Case material on IPC, Study notes of Criminal Law

Download Case material on IPC and more Study notes Criminal Law in PDF only on Docsity! 1 Text Cases & Materials on Law of Crimes II By Dr Mudasir Bhat (Assistant Professor) School of Legal Studies Central University of Kashmir 2 Contents Unit-I- Offences against Human Body Culpable Homicide- (Sec 299) Murder (Sec 300) Rash and Negligent Act Hurt and Grievous hurt Assault and Criminal force Kidnapping & Abduction Unit-II- Offences against Women Insulting the modesty of a woman Causing miscarriage without women’s consent Rape and custodial rape Cruelty by husband and relatives Unit-III- Offences against Property Theft: Section 378 & 379 IPC. Extortion: Section 383 & 384 IPC Robbery: Section 390 & 392 IPC Dacoity: Section 391 & 395 IPC Unit-IV- Offences against Marriage Bi-gamy, Section 494 and 495 IPC Adultery, Section 497 IPC Dowry Death Unit-V: Offences against Property Criminal misappropriation and criminal breach of trust, Sec 403, 405 IPC Cheating, Sec 415 – 417 IPC Mischief, Sec 426 – 426IPC Forgery 5 State of Uttar Pradesh v Chholey Lal(2011) 2 SCC 550, AIR 2011 SC Suresh Gupta v NCT of Delhi and Anor AIR2004 SC 4091 Sushil Kumar Sharma v Union of India & Ors AIR 2005 SC 3100 Swami Dhirendra Brahmachari v Shailendar Bhushan 1995 CrLJ 1810 Tirlok Singh v Satya Deo AIR 1979 SC 850 Vasant v State of Maharashtra AIR 1998 SC 699 Vasanth v State of Maharashtra AIR 1998 SC 699 Velji Raghavji v State of Rajasthan AIR 1965 SC 1433 Vidyadharan v State of Kerala AIR 2004 SC 536 Vinod Chaturvedi v State of Madhya Pradesh AIR 1984 SC 911 Virsa Singh v State of Punjab AIR 1958 SC 465 Wasim Khan v State of Uttar Pradesh AIR 1985 SC 486 William Slaney v State of Madhya Pradesh AIR 1956 SC 116 6 References I. Ashok K. Jain Criminal Law-I II. Ashok K. Jain Judicial Service Guide III. Bannerji & Bhagat Indian Penal Code IV. K. D Gaur Criminal Law : Cases and Material V. K.D Gaur The Indian Penal Code VI. P.S.A. Pillia Criminal Law VII. Ratanlal & Dhirajlal The Indian Penal Code VIII. S.N Mishra Indian Penal Code Other Sources I. www.judis.nic.in II. www. manupatra.com III. www. stpl-india.in IV. www. legalserviceindia.com V. www.wikepedia.com VI. www.google.co.in 7 UNIT I Offences against Human Body I Section 299 Culpable Homicide 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, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. Illustrations (a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide. (b) A knows Z to be behind a bush. B does not know it, A, intending to cause, or knowing it to be likely to cause Z's death, induces B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide. (c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. Explanation 1- A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2- Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3- The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that 10 held that the accused were 15 to 20 feet from Rupinder Singh, when he jumped into the well. There was no evidence to show that the accused drove Rupinder Singh into the well or that they left him no option but to jump into the well. Under these circumstances, it was held that the accused could have caused the death of Rupinder Singh, and hence they were entitled to be acquitted of the charge of murder. By doing an act with the intention of causing death Death may be caused by a hundred and one means, such as by poisoning, drowning, striking, beating and so on and so forth. As explained under Section 32, I.P.C the word ‘act’ has been given a wider meaning in the Code in as much as it includes not only an act of commission, but illegal omissions as well and the word ‘illegal’ is applicable to everything which is an offence or which is prohibited by law, or which is prohibited by law, or which furnishes ground for civil action (Sec.43). Therefore death caused by illegal omission will amount to Culpable homicide.6 Death caused by effect of words on imaginations or passions Death may also be caused by effect of words such as by making some communication to another person which caused excitement which results in death although it would be difficult to prove that the person, who spoke the words, anticipated from them an effect which except under very peculiar circumstances and in very peculiar constitutions no word would produce. For example, A with the intention or knowledge aforesaid, gives B his choice whether B will kill himself, or suffer lingering torture; B kills himself by taking poison. A would be liable for culpable homicide.7 With the Intention of Causing such bodily injury as is likely to cause death The word ‘intention’ in clause (a) to Section 299, I.P.C has been used in its ordinary sense, i.e., volitional act done without being able to forsee the consequence with certitude. The connection between the ‘act’ and the death caused thereby must be direct and distinct; and though not immediate it must not be too remote. If the nature of the connection between the act and the death is in itself obscure, or if it is obscured by the action of concurrent causes, or if the connection is broken by the intervention of subsequent causes, or if the interval of time between death and the act is too long, the above condition is not fulfilled. Where a constable fired five shots in succession at another constable resulting in his death, it was held that it would be native to suggest that he had neither intention to kill nor any knowledge that 6 Supra note 3 7 SN Mishra, Indian Penal Code, Twelfth Edition, Central Law Publications, p386 11 injuries sufficient to kill in ordinary course of nature would not follow. His acts squarely fell in clauses 2,3 and 4 of Sec.300, I.P.C i.e., Culpable Homicide amounting to murder.8 In Joginder Singh's case [AIR 1979 SC 1876] it has been held that the connection between the act and the death caused by the act must be direct and distinct; and though not immediate it must not be too remote. Where person jumped into a well in order to save himself from two chasing persons and dies, the death of the victim was not caused by an act of chasing persons with intention or knowledge specified in Sec. 299 With the knowledge that he is likely by such act to cause death ‘Knowledge’ is a strong word and imports certainty and not merely a probability. Here knowledge refers to the personal knowledge of the person who does the act.9 If the death is caused under circumstances specified under Section 80, the person causing the death will be exonerated under that Section. But, if it is caused in doing an unlawful act, the question arises whether he should be punished for causing it. The Code says that when a person engaged in the commission of an offence, without any addition on account of such accidental death. The offence of Culpable Homicide supposes an intention, or knowledge of likelihood of causing death. In the absence of such intention or knowledge, the offence committed may be grievous hurt, or simple hurt. It is only where death is attributed to an injury which the offender did not know would endanger life would be likely to cause death and which in normal conditions would not do so notwithstanding death being caused, that the offence will not be Culpable Homicide but grievous or simple hurt. Every such case depends upon the existence of abnormal conditions unknown to the person who inflicts injury. Once it is established that an act was a deliberate act and not the result of accident or rashness or negligence, it is obvious that the offence would be culpable homicide.10 In Kesar Singh v State of Haryana (2008) 15 SCC 753, Court said knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine and inactive whereas intention connotes a conscious state in which mental faculties are roused into activity and summed up into action for the deliberate purpose of being directed towards a particular and specified end which the human mind conceives and perceives before itself. 8 Supra note 3 9 Supra note 7 10Supra note 3 12 Death caused of person other than intended To attract the provisions of this Section it suffices if the death of a human being is caused whether the person was intended to be killed or not. For instance, B with the intention of killing A in order to obtain the insured amount gave him some sweets mixed with poison. The intended victim ate some of the sweets and threw the rest away which were picked up by two children who ate them and died of poisoning. It was held that B is liable for murder of the children though he intended to kill only A.11 Explanation 1 - This explanation provides a person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. But one of the elements of culpable homicide as contained in Sec 299 must be present. That is, if the bodily injury so inflicted was not with such intention or knowledge as required in Sec 299 the offence is not culpable homicide. Explanation 2 - According to this explanation where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. It simply means if death results from an injury voluntary caused, the person who causes that injury is deemed to have caused death, although the life of the victim might have been saved if proper treatment, provided that the treatment was given in good faith by a competent person. However, where X caused simple injury to Z and Z subsequently died of septic meningitis which developed on account of the use of wrong remedies and neglect in treatment, such death cannot be said to have been caused by the bodily injury within the terms of this explanation. Explanation 3 - This explanation provides that causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. It means complete birth of a child is not required in order to invoke Sec. 299. 11 Ibid. 15 (d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder. (e) A attempts to pull Z's nose, Z, in the exercise of the right of private defense, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, in as much as the provocation was given by a thing done in the exercise of the right of private defense. (f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. Exception 2- 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 the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide. Exception 3- Culpable homicide is not murder if the offender, being a public servant or aiding. a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill- will towards the person whose death is caused. 16 Exception 4.- 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. Explanation- It is immaterial in such cases which party offers the provocation or commits the first assault. Exception 5- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes, Z, a person under eighteen years of age to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder. General Comments Scope: Section 300 of the Indian Penal Code defines murder with reference to culpable homicide laid down under Sec. 299. If the special requirements provided in Clauses 1-4 of the Sec 300 are fulfilled, culpable homicide will then amount to murder, provided, of course, the act does not fall within any of the Exceptions provided in Sec 300. If an act, which falls within Clause 1-4 of Sec 300, also falls within one of the Exceptions, then it will be culpable homicide not amounting to murder. It would probably have been simpler and less complicated if the Code had first defined homicide and then defined separately culpable homicide and murder. Since some clauses in Secs 299 and 300 overlap, it had led to a lot f discussions and differences in judicial pronouncements about the scope of each section and the discussions and differences between them.12 Essential Ingredients The following are the important ingredients of Section 300: a) Act by which the death is caused is done with the intention of causing death; b) with the intention of causing such bodily injury as the offender knows to be likely to cause death; 12 PSA Pillai's, Criminal Law, Tenth Edition, 2008, Lexis Nexis, p791 17 c) with the intention of causing bodily injury to any person which is sufficient in the ordinary course of nature to cause death d) person committing the act knows that it is so imminently dangerous that it must, in all probabilities, cause death or such bodily injury as is likely to cause death..without any excuse for incurring the risk of causing death Further, culpable homicide will not be murder, if it is: Exception 1: On grave and sudden provocation; Explanation: a) the provocation should not be voluntary sought or deliberately caused by the accused; b) it should not be a result of act by public servant or in obedience to law; c) it should not be in self-defence Exception 2: In the exercise of right of private defence of person or property; a) exercise of private defence without premeditation and without intention. Exception 3: b) act done by public servant or in aiding an public servant; c) acting in advancement of public justice; d) such