IPC and Criminal Liability for Negligence, Dowry Death, and Kidnapping, Study notes of Law

Download IPC and Criminal Liability for Negligence, Dowry Death, and Kidnapping and more Study notes Law in PDF only on Docsity! KLE LAW ACADEMY BELAGAVI (Constituent Colleges: KLE Society’s Law College, Bengaluru, Gurusiddappa Kotambri Law College, Hubballi, S.A. Manvi Law College, Gadag, KLE Society’s B.V. Bellad Law College, Belagavi, KLE Law College, Chikodi, and KLE College of Law, Kalamboli, Navi Mumbai) STUDY MATERIAL for LAW OF CRIMES I Prepared as per the syllabus prescribed by Karnataka State Law University (KSLU), Hubballi Compiled by Ankita Rituraj, Asst. Prof. Harsh Pratap, Asst. Prof. Reviewed by Mr. Harsh Pratap, Asst. Prof. K.L.E. Society's Law College, Bengaluru This study material is intended to be used as supplementary material to the online classes and recorded video lectures. It is prepared for the sole purpose of guiding the students in preparation for their examinations. Utmost care has been taken to ensure the accuracy of the content. However, it is stressed that this material is not meant to be used as a replacement for textbooks or commentaries on the subject. This is a compilation and the authors take no credit for the originality of the content. Acknowledgement, wherever due, has been provided. UNIT I CRIME AND ITS MEANING: SYNOPSIS :  Meaning  Elements of crime – Actus Reus and Mens Rea  Stages of Crime  Parties to crime (iii) Where another person has intervened: In certain cases, it would seem that the harm could not have occurred but for an act or omission on the part of the offender, but in which he has been excused on the ground that some other person intervened and s appeared to have more immediate and direct cause of harm. In R v. Hilton, on an indictment of manslaughter, it appeared that the prisoner who was in charge of a steam engine had stopped the engine and gone away. During his absence some unauthorized person had set the engine in motion after the prisoner had gone away. The judge held that the death was the consequence, not of the act of the prisoner but of the because of the because of the person who had set the engine in motion after the driver had gone away. (iv) Where victim’s own conduct has affected the result: Although there is no definite test laid down by any authority it would seem that so long as it is reasonably certain that the result charged against the offender in the indictment (a) would have occurred even if nothing was done subsequently by the victim (b) did occur although it might have been averted if the victim had taken some remedial action, then the prisoner offender be convicted. In cases where the victim’s conduct has affected the result, the benefit of it must go the offender. In R v. Martin the prisoner was charged with the manslaughter of his 4-year-old son by giving it gin. It appeared that he had held out a glass to a little boy who snatched the glass and drank nearly the whole of the liquor which brought about its death shortly. The prisoner was acquitted on the grounds that the death followed because of the act of the child. (v) Contributory negligence of the victim: that the victim of an offence has contributed to the harm by his own negligence affords no such defence to the accused in criminal proceedings as it may do in a civil action. In R v. Swindall and Oshborne, it appeared that the prisoners were driving a horse and cart on the public road and encouraging each other to drive at a dangerous pace. In the course of this, they ran over and killed a pedestrian. It was held that it is immaterial whether the deceased was drunk or negligent, or in part contributed to his own death. Mens Rea Mens rea means the evil intent or guilty state of the mind. It refers to psychological state or desire of the offender to bring about a contemplated result. Two tests have evolved to determine the mens rea in a particular case: i. Whether the act in question is a voluntary act of the accused? (Section 39 of IPC defines voluntarily) ii. Whether the accused had foresight of the consequences of the conduct? There are different degrees of mens rea. Intention: To intend is mind is to have a fixed purpose to reach a desired objective. The word intention is used to denote the state of mind of a man who not only foresees but also wills the possible consequences of his conduct. For example: If a man chops off the head of another, it is clear that he not only foresees his death but also wills to cause the death. There cannot be intention without the foreseeability of the consequences and willingness to turn foreseeability into reality. Knowledge: Knowledge is the awareness on the part of the person concerned, indicating that his mind is aware of the possible consequences of his conduct. In Basdev v. State of Pepsu, it was observed that knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Recklessness: A man may foresee the possible or even probable consequence of his conduct, not desire them to happen and despite this knowingly runs the risk of bringing about unwished results. A man who is reckless may prefer that the contemplated event shall not happen and does not desire for it to happen and does not act with the purpose that it shall happen. But despite this the person knowingly runs the risk. Negligence: When a man is negligent, he may not have foreseen the probable or possible consequences of his actions. There is no foreseeability of possible consequences in negligence. The word negligence denotes such blame worthy inadvertence and the man who through his negligence has brought harm upon the other is under an obligation to make reparations to the victim. Under IPC, negligence has been incorporated very specifically to fasten liability in cases of death caused by negligence (Section 304A). Negligence is essentially a principle of tort law. Motive : Motive is the psychological phenomena which compels a person to do a particular act. For example: ambition, jealously, fear etc. Motive is something which leads or tempts the mind to indulge in an act or which compels the mind to do an act. According to Austin, motive is like a spring. It pushes the intention further. In contrast, intention is the aim of the act. Motive is something which triggers mens rea. Motive can be good or bad. For instance, a person may commit theft to feed poor people. His motive is good, i.e., helping the poor. However, his intention is to commit a crime to achieve that motive. Motive may be relevant to find out the guilt if the accused but is not an ingredient of crime. Stages of Crime: 1. Intention- Intention is the first stage in the commission of an offence. But the law does not take notice of an intention, mere intention to commit an offence not followed by any act, cannot constitute an offence. The obvious reason for not prosecuting the accused at this stage is that it is very difficult for the prosecution to prove the guilty mind of a person. 2. Preparation- Preparation is the second stage in the commission of a crime. It means to arrange the necessary measures for the commission of the intended criminal act. Intention alone or the intention followed by a preparation is not enough to constitute the crime. Preparation has not been made punishable because in most of the cases the prosecution has failed to prove that the preparations in the question were made for the commission of the particular crime. However, there are exceptions to this rule. For certain offences, even the preparation is made punishable. 3. Attempt- Attempt is the direct movement towards the commission of a crime after the preparation is made. A person may be guilty of an attempt to commit an offence if he UNIT II SYNOPSIS : DEFENCES :  Mistake of law and facts  Accidents  Necessity  Infancy  Insanity  Intoxication  Private Defence OFFENCES AGAINST THE STATE :  Waging war against the government of India and related provisions  Sedition A person is presumed to know the nature and consequences of his act and is therefore, responsible for it in law. However, there are some exceptions to this. Such provisions are dealt with in chapter IV of the Indian Penal Code from section 76 to 106. The general exceptions can be classified into two broad classes. First is excusable and the second is justifiable. Excusable defences are those acts which are excused for want of necessity of mens rea. In such cases the act is not criminal because the guilty intention is absent. In the case of justifiable defences the acts are not excused but justified. Here we are discussing about  Mistake of law and facts  Accidents  Necessity  Infancy  Insanity  Intoxication  Private Defence Mistake of law and mistake of facts (Sections 76 and 79) The term mistake literally means commission or omission of an act ignorantly or unintentionally causing injury. It is an unconscious ignorance or forgetfulness of a fact, past or present, material to the contract or a belief. Mistake is one of the defences available to the accused to get exemption from criminal liability. A court has to determine his guilt on the basis of the believed facts and not on the real facts. Mistake negates the existence of a particular intent or foresight which penal law requires to make a person liable rather than actus reus. Mistake as an absolving factor allows a court to look into the mental statues of the wrong doer. In order to exclude the criminal from the liability on the ground of mistake three conditions are to be fulfilled, a. The state of things believed to exist would, if true, b. have justified the act done; the mistake must be reasonable; and c. the mistake must relate to fact and not to law Section 76 and 79 of Indian Penal Code deals with Mistake of law and Mistake of fact respectively. Both these mistakes are based on the maxim “ignorantia facti excusat, ignorantia juris non- excusat” means ignorance of fact excuses and ignorance of law does not excuse”. Section 76 excuses a person from criminal liability who is bound by law to do something and has done it or who in good faith, owing to a mistake of fact, believes that he is bound by law to do something and does it whereas section 79 absolves a person, who believes, by reason of mistake of fact and not by reason of mistake of law, in good faith, that his act would be justified by law. The similarities between both the sections is that the act must done based must be done due to mistake of fact and the accused must have acted in good faith. The difference between two sections, is shown in the words “bound by law” and “justified by law”. These two sections, though identical and accord the same immunity, are distinct from each other. Under section, 76 a person believes himself bound by law to do a thing and Accident ( Section 80) Section 80 exempts a person from criminal liability if, the act must have been done without any criminal intention or knowledge; the act alleged to have been done against the accused must be lawful; the act must have been done in a lawful manner by lawful means and with proper care and caution. To bring an act within the meaning of the term accident used in section 80, an essential requirement is that the happening of the incident cannot be attributed to human fault. It is something happens out of ordinary course of things. The word misfortune means the same thing as accident plus that it was as unwelcome as it was unexpected. It was only an accident with attendant evil consequences. Both these words “accident” and “misfortune” are used in the sense of implying the injury to another. In order to invoke this section, it must be proved that the act is done without any “criminal intent or knowledge”. It is mandatory to prove that the act is done without mens rea or guilty mind. Thus, injuries caused due to accidents in sports and games are covered this section. In Tunda v. Rex, two friends fond of wrestling participated in a wrestling match and one of them suffered injury which resulted in death of the other. The other person was charged under s 304 A IPC. The High Court held that when both agreed to wrestle with each other, there was an implied consent on the part of each to suffer accidental injuries. In the absence of any proof of foul play, it was held that the act was accidental and unintentional. The section specifically mentions that a lawful act in a lawful manner by lawful means. If an act is lawful but done it through unlawful manner the section doesn’t have any application. Further the section emphasis act must be done with proper care and caution. What is expected is not utmost care, but sufficient care that a prudent and reasonable man would consider adequate, in the circumstances of cases In Jagesher v. Emperor, the accused was beating a person with his fist. The latter’s wife intervened with two month old baby on her shoulder. The accused hit the women also the blow struck the child on the head and it died from the effects of the blow. The accused was held liable, even though the child was hit by accident. The