General Explanations under the Indian Penal Code 1860 Section 40 to 52A of IPC

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Lecture No. 20 of IPC

•The definition of the word “ Voluntarily” has been borrowed from the word “Willfully”  used in English Law.

•According to Section 39, a person is said to cause an effect voluntarily when he causes it (i) intentionally or (ii) that he knew or had reason to believe, to be likely to cause it.

•The Supreme Court in Shyam Lal Vs. State of U.P. (1962) 2 SCWR 801, held that the intention and knowledge of the offender had to be determined from the nature of the injury, the weapon used, the part of the victim’s body attacked, force used and other related circumstances of the case in question.

Section 39. “ Voluntarily”:  A person is said to cause an effect voluntarily if:

i.He causes it by means whereby he intended to cause it;

ii.He causes it by means which, at the time of employing those means, he knew to be likely to cause it;

iii.He causes it by means which, at the time of employing those means, he had reason to believe to be likely to cause it.

  illustration

  A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus cause the death of a person. Here, A may not have intended to cause the death and may even be sorry that death has been caused by his act, yet, if he knew that he was likely to cause death, he has caused death voluntarily.

Intention

•The IPC has not defined the term “ Intention” although the word “Intention” has been used at several places in IPC.

• In Common usages, intention means the purpose or desire to bring a particular result or foresight that a certain consequence will follow from the conduct of man.

•For example:- A throws a child from the top of a High Tower. It is obvious that A intended and foresaw the death of the child.

•The Code has used the word “ voluntarily” to designate intentional acts.

Intention and Motive

•It is very important to see that Intention is different also from motive.

•Motive is the reason or ground of an action.

•Whereas intention is the active desire to do an act.

•For example:- If A had hatred, enmity or any other like feeling towards B to kill him, that is the

motive of A to kill B, but if A kills B, then the intention is the state of mind which directs the act

which causes the death of B.

•Motive is not a basis for criminal liability.

• Criminal Law takes into account only the intention of a man and not his motive.

•A good motive will not render lawful what is in fact a crime. For example:- If a man steals food in

order to feed his starving child, then the act amounts to theft, in spite of the fact that the motive for

the act was to save the life of his starving child.

•Likewise, a bad motive will not make unlawful that which is lawful. For example:- An executioner

may enjoy putting a convict to death, but this would not render his lawful act as crime. 

•In Om Parkash Vs. State Of Uttaranchal 2003 Cr.P.C. 493, the Supreme Court held that motive of

crime is not a necessary requirement for conviction if the guilt of the accused is proved otherwise.

•Again in Yunis vs. State of M.P. 2003 Cr.P.C 817 the Supreme Court held that where the oral

evidence against the accused is sufficient to prove the guilt of the accused, then the question of

presence of motive is irrelevant.

•On the other hand in Basdev Vs. State of Pepsu AIR 1956 SC 488 it was held by the Supreme Court

that where the essential ingredients of the offence is not established, then absence of proof of

motive would be a ground for acquittal of the accused. The evidence of motive is relevant since it

throws light on the question of intention and gives clue to a crime, and though the prosecution is

not bound to prove motive for a crime, but absence of motive may be a factor in consideration of

the guilt of the accused. Motive is something which prompt a man to form an intention.

Intention vs. Knowledge

•Intention is also different from knowledge.

•Knowledge is the awareness of the consequences of an act.

•For example:- If a patient gives his consent to take the risk of an operation, which operation in large

proportion of cases has proved fatal, then the surgeon who performed the operation would not be

punished for murder, if the patient dies during the course of the operation. In this case the death

was not intentional even though it was known to the Surgeon that the operation might result in the

death of the patient.

Knowledge Vs. Reason to Believe

•Knowledge is again different from “reason to believe”.

•A person is supposed to know a thing where there is a direct appeal to his senses.

•Whereas “Reason to Believe” means sufficient cause to believe a thing but not otherwise.

•For Example:- If A comes to B at night under suspicious circumstances and offers to sell a valuable

watch for Rs.20/- only, then B may not know that the watch is stolen, but he has sufficient reason to

believe that the watch might be stolen, as is evident from the low price demanded.