act of the public servant is in excess of the powers conferred on him, but exercised in good faith; e) such act is necessary to discharge duty; f) and is without ill will. Exception 4: a) a sudden fight without premeditation; b) the offender should not take undue advantage or act in a cruel or unusual manner. Explanation: who started the fight or quarrel is not material. Exception 5: death caused to a person above 18 years of age with his consent. a) Act by which the death is caused is done with the intention of causing death A question of intention is always a matter of fact. In determining the question of intention the nature of the weapons used, the part of the body on which the blow was given, the force and number of blows, are all factors from which an inference as to the intention can, as a fact, be drawn.13 In Ramesh v State14 the accused gave repeated knife blows to the victim resulting in 13 Ashok K. Jain, Criminal Law-I, Fifth Edition, 2015, Ascent Publications, p181 14 1979 CRLJ 727 20 presumption and such facts and circumstances cannot be laid down in an abstract rule and they will vary from case to case.20 In Garasia Rajendrasinh Jethybai v State of Gujarat,21D, the deceased in the presence of his father F and brother B scolded the accused for easing near his place. A, left the place with a threat that he would see him when they would meet alone. A week later A attacked D with a knife and dealt three blows on vital parts like neck. Two of the blows were given after D fell down after the first blow. Accordingly to the medical evidence the first injury had cut internal carotid artery and tributaries of internal jugular vein and was sufficient in the ordinary course of nature to cause death. The accused was held liable for murder. In Virsa Singh v State of Punjab,22 the Supreme Court laid down that in order to bring a case within Clause 3 of Sec 300, the prosecution must prove the following: I. First, it must establish, quite objectively that a bodily injury is present; II. Secondly, the nature of the injury must be proved; these are purely objective investigation; III. Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended; IV. Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above, is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.23 d) person committing the act knows that it is so imminently dangerous that it must, in all probabilities, cause death or such bodily injury as is likely to cause death..without any excuse for incurring the risk of causing death (knowledge of imminently dangerous act) Unlike the first three clauses of Sec 300, intention is not an essential ingredient of this clause. The 4th clause contemplates the doing of an imminently dangerous act in general, and not the doing of any bodily harm to any particular individual. The Clause cannot be applied until it is clear that Clauses 1, 2, and 3 of the section each and all of them fail to suit the circumstances. This Clause may on its terms be used in those cases where there is such callousness towards 20 Ratanlal and Dhirajlal, The Indian Penal Code, 32 Enlarged Edition, (2013), Lexis Nexis, p1325 21 1979 CRLJ 68 (Guj) 22 AIR 1958 SC 465 23 Supra note 12 at 796 21 the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as it likely to cause death. The expression 'imminently dangerous act' approximates to a practical certainty. Such knowledge on the part of the offender must be of the highest degree of probability.24 In State of Madhya Pradesh v Ram Prasad,25this clause was applied by the Supreme Court in a totally different context. In this case, the accused Ram Prasad and his wife had a quarrel. Villagers were called to mediate, but to no avail. At that time, the accused poured kerosene oil over the wife and set her on fire. She suffered extensive burn injuries and died as a result of the injuries. The Supreme Court observed that in respect of Clause 1-3 of the Sec 300, the question would arise as what was the intention of the accused, the nature of injuries he intended to cause etc, which would all be matters of speculation. The Supreme Court opined that it would be simpler to place reliance on Clause 4, because it contemplates only knowledge and no intention. The court held that though generally the clause is invoked where there is no intention to cause the death of any particular person, the clause may on its terms be used in those in those cases where there is such callousness towards the result, and the risk taken is such that it may be stated that the person knows that the act is likely to cause death. In the present case, when the accused poured kerosene and set fire to his wife, he must have known that the act would result in her death. As he had no reason for incurring such risk, the offence was held to fall within Clause 4 of Sec 300 and would be culpable homicide amounting to murder.26 Again in Jagtar Singh v State of Punjab,27 a sudden quarrel on a spur of moment arose out of a trivial reason on a chance meeting between the accused and the victim. The accused caused a single blow by knife in chest of victim resulting in his death. On these facts it was held that intention to cause death or causing part particular injury could not be imputed to the accused, There was no proof of premeditation or malice. Therefore, merely knowledge on the part of the accused that he was likely to cause injury which was likely to cause death could be inferred. Distinction between Culpable Homicide (Sec 299) and Murder (Sec 300) In Reg v Govinda28 distinction between Sec 299 and Sec 300 was made clear by Justice Melville. In this case the prisoner, a young man of 18, kicked his wife and struck her several 24 Supra note 13 at 185 25 AIR 1968 SC 881 26 Ibid. 27 1983 CrLJ 852 28 1876 ILR 1 Bom 342 22 times with his fist on the back. These blows seemed to have caused her no serious injury. She, however, fell on the ground and then the accused put one knee on her chest, and struck her two or three times on the face. One or two of these blows were violent and took effect on the girl's left eye, producing a contusion and discolouration. The skull was not fractured, but the blow caused an extravasation of blood in the brain and the girl died in consequence. The Session's Judge found the prisoner guilty of murder and sentenced him to death. The case was sent up for confirmation by the High Court. There being a difference of opinion between the judges as to what offence the prisoner had committed, the case was referred to the third judge, Melville J for his opinion. Justice Melville held: For the convenience of comparison, the provisions, of Sec 299 and Sec 300 of the Indian Penal Code may be stated thus: Culpable Homicide Section 299 Murder Section 300 A person is said to commit culpable homicide, if the act by which the death is caused is done Subject to the five exceptions, culpable homicide is murder, if the act by which the death is caused is done a) with the intention of causing death; a) with the intention of causing death; b) with the intention of causing such bodily injury as is likely to cause death; b) with the intention of causing such bodily injury as the offender knows to be likely to cause death of that particular person; c) with the knowledge that the act is likely to cause death. c) with the intention of causing bodily injury to any person, such injury being sufficient in the ordinary course of nature to cause death; d) with the knowledge that the act is so imminently dangerous that it must , in all probability, cause death or such bodily injury as is likely to cause death. Further, Melville, J stated: 25 In order that this exception should apply, the provocation should be both grave and sudden. If the provocation is sudden but not grave, or grave but not sudden, then the offender can not avail of the benefit for this exception. Further, it should also be shown that the provocation was of such a nature that the offender is deprived of the power of self-control.32 In KM Nanavati v State of Maharashtra,33 the accused was a naval officer. He was married with three children. One day, his wife confessed to him that she had developed intimacy with the deceased. Enraged at this, the accused went to his chip, took a semi automatic revolver and six cartridges from the store of the ship, went to the flat of the deceased ,entered his bedroom and shot him dead. Thereafter, the accused surrendered himself to the police. The question before the Supreme Court was whether the act of the accused could be said to said to fall within Exception 1 of Sec 300. The Supreme Court laid down the following postulates relating to grave and sudden provocation: 1. The test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused, laced in the situation in which the accused was placed, would be so provoked as to lose his self-control. 2. In India, words and gestures may also, under certain circumstances, cause grave and sudden provocation to an accused, so as to bring his act within the first exception to Sec 300. 3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for the offence. 4. The fatal blow should be clearly traced to the influence of passion arising from provocation and not after the passion had cooled down by lapse of time, or otherwise giving room and scope for premeditation and calculation. In Nanavati's case, the Supreme Court, which laid down the contours of the law, held that the accused, after his wife confessed to her illicit relationship with the deceased, may have momentarily lost control. He had thereafter dropped his wife and children at a cinema, went to the ship, collected the revolver, did some official business there, drove his care car to the office of the deceased, there was sufficient time for him to regain his self control. In view of this, the court held that the provisions of Exception 1 to Sec 300 were not attracted. The accused was convicted for murder and sentenced to life imprisonment.34 32 Supra note 12 at 801 33 AIR 1962 SC 605 34 Supra note 12 at 802 26 b) Exceeding the Right of Private Defence (Exception 2) This exception deals with death caused by the excessive exercise of the right of private defence, provided the accused caused the death of a person without premeditation and when the accused caused the death of a person he had no intention of doing more harm than was necessary for the purpose of defence.35 In Kripal Singh v State of Punjab,36the court has said that the right commences as soon as a reasonable apprehension of danger arises and ceases when the apprehension ceased or on the offence being committed. A person cannot avail himself of the plea of self defence in a case of homicide when he was himself the aggressor and wilfully brought on himself without legal excuse the necessity for the killing. In Mohinder Pal Jolly v State of Punjab37 the deceased and his colleagues were workers in the factory of the accused. There was a dispute between them with regard to payment of wages. On the day of occurrence, the workers had assembled outside the factory and raised provocative slogans and hurled brickbats at the factory. Some property of the accused was damaged. The accused thereafter came out of his office room and standing on the Thari fired a shot from his revolver which killed the deceased instantaneously. The Supreme Court held that the accused had a right of private defence of his body, but the circumstances were not such as to create apprehension in his mind that the death or grievous would be the consequence, if his right of private defence was not exercised. It was held that the accused had exceeded his right of private defence. Exception 2 to Sec 300 was held not applicable to the facts of the case. c) Act of Public Servants (Exception 3) In order this exception may apply the following conditions must be fulfilled: 1. Offence must be committed by a public servant or by some other person acting in the aid of such public servant, in the advancement of public justice. 2. Public servant or such other person exceeds the powers given to him by law. 3. Death is caused by doing an act which he in good faith believes to be lawful and necessary for the discharge of his duty as such public servant. 4. Lastly, act must have been done without any ill will towards the person whose death is caused. 