reason is that the accused was not doing a lawful act in a lawful manner by lawful means. In Bhupendra singh v. State of Gujarat, the accused constable, along with the head constable, was on patrol duty at a dam site, which was in danger on account of heavy rain fall. The accused took the plea that he saw a fire and hence fired. The accused close at shot range without knowing the identity of his target. The Supreme Court held that the act was done without any care and caution. His conviction for murder was upheld and he was sentenced to life imprisonment. Doctrine of Necessity (section 81) To invoke section 81 two ingredients must be satisfied such as, the act must have been done under good faith; there must not be mens rea (absence of mens rea). It embodies the principle that where the accused chooses lesser evil, in order to avert the bigger, then he is immune. The genesis of this principle emanates from two maxims: quod necessitas non habet legum- necessity knows no law and necessitas vincit legum- necessity overcomes the law. This doctrine of necessity recognises that the law has to be broken to achieve a greater good. The illustration of the section explains lucidly how the doctrine of necessity works. It is pertinent to note that although section 81 does not specifically refer to greater evil or lesser evil, it in effect deals with the case of lesser evil. Section 80 and 81 are analogous provisions, the former dealing with accidents and the latter with inevitable accidents. Section 80 stipulates the absence of criminal intention as well as criminal knowledge. But section 81 stipulates the absence of criminal intention alone. In fact, section 81 clearly contemplates a situation where the accused has knowledge that he is likely to cause harm, but is specifically stipulated that such knowledge shall not be held against him. The relevant leading case on this point is R v. Dudly and Stephens three seamen and a cabin boy were the crew of an English vessel. Due to ship wreck, the three seamen and the boy escaped and were put into open boat. On 20th day, when they had no food for eight days and no water for five days, the accused killed the boy and fed on the flesh and blood for four days to survive. On the fourth day, they were picked up by a passing vessel and subsequently they were prosecuted for the offence of murder of the boy. The accused pleaded the defence of necessity to get exemption from the criminal liability. The Privy Council held they are guilty for murder and convicted them on the ground of, self preservation is not an absolute necessity, no man has a right to take another’s life to preserve his own; and there is no necessity that justifies homicide. Killing a person in self defence may appear to be an example of necessity. While self defence may overlap necessity, the two are not the same. Private defence operates only against aggressors. Generally, the aggressors are wrongdoers, while the person against whom action is taken by necessity, may not be an aggressor or wrongdoer. Unlike necessity, private defence involves no balancing of values. In United States v. Holmes the accused was a member of the crew of a boat after a shipwreck. Fearing that the boat would sink, he under the order of the mate threw 16 male passengers overboard. The accused though not convicted for murder, was convicted for manslaughter and sentenced to six months imprisonment with hard labour. In Gopal Naidu v. Emperor, a drunken man was carrying a revolver in his hand was disarmed and put under restraint by the police officers, though the offence of public nuisance under section 290 was a non cognizable offence without a warrant. Though the police officer were prima facie guilty of the offence of wrongful confinement, it was held that they could plead justifications under this section. Further added, the person or property to be protected may be the person or property of the accused himself or of others. Infancy (section – 82 and 83) These sections confer immunity from criminal liability on child offenders. It is Indian Law on the Defence of Insanity: Insanity is provided in accordance with Section 84 of the Indian Penal Code as a defence under Indian Law. However, the term “insanity” is not used under this provision. The Indian Penal Code uses the sentence “mental soundness.” In accordance with the code, the defence of insanity, or that can also be called defence of mental insanity, comes from M’Naghten’s rule. In Section 84 of the Indian Penal Code, a person of an unsound mind shall act- Nothing is an offence committed by someone who is currently unable to know the nature of the act or does what is wrong or contrary to legislation due to a lack of a sound mind. Nevertheless, it should be noted that the framers of the IPC preferred to use the expression “insanity of mind” instead of the term “insanity.” Insanity’s scope is very limited, while the mind’s insanity covers a large area. For this defence, the following elements are to be established-  The accused was in a state of unsoundness of mind at the time of the act.  He was unable to know the nature of the act or do what was either wrong or contrary to the law. The term ‘wrong’ is different from the term ‘contrary to the law.’ If anything is ‘wrong’, it is not necessary that it would also be ‘contrary to the law.’ The legal conception of insanity differs significantly from medical conception. Not every form of insanity or madness is recognized as a sufficient excuse by law. Distinction between Legal and Medical Insanity : Section 84 of the Indian Penal Code sets out the legal responsibility test as distinguished from the medical test. It can be observed that the absence of will arises not only from the absence of understanding maturity but also from a morbid state of mind. This morbid mind condition, which provides an exemption from criminal responsibility, differs from the medical and legal point of view. According to the medical point of view, it is probably correct to say that every person, when committing a criminal act, is insane and therefore needs an exemption from criminal responsibility; while it is a legal point of view, a person must be held to be the same as long as he is able to distinguish between right and wrong; as long as he knows that the act carried out is contrary to the law. It has been ruled by the Supreme Court that “mentally ill” people and psychopaths are unable to seek immunity from a criminal case, as it is their responsibility to demonstrate insanity at the time the crime was committed. So in practice, not every person who is mentally ill is exempt from criminal liability. There has to be a distinction between legal insanity and medical insanity. “Arijit Pasayat and the Bench of Justices, DK Jain, stated while upholding the life conviction of a man who cut off his wife’s head. The mere abnormality of mind, partial delusion, irresistible impulse or compulsive behavior of a psychopath does not provide protection from criminal prosecution as provided by the apex court held Section 84 of the Indian Penal Code (IPC). The Bench stated that Section 84 of the IPC, which provides immunity from criminal prosecution to persons of unsound mind, would not be available to an accused, as the burden of proving insanity would lie with them, as provided in Section 105 of the Indian Evidence. In the case of Hari Singh Gond v. State of Madhya Pradesh, the Supreme Court observed that Section 84 sets out the legal test of responsibility in cases of alleged mental insanity. There is no definition of ‘mind soundness’ in IPC. However, the courts have mainly treated this expression as equivalent to insanity. But the term ‘insanity’ itself does not have a precise definition. It is a term used to describe various degrees of mental disorder. So, every mentally ill person is not ipso facto exempt from criminal responsibility. A distinction must be made between legal insanity and medical insanity. A court is concerned with legal insanity, not medical insanity. In the case of Surendra Mishra v. State of Jharkhand, It was pointed out that ‘every person suffering from mental illness is not ipso facto exempt from criminal liability.’ Furthermore, in the case of Shrikant Anandrao Bhosale v. State of Maharashtra, the Supreme Court, in determining the offense under Section 84 of the IPC, held that’ it is the totality of the circumstances seen in the light of the recorded evidence’ that would prove that the offense was committed.’ It was added: “The unsoundness of the mind before and after the incident is a relevant fact.”  Unsoundness of mind must be at the time of the commission of the Act. The first thing a court to be considered when defending insanity is whether the accused has established that he was unsound at the time of committing the act. The word “insanity” is not used in Section 84 of the penal code. In Rattan Lal v. State of M.P, it was well established by the court that the crucial point of time at which the unsound mind should be established is the time when the crime is actually committed and whether the accused was in such a state of mind as to be entitled to benefit from Section 84 can only be determined from the circumstances that preceded, attended and followed the crime. In other words, it is the behavior precedent, attendant and subsequent to the event that may be relevant in determining the mental condition of the accused at the time of the commission of the offense but not those remote in time. In Kamala Bhuniya v. West Bengal State, the accused was tried for her husband’s murder with an axis. A suit was filed against the accused, she alleged to be insane at the time of the incident, the investigating officer recorded at the initial stage about the accused’s mental insanity. The prosecution’s duty was to arrange for the accused’s medical examination, it was held that there was no motive for murder. The accused made no attempt to flee, nor made any attempt to remove the incriminating weapon Failure on the part of the prosecution was to discharge his initial responsibility for the presence of mens-rea in the accused at the time of the commission of the offence. The accused was entitled to benefit from Section 84. And hence accused was proved insane at the time of the commission of the offence and was held guilty of Culpable Homicide and not of Murder.  Incapacity to know the nature of the act The word “incapacity to know the nature of the act” embodied in Section 84 of the Indian Penal Code refers to that state of mind when the accused was unable to appreciate the effects of his conduct. It would mean that the accused is insane in every possible sense of the word, and such insanity must sweep away his ability to appreciate the physical effects of his acts.  This right of private defence is preventive and not punitive. Supreme Court said that the right of private defence is a defensive right surrounded by the law and is available only when the person is able to justify his circumstances. This right is available against an offence and therefore, where an act is done in exercise of the right of private defence, such an act cannot go in favour of the aggressor. In the case of Darshan Singh v. State of Punjab, the Supreme Court gave the following principles to govern the ‘right to private defence’: “All the civilized countries recognise the right of private defence but of-course with reasonable limits. Self-preservation is duly recognized by the criminal jurisprudence of all civilized countries. The right of private defence is available only when the person is under necessity to tackle the danger and not of self-creation.” Only a reasonable apprehension is enough to exercise the right of self-defence. It is not necessary that there should be an actual commission of the offence to give rise to the right of private defence. It is enough if the accused apprehended that an offence is likely to be committed if the right of private defence is not exercised. The right of private defence commences as soon as a reasonable apprehension arises and continues till the time such apprehension exists. We cannot expect a person under assault to use his defence in a step by step manner. In private defence, the force used by the accused must be reasonable and necessary for the protection of the person or property. If the accused does not plead self-defense, the court can consider the chances of the existence of such defence depending upon the material on record. There is no need for the accused to prove beyond reasonable doubt that the right of private defence existed. Under the Indian Penal Code the right of private defence exists only against an offence. If a person is in imminent and reasonable danger of losing his life or limb; he may exercise the right of self-defense to inflict any harm which can extend to death on his assailant. Chapter IV of the IPC, which includes Section 76 to Section 106, explains general defences which can be pleaded as an exception for any offence. The right of private defence explains that if something is done in private defence then it is no offence. A right to defend does not include a right to launch an offence, particularly when there is no more a need to defend. The right of private defence has to be exercised directly in proportion to the extent of aggression. There is no as such hardcore formula to test that the act of the person falls within the ambit of private defence or not. It depends upon the set of circumstances in which the person has acted. Whether in a particular circumstance, a person has legitimately acted to exercise his right of private defence is a question of fact. In determining this question of fact, the court must consider the surrounding facts and circumstances. If the circumstances show that the right of private defence has been legitimately exercised, the court is open to consider the plea. Certain factors need to be kept in mind in considering the act of private defence:  If there was sufficient time for recourse to public authorities or not  If the harm caused was more than what was necessary to be caused or not  If there was a necessity to take such action or not  If the accused person was the aggressor or not  If there was a reasonable apprehension of death, grievous hurt or hurt to the body or property. Section 97 states that the right of private defence is available against the body and property only. Along with this, Section 99 states the exceptions to the rule of private defence. Both of these sections together lay down the principles of the right of private defence.  