Lecture No. 21 on IPC

Section 40. “Offence” – Except in the chapter and Sections mentioned in Clauses 2 and 3 of this Section, the word “ Offence” denotes a thing made punishable by this Code.

In Chapter IV, Chapter V-A and in the following Sections namely Section 64,65,66,67,71,109,110,112,114,115,116,117,118,119,120,187,194,195,203,211,213,214,221, 222,223,224,225,327,328,329,330,331,347,348,388 and 445, the word “ offence” denotes a thing punishable under the code or under any special or local law as hereinafter defined.

And  in Sections 141, 176,177, 201,212,216 and 441 the word “Offence” has the same meaning when the thing punishable under the special or local law is punishable under such law with imprisonment for a term of 6 months or upwards, whether with or without fine.

Section 41: “Special Law”: A “ Special Law” is a law applicable to a particular subject.

                                  Comment

 Special Law is a law relating to some special subject e.g. Opium Act, Railway Act, Public Gambling Act and Cattle Trespass Act, NDPS Act etc. Special Laws makes punishable certain act which are not already punishable under the Indian Penal Code.

Section 42 : “Local Laws” : A “ Local Law” is a law applicable to a particular part of India.

                                  Comment

Local Laws are laws applicable to a part of territory or a particular locality. 

Section 43 : “Illegal” “ Legally bound to do” : The word “ illegal” is applicable to everything which is an offence or which is prohibited by law, or which furnishes ground for a civil action; and a person is said to be “ legally bound to do” whatever it is illegal in him to omit.

                            Comment

 “ Illegal” :The word “ illegal” has a very wide meaning. It does not include only the offence and tort which furnishes the basis for a criminal and civil action, but also a breach of contract which furnishes ground for an action for damages under section 73 of the Indian Contract Act, 1872 or which could be enforced specifically. In West Africa Kwaku Menah Vs. King AIR 1946 PC 20 it was held by the Privy Council that pointing a gun at a person without legal excuse is unlawful act and so is illegal.

Legally bound to do : The  person is said to legally bound to do when he has to perform a duty which duty has been imposed upon him by the law such as to provide food, clothing, shelter or medical aid to minor children, wife and aged parents under section 125 of Cr.P.C if he omits to do so, then such an act would fall within the scope of the word “ illegal”. But if a person omits to do any duty which the law does not impose upon him but only his moral duty then omission to do that act will not be illegal. For example:- To give the charity to the poor and needy persons is not the legal duty but only the moral duty and if the person do not give the charity then in that case it can not be regarded as illegal. 

  Lecture No. 22 on IPC

Section 44: “Injury”: The word “Injury” denotes any harm whatsoever illegally caused to any person, in body, mind, reputation or property.

                                                    Comments

1.Section 44 had defined the word “Injury” in a wider sense to include not only the bodily

harm, but also harm to person’s mind, reputation or property.

2.The word ‘Injury’ in Section 44, denotes any harm which is illegally caused and includes

every tortuous act. For example :- a threat to employ the process of law with the object of

obtaining more money than is actually due, is threat of injury.

3.But it is very important to note here that to constitute the injury within the meaning of

Section 44 the harm caused should be illegal so if the harm caused is not illegal and caused in

good faith to save the other person then in that time it can not be regarded as injury within

the meaning Section 44 of IPC. For example: a cut given by the surgeon to the patient in good

faith to save the life of his patient with his consent even though  it is a harm but as it had not

been given illegally so it can not be said to be injury within the meaning of Section 44 of IPC.

Section 45: “Life: The word “Life” denotes the life of a human being, unless the contrary

appears from the context.

Section 46: “Death”: The word “death” denotes the death of a human being unless the

contrary appears from the context.

Section 47:“Animal”:The word “animal” denotes any living creature other than a human

being.

Section 48:“Vessel”: The word “ vessel” denotes anything made for the conveyance by water

of human beings or of property.

Section 49: “Year”, “Month” :- Wherever the word “year’ or the word “month” is used, it is to

be understood that year or the month is to be reckoned according to the British Calendar.

                              Comments

1.A year is the period during which the earth takes one complete revolution in its orbit around

the sun. This period is also called the solar or tropical year.