35 Supra note 13 at 243 36 AIR 1951 Punj. 137 37 AIR 1979 SC 577 27 This exception shall not apply where the act of public servant is illegal and unauthorised by law or if he glaringly exceeds the powers entrusted to him by law. Where X, a police constable fired at certain reapers under the orders of Z, a superintendent of Police and it was found that neither the constable nor the officer believed it necessary for public security to disperse those reapers by firing upon them, it was held that the constable was guilty of murder.38 In Lakhi Singh v State,39where a suspected thief who has been arrested by a police officer, escapes by jumping down from train and the police officer finding that he is not in a position to apprehend him, shoot at him but kills another person. It was held that the case is covered under this exception of the Sec 300. d) Death caused in Sudden Fight (Exception 4) For the application of Exception 4 to Sec 300 of the IPC, following conditions must be satisfied: 1) death must be caused in sudden fight 2) that sudden fight must be without any premeditation 3) sudden fight must occur in the heat of passion upon a sudden quarrel 4) the offender must not have taken undue advantage or must not have acted in a cruel or unusual manner 5) it is immaterial as to which party offered the provocation or committed the first assault. 6) the fight must have been with the person killed. Explanation appended to Exception provides that it is immaterial which party offers the provocation or commit the first assault. In Kesar Singh v State of Haryana,40Supreme Court of India beautifully explained Exception 4 to Sec 300. The Court said the word fight is used to convey something more than a verbal quarrel. It postulates a bilateral transaction in which blows are exchanged even if they all do not find their target. Provocation per se is not fight. Asking somebody to do something again may not be a provocation. Expressing a desire to one's neighbour digging foundation that some passage may be left may not be considered to be a demand. In the Instant case, prosecution alleging that when the deceased merely asked the accused to leave free some passageway, the said accused exhorted that the deceased must be taught a lesson and accused 38 Supra note 18 at 418 39 AIR 1955 All 379 40 (2008) 15 SC 753 30 doing of something which a prudent and reasonable man would not do. Rashness and negligence are not the same things. Mere negligence cannot be construed to mean rashness. Negligence is the genus of which rashness is a species. The words rashly and negligently are distinguishable and one is exclusive of the other. The same act cannot be rash as well as negligent. The rash or negligent act means the act which is the immediate cause of death and not any act or omission which can at most be said to be a remote cause of death. In order that rashness or negligence may be criminal it must be of such a degree as to amount to taking hazard knowing that the hazard was of such a degree that injury was most likely to be caused thereby. The criminality lies in running the risk or doing such an act with recklessness and indifference to the consequences.45 In Mohd Ayniddin v State of A.P,46court said criminal rashness is hazarding a dangerous or wanton act with the knowledge that it is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will probably be caused. The criminality lies in running the risk of doing such an act with recklessness or indifference as to its consequences. A rash act is primarily an overhasty act and is opposed to a deliberate act; even if it is partly deliberate , it is done without due thought and action. Though the term negligence has not been defined in the Indian Penal Code, it may be stated that negligence is the omission to do something which a reasonable man, guided upon those considerations which ordinarily regulate the conduct of human affairs would do, or doing something which a reasonable and prudent man would do.47 The term negligence as used in this section does not mean mere carelessness. The rashness or negligence must be of such nature so as to be termed as a criminal act of negligence or rashness. Section 80 of the Indian Penal Code provides that nothing is an offence which is done by accident or misfortune and without any criminal knowledge or intention in the doing of a lawful act in a lawful manner by a lawful means and with proper care and caution. It is absence of such proper care and caution, which is required of a reasonable man in doing an act, which is made punishable under this section.48 45 SN Mishra, Indian Penal Code, Twelfth Edition, Central Law Publications, p481 46 AIR 2000 SC 2511 47 Ashok K. Jain, Criminal Law-I, Fifth Edition, 2015, Ascent Publications, p263 48 Supra note 43 at 819 31 In Vasant v State of Maharashtra49the deceased was run over by the jeep of appellant. The trial court held him guilty under Sec 304A and not under Sec 302, as it found lack of intention to kill. But the High Court held that there was enmity between the deceased and the appellant, and on the fateful day, the appellant after exchange of words with victim ran towards his jeep and ran over the victim at high speed. there was no point of being rash and negligent as the road was very broad and there was no traffic. Hence, the Court found the appellant guilty under Sec 302. The Supreme Court after appreciating the deliberations of the High Court dismissed the appeal and confirmed the conviction of appellant under Sec 302 of the Indian Penal Code. Rash and Negligent Act in Medical Treatment During the recent past the Supreme Court has attributed a different standard to negligence when it comes to a professional, particularly, a medical practitioner. Courts have repeatedly held that great care should be taken before imputing criminal rashness or negligence to a professional man acting in the course of his professional duties. A doctor is not criminally liable for patient's death unless his negligence or incompetence passes beyond a mere matter of competence and show such disregard for life and safety, as to amount to a crime against state.50 In Suresh Gupta v NCT of Delhi and Anor51the Supreme Court held that for fixing criminal liability of a doctor, the standard of negligence should not merely be lack of necessary care, attention and skill. The standard of negligence required to be proved should be so high as can be described as gross negligence or recklessness. In Jacob Mathew v State of Punjab52 the Supreme Court not only approved the principle laid down in Suresh Gupta's case but also opined that negligence in the context of medical profession necessarily calls for a treatment with a difference...a case of occupational negligence is different from one of professional negligence. Delving into liability of a doctor for his rash or negligent act leading to death of his patient, it ruled that: ...a professional may be held liable for negligence on one of the two findings: either he was not possessed of the requisite skill which he professed to have possessed, or he did not 49 AIR 1998 SC 699 50 Supra note 43 at 825 51 AIR2004 SC 4091 52 2005 CrLJ 3710 32 exercise with reasonable competence in the given case, the skill which he did possess. The standard to be applied for judging, whether the person charged has been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. 35 Section 320 Grievous Hurt The following kinds of hurt only are designated as "grievous" First. - Emasculation. Secondly. - Permanent privation of the sight of either eye. Thirdly- Permanent privation of the hearing of either ear. Fourthly. - Privation of any member or joint. Fifthly. -Destruction or permanent impairing of the powers of any member or joint. Sixthly. - Permanent disfiguration of the head or face. Seventhly. - Fracture or dislocation of a bone or tooth. Eighthly. - Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. General Comments Section 320 of the Indian Penal Code states specifically the nature of injuries that can be categorised as grievous hurt. No other hurt outside the categories of injuries enumerated in Sec 320 can be termed as grievous hurt. Therefore, unless a hurt caused comes within the injuries specified in Sec 320, this section will not apply. Clauses 1- 7 to Sec 320 state the specific nature of injuries, such as emasculation, loss of sight, loss of hearing, loss of limb or joint, loss of use of any limb or joint, disfiguration of the head or face, fracture or dislocation of a bone or tooth. The eight clause is a general clause which covers all injuries which endanger life or which caused bodily pain or disrupted a person's routine activity for 20 days or more. But every grievous hurt need not to be one which endangers life. Clause 8 of this section like any clause needs to be construed strictly. Mere hospitalisation for more than 20 days does not ipso facto turn the hurt into grievous hurt. Therefore, if the victim has not cooperated or not consented for operation, the hurt caused would not be grievous hurt and the accused therefore cannot be held guilty for causing grievous hurt. 59 The authors of the Code observed: we have found it very difficult to draw a line with perfect accuracy is, indeed absolutely impossible, but it is far better such a line should be drawn, though widely, than that offences some of which approach in enormity to murder, while 59 PSA Pillai's, Criminal Law, Tenth Edition, 2008, Lexis Nexis, p887 36 others are little more than frolics which a good man should hardly resent, would be classed together.60 The expression 'emasculation' means depriving a person of masculine vigour, castration or causing such injury to the scrotum of a person as would render him impotent. For the purpose of this section injury caused to another person must be voluntary. Causing injury to himself resulting in emasculation is not within the purview of Sec 320. Disfiguration means causing such injury to a man which detracts from his personal appearance, but does not weaken him. Cutting off a man's nose or ear or an injury resulting in some permanent mark on the face of a person are examples of disfiguration. For the purpose of this section fracture or dislocation of a bone is also considered to be a grievous hurt as it causes pain to the person injured. May be that the bone fractured may be rejoined or the bone dislocated may be reset but this does not change the nature of injury because of painful suffering it causes to the victim.61 Fracture or dislocation of a bone or tooth causes great pain and suffering to the injured person and hence it is considered grievous hurt. For application of this clause it is not necessary that a bone should be fractured through and through or that there should be a displacement of any fragment of bone. Any break or splintering of the bone, rupture or fissure in it would amount to fracture. Although fracture has not been defined in sec 320 IPC, but as per Supreme Court judgment in the case of Hori lal and Anr v State of U.P62 incised wound to the bone is to be consider as fracture, hence, grievous hurt.63 An injury can be said to endanger life if it is in itself that it put the life of the injured in danger. There is thin line between degree of body injury dangerous to life and likely to cause death. So, the line separating grievous hurt and culpable homicide is very thin. In grievous hurt, the life is endangered due to injury while in culpable homicide death is likely to be caused. In Niranjan Singh v State of Madhya Pradesh64, the Court observed that the term “endangers life” is much stronger than the expression “dangerous to life”. The mere fact that a man has been in hospital for twenty days is not sufficient; it must be proved that during that time he was unable to follow his ordinary pursuits. A disability for twenty days constitutes 60 SN Mishra, Indian Penal Code, Twelfth Edition, Central Law Publications, p509 61 Ibid. 62 AIR 1970 SC 1969 63 For more details see: http://medind.nic.in/jal/t13/i2/jalt13i2p160.pdf( Accessed on 10/02/1016) 64 1972 CrLJ 37 grievous hurt; if it constitutes for a smaller period, then the offence is hurt. Ordinary pursuits means acts which are a daily routine in every human being's day to day life like eating food, taking bath, going to toilet, etc.65 In Govt of Bombay v Abdul Wahab66the court observed that the line between culpable homicide not amounting to murder and grievous hurt is very thin. In one case the injuries must be such as are likely to cause death and in the other they endanger life. Thus hurt with endangers life is lesser in degree than injuries which are likely to cause death. In Prithvi v State of Haryana,67during a quarrel between the accused and the deceased, the accused kicked the deceased on the testicles. No medical treatment was given to the deceased for two days. The doctors opined that death was due to Toxaemia because of gangrene which could be the result of injury to testicles. The court held that the injury to the testicles was not the direct cause of death. Thus, an offence under Sec 323 for causing voluntary hurt. Difference between Hurt and Grievous Hurt Hurt ( Section 319 Grievous Hurt Section 320 Whoever causes i) bodily pain ii) disease or iii) infirmity to any person is said to cause hurt . The following eight kinds of hurt are designated as grievous: 1) Emasculation 2) Permanent privation of the sight of either eye 3) Permanent privation of the hearing of either ear 4) Privation of any member or joint 5) Destruction or permanent impairing of the powers of any member or joint 6) Permanent disfiguration of the head or face 7) fracture or dislocation of a bone or tooth 8) Any hurt which endangers life or which causes the sufferer to be during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. 