The right of private defence against Body: Under section 97, every person has a right to defend his body or of any other person or to defend against any offence which affects the human body. The person can also exercise the right against his property including both movable property such as a car or jewellery and immovable property such as land or house.  The right of private defence against property A person can also exercise the right against the property of other people along with his own property. The right of private defence against property can only be exercised against offences in the category of theft, robbery, mischief or criminal trespass or against theft, mischief or house- trespass the person is under reasonable fear of probable death or grievous hurt. Every person has a right to dispose of his property and to throw away any trespasser who enters into the property without permission. But if the trespasser has the possession of the property and the owner knows about it, the right of private defence is not available to the owner. For example, tenant. The right of self-defence against a trespasser is available till the time the trespasser is actually on the land. If the trespasser tries to dispossess the owner from the property, the owner has the right to inflict such injuries over the trespasser to dispossess him from the property. The moment the trespasser is dispossessed, the owner’s right of private defence is expired and he cannot take laws in his hands and injure the trespasser. There are cases where the private defence is available against the owner. If the person is in lawful possession of the property and the owner tries to dispossess him from the property, the possessor of the property has a right to exercise self- defence. For exercising such right, following conditions needs to be fulfilled 1. The trespasser must be in actual physical possession of the property over a sufficiently long period. 2. The possession must be in knowledge of the owner, either expressed or without any concealment of fact. 3. The process of dispossession of the true owner by the trespasser must be complete and final. In case of culturable land, if the possessor has grown any crop on the land then none including the true owner has a right to destroy those crops. The right of private defence of property is available to prevent theft, robbery, mischief or criminal trespass or an attempt to commit any of these offences. Where the offence has been committed or the act constituting the offence has ceased, the right cannot be exercised. Mr. Gabbar, however, has a complete right of private defence. This right is applicable to other exceptional cases as well such as: 1. A child below 12 years 2. A person who lacks understanding 3. A person with unsound mind 4. An intoxicated person Section 100 100 authorises a person to take away life in exercise of his right of private defence against body. The basic idea behind Section 100 was that no innocent person should be punished. If a person has committed an offence in order to protect his or someone else’s person or property instead of running away from the spot; the law gives him the right to defend the concerned person or property It is the duty of the court to check if the action of the accused is protected under the exceptions of Section 100 or not, even though the accused has not taken a plea. It is not necessary that the accused has obtained any injury or not. Mere reasonable apprehension would be sufficient for the exercise of right of private defence. The right of private defence can save a person from guilt even if he causes the death of another person in the following situations: 1. The deceased was the actual assailant, 2. There was a threat to life or of great bodily harm must be present, 3. The threat must be real and apparent as to create honest belief that necessity exists, 4. There must be no other reasonable or safe mode of escape, 5. There must be a necessity of taking life If the offence which is committed by the deceased and which had occasioned the cause of the exercise of the right of private defence of body and property falls within any of the seven categories enumerated in Sections 100 of the penal code. This Section exercises a limit on the right of private defence to the extent of absolute necessity. It must not be more than what is necessary for defending aggression. There must be reasonable apprehension of danger that comes from the aggressor. The question of private defence arises only when the prosecution has established that the act of the accused is an offence. Fear of death: If there is an assault and a person has a reasonable fear that his death will cause if he will not kill that person. Fear of grievous hurt: If there is an assault and a person has a reasonable fear that he will be grievously hurt if he will not kill that person. To prove that the person was under fear of death or grievous hurt; the following conditions need to be fulfilled: 1. The accused must not have caused the fault i.e. he must not have started the encounter first. It needs to be the victim who should cause the fear of death or grievous hurt without fault of the accused. 2. There must be an approaching danger to life or of great bodily harm. This danger must be so evident and real that the other person felt the necessity to cause death. 3. There must not be any other safe or reasonable way to escape from that situation. 4. There must be a necessity to do so. The act of voluntarily causing death can be excused only when the person feels that it is necessary to act that way 5. Reasonable Apprehension of danger: The right of private defence of the body extends to voluntarily causing of death to the assailant during the assault if the victim has reasonable apprehension that grievous hurt would otherwise be the consequence. It is this apprehension in the mind of the victim which gives him the right of private defence to voluntarily cause death of the assailant In considering the plea of self-defence, it is not to be considered that how many injuries have been inflicted upon the accused. It does not matter if any injury has been inflicted or not. What is to be considered is whether the accused had any reasonable apprehension of grievous hurt or death to himself or not. Real or apparent danger: The apprehension of death or grievous hurt which was present in the mind of the accused to enable him to invoke the aid of private defence is to be ascertained objectively with reference to events and deeds at the time of the offence and the surrounding circumstances. Intention of Rape: If a person feels that the other person is committing assault with an intention of rape; the death can be committed for self-defence. In the case of State of orissa v. Nirupama Panda , the victim entered into the house of accused and tried to rape her. There was a scuffle between them and the accused lady finally stabbed the man and he died. She was not held liable because she was acting in her right of private defence. Intention of satisfying unnatural lust: If a person is committing assault with an intention of satisfying his unnatural lust; the other person can exercise his right of private defence to the extent of causing the death of that person. It has been held in the case of Indu Kumari Pathak v. S. K. Pathak that if a wife refuses to submit to her husband for cohabitation, the husband is not expected to use force to make the wife to sexual intercourse. The husband has no right to cause injury to his wife in enforcing sexual intercourse and wife has the right of private defence to retaliate the force used on her . Intention of kidnapping or abduction: If a person feels that the other person is acting with an intention of kidnapping or abducting him or any other person, he may use his right to cause death of kidnapper. Intention of wrongful confinement: If a person feels that the other person is intending to wrongfully confine him or any other person and if the person is confined, he will not be able to escape or take help of public authorities for his release. In this case, he can exercise his right of private defence to cause death of another person. Act of throwing or attempt to throw acid: This provision was not present in the original provision but observing the increasing rates of acid attack, this condition was added after recommendations of Justice J. S. Verma Committee under which a person, in certain circumstances may exercise his right of private defence to voluntarily cause harm or death to the assailant.  When can a person exercise his right of private defence against Property to cause death? Section 103 postulates that in certain cases, when you have threat to a property, be it yours or someone else’s or movable or immovable property, you can exercise the right of private defence to cause death of a person. In the case of Jagan Ram v. State the court said that whenever any offence is committed on a property, it is immaterial that the accused is the owner of the property or not. However, they cannot exercise this right to defend the property of other person if that person has entered into a free fight. This act justifies the mentioned acts when they causes reasonable apprehension of death or grievous harm. If a person is not in possession of the property, he cannot claim any right of private defence regarding such property. Right to dispossess or throw out a trespasser is not available to the true owner if the trespasser is in the lawful possession of the property at that time. If a person is appointed to guard the property of his employer, he is protected under Section 103 if he commits homicide while defending the property from aggressors. Similarly, a person who is appointed to guard a public property enjoys the same right If there is any other threat to the property which is not mentioned above, the person cannot exercise his right of private defence to cause death to any person. However, the person can exercise his right of private defence to cause any harm other than death to the person who is doing wrong to his property. (Section 104) Also, in cases where theft, mischief or trespass if it does not cause reasonable apprehension of death then one cannot cause death of a person.  When does the right of private defence Commences, continues and ends? (Section 105) Under this section, what is important to be noticed is that was there a reasonable apprehension of danger to the property or not. Once there is such apprehension of danger, the right is available to the accused irrespective of the fact that the offence or the attempt for the offence has actually committed or not. Commencement: A person can exercise the right of private defence as soon as he reasonably senses the danger to the property. For commencing the right of private defence, reasonable apprehension is important and not the fact that actual crime has been committed or not. Continuance: Theft: A person can exercise the private defence till: The offender has not withdrawn from the property, or The police assistance is not obtained, or The property is not recovered If the thief has withdrawn or the property has been recovered, the person has can no longer exercise the right of private defence. Robbery: A person can exercise his right of private defence as long as: The offender causes or attempts to cause death, hurt or wrongful restraint to any person, or The fear of death, hurt or wrongful restraint continuous Criminal Trespass and Mischief: A person can exercise the right until the aggressors leave the field. If the trespassers use violence against the persons resisting the criminal trespass, any hurt made as an exercise of private defence over the trespassers is justified. House Breaking by night: A person can exercise the right till the offence of housebreaking continues. Ends: As soon as the above conditions stops operating, a person’s right of private defence cannot be exercised. But the right of private defence against property is not extended to intellectual property such as patents, copyrights etc. What does the Supreme Court says on the right of private defence to cause death? The Supreme Court reviewed the law relating to the right of self-defence extending to cause death and clearly enunciated these:- 1. It is not a right to take revenge. It is a right to defend. 