Unit IV Law of Crimes: Offences Affecting The Human Body

Unit IV Law of Crimes
Offences affecting the Human body

-Culpable Homicide and Murder
Culpable Homicide
The word homicide is derived from two Latin words - homo and cido. Homo means human and
cido means killing by a human. Homicide means killing of a human being by another human being.
A homicide can be lawful or unlawful. Lawful homicide includes situations where a person who
has caused the death of another cannot be blamed for his death. For example, in exercising the
right of private defence or in other situations explained in Chapter IV of Indian Penal Code
covering General Exceptions. Unlawful homicide means where the killing of another human is not
approved or justified by law. Culpable Homicide is in this category. Culpable means blame worthy.
Thus, Culpable Homicide means killing of a human being by another human being in a
blameworthy or criminal manner.
Culpable Homicide is defined in Section 299 of the IPC. If you study the definition you shall find
that the definition stresses both on the physical and mental element, where an act is committed
which is done with the intention of causing death, or with such knowledge that the act which he or
she is going to undertake is going to kill someone, or causes such bodily or physical injury which
will lead to a person's death. Also read the explanations to the Section which are actually
clarifications to the Section.
Explanation One: Tells us that where knowingly a person accelerates someone's death in such as
situation it is considered culpable homicide.
Example: Y is diagnosed with terminal illness and needs certain drugs to live from day to day. X
confines him in a room and denies him his medication as a result of which Y dies. X is guilty of
Culpable Homicide.
Explanation Two: Tells us that where a person inflicts such bodily injury on someone and the latter
dies because of such injury, it will not be an excuse that if the person had received medical attention
his life would have been saved.
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Example: Ganda mows over a pedestrian deliberately. The pedestrian bleeds on the road and no
one helps him and he dies as a result of Ganda's actions. Ganda cannot take the excuse that if the
pedestrian had taken medical treatment at the right time, the pedestrian would have lived and there
would be no culpable homicide
Explanation Three: Tells us that abortion does not constitute culpable homicide. However if any
part of the child is outside the womb, and the child is then killed, it constitutes culpable homicide.
A word of caution, however, infanticide and abortion on the basis that the womb is bearing a
female child is a criminal offence in India. Culpable Homicide can happen by commission or by
omission, i.e. by an overt or conscious act or failure to act, by which a person is, deprived of his/her
life. Now let us study the ingredients in detail.
Ingredients a) 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. Instances such stabbing a person in vital organs, shooting someone
at point blank range, administering poison would include instances which would constitute
culpable homicide.
However this is not always the rule and there are exceptions to this rule. Remember the section
says "causes 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. The Section also covers administration of bodily injury which is "likely" to cause death.
Causing death:
The very first test to decide whether a particular act or omission would be covered by the definition
of culpable homicide is to verify whether the act done by an accused has ‘caused’ the death of
another person. ‘Death’ means the death of a human being. But the word ‘death’ does not include
the death of an unborn child. It is immaterial if the person whose death has been caused not the
very person whom the accused intended to kill. The offence is complete as soon as any person is
killed.
By doing an act:
Death may be caused in a number of ways; such as by poisoning, starving, striking, drowning or
communicating some shocking news and by a hundred different ways. ‘Act’, here includes ‘illegal
omission’ also.
The word ‘illegal’ is applicable to everything which is an offence or which is prohibited by law,
or which furnishes ground for a civil action. Therefore, death caused by illegal omission will
amount to culpable homicide.
b) Intention
Sometimes one is required to do certain dangerous acts, even in everyday life where there is a risk
of death or causing hurt to such an extent that a person may die. Mundane things such as driving
possess the potential of taking someone's life. The question however is was 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 situations where there are injuries and there are intervening 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.
c) 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". For example, a doctor uses an infected syringe knowingly on a patient thereby
infecting him with a terminal disease. The act by itself will not cause death, but the doctor has
knowledge that his actions will lead to someone's death.
Culpable Homicide Amounting to Murder
Section 300 deals with Culpable Homicide amounting to murder. In other words the Section states
that culpable homicide is murder in certain situations. This makes us come to two conclusions,
namely:
For an act to be classified as murder it must first meet all the conditions of culpable homicide.
Secondly, all acts of murder are culpable homicide, but all acts of culpable homicides are not
murder. Pictorially speaking:-
Now, let us study the situations in which culpable homicide does amount to murder. Section 300
states, that except for situations states (which do not concern us as of now) culpable homicide is
murder in four situations:
i. When an act is done with the intention of causing death
The degree of intention required is very high for murder. There must be intention present and the
intention must be to cause the death of the person, not only harm or grievous hurt without the
intention to cause death.
Instances would include:
• Shooting someone at point blank range.
• Stabbing someone in the heart
• Hanging someone by the neck till he dies
• Strapping a bomb on someone
• Administering poison to someone.
Remember the act must be accompanied with the intention to "cause death."
ii. Inflicting of bodily injury which the offender knows is likely to cause death
The second situation covers instances where the offender has special knowledge about the victim's
condition and causes harm in such a manner which causes death of the person. Look at this part of
Section 300 very carefully. It states that the offender "knows likely to be the cause of death"
• S is a hemophilic patient. B knows this and cuts him in multiple places, which if carried out on
an ordinary person would not have cost him his life.
• A is suffering from jaundice. B knows this and slips in alcohol in A’s medicine in order to rupture
A’s liver so A dies. A dies as a result of consuming the adulterated medicine.
iii. Bodily injury which causes death in the ordinary course of nature
These situations cover such acts where there is bodily injury which in ordinary sequence of events
leads to the death of the person. Read the part of the section carefully. The section actually has two
conditions _ Firstly, the bodily injury inflicted is inflicted with the intention of causing death of
the person on whom it is inflicted. _ Secondly, the bodily injury caused in the ordinary course of
events leads to death of someone.