2.The average length of a year is 365 days, 5 hours, 48 minutes and 51.6 seconds. To facilitate

the calculation and to do away with the odd hours average length of a year is taken to be 365

days and every fourth year it consists of 366 years, this year being termed as “ leap year”.  

3. In this definition the year and month is to be reckoned according to the British calendar

which starts from 1st of January and ends on 31st of December.

4. In calculating the period of sentence the day on which the sentence is passed is counted as a

whole day. For example: if a person is sentenced on 5th of October 2020 for one month

imprisonment then he would be entitled to be released from the jail on 4th of November

2020.

Section 50: “Section” :  The word “section” denotes one of those portions of a Chapter of this

Code which are distinguished by prefixed numeral number. 

Lecture No. 23 on IPC

Section 51 : “Oath” : The word ‘Oath’ includes a solemn affirmation substituted by law for an

oath , and any declaration required or authorised by law to made before a public servant or to

be used for the purpose of proof, whether in a Court of Justice or not.

                                 Comment

1.An oath is a religious assertion by an individual that he will not be entitled to the mercy and

Heaven of God and will be liable for Hell if he does not speak the truth or he speaks lie.

2.The purpose of giving the oath to the individual is that he should speak  the truth.

3.The form of oath differs according to the religious beliefs of the individual concerned. For

example: a Hindu may swear in the name of the sacred book of Gita, Muslims upon the Quran,

a Sikh on  Shri Guru Granth Sahib Ji, A Christian   on Bible and so on.

4. The definition of oath is inclusive as according to the definition oath also includes a solemn

affirmation which is substituted by law for an oath. Solemn affirmation means statement of

something with sincerity publicly.

5. Any declaration which is required  or authorized by  law to be made before a public servant

which is to be used for the purpose of proof of something is also an oath. It is immaterial

whether that statement is to be used in a court of justice or not.

6.The Indian Oath Act 1873 has also substituted affirmation for an oath in the case of Hindu

and Muslim Witnesses, interpreters and jurors.

7. Thus, if an oath is objected to, then solemn affirmation is admissible in place of oath.

Section 52. “Good Faith”: Nothing is said to be done or believed in “ good faith” which is done

or believed without care and attention.

                                                 Comment

1.“Goof Faith” plays an important role in the criminal law and its presence is 

good defence for the accused in a case against him.

2.But the definition of good faith in this section is a negative one. It says that

act cannot be said to be done in good- faith if it is done without due care and

attention.

3.If an opinion is expressed with due care and attention, honestly believing it

to be true and without malicious motive then it is said to have been made

with good-faith.

4.The General Clauses Act 1897 defines good- faith as follows:-

         “ A thing shall be deemed to be done in good faith where it is in fact

done honestly, whether it is done negligently or not.”

5. It has been held in Bux Soo Meah Chowdhary Vs. The King AIR 1938 Rang

350, that the absence of good faith means simply carelessness or negligence.

6. Thus, this Code regards honesty as immaterial and the presence of care and

intention is the sole criteria of good-faith. For example: If a homeopath

prescribe allopathic medicine without being qualified in that system is guilty

of negligence per se and is liable for the consequences. He cannot be allowed

to take the pleas of good- faith in case a person suffers on account of such a

treatment.[Poonam Verma  Vs. Dr. Ashwani Patel (1996) 4 SCC 2111]

Section 52A :  “Harbour” : Except in section 157, and in section 130 in the

case in which the harbour is given by wife or husband of the person harboured,

the word “harbour” includes the supplying a person with shelter, food, drink,

money, clothes, arms, ammunition or means or conveyance or the assisting a

person by any means, whether of the same kind as those mentioned in this

section or not, to evade apprehension.

•This Section was added in the code by an Amendment in the year 1942.

•According to this section Harbour means:-

    I. The supplying a person with shelter, food, drink, money, clothes, arms,

ammunition or means of conveyance, or

   II. The assisting a person by any means, whether of the same kind as those

mentioned in this section or not,

   III. Such supplying or assisting must be with a view to evade apprehension.

    Harbour under this section does not include harbour under section 157 and

under section 130 of the Code where it is given by the wife or husband of the

person harboured.