2. It can be exercised only when the person is unable to get immediate aid from the State machinery 3. This right can be extended to protect the body and property of third party as well. 4. It should not be an act of self-creation but an act of necessity which causes an impending danger and should not exceed than what is legitimate and necessary. One may cause such injury as may be necessary to tackle with that danger or threat. Where the person is exercising the right of self-defence, it is not possible to calculate the amount of force which he needs to exercise. The person exercising the right does not need to prove the existence of a right of private defence beyond reasonable doubt. The right of private defence is recognized under the law but within certain reasonable limits. Even if the accused does not plead self-defence, it is open to the Court to consider that such circumstances might exist. The fight of self-defence commences as soon as reasonable apprehension arises, and continues till such apprehension lasts There is nothing which lays down in absolute terms and in all situations that the injuries incurred by the accused have to be explained. Once the reasonable apprehension disappears, the right of self-defence is not available anymore. The plea of reasonable apprehension is a question of fact which the court finds out through certain facts and circumstances. It is unrealistic to expect a person under assault to step by step modulate his defence.  Right of private defence against reasonable fear of death in case where there is a risk of harm to innocent person (Section 106) Where a person can reasonably foresee that there is fear to his life but if he exercises the right of private defence, any innocent person may get hurt; he has the right to exercise such right. In case he hurts an innocent person while exercising his right of private defence; he will not be held liable for this act. Section 106 contemplates an assault which reasonably causes apprehension of death and therefore contemplates exercise of the right at the risk of harm to innocent person.  What are the Exceptions to the rule of private defence? (Section 99) : Act of a public servant or under the direction of a public servant: A person cannot exercise his right of private defence if the following conditions are satisfied: 1. There was no fear of death or grievous hurt 2. The act was done or attempted to be done by a public servant or under the direction of public servant Exception to the exception of right of private defence : If the person who uses his right of private defence over a public servant did not know or had no reason to believe that he is a public servant; he can exercise his right. For example, Mr. X saw Mr. A was followed by an unknown person with a gun. Mr. X hit that unknown person in order to save Mr. A. Later, it is revealed that the unknown person was Mr. Z, a police officer. Since Mr. Z was not in his uniform, Mr. X did not know and has no reason to believe that he is a public servant. Therefore, Mr. X’s right of private defence was justified. If the person who uses his right of private defence against a person who was acting under the direction of public servant; his right of private defence cannot be taken if: He did not know that the person is acting under the direction of a public servant He has no reason to believe that the person is acting under the direction of a public servant. The person does not state that he is working under such authority. If the person has the authority in writing and he did not produce such authority, if demanded 1. Bonafide Act: Even if the act of a public servant is not justified by law, the right of private defence cannot be exercised if he acts bonafide and under the colour of his office. But in case the officer is acting unlawfully, he cannot be said to be acting in discharge of his duties. 2. Knowledge of identity of public officer and his authority: In order to establish this condition, it is necessary that the accused must be sure that the person is a public officer. In case of Emperor v. Abdul Hamim, policemen raided to the house of accused at night. The accused was sleeping and was awakened by some noise and rushed out of the room. The policemen fired at him and he fired back not knowing who they were. It was held that the accused was under a mistake of fact with regards to the identity of the officers. This gave him the right to private defence to save his body and property from trespassers. OFFENCES AGAINST THE STATE WAGING WAR AGAINST THE GOVRERNMENT OF INDIA Waging war is provided under Sections 121 to 123 and Section 125of Indian Penal Code. It is one of the rare offences which is punishable at all stages viz, preparation, attempt, conspiracy and commission. Section 121 of the Indian Penal Code, 1860 deals with the offence of waging, or attempting to wage war or abetting waging of war, against the Government of India. It states that- “Whoever wages war against the Government of India, or attempts to wage such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also be liable to be fined”. Meaning of war: War can be defined as a state of armed conflict between different countries or different groups within a country. It may include all acts of terrorism, armed aggression, civil war or rebellion and coups. Acts of terrorism have been held to come under the ambit of offence of waging war or attempting to wage war or abetting waging of war under Section 121 IPC. This was held by the Delhi High Court in the case State (NCT) of Delhi v. Mohd. Afzal and Ors. This judgment of the Delhi High court was confirmed by the Supreme Court on appeal. Mohd. Afzal also known as Afzal Guru was convicted by the Supreme court under this section. He was one of the conspirators of the terrorist attack on the Indian Parliament in December 2001. There has been some confusion however whether the word “whoever” in this section includes foreign nationals. In Mohd. Afzal’s case it was held that section 121 IPC applies to foreign nationals as well. The position of the Delhi High Court in this regard was reaffirmed by the Supreme Court when it held that-“We find no good reason why the foreign nationals stealthily entering into the Indian territory with a view to subverting the functioning of the Government and destabilizing the society should not be held guilty of waging war within the meaning of Section 121. The section on its plain terms, need not be confined only to those who owe allegiance to the established Government.” The same view was taken by the Special Court set up for the 2008 Mumbai terror attack trial. The special judge agreed with the prosecution that the attacks amounted to waging war against India, and accepted the contention raised by the prosecution that Section 121 of the Indian Penal Code, 1860 was applicable to Ajmal Kasab, the sole attacker captured alive and went on to hold that “An offence under Section 121 of the Indian Penal Code,1860 can be committed by both Indian nationals and foreign nationals. Therefore the position whether Section 121 of the Indian Penal Code,1860 applies to foreign nationals has been now confirmed by the courts. Sedition (Sec. 124A) Section 124 A, IPC provides as follows: Sedition.—Whoever, by words, either spoken or written, or by signs, or by visible representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite disaffection towards, the Government estab­lished by law in India shall be punished with [im­prisonment for life], to which fine may be added, or with impris­onment which may extend to three years, to which fine may be added, or with fine. Explanation 1.—The expression “disaffection” includes disloyalty and all feelings of enmity. Explanation 2.—Comments expressing disapprobation of the meas­ures of the Government with a view to obtain their alteration by lawful means, without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Explanation 3.—Comments expressing disapprobation of the admin­istrative or other action of the Government without exciting or attempting to excite hatred, contempt or disaffection, do not constitute an offence under this section. Subsequently, the soundness of the decision given by the Federal Court in Niharendu Majumdar came to be discussed in great detail in King emperor v. Sadashiv Narayan Bhalerao (‘Sadashiv Bhalerao’). This case, pertaining to the publication and distribution of leaflets containing prejudicial reports, was heard before the Privy Council. The Judicial Committee of the Privy Council opined that Niharendu Majumdar was decided on the basis of a wrongful construction of S. 124A. In acknowledgement of the model of literal interpretation followed by Strachey, J., in Tilak case, it asserted that the view proposing the imposition of the offence of sedition only on the basis of suggesting rebellion or forcible resistance to the government was inadmissible. DEVELOPMENTS IN THE LAW POST- INDEPENDENCE After India attained independence in 1947, the offence of sedition continued to remain in operation under S.124A of the IPC. Even though sedi- tion was expressly excluded by the Constituent Assembly as a ground for the limitation of the right to freedom of speech and expression, this right was still being curbed under the guise of this provision of the IPC. On three significant occasions, the constitutionality of this provision was challenged in the courts. These cases shaped the subsequent discourse in the law of sedition. Following the decision in Niharendu Majumdar, S. 124A was struck down as unconstitutional in Romesh Thappar v. State of Madras, Ram Nandan v. State, and Tara Singh v. State (‘Tara Singh’). In Tara Singh, the East Punjab High Court relied on the principle that a restriction on a fundamental right shall fail in toto if the language restricting such a right is wide enough to cover instances falling both within and outside the limits of constitutionally permissible legislative action affecting such a right. During the debates surrounding the first amendment to the Constitution, the then Prime Minister Jawaharlal Nehru was subjected to severe criticism by members of the opposition for the rampant curbs that were being placed on the freedom of speech and expression under his regime. This criticism, accompanied by the rulings of the courts in the aforementioned judgments holding S.124A to be unconstitutional, compelled Nehru to suggest an amendment to the Constitution. Thus, through the first amendment to the Constitution, the additional grounds of ‘public order’ and ‘relations with friendly states’ were added to the Article 19(2) list of permissible restrictions on the freedom of speech and expression guaranteed under Article 19(1)(a). Further, the word ‘reasonable’ was added before ‘restrictions’ to limit the possibility of misuse by the government. In the parliamentary debates, Nehru stated that the intent behind the amendment was not the validation of laws like sedition. He described S.124A as ‘objectionable and obnoxious’ and opined that it did not deserve a place in the scheme of the IPC. The decision of the Supreme Court in Kedar Nath v. State of Buhar, laid down the interpretation of the law of sedition as it is understood today. In this decision, five appeals to the Apex Court were clubbed together to decide the issue of the constitutionality of S.124A of the IPC in light of Article 19(1)(a) of the Constitution. In the Court’s interpretation the incitement to violence was considered an essential ingredient of the offence of sedition. Here, the court followed the interpretation given by the Federal Court in Niharendu Majumdar. Thus, the crime of sedition was established as a crime against public tranquility as opposed to a political crime affecting the very basis of the State. The Court looked at the pre-legislative history and the opposition in the Constituent Assembly debates around Article 19 of the Constitution. Here, it noted that sedition had specifically been excluded as a valid ground to limit the freedom of speech and expression even though it was included in the draft Constitution. This was indicative of a legislative intent that sedition not be considered a valid exception to this freedom. As a consequence, sedition could only fall within the purview of constitutional validity if it could be read into any of the six grounds listed in Article 19(2) of the Constitution. Out of the six grounds in Article 19(2), the Court considered the ‘security of the state’ as a possible ground to support the constitutionality of S.124A of the IPC. The Court made use of the principle that when more than one interpretation may be given to a legal provision, it must uphold that interpretation which makes the provision constitutional. Any interpretation that makes a provision ultra vires the Constitution must be rejected. Thus, even though a plain reading of the section does not suggest such a requirement, it was held to be mandatory that any seditious act must be ac- companied by an attempt to incite violence and disorder. However, the fact that the aforementioned Irish formula of “undemining the public order or the authority of the State” that been rejected by the members of the Constituent Assembly was ignored by the Court. This was despite making a reference to this fact earlier in the judgment. The reasoning of the Court was that since sedition laws would be used to maintain public order, and the maintenance of public order would in turn be in the interests of the security of the state, these laws could be justified in the interests of the latter.  