An instance of the same would be:
• M wants S dead. In order to kill M picks up a hockey stick and repeatedly hits him on the head.
S dies as a result of the injury.
iv. Commission of an imminently dangerous act without any legitimate reason which would cause
death or bodily injury which would cause death.
This head covers the commission of those acts which are so imminently dangerous which when
committed would cause death or bodily injury which would result in death of a person and that
such an act is done without any lawful excuse. Cases under this head have three requirements _
Commission of an inherently dangerous act _ the knowledge that the act in all probability will
cause death or bodily injury which will cause death and _ the act is done without any excuse (the
excuse must be lawful or legitimate excuse)
• Throwing a high intensity bomb in a crowded public place. • Thrown loaded cast iron boxes from
a multi storied building in a busy thoroughfare. Culpable Homicide Not Amounting to Murder
When not murder, culpable homicide is a crime by itself. As stated above a situation must first
become culpable homicide before it becomes murder. Though dealt with in detail in the following
section, the basic difference between culpable homicide and murder is the level of intention
involved. Where there is a very high level of intention involved the act usually falls under murder.
In addition to this general understanding (that acts when not murder are culpable homicide) the
IPC itself lists certain cases when death is caused to be read as culpable homicide not amounting
to murder covers five specific situations:
i. Acts under grave and sudden provocation
When a person looses self control on account of certain situation and causes the death of some
person. The provocation must be grave, it must be sudden, i.e. there must be no scope for pre
meditation and thirdly, it must not be self invited so as to use it as an excuse to deprive a person
of his/her life.
An example of this situation will be:
A has an affair with S. A's husband returns home to find A in a compromising position with S.
Seeing his wife in such a position and without further thinking he reaches out for a knife and kills
S. S will have committed culpable homicide not amounting to murder.
ii. When Private Defence is exceeded in good faith
In exercising private defence either with respect to property or person, if a person accidently
exceeds his or her right in good faith or in wrong judgment and the act causes the death of a person,
the act is culpable homicide and not murder
iii. 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.
Example:
Inspector C was given instructions to capture G but not shoot him. When the transport convoy
broke down and G moved from his seat C thought he is going to escape and shot him. At best C
would have committed culpable homicide not amounting to murder.
iv. When death is caused in sudden fight or heat of passion upon a sudden quarrel
Similar to the first situation, when at times fight gets out of hand and a person hits someone or
injures a person in such a fashion that may cause death of a person.
v. 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.
Attempt to murder
Section 307 - “Whoever does any act with such intention or knowledge, and under such
circumstances that, if he by that act caused death, he would be guilty of murder, shall be punished
with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine, and if hurt is caused to any person by such act, the offender shall be
liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.
Attempts by life convicts:-
When any person offending under this section is under sentence of imprisonment for life, he may,
if hurt is caused, be punished with death.
Illustrations:
i. A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would
be guilty of murder. A is liable to punishment under this Section. ii. A, with the intention of causing
the death of a child of tender years, exposes it in a desert place. A has committed the offence
defined by this section, though the death of the child does not ensue. iii. A, intending to murder Z,
buys a gun and loads it. A has not yet committed the offence, A fires the gun at Z. He has
committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the
punishment provided by the latter part of the first paragraph of this Section. iv. A, intending to
murder Z, by poison, purchases poison and mixes the same with food which remains in A’s keeping
; A has not yet committed the offence defined in this Section. A places the food on Z’s table or
delivers it to Z’s servants to place it on Z’s table. A has committed the offence defined in this
section.”
Attempt is an intentional preparatory action which fails in its object- which so fails through
circumstances independent of the person who seeks its accomplishment. There is a thin line of
demarcation between the preparation for, and an attempt to, commit an offence.
Undoubtedly, a culprit first intends to commit the offence, then makes necessary preparations for
committing it and thereafter attempts to commit the offence. If the attempt succeeds, he has
committed the offence; if it fails due to reasons beyond his control, he is said to have attempted to
commit the offence.
Attempt to commit an offence, therefore, can be said to begin when the preparations are complete
and the culprit commences to do something with the intention of committing the offence, and
which is a step towards the commission of the offence. The moment he commences to do an act
with the necessary intention, he commences his attempt to commit the offence.
The essentials for criminal attempt are:
i. An existence of an intention on the part of the accused to commit a particular offence; ii. Some
steps taken towards it after completion of preparation; iii. The step must be apparently though not
necessarily adapted to the purpose designed; iv. It must come dangerously near to success; v. It
must fall short of completion of the ultimate design.
An attempt in order to be criminal need not be the penultimate act. It is sufficient in law if there is
present an intent coupled with some overt act in execution thereof. For purposes of criminal
liability, it is sufficient if the attempt had gone so far that the crime would have been completed
but for extraneous intervention which frustrated its consummation.
Section 307 deals with the offence of attempt to commit murder. In order to constitute an offence
under Section 307, two elements are essential. First the intention of knowledge to commit murder.
Secondly, the actual act of trying to commit the murder. It must have both the necessary mensrea
and actus reus.
For offence under this section, all the elements of murder as envisaged by Section 300 must exist,
except for the fact that death has not occurred. An attempt, in order to be criminal, need not be the
penultimate act foreboding death. It is sufficient if there is present an intention to commit homicide
coupled with some overt act in execution thereof.
The words ‘such intention’ found in Section 307 refer to the intention found in Section 300. The
IPC uses the word ‘intention’ in the sense that something is intentionally done if it is done
deliberately or purposely or in other words, is a willed though not necessarily a desired result or a
result which is the purpose of the deed. In IPC, ‘intention’ is used in relation to the consequences
of an act, the effect caused thereby, not in relation to the act itself – the voluntariness required to
constitute an act is implied by that very word.