65 Supra note 63 66 AIR 1946 Bom 38 67 AIR 1994 SC 1582 40 Criminal force is concerned with the use of force on a human being alone and not against immovable property or inanimate objects. Further, the section contemplates the physical presence of the person on whom the force is used. When the lock of a house was broken in the absence of the occupant of the house, then it is clear that the accused had taken possession of the house without any force or show of force. Further, the use of force which causes motion, change of motion or cessation of motion to another person, done without the consent of such person, in order to commit an offence, or cause annoyance to the said person will amount to criminal force. No bodily hurt or injury need to be caused.69 For instance if X spits over Z, X would be liable for using criminal force against Z because spitting must have caused annoyance to Z. 69PSA Pillai's, Criminal Law, Tenth Edition, 2008, Lexis Nexis, p909 41 Section 351 Assault Whoever makes any gesture, or any preparation intending or knowing. it to be likely that such gesture or preparation will cause any person present to apprehend that he who makes that gesture or preparation is about to use criminal force to that person, is said to commit an assault. Explanation- Mere words do not amount to an assault. But the words which a person uses may give to his gestures or preparation such a meaning as may make those gestures or preparations amount to an assault. Illustrations (a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z, A has committed an assault. (b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he may thereby cause Z to believe that he is about to cause the dog to attack Z. A has committed an assault upon Z. (c) A takes up a stick, saying to Z, "I will give you a beating". Here, though the words used by A could in no case amount to an assault, and though the mere gesture, unaccompanied by any other circumstances, might not amount to an assault, the gesture explained by the words may amount to an assault. General Comments This section defines the term assault. Whether a particular act amounts or does not amount to an assault depends upon the circumstances of each case. A particular act may not amount to an assault in one case, but the same act taken along with the surrounding circumstances may amount to an assault in another case. In the instant case, the accused interposed between the officer and the cattle that were being removed under his order and he then indulged in the use of abusive language and thereafter went away threatening he would return and teach them a lesson. Soon afterwards he did come back armed with a lathi. He had his companions also, though they were not armed. He came sufficiently close to the officer to raise in their mind a reasonable apprehension that actual force was likely to be used. It was held that the accused's 42 act came within the definition of assault. Pointing a gun at a person is an assault unless done in protection of person or property. If it is pointed at a person without legal excuse it is an unlawful act. The gesture by lifting lota to hit another is enough to constitute the act of assault.70 Essential Ingredients Following are essential ingredients of this section: I. that the accused should make a gesture or preparation to use criminal force; II. such gesture or preparation should be made in the presence of the person in respect of whom it is made; III. there should e intention or knowledge on the part of the accused that such gesture or preparation would cause apprehension in the mind of the victim that criminal force would be used against him; IV. such gesture or preparation has actually caused apprehension in the mind of the victim, of use of criminal force against him. The apprehension of the use of criminal force must be from the person making the gesture or apprehension, but if it arises from some other person it would not be assault on the part of that person. Where X points a loaded pistol at Z it would be an offence of assault. In Muneshwar Bux Singh's71 case the accused did nothing which may come within the meaning of assault but made such a gesture that his followers advanced a little forward towards the complainant in a threatening manner, he was not held liable for an offence under this section because criminal force cannot be said to be used by one person to another by causing only some change in the position of others. The gist of this offence is the intention or knowledge that the gesture or preparations made by the accused would cause such effect upon the mind of another that he would apprehend that criminal force was about to be used against him.72 Difference between Assault and Criminal Force Assault is something less than the use of force. In assault the force is cut short before the blow actually falls upon the victim. It seems to consist in an attempt or offer by a person having present capacity with force to cause any hurt or violence to the person of another. In 70 JN Bannerji and HKL Bhagat, Exhaustive and Critical Commentary on the Indian Penal Code, Federal law Depot, 1958, p293 71 Muneshwar Bux Singh v Emperor 1938 14 Luck 409 72 SN Mishra, Indian Penal Code, Twelfth Edition, Central Law Publications, p530 45 that if an act or omission constituting an offence continues from day to day, then fresh offence is committed every day on which the act or omission is repeated, recurred or continues. A continuing wrong or continuing offence is a breach of duty which itself is continuing. The plain meaning of continuing is carrying on and not ceasing to be the default does not cease until compliance with the statute has been made.76 Kidnapping is not a continuing offence.77 Thus A having kidnapped a minor girl from the lawful guardianship of her father was joined by B on the way along with the girl kidnapped. B was not guilty of kidnapping because the kidnapping was complete the moment the girl is removed and it was not a continuing offence.78 Section 360 Kidnapping from India 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 the person, is said to kidnap that person from India. General Comments The words used in the section are 'beyond the limits of India'. This means that the offence under this section is complete, the moment a person is taken outside the geographical territory of India. It is not necessary that the persons should reach their destination in some other foreign territory. By the same token, if a person is apprehended before he crosses the Indian border, then the offence will not be complete. At best, it may amount to an attempt to commit the offence of kidnapping from India under Sec 360, IPC. Till then, he has a locus paenitentia. The taking away of a person outside the territory of India is made a separate offence, because it has the effect or removing a person from the jurisdiction of the Indian law enforcing agencies.79 Section 361 Kidnapping from lawful guardianship Whoever takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or. any person of unsound mind, out of the keeping of the lawful 76 Ibid. 77 Emperor v Gokaran, AIR 1921 Oudh 226 78 Damoder v State of Rajasthan, AIR 1953 Raj 127 79 PSA Pillai's, Criminal Law, Tenth Edition, 2008, Lexis Nexis, p938 46 guardian of such minor or person of unsound mind, without the consent of such guardian, is said to kidnap such minor or person from lawful Guardianship. Explanation- The words "lawful guardian" in this section include any person lawfully entrusted with the care of custody of such minor or other person. Exception- This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to be entitled to lawful custody of such child, unless such act is committed for an immoral or unlawful purpose. General Comments This section defines the offence of kidnapping from lawful guardianship. In order to support a conviction of kidnapping a girl from lawful guardianship the ingredients to be satisfied are: 1. taking or enticing away a minor or a person of unsound mind; 2. such minor must be under the age of 16 years, if a male or under the age of 18 years, if a female; 3. the taking or enticing must be out of the keeping of the lawful guardian of such minor or person of unsound mind; 4. the taking or enticing must also be without the consent of the guardian. Takes or Entices There is an essential distinction between the two words 'take' and 'entice'. The mental attitude of the minor is not of relevance in the case of taking. The word take means to cause to go, to escort or to get into possession. When the accused takes the minor with him whether she is willing or not, the act of taking is complete and the condition is satisfied. The word 'entice' involves an idea of inducement by exciting hope or desire in the other. One does not entice another unless the latter attempted to do a thing which she or he would not otherwise do so. When the accused takes a girl along with him, he has taken her out of the father's custody within the meaning of the section.80 80 JN Bannerji and HKL Bhagat, Exhaustive and Critical Commentary on the Indian Penal Code, Federal law Depot, 1958, p304 47 In S. Varadarajan v State of Madras81a minor girl voluntarily left her father's house and arranged to meet the accused at a certain place and went to the sub-registrar's office, where the accused and the girl registered an agreement to marry. There was no evidence whatsoever that the accused had taken her out of the lawful guardianship of her parents, as there was no active part played by the accused to persuade her to leave the house. It was held that no offence under this section was made out. The offence under this section is complete when the minor is actually taken lawful guardianship and the offence is not continuing one until the minor's return to his guardian. Where A kidnaps a girl B and gives her to C who accepts her not knowing that she had been kidnapped, A is guilty of kidnapping but C is not. It may sometimes be difficult to determine the precise moment at which the taking is complete but generally speaking, the keeping of the guardian would be an end when the person of the minor had been transferred from the custody of the guardian or some person on his behalf into the custody of the stranger. The act of taking is not a continuous process, therefore, once the boy or girl is taken out of the keeping, the act is complete one and subsequent taking of a minor who has already been kept out of his guardianship no more constitutes taking in the proper sense of the term under this section.82 For the purpose of this section the unsoundness of mind must be because of natural reasons, it should not be temporary insanity produced due to alcoholic excess or such other reason. Where a girl aged 20 years was made unconscious due to dhatura poisoning when she was taken away by X, it was held that X was not guilty of kidnapping because the girl could not be said to be of unsound mind. Further, the person kidnapped must be under the age of 16 years if a male and under the age of 18 years if a female. Knowledge of the accused that the person kidnapped was below the statutory age is immaterial.83 Section 361 of the Code makes the taking or enticing of any minor person or person of unsound mind out of the keeping of the lawful guardian, an offence. The meaning of the words 'keeping of the lawful guardian' came up for consideration before the Supreme Court in State of Haryana v Raja Ram84the court observed that the word keeping in the context connotes the idea of charge, protection, maintenance and control. The Court compared it with 81 AIR 1965 SC 942 82 SN Mishra, Indian Penal Code, Twelfth Edition, Central Law Publications, p536 83 Ibid. 84 AIR1973 SC 819 50 In Abdulvahab Abdul Majid Sheikh v State of Gujarat89victims were abducted and ransom money was realised from them. This was the only intention of accused persons and there was no evidence to prove that they intended to create disharmony among different sections of people. Ransom money was later on recovered from possession of the accused but there was no evidence to prove that such a huge amount was paid as ransom. Co-accused had not involved the accused in his confessional statement. Acquittal of the held was held proper. 