Distinction between Government and People engaged in Administration. While defining the contours of the crime of sedition, the court in Kedar Nath also sought to distinguish between ‘the Government established by law’ as used in S.124A of the IPC from people engaged in the administration for the time being. The former was said to be represented by the visible symbol of the State. Any attempt to subvert the government established by law would jeopardise the very existence of the State. However, any bona fide criticism of government officials with a view to improve the functioning of the government will not be illegal under this section. This exception was introduced to protect journalists criticising any government measures. It is submitted, however, that on closer scrutiny, this distinction is murky and is difficult to practically implement. Any persons involved in the daily administration of the government or acting as a representative of the people in the government would also necessarily constitute a visible symbol of the state. As a result of this tenuous distinction, a conflicting situation is created. While calling all the bureaucrats of a government “thugs and profiteers” does not qualify as a seditious act, attributing the same qualities to the government as a whole would bring the speech within the ambit of sedition. It must be noted that the Court was still driven by the notion of sedition as a crime that affected the very basis of the State. It had thus been included under the section related to ‘Offences against the State’ in the IPC. The rationale for the criminalization of such acts is generally that it fosters “an environment and psychological climate conducive to criminal activity” even though it may not incite a specific offence. UNIT III OFFENCES AGAINST HUMAN BODY (SEC. 299 – 374) SYNOPSIS :  Culpable Homicide and Murder  Causing death by negligence  Dowry death  Criminal force and assault  Attempt and abetment to suicide  Wrongful Restraint and Confinement CULPABLE HOMICIDE AND MURDER (SEC. 299 & 300) The word homicide has been derived from the Latin word ‘homo’ which means a man and ‘caedere’ which means to cut or kill. Thus, homicide means the killing of a human being. All cases of homicide are not culpable (punishable). Law distinguishes between lawful and unlawful homicide. For instances, killing in self-defense in pursuance of a lawful authority or by reason of mistake of fact is not culpable. Likewise, if death is caused by accident or misfortune or while doing an act in good faith and without any criminal intention for the benefit of the person killed, the man is excused from criminal responsibility for homicide. Culpable Homicide is defined under section 299 of the Indian Penal Code, 1860. It consists of both physical and mental elements. Where an act is done with the intention of causing death or with such knowledge that the act which he/she is going to undertake will result in death of the person or would cause such bodily or physical injury that would lead to his death would satisfy both the physical and mental requirement. Illustrations: 1. Y is diagnosed with terminal illness and needs certain drugs to live from day to day. A confines him in a room and denies him his medication. As a result, Y dies. A is guilty of culpable homicide. 2. G mows over a pedestrian deliberately. The pedestrian bleeds on the road and no one helps him and he dies as a result of G’s actions. G cannot take the defence that if the pedestrian had taken medical treatment at the right time, he would have lived. 3. M knows S to be behind a bush. H does not know it. M, intending to cause, or knowing it to be likely to cause S’s death, induces H to fire at the bush. H fires and kills S. Here, H may be guilty of no offence but M has committed the offence of culpable homicide. 4. X 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. A believing the ground to be firm, trends on it falls in and is killed. H has committed the offences of culpable homicide. Ingredients of Culpable Homicide Acts: The act should be of such a nature that it would put to peril someone’s life or damage someone’s life to such an extent that the person would die. In most cases the act would involve a high degree of violence against the person. For instance, stabbing a person in vital organs, shooting someone at point blank range, or administering poison include instances which would constitute culpable homicide. The section says causing death by doing an act, so given the special circumstances certain acts which may not involve extreme degree of violence but may be sufficient to cause someone’s death. For example: starving someone may not require violence in the normal usage of the term, but may cause a person’s death. Intention: The act committed with the Intention of causing death. Thus where you push someone for a joke and the person falls on his head has a brain injury and dies, there was no intention of causing death but when you pushed the person deliberately with the idea that the person falls and dies, in that case the act is with the intention of causing death. To prove intention in acts where there is bodily injury is likely to cause death. The act has to be can be of two types:  Firstly, where bodily injury itself is done in a fashion which cause death. For example bludgeoning someone on the head repeatedly with a blunt instrument.  Secondly, in situation where there are injuries and there are investigating events between the injuries and the death provided the delay is not so blatant, one needs to prove that injuries were administered with the intention of causing death. Knowledge: Knowledge is different from intention to the extent that where a person may not have the intention to commit an act which kills, he knows that the act which he commits will take someone’s life or is likely to take someone’s life will be considered having the knowledge that he is likely by such act to cause death. draw 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.  Exceeding the Ambit of discharging public duties When an officer or public servant exceeds his or her mandate of duties or authority given to him or an officer or public servant assisting him exceeds the same, it is considered culpable homicide not amounting to murder.  When death is caused in sudden fight or heat of passion upon a sudden quarrel 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’s having taken undue advantage or acted in a cruel or unusual manner.  When death is caused of a person above eighteen years of age who voluntarily took the risk of death. When death is caused in a situation where a person has by his own consent put himself to risk the same would be culpable homicide and not murder. Illustration : A, by instigation, voluntarily causes Z, a person under eighteen years of age of commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death; A has therefore abetted murder. Difference between Culpable Homicide and Murder The true difference between culpable homicide and murder is only the difference in degrees of intention and knowledge. A greater the degree of intention and knowledge, the case would fall under murder. A lesser degree of intention or knowledge, the case would fall under culpable homicide. However, it is difficult to arrive at any categorical demarcations or strait jacket difference between culpable homicide and murder.  Requirement of Intention: Culpable Homicide requires that the offender should have the intention of causing such bodily injury as is likely to result in death. This means that so long as the person inflicting the injuries is doing so intentionally she/he has the requisite mental element. it is a question for the court to decide if the injuries inflicted on the victim were such that they were likely to result in death. The section does not specify a requirement that the person should that these injuries are such they will result in the death of the person on whom they are inflicted. Culpable Homicide is murder if a person intentionally causes some bodily injury to a person, and the bodily injury such that it is sufficient in the ordinary course of nature to cause death.  Requirement of knowledge Culpable Homicide requires that the offender have the knowledge that the act committed by her/ him is such that it is likely to result in death. On the other hand, Murder requires that the person committing the act have the knowledge that the act committed is so imminently dangerous that it must in all probability cause death. The position of law related to Culpable Homicide and murder and punishment for the same in other countries like USA, Canada, Australia, China, Australian, Singapore, and South Africa. In Kesar Singh v. State of Haryana the Court held that the distinction between knowledge and intention. Knowledge in the context of Section 299 would, inter alia, mean consciousness or realisation or understanding. The distinction between the terms “knowledge” and “intention” again is a difference of degrees. An inference of knowledge that it is likely to cause death must be arrived at keeping in view the fact situation obtaining in each case. The accused must be aware of the consequences of his act. Knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or 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 specific end which the human mind conceives and perceives before itself. In Rampal Singh v. State of U.P the Court held that Sections 299 and 300 of the Code deal with the definition of “culpable homicide” and “murder”, respectively. In terms of Section 299, “culpable homicide” is described as an act of causing death: (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death. As is clear from a reading of this provision, the former part of it, emphasizes on the expression “intention” while the latter upon “knowledge”. Both these are positive mental attitudes, however, of different degrees. The mental element in “culpable homicide”, that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted above, it would be “culpable homicide”. Section 300, however, deals with “murder” although there is no clear definition of “murder” in Section 300 of the Code. As has been repeatedly held by this Court, “culpable homicide” is the genus and “murder” is its species and all “murders” are “culpable homicides” but all “culpable homicides” are not “murders”. The difference between both these concepts can be broadly specified as follows: 1. The aspect of degree of probability of death or it can be said as the seriousness of act of the crime. If the act done by the offender is either a heinous crime or it be a very dangerous act that causes only death to a person, without any other result it would aptly fall under the concept if Murder and not Culpable homicide. 2. If such an act by the offender leaves the victim to be alive with some grievous hurt with chance of escaping death, then it is said to be a Culpable homicide which does not amount to murder 3. Every murder is committed after committing a culpable homicide but every culpable homicide does not amount to Murder. Murder is said to be an aggravated form of a Culpable homicide. 4. The existence of one of the ingredient of Section 300 of IPC turns the crime into a murder where the exceptions to murder turns the crime into a Culpable homicide which does not amount to Murder. 