In Section 307, the word ‘intention means: (i) intention to cause death; (ii) intention to cause such
bodily injury, which the offender knows is likely to cause death; (iii) intention to cause such bodily
injury, which injury is sufficient in the ordinary course of nature to cause death.
Thus, the intention to cause death is the essence of the offence of attempt to murder. Intention is a
man’s state of mind; direct evidence therefore except through his own confession cannot be had;
and apart from confession they can be proved only by circumstantial evidence.
Therefore, intention is something which can be gathered from circumstances like the nature of the
weapon used, the words used by the accused at the time of the act, the motive of the accused, the
parts of the body where the injuries are caused, the nature of injuries and the severity and
persistence of the blows given etc.
The term ‘knowledge’ refers to the knowledge of the offender that the act done by him is so
imminently dangerous that it must in all probability cause death or such bodily injury as is likely
to cause death. Even if the accused did not have a deliberate intention, if he must have had the
knowledge that his act was likely to cause death, Section 307 applies.
The words ‘and under such circumstances’ point to the act having reached that stage of
development at which there was nothing more left in the act or to complete it. It means that the
circumstances present at the time of the act were such that the act would have caused death, but it
did not; and if it had caused death, the offence would have been murder.
Under Section 307, the offence is complete although the harmful consequence of death does not
ensue, indeed even if no harm ensues. But the words “if he by that act caused death”
necessarily imply that the act must be capable of causing death. The act, namely, the bare physical
act, must be an act capable of causing death, at any rate, not one intrinsically incapable of causing
death.
The word ‘act’ would include an illegal omission. In order to bring the case under Section 307, the
act must be capable of causing death in the natural and ordinary course of things, or in other words,
that death might be caused if the act took effect.
An accused charged under Section 307 cannot be acquitted merely because the injury inflicted on
the victim was in the nature of simple hurt. Nevertheless, the nature of injury actually caused
render considerable assistance to the Court in finding the intention of the accused. However, it can
ascertain intention from other circumstances, even without reference to actual wounds.
In State of Maharashtra v. Balram Ваmа Patel it was observed that to justify a conviction under
Section 307, it is not essential that bodily injury capable of causing death should have been
inflicted. Although the nature of injury actually caused may often give considerable assistance in
coming to a finding as to the intention of the accused, such intention may also be deduced from
other circumstances, and may even, in some cases, be ascertained without any reference at all to
actual wounds.
Section 307 makes a distinction between an act of the accused and its result, if any. Such an act
may not be attended by any result as far as the person assaulted is concerned, but still there may
be cases in which the culprit would be liable under Section 307.
It is not necessary that the injury actually caused to the victim of the assault should be sufficient
under ordinary circumstances to cause the death of the person assaulted. What the Court has to see
is whether the act, irrespective of its result, was done with the intention or knowledge and under
circumstances mentioned in Section 307.
An attempt in order to be criminal need not be the penultimate act. It is sufficient in law, if there
is present an intent coupled with some overt act in execution thereof.
In Antony v. State of Kerala the accused, aimed a blow with a dagger at the victim’s head who
raised his hand to ward it off and got his hand severed from the wrist. The severity of the blow
itself spells out his murderous intent. His conviction under Section 307 was held to be proper.
In Sarju Prasad v. State of Bihar it was observed that the mere fact that the injury actually inflicted
by the accused did not cut any vital organ of the victim, is not itself sufficient to take the act out
of the purview of Section 307 IPC.
The second part of Section 307, prescribes death sentence to a life convict for attempt to bodily
injury capable of causing death and in that process causing hurt to such person,
Section 307 which specifically uses the word ‘may’ and not ‘shall’ and provides that when any
person offending Section 307 is under sentence of imprisonment for life, he may, if hurt is caused,
be punished with death may also receive judicial consideration if it’s also deserves to be struck
down as unconstitutional. Court has powers to reduce quantum of sentence if certain conditions
are met and Court is satisfied that by reducing the sentence, the ends of justice would not be
disturbed.
Offence under Section 307 is cognizable and warrant should ordinarily issue in first instance. It is
non-bailable as well as non- compoundable and is exclusively triable by the Court of Session.
The ‘Doctrine of Transferred Malice’ is expressly not defined in the Indian Penal Code. Rather
it is inferred from Section 301 of the Indian Penal Code.
Section 301 states that if a person does any act which he knows or intends that is likely to cause
death, commits culpable homicide and by causing the death of any person, whose death he neither
intends to nor knows by himself that by his act will cause the death of that person.
The culpable homicide here is of that sort where he wanted to kill another person. He also had an
intention and also the knowledge that such an act is likely to cause death but killed another person.
The person committing culpable homicide had a piece of knowledge or intention to cause the death
of someone and in result kills someone else who he never intended to cause death or even knew
that an act will cause his death.
Essentials
Causes death,
By doing an act with an intention or knowledge of causing the death of a person or,
Causing such bodily injury as is likely to cause death,
Causes the death of another person instead of the intended person.
The object of transferred malice Section 301
The object of transferred malice under Section 301 is to define the nature of culpable homicide.
We shall discuss the circumstances where a guilty cannot take the defence that the presence of
intention was not there.
If a person committing culpable homicide had an intention to kill a person but killed another
person. It may also be the case where he did not even have an intention to kill or where he did not
have the knowledge that his act would cause death. In these cases he will be ruled as guilty and
such vague excuses as the absence of intention will not be entertained in any court.
In simpler terms, a person under Section 301 cannot be set free on the grounds of not having any
intention. Instead, the ‘Doctrine of Transferred Malice’ will apply and he will be held guilty.
