When should a person who appears to fit the definition of an offense still go free?" The general exceptions answered that. Some acts are justified, such as acts done in private defense or under a legal duty. Others are excused, such as acts of young children and of persons who, because of unsoundness of mind, could not know the nature or wrongfulness of their acts. Acts done under a genuine mistake of fact and harm caused by pure accident are also excused. We learned the vital difference between medical insanity and legal insanity and the difference between voluntary and involuntary intoxication. And we saw that private defense is a right to defend, never a right to punish or take revenge. With these principles in hand, we studied specific offenses. In offenses against the human body, we saw how the law grades a killing according to the state of the killer's mind. **[2:53:25]:** Murder is at the top. Then come the two degrees of culpable homicide not amounting to murder, and then death by negligence. And we saw how the five exceptions reduce murder to culpable homicide. We saw how kidnapping protects the guardian's custody of a child, how abduction protects every person's liberty against force and deceit, and how the law of sexual offenses is built around the idea of free, voluntary, and unequivocal consent. In offenses against property, we saw that theft is about taking without consent. And extortion is about delivery obtained by fear. Robbery is theft or extortion aggravated by instant violence or the fear of it. And dacoity is robbery by five or more persons acting together. Cheating is about obtaining property or causing harm by deception with a dishonest intention present from the very beginning. Notice how the same ideas kept returning. The guilty mind appeared in theft as dishonest intention, in cheating as the intention at the time of the promise, and in murder as the four clauses of section 101. **[2:54:28]:** Joint liability appeared in common intention, in common object, in gang rape, and in dacoity. Consent appeared in the general exceptions, in kidnapping, in sexual offenses, and in theft. Fear appeared in compulsion, in extortion, and in robbery. Once you see these connecting threads, criminal law stops being a long list of sections and becomes one coherent system. So, when you face any problem in criminal law, whether in an examination hall or in a courtroom, ask the same questions in the same order. What exactly was done? What was the mental state at that moment? Which offense does this conduct fit, ingredient by ingredient? Who else is liable and on what principle? Was the offense complete or only attempted, abetted, or conspired? And does any general exceptions justify or excuse the conduct? If you answer these questions carefully, with the precise words of the statute and the principles laid down by the courts, you will rarely go wrong. **[2:55:26]:** That brings us to the end of this course on criminal law under BNS 2023. I hope you now see not just what the law says, but why it says it. Keep reading the sections, keep testing yourself with simple examples, and keep asking why the law draws each line where it does. Thank you and all the best.