5. In both the concepts there is intention which is mens rea involved, to kill a person. But whereas in Certain case the offender will not be certain in death of the victim, in that case the offence done by the offender is a culpable homicide but when the offender has certainty in his act will surely cause death of the victim and this will fit into the definition of murder. Because the degree of probability of death is high in murder whereas in Culpable homicide the degree of death is low. accused is charged with contributing to the death of the deceased by his negligence it matters not whether the deceased was deaf, or drunk, or negligent, or in part contributed to his own death. In order to impose criminal liability under Section 304-A, it is essential to establish that death is the direct result of the rash or negligent act of the accused. Generally, Section 304-A is taken into consideration in the cases of road accidents, accidents in factories, etc. It is the duty of the driver to drive the vehicle in a cautious way. Where a driver drives the vehicle in an abnormal manner and cause the death of persons, he is liable under Section 304-A. Where a factory owner neglects the maintenance of the machine, and causes the death of a person, he shall be held liable under Section 304-A. However, Section 80 of the IPC provides, “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 Section 304-A. To render a person liable for neglect of duty it must be such a degree of culpability as to amount to gross negligence on his part. It is not every little slip or mistake that will make a man so liable. In Shivder Singh v. State a passenger was standing on the foot-board of a bus to the knowledge of the driver and even so the driver negotiated a sharp turn without slowing down. The passenger fell off to his death. The driver was held to be guilty under Section 304-A. In Akbar AH v. R, the accused, a motor driver, ran over and killed a woman, but there was no rashness or negligence on the part of the driver so far as his use of the road or manner of driving was concerned, it was held that the accused could not be convicted under Section 304-A on the ground that the brakes of the lorry were not in perfect order and that the lorry carried no horn. The ‘rash or negligent act’ referred to in Section 304-A 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 Tapti Prasad v. Emperor the accused was the Assistant Station Master on duty. There was a collision of passenger train and goods train caused by the signalling of the accused. The collision claimed many lives and the accused were convicted under Section 304-A and Section 101 of Railway Act. In Ramava v. R, the accused administered to her husband a deadly poison (arsenious oxide) believing it to be a love potion in order to stimulate his affection for her but the husband died. She was convicted under Section 304-A considering the act of the accused was rash and negligent. In Batdevji v. State of Gujarat, the accused had run over the deceased while the deceased was trying to cross over the road. The accused did not attempt to save the deceased by swerving to the other side, when there was sufficient space. This was a result of his rash and negligent driving. His conviction under Section 304-A was upheld. In medical field, a doctor is not criminally liable for a patient’s death, unless his negligence or incompetence passes beyond a mere matter of competence and shows such a disregard for life and safety, as to amount to a crime against the State. In Juggan Khan v. State of Madhya Pradesh, the accused was a registered homeopath who had administered to a patient suffering from guinea worm, 24 drops of stramonium and a leaf of dathura without properly studying its effect. The patient died as a result of the medicine given the accused. The accused was convicted under Section 304-A as he has given poisonous medicine without being aware of its effects by his rash and negligent act. In Jacob Mathew v. State of Punjab, the Supreme Court formulated the following guidelines, which should govern the prosecution of doctors for offences of criminal rashness or criminal negligence: i) Negligence becomes actionable on accident of injury resulting from the act or omission amounting to negligence attributable to that person sued. ii) A case of occupational negligence is different from one of professional negligence. A simple lack of care, an error of judgment or an accident, is not proof of negligence on part of a medical professional. So long as a doctor follows a practice acceptable to the medical profession of that day, he cannot be held liable for negligence merely because a better alternative course or method of treatment is also available or simply because a more skilled doctor would not have chosen to follow or resort to that practice or procedure which the accused followed; iii) When the charge of negligence arises out of failure to use some particular equivalent, the charge would fail it the equipment were not generally available at the time (that is at the time of the incident) at which it is suggested it should have been used; iv) A professional may be held liable for negligence on one of the two findings, viz., either he was not possessed of the requisite skill which he professes to have possessed, or he did not exercise, with reasonable competence in the given case, which he did possess; v) The standard to be applied for judging, whether the person charged had been negligent or not, would be that of an ordinary competent person exercising ordinary skill in that profession. It is not possible for every professional to possess the highest level of expertise or skills in that branch which he practices; vi) The jurisprudential concept of negligence differs in civil and criminal law. What may be negligence in civil law may not necessarily be negligence in criminal law. For negligence to amount to an offence, the element of mensrea must be shown to exist. The degree of negligence must be much higher, i.e., gross on of a very high degree in criminal negligence. Negligence, which is neither, gross nor of a very high degree may provide a ground for action in civil law but cannot be the basis for prosecution vii) To prosecute a medical professional for negligence under criminal law it must be shown that the accused did something or failed to do something which in the given facts and circumstances no medical professional in his ordinary senses and prudence would have done or failed to do. The hazard taken by the accused doctor should be of such a nature that the injury that resulted was most imminent; viii) A private complaint may not be entertained against a doctor unless the complainant has produced prima facie evidence before the court in the form of a credible opinion given by another competent doctor to support the charge of rashness or negligence on the part of the accused doctor; ix) A doctor accused of rashness or negligence may not be arrested in a routine manner (simply because a charge has been levelled against him), unless the arrest is necessary for furthering the investigation or for collecting evidence; x) Simply because a patient has not favourably responded to a treatment given by a physician or a surgery has failed, the doctor cannot be held liable per se by applying the doctrine of res ipsa loquitur (i.e., the thing speaks for itself). The punishment for causing death by negligence under Section 304-A is imprisonment of either description for a term, which may extend to two years, or with fine, or with both. Sentence depends on the degree of carelessness seen in the conduct of the accused. This offence is cognizable and warrant should ordinarily issue in the first instance. It is bailable, person to cruelty and/or harassment for, or in connection with, any demand for dowry. Section 113-B, Evidence Act provides that the court shall presume that such person had caused the dowry death. A conjoint reading of Section 113-B of the Act and 304-B I.P.C. shows that there must be material to show that soon before her death the victim was subjected to cruelty or harassment. Prosecution has to rule out the possibility of a natural or accidental death so as to bring it within the purview of the ‘death occurring otherwise than in normal circumstances’. ‘Soon before’ is a relative term and it would depend upon circumstances of each case and no straitjacket formula can be laid down as to what would constitute a period soon before the occurrence. There must be existence of a proximate and live link between the effect of cruelty based on dowry demand and the concerned death. Attempt and abetment to suicide Suicide has not been defined anywhere in the IPC. However briefly defined, ‘suicide’ is the human act of self-inflicted, self-intentioned cessation. It has been defined by various sociologists and psychologists in different ways. Some of the definitions are ‘suicide is the initiation of an act leading to one’s own death’. “It is synonymous with destruction of the self by the self or the intentional destruction of one’s self.” Thus, suicide is killing oneself intentionally so as to extinguish one’s life and to leave this world. The Oxford Companion to Law, explains it as ‘self killing or taking one’s own life. Suicide as such is no crime under the code. It is only attempt to commit suicide that is punishable under this section, i.e., code is attracted only when a person is unsuccessful in committing the suicide. If the person succeeds, there is no offender who could be brought within the purview of law. The section is based on the principle that the lives of men are not only valuable to them but also to the state which protects them Attempt to suicide is an offence punishable under section 309 of the Indian Penal Code. Section 309 reads thus: Attempt to commit suicide. “Whoever attempts to commit suicide and does any act towards the commission of such offence shall be punished with simple imprisonment for a term which may extend to one year or with fine, or with both.” Article 21 of the Constitution of India enjoins that no person shall be deprived of his life or personal liberty except according to procedure established by law. A Division Bench of the Supreme Court in P. Rathinam v. Union of India 11held that the right to live of which Article 21 speaks of can be said to bring in its trail the right not to live a forced life, and therefore, section 309 violates Article 21. This decision was, however, subsequently overruled in GianKaur v. State of Punjab 12by a Constitution Bench of the Supreme Court, holding that Article 21 cannot be construed to include within it the ‘right to die’ as a part of the fundamental right guaranteed therein, and therefore, it cannot be said that section 309 is violative of Article 21.  Right to live: Ambit and scope – It is settled law that life does not mean ‘animal existence’. Before more than 100 years, it was recognized by the U.S. Supreme Court in the leading case of Munn v. Illinois. This principle is recognized by our Supreme Court in Kharak Singh, Sunil Batra v. Delhi Administration and in various other cases. After Maneka Gandhi v. Union of India, various rights have been held to be covered by Article 21; such as right to go abroad, right to privacy, right against solitary confinement, right to speedy trial, right to shelter, right to breathe in unpolluted environment, right to medical aid, right to education, etc. Thus, life does not mean mere living, but a glowing vitality – the feeling of wholeness with a capacity for continuous intellectual and spiritual growth.  Right to die- As a normal rule, every human being has to live and continue to enjoy the fruits of life till nature intervenes to end it.  