Applicability of Transferred malice
The relevance of Section 301 or its applicability is when a person who was targetted by the
offender is not killed and another person is killed by the guilty act.
Only in these cases, the ‘Doctrine of Transferred Malice’ will apply.
Illustration
‘T’ intends to kill ‘F’ but kills ‘Y’, without intending to kill him. In this illustration, the law will
apply the ‘’Doctrine of Transferred Malice’’ and perceive that in the first instance itself, he
intended to kill that person. Thus, he will be held guilty of killing ‘Y’.
‘S’ entered the house of ‘D’ with an intent to commit robbery. ‘S’ demand money from ‘D’. ‘D’
refused to give. Due to this, ‘S’ fired at him suddenly. ‘D’s’ wife ‘R’ came in between them to
protect her husband and died due to being shot in the head. Here, ‘S’ will be held guilty for
transferred malice.
Case Laws
R v Mitchell 1983
In this case, the appellant tried to jump the queue at a post office. An elderly man objected to this
behaviour. The appellant in retaliation, not only pushed the elderly man but hit him as well.
The elderly man falls on the people who were standing behind him in the queue. There was one
old lady in the queue who also fell down and broke her leg. Later she died because of that broken
leg. It was held that the appellant was guilty of manslaughter.
In this case, even though the appellant did had any intention to hit the old lady, but due to his
intention to hit the man, he was prosecuted by applying the principle of transferred malice.
R v Latimer (1886) 17 QBD 359
In this case, the defendant was in an argument with another in a pub. The arguments between the
two increased rapidly. The defendant took off his belt with an intention to hit the man but he
missed. The person he was trying to hit only got a bit injured. The smash with the belt got diverted
in another way and it hit an innocent woman who was standing by the side of the man. She got hit
in her face and was severely injured.
It was held by the court that the defendant will be liable for the injuries inflicted upon the woman
despite the fact that he did not intend to cause injury to her.
Here, the principle of transfer of malice was applied. The Mens Rea he had (the intention to hit the
man) towards the man was transferred on the woman.
R v. Saunders (1573) 2 Plowd 473
In this case, the defendant persuaded his wife to eat a poisoned apple laced with arsenic (a
chemical).
It was with an intention to kill her so that he can be free and marry another woman after her death.
However, his wife gave the poisoned apple to their daughter. The daughter ate the apple and as a
result, she died. After applying the ‘Doctrine of Transferred Malice’, the defendant was charged
with murder. The intention to kill his wife got transferred to his daughter and due to that, she died.
Rajbir Singh vs State Of U.P. & Anr on 8 March 2006
In this case, the appellant claimed that the neighbour threw some bricks on the compound of his
brother’s house. On account of this, a verbal fight took place between his father and the accused
but the matter was somehow settled by the local people. The next day accused with his two
relatives came with guns. They came near the shop of the complainant where his father was
standing. There, the accused persuade or encouraged his relatives to kill him. The accused started
firing at the father of the complainant who then received injuries and fell down.
A girl came to that shop to purchase some articles from that shop and suffered injuries and fell
down. Both the injured persons died on the way to the hospital.
The accused in his argument said that the girl died by accident and there was no intention on their
part to kill her. She was passing by from that place and as a result, suffered injuries and died.
The Supreme Court set aside the order of the High Court and held the accused guilty. He was
charged under Section 301.
R v Pembleton (1874) LR 2CCR 119
In this case, the defendant threw some stones into a crowd with an intention to hit someone with
it. However, the stone somehow missed the crowd and instead hit the window. It was argued that
by the ‘Doctrine of Transferred Malice’, his intention of hitting in the crowd was transferred and
thus he was guilty of hitting the window.
The issue was raised that whether the defendant was guilty of the criminal damage and whether
the ‘Doctrine of Transfer Malice’ can be used in these cases where the intention is different and
the result is different.
It was held that the defendant was not guilty of criminal damage and was also held that the
‘Doctrine of Transfer Malice’ cannot be applied here as the crime which actually happened did not
have the same physical act (actus reus) as the crime which the defendant intended to do so.
Emperor vs Mushnooru Suryanarayana Murthy on 2 January 1912
In this case, the accused, Mushnooru Suryanarayan Murthy had an intention to kill Appala
Narasimhulu. This was so that he could obtain the sums insured on her. Without the knowledge of
Appala, he gave some sweet dish which contained a poison of arsenic and mercury. Appala
Narasimhulu ate a small portion and threw the rest away. Rajalakshmi, aged 8 was the accused
niece. He ate some sweet dish and also gave some to the other little child. This was done without
the knowledge of the accused. The children died. But Appala recovered from the severe effects of
it.
It was held by the court that the accused will be held guilty under the attempt to commit the murder
of Appala and also under Section 301 of the Indian Penal Code. this is for the death of the children.
Even though he did not intend to kill them but according to the doctrine of the transfer of malice,
he will be held responsible for the punishment.
The court sentenced him seven years of rigorous imprisonment for attempt to commit murder but
by his appeal, the punishment got enhanced to transportation for life (transported to the colonies
to serve their prison sentences).
Punishment for murder by life-convict:
This section prescribes punishment for murder committed by a life- convict. It says that whoever,
being under sentence of imprisonment for life, commits murder, shall be punished with death. In
other words, the section makes capital sentence compulsory when a murder is committed by a
person who is undergoing a sentence of imprisonment for life.
The provision does not give any discretion to the Court in the matter of passing a sentence against
a life-convict which has to be a sentence of death only. The provision shows that the framers of
the Indian Penal Code intended to treat the murders committed by an ordinary person and those by
a lifer differently.