89 2007 CrLJ 3529 51 UNIT II Offences against Women I Section 354 Assault or criminal force to woman with intent to outrage her modesty Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall not be less than one year but which may extend to five years, and shall also be liable to fine. General comments Section 354 of the IPC has been enacted with a view to protect a woman against indecent assault as well as to safeguard public morality and decent behaviour. The section punishes an assault, or use of criminal force to any women with the intention or knowledge that woman’s modesty will be outraged.90 In order to seek conviction under section 354 of the IPC the prosecution has to prove not only the accused assaulted or used criminal force to the women but also that he did it with either the intent to outrage her modesty or the knowledge that it would outrage her modesty.91 Meaning of Modesty Modesty is the quality of being modest which means, as regards women, decent in manner and conduct, scrupulously chaste, shrinking from indecency, avoidance of obscene propriety of behaviour, what is required by good taste or delicacy, avoidance of obscene language and gesture and of undue exposure of person, and respectability. Decorum means propriety of speech, manner, etc., and dignity.92 Modesty of women can also be described as the quality of being modest and in relation to woman ‘womanly propriety of behaviour, scrupulous chastity of thought, speech and conduct; reserve or sense of shame of proceeding from instinctive aversion to impure or coarse suggestions’. It is a virtue attached to a woman owing to her sex.93 90 K.D Gaur, The Indian Penal Code, Fourth Edition (2010), Universal Law Publishing co, p608 91 K.I Vibhute, PSA Pillai’s Criminal Law, Tenth Edition (2011), Lexis Nexis, p91 92 Supra note 90 at 608 93Supra note 91 at 917 52 Essential Ingredients 1. A woman was assaulted or criminal force was used against her; 2. The accused intended to outrage her modesty or knew that her modesty was likely to be outraged. 1. Woman was assaulted or criminal force must be used against her Under section 354 of the IPC it is necessary for the prosecution to prove that accused has either assaulted the women or he has used any criminal force against her. It is foremost important essential to prove to make accused liable under section 354 of the IPC. Word ‘assault’ has been defined under section 351 of the IPC which means an overt act, or making gestures, or a preparations intending, or knowledge it to be likely that such gestures or preparations, are with reference to the use of the criminal force against the person.94 Word ‘criminal force’ has been defined under section 350 of the IPC which means that using force intentionally against any person without the consent of that person in order to commit an offence or with the intention to cause or knowledge that it likely to cause an injury, fear or annoyance to the person to whom it was caused. 2. Accused intended to outrage her modesty or knew that her modesty was likely to be outraged It is the second essential element for the offence under section 354 of IPC is that to make accused liable under this section it is necessary for the prosecution to prove that accused has committed that act with some intention. Intention is the gist of the offence. It is not that every act is criminal. To bring an assault under section 354 of the IPC, the act must be done with the intention or knowledge that it is likely to outrage the modesty of the person with reference to whom the act is done.95 In Ram Das v State of West Bengal 96 the Supreme Court held that it is essential to establish that the accused acted with the intention to outrage the modesty of the woman or with the knowledge that it was likely that he would thereby outrage her modesty. The court ruled that no person, in the absence of any clear and unimpeachable evidence as his intention to outrage 94 Supra note 90 at 604 95 Id., at 609 96 AIR 1954 SC 711 55 II Section 313 Causing miscarriage without woman's consent Whoever commits the offence defined in the last preceding section without the consent of the woman, whether the woman is quick with child or not, shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine. General Comments Section 313 of the IPC deals with the offence relating to miscarriage of women with child. Section 313 of IPC is an extension to section 312 of the IPC. For the offence under section 313 of the IPC it is essential to fulfil essential ingredients of Section 312 of the IPC. Section 312 talks about the voluntarily causing the miscarriage of women with her consent. Section 313 of the IPC is an aggravated form of section 312 of the IPC. In section 313 the miscarriage of woman carry child is without her consent. Meaning, extent and scope of causing miscarriage The term ‘miscarriage’ is no where defined in the IPC. The word ‘miscarriage’ is used synonymously with the word ‘abortion’. As per Modi’s Medical jurisprudence, ‘Legally, miscarriage means the premature expulsion of the product of conception and ovum or a foetus from the uterus, at any period before the full term is reached’. Medically, three distinct terms, namely, abortion, miscarriage and premature labour, are used to denote the expulsion of a foetus at different stages of gestation. The term miscarriage is used when a foetus is expelled from the fourth to the seventh month of gestation, before it is viable, while ‘premature labour’ is the delivery of a viable child, possibly capable of being reared, before it has become fully mature.101 Section 313 penalises causing miscarriage of a woman with child (whether she has attained the stage of quickening or not) without her consent, i.e. it relates to the commission of an offence of causing miscarriage of a woman when the woman, who primarily interested in the result, is not consenting party to the act. Section 313 of the Indian Penal Code provide for enhanced punishment in cases of aggravating nature of the offence of miscarriage.102 101 PSA Pillai’s K.I Vibhute Criminal Law, Tenth Edition (2011), Lexis Nexis, p873 102 K.D Gaur, The Indian Penal Code, Fourth Edition (2010), Universal Law Publishing co, p559 56 Essentials Ingredients Various essentials of section 313 are provided in the case of Prabhu@ Kulandaivelu v State of Madras103. Essentials of section 313 of IPC are as follows: 1. That accused caused miscarriage to a woman with child; 2. That he do voluntarily; 3. That he causes miscarriage without her consent. 1. Accused Causes miscarriage of child The first essential ingredient for the offence of section 313 of the IPC is that the accused has causes the miscarriage to a woman. Miscarriage is no where defined in the IPC. As per medical dictionary miscarriage means expulsion of product of conception after 12 weeks but within 28 weeks of gestation.104 It is necessary to prove that accused has committed miscarriage by doing certain act. Under section 313 of the IPC it is not required to prove that the woman was quick with the child or not at the time of miscarriage. 2. Accused committed miscarriage voluntarily Second essential ingredient of section 313 of the IPC is that the miscarriage is voluntarily caused by the accused and it is not as a result of any accident or mishap. Section 39 of the IPC defines ‘voluntarily’ to mean intending to cause an effect or employing means which a person knows or has reason to believe is likely to cause the intended effect. Thus, mens rea is an essential ingredient of the offence. It includes such acts as administrating medicine to pregnant women which causes abortion.105 3. Accused causes miscarriage without the consent of the woman Third essential ingredient for the offence under section 313 of the IPC is that the accused must have caused the miscarriage of woman without her consent. The word ‘consent’ under Section 90 of the IPC. If the miscarriage has been caused with the consent of woman then accused cannot be held liable under section 313 of the IPC. Though, both accused and woman can be held liable for causing miscarriage under section 312 of the IPC. 103 (2015) Madras High Court 104 R.N Karamakar, Forensic Medicine And Toxicology, Academic Publishers. p101 105 Supra note 101 at 872 57 Exception Section 313 of the IPC is an extension of section 312 of the IPC. So the exceptions provided under section 312 of the IPC are also applicable on section 313 of the IPC. Section 312 of the IPC provides exception to the offence of miscarriage: a) Abortion permitted on therapeutic (medical) grounds Section 312 of the IPC permits abortion only on therapeutic (medical) grounds in order to protect the life of mother. That is to say, the unborn child must not be destroyed except for the purpose of preserving the yet more precious life of the mother. The provision by implication recognises the foetus right to life. The threat of life, however, need not be imminent or certain. If the act is done in good faith, the person is entitled to the protection of law.106 In a case of Sharif v State of Orissa107 the Orissa High Court held that where termination of pregnancy of a minor girl was performed to save the life of the mother section 312 of the IPC is not attracted. b) Medical Termination of Pregnancy Act, 1971 To soften the rigours of the law of abortion contained in the Indian Penal Code, the Medical Termination of Pregnancy Act, 1971 was passed. The object of the Act, besides being the elimination of the high incidence of illegal abortions, is perhaps to confer on the woman the right to privacy. Section 3 of the MTP Act, 1971 lays down the conditions under which a pregnancy may be terminated by registered medical practitioners.108 Section 312 of the IPC permits abortion under following situations: i. A risk of life of a pregnant women; or ii. A risk of grave injury to her physical or mental health; or iii. If the pregnancy is caused by rape; or iv. There exists a substantial risk that, if the child were born, it would suffer from some physical or mental abnormalities so as to be seriously handicapped; or 106 Supra note 102 at 560 107 1996 Cr Lj 2826 (Ori) 108 Supra note 102 at 560 60 Explanation I.—For the purposes of this section, “vagina” shall also include labia majora. Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words, gestures or any form of verbal or non-verbal communication, communicates willingness to participate in the specific sexual act: Provided that a woman who does not physically resist to the act of penetration shall not by the reason only of that fact, be regarded as consenting to the sexual activity. Exception I.—A medical procedure or intervention shall not constitute rape. Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being under fifteen years of age, is not rape’. General Comments The Indian Penal Code in sections 375, 376, 376A to 376E has dealt with sexual offences against a woman. These sections were amended recently in Criminal Amendment Act, 2013 after the J.S Verma Committee Report. Rape: Meaning and Extent The word ‘rape’ is derived from the Latin term rapio means ‘to seize’. Thus, rape literally means a forcible seizure. It signifies in common terminology, “as the ravishment of a woman without her consent and against her will, by force, fear, or fraud” or “the carnal knowledge of a woman by force against her will”. In other words, rape is violation with violence of the private person of a woman, an outrage by all means. “Carnal knowledge” means penetration to any slightest degree beyond vaginal penetration which has been incorporated under the Explanation clause to section 375 IPC. The offence of rape as stated in section 375 IPC may be defined in its simplest term as an unlawful sexual intercourse between a man and a woman without the women’s consent and against her will under any one of the seven circumstances mentioned in the section. The offence of rape required both mens rea and actus reus. That is to say, rape requires that the man intends to have sexual intercourse and that he knows that the woman does not consent to the intercourse. A woman cannot be held liable for rape unlike in England where a woman is 61 liable for punishment to the same extent as a man. However, a woman can be held liable for abetment of rape under section 109 of the IPC.109 Essential Ingredients Following are the essential ingredients of the offence of rape: 1. There must be penetration or insertion of any object or manipulation of body for penetration or any like act as provide under clause (1) (2) (3) (4) of section 375 of the IPC with a woman by a man; 2. Such penetration or any such act should be under any of the following circumstances: a) Against her will; b) Without her consent; c) With consent obtained under fear of death or hurt; d) With consent given under misconception of fact that the man is her husband; e) Consent given by reason of unsoundness of mind, intoxication or under influence of any stupefying or unwholesome substance; f) With a woman under 18 years of age, with or without consent g) When woman is unable to communicate the consent Penetration ‘Rape’, as outlined in a section 375 of the IPC, in essence, involves a coercive non- consensual (as well as consensual in a set of specified circumstances) sexual intercourse with a woman ‘without her consent’ or ‘against her will’. A non-consensual ‘sexual intercourse’ is, thus, the crux of the offence of rape.110 ‘Penetration’ means