Death is certain. It is a fact of life. Suicide is not a feature of normal life. It is an abnormal situation. But if a person has right to enjoy his life, he cannot also be forced to live that life to his detriment, disadvantage or disliking. If a person is living a miserable life or is seriously sick or having incurable disease, it is improper as well as immoral to ask him to live a painful life and to suffer agony. It is an insult to humanity. Right to live means right to live peacefully as ordinary human being. One can appreciate the theory that an individual may not be permitted to die with a view to avoiding his social obligations. He should perform all duties towards fellow citizens. At the same time, however, if he is unable to take normal care of his body or has lost all the senses and if his real desire is to quit the world, he cannot be compelled to continue with torture and painful life. In such cases, it will indeed be cruel not to permit him to die. …  Reduction of suffering - Right to live would, however, mean right to live with human dignity up to the end of natural life. Thus, right to live would include right to die with dignity at the end of life and it should not be equated with right to die an unnatural death curtailing natural span of life. Hence, a dying man who is terminally ill or in a persistent vegetative state can be permitted to terminate it by premature extinction of his life. In fact, these are not cases of extinguishing life but only of accelerating process of natural death which has already commenced. In such cases, causing of death would result in end of his suffering. some poisonous, deleterious drug or alcohol. As per Section 319, the hurt must be caused to ‘any person’. This means ‘any person’ other than the person causing the hurt. The causing of bodily pain must be caused by direct application of force to the body is clearly erroneous as there is nothing in Section 319 to suggest that the hurt should be caused by direct physical contact between the accused and his victim. Where the direct result of an act is the causing of bodily pain, it is hurt whatever be the means employed to cause it. Where there is no intention to cause death or bodily injury as is likely to cause death or there is no knowledge that death is likely to be caused from the harm inflicted, and death is caused, the accused would be guilty of hurt only if the injury caused was not serious. In Marana Goundan v. R the accused demanded money from the deceased which the latter owed him. The deceased promised to pay later. Thereafter the accused kicked him on the abdomen and the deceased collapsed and died. The accused was held guilty of causing hurt as it could not be said that he intended or knew that kicking on the abdomen was likely to endanger life. In Naga Shevepo v. R [(1883) SJLB 179] the accused struck a man one blow on the head with a bamboo yoke and the injured man died afterwards in a hospital. He was guilty of an offence of causing hurt under Section 319 because there was no intention to cause death and the blow in itself was not of such a nature as was likely to cause death itself was not of such a nature as was In Arjuna Sahu v. State it was observed that a push on the neck is likely to cause some bodily pain within the meaning of Section 319 though in some cases it may be so slight. Self-inflicted hurt does not come within the purview of Section 319. Section 321 elaborates on what amounts to voluntarily causing hurt When there is no intention of causing death or bodily injury as is likely to cause death, and there is no knowledge that inflicting such injury would cause death, the accused would be guilty of hurt if the injury is not serious. In Nga Shwe Po's case (1883), the accused struck a man one blow on the head with a bamboo yoke and the injured man died, primarily due to excessive opium administered by his friends to alleviate pain. He was held guilty under this section. A physical contact is not necessary. Thus, a when an accused gave food mixed with dhatura and caused poisoning, he was held guilty of Hurt. The term ‘Simple hurt’ is used nowhere in the IPC. However, to differentiate ordinary hurt covered by Sections 319, 321 & 323, from that of grievous hurt, the expression ‘simple hurt’ has come into popular use. Grievous Hurt Section 320 lays down the following kinds of hurt only which are designated as "grievous": (1) Emasculation i.e., depriving a person of masculine vigour; (2) Permanent privation of the sight of either eye; (3) Permanent privation of hearing of either ear; (4) Privation of any member of 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 bone or tooth; and (8) Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain, or unable to follow his ordinary pursuits—(seven years, and fine). It could not be said that the accused intended or knew that the kicking on the abdomen was likely to endanger life and consequently the accused was guilty of causing hurt only. It was held in similar circumstances in Shahe Rai (3 Cal. 623) that the accused had committed hurt on the infant under the circumstances of sufficient aggravation to bring the offence within the definition of grievous hurt. The offence committed is neither of grievous hurt, not of culpable homicide, but of simple hurt. Criminal force and assault Section 350- Whoever intentionally uses force to any person, without that person’s consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other. Illustrations (a) Z is sitting in a moored boat on a river. A unfastens the moorings, and thus intentionally causes the boat to drift down the stream. Here A intentionally causes motion to Z, and hedoes this by disposing substances in such a manner that the motion is produced without any other act on any person’s part. A has there-fore intentionally used force to Z; and if he has done so without Z’s consent, in order to the committing of any offence, or in-tending or knowing it to be likely that this use of force will cause injury, fear or annoyance to Z, A has used criminal force to Z. (b) Z is riding in a chariot. A lashes Z’s horses, and thereby causes them to quicken their pace. Here Z has caused change of motion to Z by inducing the animals to change their motion. A has therefore used force to Z; and if A has done this without Z’s consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, A has used criminal force to Z. (c) Z is riding in a palanquin. A, intending to rob Z, seizes the pole and stops the palanquin. Here A has caused cessation of motion to Z, and he has done this by his own bodily power. A has therefore used force to Z; and as A has acted thus intentionally, without Z’s consent, in order to the commission of an offence. A has used criminal force to Z. (d) A intentionally pushes against Z in the street. Here A has by his own bodily power moved his own person so as to bring it into contact with Z. He has therefore intentionally used force to Z; and if he has done so without Z’s consent, intending or knowing it to be likely that he may thereby injure, frighten or annoy Z, he has used criminal force to Z. (e) A throws a stone, intending or knowing it to be likely that the stone will be thus brought into contact with Z, or with Z’s clothes, or with something carried by Z, or that it will strike water and dash up the water against Z’s clothes or something carried by Z. Here, if the throwing of the stone produce the effect of causing any substance to come into contact with Z, or Z’s clothes. A has used force to Z; and if he did so without Z’s consent, intending thereby to injure, Assault Section 350- 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. As per Tomlins Law Dictionary, assault is “An attempt with force and violence, to do corporal hurt to another as by striking at him with or without a weapon. But no words whatsoever, be they ever so provoking can amount to an assault, notwithstanding the many ancient opinions to the contrary”. An assault is (a) an attempt unlawfully to apply any of the least actual force to the person of another directly or indirectly; (b) the act of using a gesture towards another, giving him reasonable grounds to believe that the person using that gesture meant to apply such actual force to his person as aforesaid; (c) the act of depriving another of his liberty, in either case, without the consent of the person assaulted, or with such consent if it is obtained by fraud. The essential ingredients of an assault are: 1) That the accused should make a gesture or preparation to use criminal force; 2) Such gesture or preparation should be made in the presence of the person in respect of whom it is made; 3) There should be 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; 4) Such gesture or preparation has actually caused apprehension in the mind of the victim, of use of criminal force against him. Assault is generally understood to mean the use of criminal force against a person, causing some bodily injury or pain. But, legally, ‘assault’ denotes the preparatory acts which cause apprehension of use of criminal force against the person. Assault falls short of actual use of criminal force. An assault is then nothing more than a threat of violence exhibiting an intention to use criminal force accompanied with present ability to affect the purpose. According to Section 351 of the Code, the mere gesture or preparation with the intention of knowledge that it is likely to cause apprehension in the mind of the victim, amounts to an offence of assault. The explanation to Section 351 provides that mere words do not amount to assault, unless the words are used in aid of the gesture or preparation which amounts to assault. The apprehension of the use of criminal force must be from the person making the gesture or preparation, but if it arises from some other person it would not be assault on the part of that person, but from somebody else, it does not amount to assault on the part of that person. The following have been held to be instances of assault: i) Lifting one’s lathi ii) Throwing brick into another’s house iii) Fetching a sword and advancing with it towards the victim iv) Pointing of a gun, whether loaded or unloaded, at a person at a short distance v) Advancing with a threatening attitude to strike blows. Though mere preparation to commit a crime is not punishable, yet preparation with the intention specified in this section amounts to an assault. Another essential requirement of assault is that the person threatened should be present and near enough to apprehend danger. At the same time there must have been present ability in the assailant to give effect to his words or gestures. If a person standing in the compartment of a running train, makes threatening gesture at a person standing on the station platform, the gesture will not amount to assault, for the person has no present ability to effectuate his purpose. The question whether a particular act amounts to an assault or not depends on whether the act has caused reasonable apprehension in the mind of the person that criminal force was imminent. The words or the action should not be threat of assault at some future point in time. The apprehension of use of criminal force against the person should be in the present and immediate. The gist of the offence of assault is the intention or knowledge that the gesture or preparations made by the accused would caused such effect upon the mind of another that he would apprehend that criminal force was about to be used against him. Illustration (b) to Section 351 exemplifies that although mere preparation to commit a crime is not punishable yet preparation with intention specified in Section 351 amounts to assault. The offence under Section 351 is non-cognizable, bailable, compoundable, and triable by any Magistrate. Wrongful Restraint and Wrongful confinement Wrongful Restraint Section 339. Wrongful restraint Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has right to proceed, is said wrongfully to restrain that person. Wrongful restraint means preventing a person from going to a place where he has a right to go. In wrongful confinement, a person is kept within certain limits out of which he wishes to go and has a right to go. In wrongful restraint, a person is prevented from proceeding in some particular direction though free to go elsewhere. In wrongful confinement, there is restraint from restrained is obstructed to proceed in a direction in which he has right to proceed. However alternative ways are always opened in wrongful restraint. But in wrongful confinement, the person restrained is confined in some circumscribed limits. In wrongful confinement, restrained person is not allowed to move anywhere. He has no alternative to move in any other way. Ingredients: A. The person must be wrongfully restrained. B. The restrained person must be such as to prevent the person to proceed beyond some circumscribing limits. The person must be wrongfully restrained: Before satisfying other conditions it is necessary that the conditions for a wrongful restrained must be satisfied. (All the ingredients of wrongful restrain can also be mentioned here). The restrained person must be such as to prevent the person to proceed beyond some circumscribing limits: It is necessary that the person confined must not have any option to proceed in any direction. Circumscribing limits means some type of boundary or some type of ambit in which a person has been locked with a view to obstruct him to proceed in any way. Restraint may be physical or otherwise: It is not necessary that the physical restraint must be there or any force is not necessary to use to obstruct the person. A person can also be restraint or confined by use of moral force as well as direction. For e.g. when any person is directed to stand at a particular place and warned not to move anywhere, then this may be said to be confinement. Wrongful confinement is a kind of wrongful restraint, in which a person kept within the limits out which he wishes to go, and has right to go. There must be total restraint of a personal liberty, and not merely a partial restraint to constitute confinement. For wrongful confinement proof of actual physical obstruction is not essential. Circumscribing Limits Wrongful confinement means the notion of restraint within some limits defined by a will or power exterior to our own. Degree of Offense : Wrongful restraint is not a serious offence, and the degree of this offense is comparatively lees then confinement. Wrongful confinement is a serious offence, and the degree of this offense is comparatively intensive then restraint. Principle element : Voluntarily wrongful obstruction of a person personal liberty, where he wishes to, and he have a right to. Voluntarily wrongfully restraint a person where he wishes to, and he has a right to, within a circumscribing limits. Personal liberty : It is a partial restraint of the personal liberty of a person. A person is restraint is free to move anywhere other than to proceed in a partial direction. It is a absolute or total restraint or obstruction of a personal liberty. Nature : Confinement implies wrongful restraint. Wrongful confinement not implies vice-versa. No limits or boundaries are required. UNIT IV KIDNAPPING AND ABDUCTION Synopsis  Section 361 Kidnapping from Lawful Guardianship  Object of the Section  Ingredients of Kidnapping  Section 363 Punishment for Kidnapping  Section 362 of IPC Abduction  Ingredients of Abduction  Role of Consent  Case Laws  Difference between Kidnapping and Abduction Section 363 Punishment for Kidnapping As per Section 363, “Whoever kidnaps any person from India or from lawful guardianship, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.” The punishment for the offence of kidnapping provides for both fine and imprisonment. Abduction means forcibly taking away of a person and moving him or her from one place to another against their will. Use of force is a necessary ingredient of abduction. Abduction is the criminal act of taking by force or strong persuasion of a wife, husband, child or other person.