Whereas in the former case the court is empowered to award either life imprisonment or a death
sentence, the same discretion, to be exercised judicially, is not available while the court has to pass
a sentence against a life-convict who has been held guilty of murder.
Being under sentence of imprisonment for life
The question of interpretation of the words ‘being under sentence of imprisonment for life’ was
involved in the case of Shaik Abdul Azees v. State, where the Supreme Court held that where the
appellant, sentenced to imprisonment for life for murder, is later released by the State Government
by conditional remission of the sentence under section 401, Code of Criminal Procedure, 1898
(section 432, Code of Criminal Procedure, 1973), the appellant does not continue to be under
sentence of imprisonment for life for section 303, and if he commits murder during remission
period and thus contravenes the condition of remission, section 303 is not attracted and the court
is not obliged under this section to impose a sentence of death.
It was further explained that an accused could not be under a sentence of imprisonment for life at
the time of commission of the second murder unless he was actually undergoing such a sentence
or there was legally extant a judicial final sentence which he was bound to serve without the
requirement of a separate order to breathe life into the sentence which was otherwise dead on
account of remission under section 401, Code of Criminal Procedure, 1898 (section 432, Code of
Criminal Procedure, 1973). Section 303 of the Indian Penal Code is applicable only to an accused,
who on the date of commission of the second offence of murder, had earlier committed an offence
for which his conviction and sentence of imprisonment for life were beyond judicial controversy
and were operative.
A person must be actually and irrevocably a life beyond the pale of judicial controversy at the time
of commission of the second offence of murder to be visited with penalty of death under section
303. For the purpose of section 303 there can be no warrant for introducing a legal fiction of being
deemed to be under a sentence of imprisonment for life.
The basis of the decision is that an accused to be punishable under a law must be proved to be so
within the letter of the law, and if his case is not covered within the plain meaning of the words
and more than one reasonable constructions of the enactment are possible, that which favours him
shall be accepted.
Commits murder
The section is applicable only when a lifer commits murder. Consequently, where a life-convict is
held guilty of culpable homicide not amounting to murder, this section is not attracted because
even though he has caused death he has not committed murder. It has been held by the Supreme
Court that the section applies not only in cases where an accused is guilty of the offence of murder
simpliciter but also in cases of his constructive or joint guilt of murder under provisions like section
302 read with section 34 or section 149 of the Code.
Constitutionality of section 303
The question of unconstitutionality of section 303 was raised in Mithu v. State, on the ground that
it is violative of Articles 14 and 21 of the Constitution. Chief Justice Chandrachud, who delivered
the judgment on behalf of four of the judges including himself, held that section 303 violates the
guarantee of equality contained in Article 14 as also the right conferred by Article 21 that no person
shall be deprived of his life or personal liberty except according to procedure established by law.
The learned judge observed that the section was originally conceived to discourage assaults by
life-convicts on the prison staff, but the legislature chose a language which far exceeds its
intention. The action also assumes that life convicts are a dangerous breed of humanity as a class.
The assumption is not supported by any scientific data. Justice Chinnappa Reddy, who gave a
separate but concurring judgment, observed that section 303 particularly offends Article 21 and
the new jurisprudence which has sprung around it ever since the Banks Nationalisation case freed
it from the confines of Gopalan. Section 303 excludes judicial discretion.
The scales of justice are removed from the hands of the judge so soon as he pronounces the accused
guilty of the offence. So final, so irrevocable and so irresistible is the sentence of death that no law
which provides for it without involvement of the judicial mind can be said to be fair, just and
reasonable. Such a law must necessarily be stigmatised as arbitrary and oppressive.
In view of the above decision, all murder convicts, whether ordinary or life are to be punished only
under section 302 of the Code now for which there is always a judicial discretion available to
choose between imprisonment for life and sentence of death.
Rash and Negligent Act
A rash or negligent act causing death or grievous hurt is a punishable offence under the Indian
Penal Code (IPC). Section 304-A and Section 338 of the IPC deals with rash or negligent act
leading to death or grievous hurt respectively. In order to convict a person under these provisions
it must be proved that the rash or negligent act was the direct or proximate cause of death or
grievous hurt.
The expression rash or negligent has not been defined as such but has acquired a definite
comprehendible meaning because of its frequent interpretations by the Courts of law.
S. 304A - “Whoever causes the death of any person by doing any rash or negligent act not
amounting to culpable homicide, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.”
Section 304-A was added to the IPC by the Amendment Act, of 1870. This supplies an omission
providing for the offence of manslaughter by negligence which was originally included in Draft
Code, but omitted from the Code when it was finally enacted in 1860.
To impose criminal liability under Section 304-A, it is necessary that the death should have been
the direct result of a rash and negligent act of the accused and that the act must be the proximate
and efficient cause without the intervention of another’s negligence.
It must be the causacausans (immediate or operating cause); it is not enough that it may have been
the causa sine qua non (a necessary or inevitable cause). That is to say, there must be a direct nexus
between the death of a person and rash or negligent act of the accused.
The provisions of Section 304-A apply to cases where there is no intention to cause death, and no
knowledge that the act done in all probability would cause death. Section 304-A deals with
homicide by negligence. It does not apply to a case in which there has been the voluntary
commission of an offence against the person.
The doing of a rash or negligent act, which causes death, is the essence of Section 304-A. There is
distinction between a rash act and a negligent act. ‘Rashness’ means an act done with the
consciousness of a risk that evil consequences will follow. (It is an act done with the knowledge
that evil consequence will follow but with the hope that it will not).
A rash act implies an act done by a person with recklessness or indifference as to its consequences.
The term ‘negligence’ means ‘breach of a legal duty to take care, which results in injury/damage
undesired by the wrong doer. The term ‘negligence’ as used in Section 304-A does not mean mere
carelessness.