insertion of a male organ into that female. Against her Will The first clause of section 375 of the IPC stipulates that a man is said to have committed rape, if, he has sexual intercourse with a woman ‘against her will’. The term ‘against her will’ and ‘without her consent’ appears synonymous. Though every act done ‘against the will’ of a person will also mean that it is done ‘without the consent’ of the person, an act 109 K.D Gaur, Criminal Law: Cases and Materials, Seventh Edition (2013), Lexis Nexis, p505 110 PSA Pillai’s K.I Vibhute Criminal Law, Tenth Edition(2011), Lexis Nexis, p965 62 done ‘without the consent’ of a person does not necessarily mean ‘against the will’. ‘without consent’ would denote an act being done inspite of opposition of the person. The element of active opposition will not be present. So, if sexual intercourse is done with a woman who is asleep, then it would amount to being against her will.111 Without her Consent The second clause of section 375 of the IPC stipulates that if a man has sexual intercourse with a woman without her consent, then it amounts to rape. Consent means active will in the mind of a person to permit the doing of the act of and knowledge of what is to be done. Consent supposes a physical power to act, a moral power of acting and a serious and determined and free use of these powers. Consent for the purpose of section 375 of the IPC requires voluntary participation not only after the exercise of intelligence based on knowledge of the significance and moral quality of the act but also after having fully exercised the choice between resistance and assent.112 In State of Uttar Pradesh v Chholey Lal113 the Supreme Court held that the expression “against her will” and “without her consent” may overlap sometimes but surely the two expressions in clause First and clause Second have different connotation and dimension. The expression “against her will” would ordinarily mean that the intercourse was done by a man with a woman despite her resistance and opposition. On the other hand, the expression “without her consent” would comprehend an act of reason accompanied by deliberation. It may be noted that for establishment prosecutrix “consent” for sexual act, the courts have followed the tests laid down under section 90 of the IPC, which says;114 i. If the consent is given by a person under fear of injury, or under a misconception of fact, and if the person doing the act knows, or has reason to believe, that the consent was given in consequence of such fear or misconception; or ii. If the consent is given by a person who, from unsoundness of mind, or intoxication, is unable to understand the nature and consequence of that to which he gives his consent; or 111 Id., at 966 112 Id., at 966-977 113 (2011) 2 SCC 550, AIR 2011 SC 697 114 Supra note 109 p508 65 e) being on the management or on the staff of a hospital, commits rape on a woman in that hospital; or f) being a relative, guardian or teacher of, or a person in a position of trust or authority towards the woman, commits rape on such woman; or g) commits rape during communal or sectarian violence; or h) commits rape on a woman knowing her to be pregnant; or i) commits rape on a woman when she is under sixteen years of age; or j) commits rape, on a woman incapable of giving consent; or k) being in a position of control or dominance over a woman, commits rape on such woman; or l) commits rape on a woman suffering from mental or physical disability; or m) while committing rape causes grievous bodily harm or maims or disfigures or endangers the life of a woman; or n) commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for a term which shall not be less than ten years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, and shall also be liable to fine. Explanation.—For the purposes of this sub-section,— a) “armed forces” means the naval, military and air forces and includes any member of the Armed Forces constituted under any Jaw for the time being in force, including the paramilitary forces and any auxiliary forces that are under the control of the Central Government!, or the State Government; b) “hospital” means the precincts of the hospital and includes the precincts of any institution for the reception and treatment of persons during convalescence or of persons requiring medical attention or rehabilitation; c) “police officer” shall have the same meaning as assigned to the expression “police” under the Police Act, 1861; d) “women’s or children’s institution” means an institution, whether called an orphanage or a home for neglected women or children or a widow’s home or an institution called by any other name, which is established and maintained for the reception and care of women or children. 66 General Comments Punishment under Clause (1) of Section 376 of the IPC Changes have been brought in the cases of punishment for the offence of rape vide the Criminal Law (Amendment) Act 13 of 2013 to deter people from committing such heinous crime. Section 376 sub-section (1) provides a minimum sentence of seven years of imprisonment of either description which may extend to imprisonment for life and also liable for fine. Punishment under Clause (2) of Section 376 of the IPC Section 376 (2) provides sentence for 14 situations in which punishment shall not be less that ten years of rigorous imprisonment which may extend to imprisonment for the remainder of that person’s natural life and also liable for fine. Section 376A: Punishment for causing death or resulting in persistent vegetative state of victim Whoever, commits an offence punishable under sub-section (l) or sub-section (2) of section 376 and in the course of such commission inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than twenty years, but which may extend to imprisonment for life, which shall mean imprisonment for the remainder of that person’s natural life, or with death. General Comments Section 376A was inserted by Criminal Law (Amendment) Act 13 of 2013, which provides the punishment in case of causing death of the victim or resulting her being in persistent vegetative state as a result of inflicting injury during the cause of rape.117 Essential Ingredients The essential ingredients for the offence are: 117 Id., at 512 67 1. Person commits an offence punishable under 376(1) or (2) of the IPC; and 2. That person while committing that offence inflicts an injury which causes the death of the woman or causes the woman to be in a persistent vegetative state. Punishment The accused shall be punishable under section 376A of the IPC with rigorous imprisonment for minimum 20 years and which may extend to imprisonment for life which shall mean imprisonment for the remainder of the person’s natural life till death. Section 376B: Sexual intercourse by husband upon his wife during separation Whoever has sexual intercourse with his own wife, who is living separately, whether under a decree of separation or otherwise, without her consent, shall be punished with imprisonment of either description for a term which shall not be less than two years but which may extend to seven years, and shall also be liable to fine. Explanation.—In this section, “sexual intercourse” shall mean any of the acts mentioned in clauses (a) to (d) of section 375. General Comments Section 376B of the IPC was amended by Criminal Law (Amendment) Act 13 of 2013. Prior to this amendment this section was numbered as section number 376A of the IPC. Intercourse by a man with his wife during Separation As a general principle, a husband cannot be guilty of rape upon his wife because “by their mutual matrimonial consent and contract the wife have given up herself in this kind unto her husband, which she cannot retract”. In other words, the wife by process of law, namely, by marriage has given consent to the husband to exercise the marital rights during such time as the ordinary relations created by the marriage subsists between them, but by a further process of law, namely, under a decree of judicial separation, or under any custom or usage, when wife and husband are living separately, consent is withdrawn.118 118 KD Gaur, The Indian Penal Code, Fourth Edition, (2010), Universal Law Publication Co. p680 70 than twenty years, but which may extend to life which shall mean imprisonment for the remainder of that person’s natural life, and with fine: Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim: Provided further that any fine imposed under this section shall be paid to the victim. General Comments Section 376D was added by Criminal Law (Amendment) Act 13 of 2013 which describes the offence of gang rape. Essential Ingredients The essential ingredients for the offence of gang rape under section 376D, IPC are: i. Rape with a woman by two or more persons; ii. They constitutes a group or acting in furtherance of common intention If these essentials are fulfilled then each of those persons shall be liable for the offence of gang rape under section 376D of the IPC. Punishment Section 376D provides punishment of rigorous imprisonment for the term which shall not be less than 20 years but which may extend to imprisonment for life which means imprisonment for the remainder of that person’s natural life and with fine. Section 376E: Punishment for repeat offenders Whoever has been previously convicted of an offence punishable under section 376 or section 376A or section 376D and is subsequently convicted of an offence punishable under any of the said sections shall be punished with imprisonment for life which shall mean imprisonment for the remainder of that person’s natural life, or with death’. 71 General Comments Section 376D was added by Criminal Law (Amnedment) Act 13 of 2013 which provides the punishment for repeat offenders. If any of the person has been previously convicted under section 376 or under section 376A or under section 376D and then subsequently convicted for the same offence under any of such section the he shall be punished as repeat offenders under section 376E. Essential Ingredients The essential ingredients for the offence are: 1. Person has been previously convicted of an offence punishable under section 376 or section 376A or section 376D; and 2. That he is subsequently convicted for any of the offence punishable under section 376 or section 376A or section 376D. Punishment Section 376E provides punishment of imprisonment of life which shall mean imprisonment for the remainder of that person’s natural life or with death. 72 IV Section 498A Husband or relative of husband of a woman subjecting her to cruelty Whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine. Explanation- For the purpose of this section, "cruelty" means- (a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman; or (b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand.. General Comments Introduction and Object: Chapter XXA was introduced in the IPC in the year 1983. It consists of only one section, namely section 498A, which makes cruelty to a wife by the husband or relatives, an offence. It endeavours to prevent torture to a married woman by her husband or by her relatives and to punish them for harassing or torturing the wife to coerce her or her relatives to concede unlawful demands of dowry.119The main object for the enactment of section 498A was to check cruelty to woman by husbands and parent-in-law. In order to tackle this, it was felt by the parliament that comprehensive legislative changes were required at three levels:120 i. To define the substantive offences of cruelty to woman by husbands and relatives of husbands; ii. To introduce procedures which make investigation in cases of certain deaths of woman mandatory; iii. To bring changes in the Evidence Act, which will make prosecution and conviction of accused in cases of violence against women easier. 