[1] It has also been defined as the illegal act of taking away a person by persuasion, fraud or by open force or violence. The offence of Abduction is mentioned under Section 362 of the Indian Penal Code. Section 362 of IPC Abduction “Whoever by force compels or by deceitful means induces, any person to go from any place, is said to abduct that person.” The Section only gives a definition to the offence of Abduction which is not punishable per se. It is only punishable if it is accompanied with a criminal intent which is included in the subsequent sections of the Penal Code. Ingredients of Abduction Forcefully Compelling or inducement of a person by deceitful means The provision makes it amply clear that taking away of a person should be accompanied by either forceful compelling or by deceitful means, merely threatening to use force would not result in abduction of a person. The element of compelling by force of inducement by fraudulent or deceitful means is a necessary ingredient to amount the taking of person to abduction. Force has been defined under Section 349 of the Indian Penal Code and has the same meaning under this section. Inducement means “0to lead into” something and thus deceitful inducement would be misleading a person to do something which he or she wouldn’t ordinarily do. To go from any place/ Going of a person from any place To constitute abduction, the person so abducted, must have gone from one place to another by compulsion of force or by inducement by deceitful means. Role of Consent Consent of the person who is moved or taken away is of vital importance in abduction. Unlike kidnapping where consent of the person who is taken away is immaterial, in abduction consent given by the person moved will not amount to an act of abduction. Illustrations 1. A is a minor daughter of B. A voluntarily goes away with C and indulges in sexual relations with him. C cannot be held liable for abduction because A wilfully consented to go with him, there was no use of force or inducement. 2. Y is a minor daughter of R. X forcibly takes away Y without the knowledge of R. Y runs away with Z while she is custody of R who is X’s relative. In this case, X is liable for abduction, however Z will be liable if he had some criminal intent to take away Y. Abduction is not a substantive offence. It is however an auxiliary act or a subsidiary act which is only punishable when coupled with a criminal intent. Abduction is not a crystallised offence but a continuing one. It does not confine to the first time a person is taken away or moved from one place. It extends to every other person who is involved in the moving of the person by use of force or deceitful means. Case Laws Bhanukan’s Case Chief Justice Wanchoo observed that there was no abduction because he was satisfied that the girl was not compelled by force or induced by any deceitful means to go with the accused. The girl being a minor had gone out with the accused to have sexual intercourse, the court held that she wasn’t abducted as no undue influence or force was used upon her. Vinod Chaturvedi v. State of Madhya Pradesh In the present case, the appellant was alleged to have abducted the deceased Brindaban. The process of investigation pointed out that Brindaban on being persuaded by the accused persons and Vinod in particular went inside his house, came out properly dressed to accompany the group to village Ramapura. Such conduct made it clear that Brindaban was not abducted the accused persons. State of Assam vs. Goljer Ali and Nine Ors. Abduction, as defined under Section 362 IPC contemplates both user of force or inducement by deceitful means. The deceased in the present case was offered a puff of Bidi and was therefore induced to go to the house of the accused where he has beaten to death. RAPE Synopsis  Meaning  Amendments (Vide Act 13 of 2013)  Definition of rape (After amendment of Sec 375)  Analysis of the definition  Essential Ingredients of Rape  Rape or Consensual Sex  Exception to Section 375  Punishment of rape  Section 376-A of the IPC – Punishment for causing death or resulting in persistent vegetative state of victim  Section 376-B of the IPC – Sexual intercourse by husband upon his wife during separation  Section 376-C of the IPC– Sexual intercourse by a person in authority  Section 376-D of the IPC– Gang rape  Section 376-E of the IPC– Punishment for repeat offenders  Case laws Meaning The word rape is derived from the Latin term rapio, which mean ‘to seize’. Thus, rape literally means a forcible seizure. It signifies in common terminology, “as the ravishment of a woman without her consent, 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. In the Indian Penal Code, Section 375 defines rape. Amendments (Vide Act 13 of 2013) After the Nirbhaya Delhi Gang Rape case, ‘The Criminal Law Amendment Act, 2013’ came in to force w.e.f 3rd of Feb, 2013. Now this case was recorded as ‘Rarest of Rare case’ in the history of Indian Judiciary case laws. By this amendment act, our legislators introduced some new sections and make some amendments in Indian Penal Code, Criminal Procedure Code, Indian Evidence Act and Protection of children from sexual offences act. Some of the important changes brought about by the Act 43 of 1983 and Act 13 of the 2013 and other provisions are listed below:-  Consent of woman of unsound mind or under intoxication is not to be considered valid defence.  Burden of Proof of innocence on accused – Section 114A was inserted in The Indian Evidence Act, 1872 vide Criminal Law (Amendment) Act 43 of 1983.  Prohibition of disclosure of the identity of the victim– Section 228A IPC added vide Criminal Law (Amendment) Act 43 of 1983.  Persistent Vegetative State– A new section 376 A has been added vide Criminal Law (Amendment) Act 13 of 2013. When an injury caused to the victim results in death of the women or causes women to be in a persistent vegetative state, then the accused shall be liable for imprisonment for a term which cannot be less than 20 years or may extend to imprisonment of life or remainder of that persons natural life or till death.  Trial in Camera– Section 327 CrPC,1973 has been amended vide Criminal Law (Amendment) Act 13 of 2013, to the effect that the inquiry into and trial of rape or an offence under section 376, section 376A, section 376B, section 376C or section 376D of the Indian Penal Code shall be conducted in camera.  Custodial Rape– Section 376C, IPC comprise a group of sections that create a new category of offence, known as custodial rape which does not amount to rape because in such cases the consent of the victim is obtained under compelling circumstances. (Substituted by Criminal Law (Amendment) Act 13 of 2013)  Intercourse with wife during judicial separation– Section 376 B IPC inserted vide Criminal Law (Amendment) Act 13 of 2013 makes sexual intercourse with one’s own wife without her consent under a decree of separation punishable, with a minimum of 2 years that extend to 7 years.  Minimum punishment for Rape– This provision has been made more stringent vide Criminal Law (Amendment) Act 13 of 2013.  Character assassination of prosecutrix prohibited– A ‘Proviso clause’ to section 146 of the Indian Evidence Act, 1872 inserted vide Criminal Law (Amendment) Act In Bishnudayal vs. State of Bihar 2003 Cri LJ 1539 SC, where the prosecutrix, a girl of 13 or 14, who was sent by her father to accompany the relatives of his elder daughter’s husband to look after her elder sister for some time, was forcibly ‘married’ to the appellant and had sexual intercourse with her, the accused was held liable for rape under section 376. However, under section 376 B, IPC sexual intercourse with one’s own wife without her consent under a decree of judicial separation is punishable by 2 to 7 years imprisonment. Punishment of rape It states that if the rape is committed by persons listed below, they shall be punished with rigorous punishment of not less than 10 years, but can 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.  Police officer within the limits of the police station.  A police officer in the premises of any station house.  A police officer on a woman in the police officer’s custody.  Public servant on a woman’s in his custody.  Member of the armed forces.  Any person in the management of the jail, remand home etc. on inmate of such place.  Staff/management of a hospital on a woman in that hospital.  By a person who is in a position trust or authority or control or dominance towards a woman on such woman.  During communal or sectarian violence.  On a pregnant woman  On a woman less than 16 years of age  On a woman incapable of giving consent  On a mentally or physically disabled woman  Who causes grievous bodily harms or endangers the life of a woman.  Who commits rape repeatedly on the same woman If any other person commits rape on any woman, he shall be punished with rigorous imprisonment of either description for a term which shall not be less than seven years, but which may extend to imprisonment for life, and shall also be liable to fine. Section 376-A of the IPC – Punishment for causing death or resulting in persistent vegetative state of victim It says if a person commits an offence which is punishable under section 376 which causes the death of the women or causes the women to be in a persistent vegetative state, shall be punished with rigorous imprisonment for a term which shall not be less than 20 years, but may extend to imprisonment for life or with death. Section 376-B of the IPC – 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. Section 376-C of the IPC– Sexual intercourse by a person in authority Whoever, being— 1. in a position of authority or in a fiduciary relationship; or 2. a public servant; or 3. superintendent or manager of a jail, remand home or other places of custody established by or under any law for the time being in force, or a women’s or children’s institution; or 4. on the management of a hospital or being on the staff of a hospital, abuses such position or fiduciary relationship to induce or seduce any woman either in his custody or under his charge or present in the premises to have sexual intercourse with him, such sexual intercourse not amounting to the offence of rape, shall be punished with rigorous imprisonment of either description for a term which shall not be less than five years, but which may extend to ten years, and shall also be liable to fine. Section 376-D of the IPC– Gang rape It prescribes punishment for gang rape and says where a woman is raped by a group of persons, then they shall be punishable with rigorous punishment of not less than 20 years, but may extend to life imprisonment, and with fine. Note: Such fine shall be just and reasonable to meet the medical expenses and rehabilitation of the victim. Also, any fine imposed under this section shall be paid to the victim. Section 376-E of the IPC– Punishment for repeat offenders Whoever has been previously convicted of an offence punishable under Section 376 or Section 376-A or Section 376-D 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.’ Case Laws The Nirbhaya Case (2012) This case hardly requires any facts to be stated as it is still fresh in the consciousness of the nation. A paramedical student was tortured by six men to such an extent that an iron rod was shoved into her vagina and her intestines, abdomen, and genitals were damaged severely. They threw her out of the bus in the wintery night. One of the accused was juvenile and was sent to a