A negligent act refers to an act done by a person without taking sufficient precaution or reasonable
precautions to avoid its probable mischievous or illegal consequences. It implies an omission to
do something, which a reasonable man, in the given circumstances, would not do. Rashness is a
higher degree of negligence.
The rashness or negligence must be of such nature so as to be termed as a criminal act of negligence
or rashness. Criminal rashness is hazarding a dangerous or wanton act with the knowledge that it
is so, and that it may cause injury, but without intention to cause injury, or knowledge that it will
probably be caused.
The criminality lies in running the risk of doing such an act with recklessness or indifference as to
the consequences. Criminal negligence is the gross and culpable neglect or failure to exercise that
reasonable and proper care and precaution to guard against injury either to the public generally or
to an individual in particular, which, having regard to all the circumstances out of which the charge
has arisen, t was the imperative duty of the accused person to have adopted.
Culpable rashness is acting with the consciousness that the mischievous and illegal consequences
may follow, but with the hope that they will not, and often with the belief that the actor has taken
sufficient precaution to prevent their happening.
The imputability arises from acting despite the consciousness. Culpable negligence is acting
without the consciousness that the illegal and mischievous effect will follow, but in circumstances
which show that the actor has not exercised the caution incumbent upon him, and that, if he had,
he would have had the consciousness. The imputability arises from the neglect of the civic duty of
circumstances.
A rash act primarily is an overhasty act. Negligence is a breach of a duty caused by omission to
do something which a reasonable man, guided by the those considerations which ordinarily
regulate the conduct of human affairs would do.
The expression ‘not amounting to culpable homicide’ in Section 304-A indicates the offences
outside the range of Sections 299 and 300, and obviously contemplates those cases into which
neither intention nor knowledge enters. It indicates that intentionally on knowingly inflicted
violence, directly and wilfully caused, is excluded from the implication of Section 304-A.
Section 304-A specifically deals with the rash or negligent acts which cause death but fall short of
culpable homicide of either description. Where A takes up a gun not knowing it is loaded, points
in sport at В and pulls the trigger, В is shot dead. A would be liable for causing the death
negligently under Section 304-A.
Contributory negligence is no defence to a criminal charge i.e., where the death of a person is
caused partly by the negligence of the accused and partly by his own negligence. If the 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 owndeath. 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 [(1936) 12 Luck 336], 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 by 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. The essential components of negligence
are three; ‘duty’, ‘breach’ and ‘resulting damage’;
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,
but not compoundable, and is triable by a Magistrate of the First Class.
Dowry Death
The problem of Dowry has always been persistent in India and is also rising at a rapid rate and so
are the offences related to dowry demand. Dowry demands can go on for years together. The birth
of children and a number of customary and religious ceremonies often tend to become the
occasions for dowry demands. The inability of the bride’s family to comply with these demands
often leads to the daughter-in-law being treated as a pariah and subject to abuse. In the worst cases,
wives are simply killed to make way for a new financial transaction—that is, another marriage.
The Section 304-B, IPC has been inserted by the Dowry Prohibition Amendment Act, 1986 with
a view of combating increased menace of dowry deaths.
304B. Dowry Death
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than
under normal circumstances within seven years of her marriage and it is shown that soon before
her death she was subjected to cruelty or harassment by her husband or any relative of her husband
for, or in connection with, any demand for dowry, such death shall be called” dowry death”, and
such husband or relative shall be deemed to have caused her death.
To invoke Section 304B of the Indian Penal Code the following ingredients are essential:
• The death of a woman should be caused by burns or bodily injury or otherwise than under normal
circumstances.
• Such a death should have occurred within seven years of her marriage.
• She must have been subjected to cruelty or harassment by her husband or any relative of her
husband.
• Such cruelty or harassment should be for or in connection with the demand of dowry.
• Such cruelty or harassment is shown to have been meted out to the woman soon before her death.
One of the important ingredients to attract the provision of dowry death is that the death of the
bride must relate to the cruelty or harassment on account of demand for dowry. It is true that
Section 304-B does not define cruelty. However, under explanation of Section 113-B of the
Evidence Act, by which presumption of dowry can be drawn, it has been provided that ‘cruelty’
shall have the same meaning as in section 498-A of the Indian Penal Code. As per requirement of
clause (b) appended to section 498-A I.P.C. there should be a nexus between harassment and any
unlawful demand for dowry.
If these conditions are fulfilled then a presumption acts under the Indian Evidence Act and the
burden of proof shifts on the accused to prove that he is innocent. The section states:
In dowry death cases direct evidence may not be available. Such cases may be proved by
circumstantial evidence. Section 304-B IPC read with 113-B of the Evidence Act indicates the rule
of presumption of dowry death. If an unnatural death of a married woman occurs within 7 years
of marriage in suspicious circumstances, like due to burns or any other bodily injury and there is
cruelty or harassment by her husband or relatives for or in connection with any demand for dowry
soon before her death then it shall be dowry death.
113B. Presumption as to Dowry Death

When the question is whether a person has committed the dowry death of a women and it is shown
that soon before her death such woman had been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry; the court shall presume that such person had
caused the dowry death.
In the case of State of Punjab v. Iqbal Singh, AIR 1991 SC 1532. 7the Supreme Court clarified the
position as to why the necessity to introduce Section 113-B in the Indian Evidence Act was felt –
The legislative intent is clear to curb the menace of dowry deaths, etc. with a firm hand. It must be
remembered that since crimes are generally committed in privacy of residential houses and in
secrecy, independent and direct evidence is not easy to get. That is why the legislature has by
introducing Section 113-B in the Evidence Act tried to strengthen the prosecution hands by
permitting a presumption to be raised if certain foundation facts are established and the unfortunate
event has taken place within seven years of marriage. This period of seven years is considered to
be the turbulent one after which the legislature assumes that the couple would have settled down
in life. When the question at issue is whether a person is guilty of dowry death of a woman and
the evidence discloses that immediately before her death she was subjected by such 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
Attempt 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 held 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 by 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.