119K.I Vibhute, PSA Pillai’s Criminal Law, Tenth Edition (2011), Lexis Nexis, p767 120 Ibid. 75 iv. It has been exploited by the women and their relatives to such an extent that the provisions has become most ineffective in curbing the evil of dowry as well as disciplining the husband and his relatives to treat the wife with respect and honour. However, the Supreme Court, repelling these arguments, upheld the constitutional validity of section 498A. It held that mere possibility of abuse of a statutory provision does not per se make provision of law objectionable and ultra vires to the constitutional. Court said that in such cases, ‘action’ and not the ‘section’ may be vulnerable. Compounding of Offences under Section 498A Compounding of offence is settling or condoning the matter. Section 320 of the CrPC, provides for the compounding of certain offence by the parties directly and compounding of some others with the permission of the court. Compounding an offence will have the effect of an acquittal in a case. Section 498A of the IPC being a very serious offence, is not included in section 320 of the CrPC.126 However, various High Courts have different opinions. Some of them say that offence under section 498A of the IPC can be compounded and some says that it cannot be compounded. In B.S Joshi v State of Haryana127 the apex court held that when both the parties approached a high court and jointly prayed for quashing of the criminal proceedings filed by the wife under section 498A of the IPC then for securing the ends of justice high courts are empowered to quash the criminal proceedings even though section 498A of the IPC is not made compoundable under section 320 of the CrPC. In another case of Bankat & Anor v State of Maharashtra128 the apex court held that in the light of the legislative mandate of section 320 of the CrPC only offences which are covered under section 320, CrPC, can be compounded and rest of the offences punishable under IPC cannot be compounded. Punishment The offence under section 498A shall be punished with an imprisonment which may extend to three years and shall also be liable for fine. 126 Supra note 119 at 774 127 AIR 2003 SC 1386 128 (2005) 1 SCC 343 76 Difference between Section 498A of the IPC and Section 4 of the Dowry Prohibition Act Under section 4 of the Dowry Prohibition Act mere demand of dowry is punishable and existence of element of cruelty is not necessary, whereas in section 498A of the IPC deals with the aggravated form of the offence. A person can be prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition Act and section 498A of the IPC.129 Comparison between Section 498A and Section 304B of the IPC Section 304B and section 498A of the IPC cannot be mutually exclusive. These provisions deal with two distinct offences. It is true that cruelty is a common essential to both the sections and that has to be proved. The explanation to section 498A gives the meaning of cruelty. In section 304B there is no such explanation. But having regard to the common background of these offences, one has to take that meaning of ‘cruelty or harassment’ is same as one find in explanation to section 498A under which ‘cruelty’ by itself amounts to an offence. Under section 304B it is dowry death that is punishable and such death should have occurred within seven years of marriage. No such period is mentioned in section 498A of the IPC. Further, a person charged and acquitted under section 304B can be convicted under section 498A without that charge being there, if such a case is made out. If the case is established, there can be a conviction under both the sections but no separate sentence would be necessary under section 498A in view of the substantive sentences being awarded for the major offence under section 304B.130 129 A.K Jain, Law Guide For Judicial Service Examinations (VOL. I), (2012), Ascent Publications, p446 130 Id., at 447 77 UNIT III Offences against Property I Section 378 Theft Whoever intending to take dishonestly any moveable 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. Explanation1. -A thing so long as it is attached to the earth, not being movable property, is not the subject of theft; but it becomes capable of being the subject of theft as soon as it is severed from the earth. Explanation 2. -A moving effected by the same act which affects the severance may be a theft. Explanation3. -A person is said to cause a thing to move by removing an obstacle which prevented it from moving or by separating it from any other thing, as well as by actually moving it. Explanation 4. -A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is moved by that animal. Explanation 5. -The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for the purpose authority either express or implied. Illustrations (a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the tree out of Z's possession without Z's consent. Here, as soon as A has severed the tree in order to such taking, he has committed theft. (b) A puts a bait for dogs in his pocket, and thus induces Z's dog to follow it. Here, if A's intention be dishonestly to take the dog out of Z's possession without of Z's possession without Z's consent. A has committed theft as soon as Z's dog has begun to follow A. 80 Taking out of the Possession of another Person The main right of the individual that sought to be protected under section 378 and 379, IPC, is undoubtedly his possession of the movables. The word ‘possession’ is not defined in the IPC. The term ‘possession’ plays an important part in both civil and criminal law. It forms the basis of civil action of trespass and also of the offence of theft. Possession exists in one whenever he has physical control, whether rightful or wrongful, over a corporeal thing. It is entirely distinct from property and either may exist without the other. Thus, when an article is stolen, though the thief has possession, the owner retains the property. Possession may be de facto or de jure. The former is mere custody. A servant has only mere custody of the articles which belongs to his master.138 Under section 378, IPC, it does not matter for the purpose of theft that the person from whose possession the property is taken is not the true owner or has an apparent and not real title to the property. Possession and not ownership is the essential element in the offence. A theft is a theft. Thus where a person steal a thing from thief he is guilty of theft.139 Difference between Possession and Custody The term possession must be distinguished from custody. A man is said to be in possession of a thing when he can deal with it as the owner to the exclusions of others. The property is in his custody when he cannot deal with it, as the owner, but merely keeps it for sale of another, as in case of servant holding property for master.140 Temporary Deprivation or Dispossession is also Theft In Pyare Lal Bhargawa v State of Rajasthan141 the Supreme Court held that to commit theft, one need not take movable property permanently out of the possession of another, with the intention not to return him. It would satisfy the definition if he took any immovable property out of the possession of another person, though he intended to return it later. Moving Property in Order to such Taking Theft is complete the movement a thing is moved even though such things may yet be for from passing into the thief’s possession. Moving a thing is the initial stage in the possession 138 Supra note 134 at 1003-1004 139A.K Jain, Law Guide for Judicial Service Examinations (VOL. I), (2012), Ascent Publications, p333 140 Supra note 132 at 691 141AIR 1963 SC 1094 81 that which is taken and theft is considered completed at such an initial stage; thus the actual taking or possession is not of much consequence in determining whether theft has been committed or not. What contemplates is the intention to take and the actual taking is a step beyond such intention and not relevant for the purpose of definition of theft.142 Taking with Dishonest Intention Taking out of possession being the essential ingredient of the offence of theft, one of the ingredients of the offence of theft is intention to take dishonestly. This intention is known as animo furandi (with intention to steal). Without it the offence of theft is not completed. A bona fide claim of a right will rebut the presumption of dishonesty. A person may commit theft by dishonestly taking his own property out of possession of another.143 Taking without Consent In order to constitute theft the property must have been taken without the consent of the person in possession of it. Explanation 5 and illustration (m) and (n) make it clear that the consent may be express or implied and may be given either by the person in possession or by any person having for that purpose authority either express or implied. The consent given under improper circumstances will be of no avail.144 In Purshotam v State145 held that consent obtained by false representation which leads to a misconception of facts will not be a valid consent. Difference between Theft and Larceny The definition of theft under IPC differs from the definition of larceny under the English law. In larceny the property in question must be owned by someone, while under the Indian law in theft it must be in the possession of someone. The property should be taken out of the possession of a person.146 142 Supra note 132 at 691 143 Id., at 692 144 Ashok. K. Jain, Criminal Law I, (2010), Ascent Publications, p138 145 (1962) 64 Bom LR 788 146 Supra note 132 at 691. 82 Section 379 Punishment for theft Whoever commits theft shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. General Comments Section 379, IPC, prescribes punishment which may extend to imprisonment (either simple or rigorous) for a period of three years, or fine, or with both. The offence under this section is cognizable, non-bailable and triable by magistrate. 85 is not legally bound to do and says that if money is not paid to him he would not do that thing, such act would not amount to an offence of extortion. In Kala v Ram Kishan153 held, where the head-master of a school called a lady teacher to a place where he was alone and induces her to sign three blank papers by threatening an attack on her modesty is amounted to an offence of extortion. Section 44 of the IPC defines Injury Word ‘injury’ as used in the offence of extortion under section 383 IPC is defined under section 44 of the IPC, which means illegally causing any harm to person in body, mind, reputation or property. Dishonest Inducement to Deliver Property or Valuable Security A threat to use the process of law for the purpose of black mailing is criminal and when property or a document is obtained by threats for the purpose, the offence of extortion is committed. A village headman, finding certain persons sitting cocks to fight near a public road, threatened them with a prosecution and subsequently took money as a consideration for not putting them. Held, the offence fall under extortion.154 Delivery of property by the person put in fear is the essence of the offence under this section. In other words, to constitute the offence of a thumb impression does not amount to extortion. Property under this section means both movable and immovable property. 155 Section 24 of the IPC defines Dishonestly The word ‘dishonestly’ as used in the offence of extortion under section 383, IPC, is defined under section 24, IPC, which means that when a person do some act with the intention of causing wrongful gain to one person or wrongful loss to another person is said to have been done that thing dishonestly. Acts not amounting to Extortion156 These do not constitute extortion: 153 AIR 1985 SC 1286 154 Supra note 147 at 695 155Ibid 156 Supra note150 at 144 86 1) A refusal to allow people to carry away firewood collected in a government forest without payment of proper fees; 2) A payment taken from owners of trespassing cattle under the influence of a threat that cattle would be impounded if payment refused; 3) The obtaining of bond under the threat on non-rendering of service as a vakil; 4) A refusal to perform a marriage ceremony and enter the marriage in register unless accused was paid Rs 5 Difference between Extortion and Cheating In extortion property is delivered by causing fear, while in cheating property is delivered with consent obtained by fraud. Injury according to the code is causing of harm illegally.157 Difference between Theft and Extortion158 1) In case of theft property is taken away without the consent of the owner, whereas, in extortion the consent of the owner is obtained but wrongfully. 2) Theft may be only in respect of moveable, whereas, extortion may be either movable or immovable. 3) In theft there is no element of force, whereas, in extortion property is obtained by putting a person in fear of injury and thereby inducing him to part with his property. 4) In theft there is no delivery of property by the owner, whereas, in extortion there is delivery of the property. Section 384 Punishment for extortion Whoever commits extortion shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. General Comments Section 384 prescribes the punishment for extortion which may extend to imprisonment (either simple or rigorous) for a period of three years, or fine, or both. The offence is cognizable, non-bailable, non-compoundable and triable by magistrate. 