General Explanations : Indian Penal Code Notes
1. Wrongful Gain –Wrongful Loss: Section 23 of IPC defines it.
Wrongful gain is gain by unlawful means of property which the person gaining is not legally entitled. While wrongful loss is the loss by unlawful means of property to which the person losing it is legally entitled. The word ‘wrongful’ here means prejudicially affecting a party in some legal right. For either wrongful loss or wrongful gain, the property must be lost to the owner, or the owner must be wrongfully kept out of it.
- A person is said to gain wrongfully when such person retains wrongfully, as well as when such person acquires wrongfully. A person is said to lose wrongfully when such person is wrongfully kept out of any property, as well as when such person is wrongfully deprived of property.
- When the owner is kept out of possession of his property with the object of depriving him of the benefit arising from the possession even temporarily, the case will come under this definition.
- This section means that you acquire something wrongfully, for example you conceive someone into selling them an article worth Rupees 10 for Rupees 50, that is wrongful gain wrongful loss is caused to an individual when someone capture his property by unlawful means; For example, some goons forcefully taking Mr. X bag of jewels, that’s wrongful loss.
In K.N. Mehra v. State of rajasthan AIR 1957 SC 369 it was held that wrongful gain or loss does not contemplate total acquisition of the property, and the person wrongfully gaining can be held liable even if it is a temporary retention of property.
2. Dishonestly: Section 24 of IPC defines it.
Whoever does anything with the intention of causing wrongful gain to one person or wrongful loss to another person, is said to do that thing “dishonestly”.
- When someone has intention to cause other wrongful gain or wrongful loss, the person who commits such an act will be liable under this section. Unless there is wrongful gain to one person, or wrongful loss to another, an act would not be dishonest.
- Example Mr A comes to Mr B in order to purchase his horse .Mr A inquired about the horse physical condition to which Mr B dishonestly says that the horse is in sound condition fine, for which he knew horse to be insane.
In krishna kumar v union of india 1959 CrLJ 1508 it was held that ,In order to ascertain the existence or otherwise of dishonest intention as defined in Section 24 of I.P.C., it is not necessary that there must be wrongful gain to the thief, it is sufficient if the removal of movable property causes wrongful loss to the owner.
3. Fraudulently- It is defined under Section 25 of the Indian Penal Code.
A person is said to do a thing fraudulently if he does that thing with intent to defraud but not otherwise. The fraudulent act of a person can cause loss to another person or gain to another person.
- The word ‘defraud’ contains two elements, namely, deceit and injury to the person deceived.
- ‘Deceit’ means an intentional misrepresentation or concealment of the fact and as per IPC, the injury should be illegally caused to any person in body, mind, reputation or property.
- In Section 25 of the Code the word ‘defraud’ has been applied to deprive someone with the intention either by obtaining something by deception, or by taking something wrongly without the knowledge or consent of the owner.
- Intention to defraud must mean intention to deceive and thereby obtain an advantage. It is not necessary that this advantage should always be economical.
- A person has done something.
- He has done with intention to defraud. Defraud means deceit plus injury.
Difference between Dishonestly and Fraudulently
- Although the word dishonesty means to deceit, but in IPC, dishonestly includes an intentional act, to cause wrongful gain or wrongful loss in another. However, in fraudulent deceit and injury is an essential element.
- In dishonesty, deceit is not an essential element, whereas in fraudulently deceit or dishonesty are the vital elements.
- In dishonesty, there must be monetary gain or loss, whereas in fraudulently, monetary or economic gain or loss is not always so.
- Dishonesty may be by innocence. Dishonesty and innocence may overlap. Whereas, fraud and innocence can never overlap. Fraud itself is deception.
Reason to believe: Section 26 of IPC defines it.
This section simply means if a person has enough reasons to believe certain thing and not otherwise it’ll come under reason to believe; For example, Police have reason to believe upon finding fingerprint match on murder weapon that Mrs A has murdered her husband Mr B. this is reason to believe
Reason to believe is another facet of the state of mind. It is not the same thing as “suspicion” or “doubt” and mere seeing also cannot be equated to believing.it is higher level of state of mind.