But even such change, though desirable, is considered to be the function of the legislature which
may enact a suitable law providing adequate safeguards to prevent any possible abuse.”
Abetment to suicide
Abetment of suicide is an offence under section 306 & 107 of the Indian penal code, 1860. A
woman may be driven to commit suicide due to excessive demands for dowry. However, it may
be difficult to prove that the death was a dowry death. In such cases, these provisions can be used
to punish the offender.
A person is guilty of abetment when a. He instigates someone to commit suicide (or) b. He is part
of a conspiracy to make a person commit suicide.(or) c. He intentionally helps the victim to commit
suicide by doing an act or by not doing something that he was bound to do. The charge of abetment
of suicide is usually accompanied by a charge under section 498A, IPC if the woman was treated
cruelly by her husband or his relatives. Where a woman has committed suicide within 7 years of
her marriage because of violence by her husband or relatives and the prosecution proves the above,
the court presumes that the husband or his relatives abetted the suicide. Where the woman
committed suicide after 7 years of her marriage, no presumption will be made. The prosecution
has to prove beyond reasonable doubt that the cruelty was of such a nature that it drove the woman
to commit suicide.
Hurt and Grievous Hurt
In normal sense, hurt means to cause bodily injury and/or pain to another person. IPC defines Hurt
as follows -
Section 319 - Whoever causes bodily pain, disease, or infirmity to any person is said to cause hurt.
Based on this, the essential ingredients of Hurt are -
i. Bodily pain, disease or infirmity must be caused - Bodily pain, except such slight harm for which
nobody would complain, is hurt. For example, pricking a person with pointed object like a needle
or punching somebody in the face, or pulling a woman's hair. The duration of the pain is
immaterial. Infirmity means when any body organ is not able to function normally. It can be
temporary or permanent. It also includes state of mind such as hysteria or terror. ii. It should be
caused due to a voluntary act of the accused.
The expression ‘bodily pain’ means that the pain must be physical as opposed to any mental pain.
So mentally or emotionally hurting somebody will not be ‘hurt’ within the meaning of Section
319. However, in order to come within this section, it is not necessary that any visible injury should
be caused on the victim.
All that the section contemplates is the causing of bodily pain. The degree or severity of the pain
is not a material factor to decide whether Section 319 will apply or not. The duration of pain is
immaterial. Pulling a woman by the hair would amount to hurt.
‘Causing disease’ means communicating a disease to another person. However, the

communication of the disease must be done by contact.
Causing of nervous shock or mental derangement by some voluntary act of the offender is covered
by Section 319. The duration of the state of mental infirmity is immaterial.
‘Infirmity’ means inability of an organ to perform its normal function which may either be
temporary or permanent. It denotes an unsound or unhealthy state of the body or mind, such as a
state of temporary impairment or hysteria or terror. ‘Infirmity’ denotes an unsound or unhealthy
state of the body. This infirmity may be a result of a disease or as a result of consumption of 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 [31 Cut. L.T. 831] 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 NgaShwe 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 ShaheRai (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.
(1917 Bom. 259).
Hurt ( Section – 319 of IPC ) Grievous hurt (Section – 320 of IPC) Whoever causes The
following eight kinds of hurt are designated as grievous ------
1) Emasculation .
2) Permanent privation of the sight of
either eye.
3) Permanent privation of the hearing of either ear.
4) Privation of any member or joint .
5) Destruction or permanent impairing of the powers of any member or joint .
6) Permanent disfiguration of the head or face .
7) fracture or dislocation of a bone or tooth.
8) Any hurt which endangers life or which causes the sufferer to be during the space of twenty
days in severe bodily pain , or unable to follow his ordinary pursuits .
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 proceeding
in all directions beyond a certain area. One may even be wrongfully confined in one's own country
where by a threat issued to a person prevents him from leaving the shores of his land.
Object - The object of this section is to protect the freedom of a person to utilize his right to pass
in his. The slightest unlawful obstruction is deemed as wrongful restraint. Physical obstruction is
not necessary always. Even by mere words constitute offence under this section. The main
ingredient of this section is that when a person obstructs another by causing it to appear to that
other that it is impossible difficult or dangerous to proceeds as well as by causing it actually to be
impossible, difficult or dangerous for that to proceeds.
Ingredients:
1. An obstruction.
2. Obstruction prevented complainant from proceeding in any direction.
Obstruction:-
Obstruction means physical obstruction, though it may cause by physical force or by the use of
menaces or threats. When such obstruction is wrongful it becomes the wrongful restraint. For a
wrongful restraint it is necessary that one person must obstruct another voluntarily.
In simple word it means keeping a person out of the place where his wishes to, and has a right to
be.
This offence is completed if one's freedom of movement is suspended by an act of another done
voluntarily.
Restraint necessarily implies abridgment of the liberty of a person against his will.
What is required under this section is obstruction to free movement of a person, the method used
for such obstruction is immaterial. Use of physical force for causing such obstruction is not
necessary. Normally a verbal prohibition or remonstrance does not amount to obstruction, but in
certain circumstances it may be caused by threat or by mere words. Effect of such word upon the
mind of the person obstructed is more important than the method.
Obstruction of personal liberty:
Personal liberty of a person must be obstructed. A person means a human being, here the question
arises whether a child of a tender age who cannot walk of his own legs could also be the subject
of restraint was raised in MahendraNathChakarvarty v. Emperor. It was held that the section is
not confined to only such person who can walk on his own legs or can move by physical means
within his own power. It was further said that if only those who can move by physical means within
their own power are to be treated as person who wishes to proceed then the position would become
absurd in case of paralytic or sick who on account of his sickness cannot move.