157 Supra note147 at 695 158 Id., at 696 87 III Section 390 Robbery In all robbery there is either theft or extortion. When theft is robbery- Theft is "robbery" if, in order to the committing of the theft, or in committing the theft, or in carving away or attempting to carry away property obtained by the theft, the offender, for that end, voluntarily causes or attempts to cause to any person death or hurt or wrongful restraint, or fear of instant death or of instant hurt, or of instant wrongful restraint. When extortion is robbery- Extortion is "robbery" if the offender, at the time of committing the extortion, is in the presence of the person put in fear, and commits the extortion by putting that person in fear of instant death, of instant hurt, or of instant wrongful restraint to that person or to some other person, and, by so putting in fear, induces the person so put in fear then and there to deliver up the thing extorted. Explanation- The offender is said to be present if he is sufficiently near to put the other person in fear of instant death, of instant hurt, or of instant wrongful restraint. Illustrations (a) A holds Z down and fraudulently takes Z's money and jewels from Z's clothes without Z's consent. Here A has committed theft, and in order to the committing of that theft, has voluntarily caused wrongful restraint to Z. A has therefore committed robbery. (b) A meets Z on the high roads, shows a pistol, and demands Z's purse. Z in consequence, surrenders his purse. Here A has extorted the purse from Z by putting him in fear of instant hurt, and being at the time of committing the extortion in his presence. A has therefore committed robbery. (c) A meets Z and Z's child on the high road. A takes the child and threatens to fling it down a precipice, unless Z delivers his purse. Z, in consequence delivers his purse. Here A has extorted the purse from Z, by causing Z to be in fear of instant hurt to the child who is there present. A has therefore committed robbery on Z. 90 said to have been caused in order to commit the theft so as to bring the offence under sec 390 IPC the supreme court rejected the argument stating that the co-accused slapped the victim to enable the accused to carry away the stolen property. Under the circumstances, it would clearly fall within the provision of section 390, IPC, because as per the section, theft is robbery, if, hurt is caused while carrying away or attempting to carry away the property stolen. The Supreme Court held both the accused liable for the offence of robbery. When Extortion becomes Robbery Extortion is robbery if, the extortionist at the time of committing the extortion, is in the immediate presence of the victim and puts the victim in fear of instant death, hurt or wrongful restraint, either to that person to some other person. If out of these fear induced in the victim by extortionist, he is able to obtain delivery of the thing extorted, then the offence of extortion is committed. The explanation to section 390, IPC, states that the extortionist is said to be present, if he is sufficiently near to put the person in fear of instant death, hurt or wrongful restraint. 165 Causing Death, Hurt or Wrongful Restraint One of the essential ingredients to constitute the offence of robbery is that the offender should have caused to any person death, hurt or wrongful restraint, or the fear of instant death, hurt or wrongful restraint. Only when such elements exist, the offence of theft would be robbery and not otherwise.166 In Harinder Singh v State of Punjab167 the accused was a gunman in Pepsu Roadways Transport Corporation at Kapurthala. He robbed an assistant cashier in the same corporation and took away a sum of Rs 32,936 and also causes injuries to the cashier. The accused confined the cashier in a room and bolted it from outside. The cashier raised a hue and cry after the accused left the place. When the police arrived at the spot, they found cashier confined in the room and found traces of robbery. Serious injuries were also found on the person of cashier. The Supreme Court held the accused to be liable for the offence of robbery. 165 Supra note 160 at 1033 166 Ibid. 167 AIR 1993 SC 91 91 ‘For That End’ Section 390, IPC, will apply only if the death, hurt or wrongful restraint or fear thereof is caused for the purpose of achieving the end object of commission of theft or carrying away the stolen property. The words ‘for that end’ are very crucial, which distinguishes a case of theft accompanied assault, which is covered under section 379 and 323 of the IPC from that robbery. Thus, if the death, hurt or wrongful restraint has not been caused for the end of achieving the object of theft or carry away the stolen property, then it will not amount to an offence of robbery under section 390, IPC.168 In Tirlok Singh v Satya Deo169 the complainant had purchased a truck on hire-purchase basis from Finance Corporation. The complainant paid the first two monthly instalments and defaulted on the payment for third instalment. According to the complainant, the accused in a highhanded manner came to his house and in spite of protest by his wife, forcibly, under threat of arms, removed the truck and thus were said to have committed the various offences of robbery and dacoity. The Supreme Court held that the version of the complainant was very unnatural and untrustworthy. It held that the seizure of truck was a bona fide right exercised by the accused on the failure of the complainant to pay the third instalment. Nobody was hurt on the side of the complainant. Under these circumstances, it was held that no offence of robbery or dacoity was made out. Possession of Stolen Property Possession of stolen property has always been considered as sufficient presumptive evidence to prove the commission of theft and robbery. Section 114(a) of the Indian Evidence Act provides that the court may presume that a man who is in possession of stolen goods soon after the theft, is either the thief, or has received the goods knowing them to be stolen, unless he can account for his possession. In Wasim Khan v State of Uttar Pradesh170 the Supreme Court held that in cases where murder and robbery have been shown to form parts of one transaction, then the unexplained possession of the stolen property would be presumptive evidence against an accused in the charge of theft and any other aggravated crime connected with the theft. 168 Supra note 160 at 1035 169 AIR 1979 SC 850 170 AIR 1985 SC 486 92 In another case of Baiju @ Bharosa v State of Madhya Pradesh171 the Supreme Court placed reliance on illustration (a) to section 114, Indian Evidence Act, that the presumption under this section would depend upon the facts and circumstances of each case. The nature of the stolen articles, the manner of its acquisition by the owner, the nature of evidence about its identification, the manner in which it was dealt with by the accused, are all factors to be taken into consideration. Section 392 Punishment for robbery Whoever commits robbery shall be punished with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine; and, if the robbery be committed on the highway between sunset and sunrise, the imprisonment may be extended to fourteen years. General Comments Section 392 provides the punishment for the offence of robbery. It provides the rigorous imprisonment for the term which may extend to ten years and shall also be liable for fine. If the robbery is committed on the highway between sunset and sunrise, it is considered an aggravated factor and the imprisonment may extend to fourteen years. 171 AIR1978 SC 522 95 Distinction between Theft, Extortion, Robbery and Dacoity181 Theft, robbery and dacoity resemble each other in that property is taken without the owner’s consent. However, ‘theft’ can be committed in respect of movable property only, whereas ‘extortion’, ‘robbery’ or ‘dacoity’ can be committed in respect of immovable property also. Further, in ‘theft’, there is no use of force by the thief, whereas force may or may not be used according as ‘robbery’ or ‘dacoity’ is a form of theft or extortion. It may be noted that ‘dacoity’ includes robbery and because robbery is only aggravated form of theft and extortion, therefore, dacoity includes theft and extortion also. Even case of dacoity is primarily a case of robbery but vice versa is not correct. ‘Theft’, ‘robbery’ and ‘extortion’ can be committed by one person, whereas in ‘dacoity’, the least number must be five. ‘Extortion’ is committed by the wrongful obtaining of consent. In ‘robbery’ there is either no consent or by the wrongful obtaining of consent. In ‘dacoity’ there is either no consent or consent is obtained wrongfully. The element of fear is clearly present in ‘extortion’ and ‘dacoity’, but may or may not be present in ‘robbery’. Section 395 Punishment for dacoity Whoever commits dacoity shall be punished with imprisonment for life, or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine. General Comments Section 395, IPC, provides the punishment for the offence of dacoity which the accused shall be punished either for imprisonment for life, or rigorous imprisonment for the term which may extend to ten years and also liable for fine. The offence is cognizable, non-bailable, non- compoundable and triable by the Court of Session. 181 Supra note 172 at 338 96 UNIT IV Offences against Marriage I Section 494 Marrying again during lifetime of husband or wife Whoever, having a husband or wife living, marries in any case in which such marriage is void by reason of its taking place during the life of such husband or wife, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine. Exception- This section does not extend to any person whose marriage with such husband or wife has been declared void by a court of competent jurisdiction, nor to any person who contracts a marriage during. the life of a former husband or wife, if such husband or wife, at the time of the subsequent marriage, shall have been continually absent from such person for the space of seven years, and shall not have been heard of by such person as being alive within that time provided the person contracting such subsequent marriage shall, before such marriage takes place, inform the person with whom such marriage is contracted of the real state of facts so far as the same are within his or her knowledge. General Comments Section 494 punishes the offence known to the English law as bigamy. Under Indian Penal Code bigamy has been rendered an offence by Section 494. If any person having a spouse living, marries in any case where the later marriage is void by reason of its taking place during the life time of the husband or wife of the former marriage commits the offence of bigamy. This section applies to all Hindus, Christians, and Parsis whether male or female. But in case of Muslim it applies only to females but not to males because under Muslim Personal Law a male can have four wives at a time but a female is not permitted to have more than one husband at one time.182 Essential Ingredients For the purpose of section 494 a person commits bigamy if that person: a) having a husband or a wife living, 182 SN Mishra, Indian Penal Code, Twelfth Edition, Central Law Publications, p660 97 b) marries in any case in which such marriage is void, c) by reason of its taking place during the life of such husband or wife However, there are two exceptions in which second marriage is not an offence: i. when the first marriage has been declared void by a court of competent jurisdiction ii. when the husband or wife has been continually absent or not heard of for seven years, provided that this fact be disclosed to the person with whom the second marriage is contracted. One of the essential ingredients of the offence of bigamy is the existence of a previously contracted marriage. It is essential to establish that at the time of previously contracted marriage, the person was already married. The first marriage should be subsisting at the time of the second marriage and should be validly contracted one. The first husband or wife should be alive when the second marriage was contracted.183 Mens rea that is guilty intention is necessary under section 494 of the Indian Penal Code. In Sankaran v Krishman,184 an accused when he contracts the second marriage acts on the bona fide belief that his marital ties with his previous spouse has been severed under the deed of divorce entered into between the parties, he is entitled to acquittal of the charge of bigamy. Effect of Conversion Conversion of one of the spouses without the consent of the other, from one religion to another often causes tremendous domestic upheavals in the lives of the other spouse and children. This is because of the personal laws governing people vary from religion to religion. The problem is particularly severe when one religion permits polygamy, whereas the other religion does not. Prior to the enactment of the Hindu Marriage Act, a Hindu male was permitted to practice polygamy. However, the Hindu Marriage Act strictly enforces monogamy.185 The question whether a Hindu husband would be guilty of the offence of bigamy under section 494 of the IPC, when he originally married under Hindu law and subsequently converts to Islam and marries for a second time came before the Supreme Court in Sarla Mudgal v Union of India,186the court laid down the following principles: 183 PSA Pillai's, Criminal Law, Tenth Edition, 2008, Lexis Nexis, p755 184 1984 CrLJ 317 (Ker) 185 Supra note 183 at 757 186 AIR 1995 SC 1531