4. JOINT LIABILITY – Sections 34 to 38 of the Indian Penal Code, 1860.
- Section 34 lays down only a rule of evidence and does not create a substantive offence.
- This section is intended to meet cases in which it may be difficult to distinguish between the acts of the individual members of a party or to prove exactly what part was taken by each of them in furtherance of the common intention of all. (Case law- Barendra kumar ghosh v. king emperor, AIR 1925 PC 1).
- This section means that if two or more persons intentionally do a thing jointly, it is just the same as if each of them has done it individually.
- The reason why all are deemed guilty in such cases is that the presence of accomplices gives encouragement, support and protection to the person actually committing an act.
- A criminal act must be done by several persons;
- Emphasis on the word ‘done’ implies that all the accused must join in the doing of the act.
- The criminal act may consist of separate acts, similar or diverse but it must be done by several people. This means that there must necessarily be the involvement of more than one person in the commission of the criminal act.
- The important feature for attracting sec 34 is the element of participation in action resulting in the ultimate criminal act.
Reg vs cruse[(1838) 8 C & P 541]
- The concept of Joint Liability was evolved in this case.
- In this case, when a police constable went to a person’s house to arrest him, the accused came out along with some of his friends in a group, gave a blow to the constable and drove him away.
- The Court held that each member of the group would be equally responsible for the blow, whether one had actually struck it or not.
- Whether physical presence is necessary?
Participation does not necessarily mean physical presence at the actual scene of crime. If the person is directing the entire operation from a distance, he would also be deemed to be participating in the crime.
5. Common intention is different from similar intention.
Common intention and similar intention are two different concepts of law.
- In common intention it is necessary that the intention of each one of several persons be known to each other.
- Similar intention of several persons does not constitute common intention unless they share it with each other.
For Ex: If ‘A’ is the common enemy of ‘B’ and ‘C’. Here if B comes from one direction with the intention to kill A, at the same time C comes from another direction with similar intention. Here if A dies after the attack done by B and C, both of them are liable for their own acts because they have similar intention and not common intention.
Afrahim Sheikh v. State of West Bengal AIR 1964 SC 1263: “S. 34, when it speaks of a criminal act done by several persons in furtherance of the common intention of all, has regard not to the offence as a whole, but to the criminal act (the act of beating), that is to say, the liability of the series of acts which result in the offence” The criminal act must be to further the common intention of all. Underlying principle-encouragement, support, protection, actively participated or engaged in the commission of the criminal act itself.
Factors to determine common intention
- The manner in which the accused arrived at the scene
- The manner in which attack was mounted
- Determination and concert with which the attack was made
- The nature of injury
- Background of the incident
- Nature of weapon used
- Conduct of offenders and declaration made by them just before the attack
- No earlier decisions involving almost similar facts can either be used as precedent or relied upon for determining common intention- Ramesh Singh v State of AP (2004) 11 SCC 305
Barendra Kumar Ghosh v. King Emperor AIR 1925 PC 1: Conviction for murder under Section 302 read with Section 34. “Section 34 deals with the doing of separate acts, similar or diverse, by several persons; if all are done in furtherance of a common intention, each person is liable for the result of them all, as if he had done them himself”. Emphasized on the word ‘done’ and that actual presence plus prior abetment can mean nothing else but participation.
State of Madhya Pradesh v Deshraj & Ors AIR 2004 SC 2764: “The distinctive feature of the section is the element of participation in action. The accused is made constructively liable under Sec 34, even though he may not have had any actual participation in the crime”
Shreekantiah Ramayya Munipalli v. State of Bombay AIR 1955 SC 287: Physical presence is not required- cases involving non-physical violence. However mere presence without community of design proved against him, cannot bring the accused under the purview of Section 34.