Another points that needs our attention here is whether obstruction to vehicle seated with
passengers would amount to wrongful restraint or not.
An interesting judgment of our Bombay High Court in Emperor v. Ramlala : "Where, therefore a
driver of a bus makes his bus stand across a road in such a manner, as to prevent another bus
coming from behind to proceed further, he is guilty of an offence under Sec. 341 of the Penal Code
of wrongfully restraining the driver and passengers of another bus".
"It is absurd to say that because the driver and the passengers of the other bus could have got down
from that bus and walked away in different directions, or even gone in that bus to different
destinations, in reverse directions, there was therefore no wrongful restraint" is the judgment of
our High Court which is applicable to our busmen who suddenly park the buses across the roads
showing their protest on some issues.
Illustrations-
I. A was on the roof of a house. B removes the ladder and thereby detains A on the roof.
II. A and B were co-owner of a well. A prevented B from taking out water from the well .
Wrongful confinement
Section 340.Wrongful confinement.
Whoever wrongfully restrains any person in such a manner as to prevent that person from
proceedings beyond certain circumscribing limits, is said "wrongfully to confine" that person.
Object - The object of this section is to protect the freedom of a person where his personal liberty
has totally suspended or abolish, by voluntarily act done by another.
Wrongful confinement is aggravated form of wrongful restraint. In wrongful restraint, the person
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.
1) 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).
2) 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 limit.
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.
Necessity
No limits or boundaries are required
Certain circumscribing limits or boundaries requires.
Criminal force and assault
Section 349 Force
A person is said to be using “force” on another person when he causes a change in motion,
cessation of motion or a substantial change in motion of another person, or brings a substance in
contact with another person’s body or it affects another person’s sense of feeling. It is force used
in connection with the human body.
Criminal force
350. Criminal force.—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 he does 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, frighten or annoy Z,
he has used criminal force to Z.
(f) A intentionally pulls up a woman’s veil. Here A intentionally uses force to her, and if he does
so without her consent intending or knowing it to be likely that he may thereby injure, frighten or
annoy her, he has used criminal force to her.
(g) Z is bathing, A pours into the bath water which he knows to be boiling. Here A intentionally
by his own bodily power causes such motion in the boiling water as brings that water into con-tact
with Z, or with other water so situated that such contact must affect Z’s sense of feeling; A has
therefore intentionally used force to Z; and if he has done this without Z’s consent intending or
knowing it to be likely that he may thereby cause injury, fear, or annoyance to Z, A has used
criminal force.
(h) A incites a dog to spring upon Z, without Z’s consent. Here, if A intends to cause injury, fear
or annoyance to Z, he uses criminal force to Z.
According to Section 350 of the Code, force becomes criminal (i) when it is used without consent
and in order to the committing of an offence; or (ii) when it is intentionally used to cause injury,
fear or annoyance to another to whom the force is used.
The ingredients of Section 350 of the Code are:
i) The intentional use of the force to any person;
ii) Such force must have been used without the person’s consent;
iii) The force must have been used:
a) In order to the committing of an offence; or
b) With the intention to cause, or knowing it to be likely that it will cause, injury, fear or annoyance
to the person to whom it is used.
The term ‘battery’ of English law is included in ‘Criminal force’. ‘Battery’ is the actual and
intentional application of any physical force of an adverse nature to the person of another without
his consent, or even with his consent, if it is obtained by fraud, or the consent is unlawful, as in the
case of a prize-fighting.
The criminal force may be very slight as not amounting to an offence as per Section 95 of the
Code. Its definition is very wide so as to include force of almost every description of which a
person may become an ultimate object. Criminal force is the exercise of one’s energy upon another
human being and it may be exercised directly or indirectly.
So if A raises his stick at В and the latter moves away, A uses force within the meaning of Section
350. Similarly, if a person shouts, cries and calls a dog or any other animal and it moves in
consequence, it would amount to the use of force. In the use of criminal force no bodily injury or
hurt need be caused.
Where A spits over B, A would be liable for using criminal force against В because spitting must
have caused annoyance to B. Similarly if A removes the veil of a lady he would be guilty under
Section 350 of the Code.
The word ‘intentional’ excludes all involuntary, accidental or even negligent acts. An attendant at
a bath, who from pure carelessness turns on the wrong tap and causes boiling water to fall on
another, could not be convicted for the use of criminal force.
The word ‘consent’ should be taken as defined in Section 90, IPC. There is some difference
between doing an act ‘without one’s consent’ and ‘against his will’. The latter involves active
mental opposition to the act.
According to Mayne, “where it is an element of an offence that the act should have been done
without the consent of the person affected by it, some evidence must be offered that the act was
done to him against his will or without his consent”.
The various illustrations under Section 350 exemplify the different ingredients of the definition of
force given in Section 349. Of these illustrations, illustration (a) exemplifies motion in Section
349; illustration (b) ‘change of motion’; illustration (c) ‘cessation of motion; illustrations (d), (e),
(f), (g) and (h) ‘cause to any substance any such motion’. Clause (1)of Section 349 is illustrated
by illustrations (c), (d), (e), (f) and (g); clause (2) of Section 349 is illustrated by illustration (a);
and clause (3) of Section 349 is illustrated by illustrations(b) and (h).
Assault
351. Assault.—Whoever makes any gesture, or any preparation intending or knowing it to be likely
that such gesture or preparation will cause any person present to apprehend that he who makes that
gesture or preparation is about to use criminal force to that person, is said to commit an assault.
Explanation.—Mere words do not amount to an assault. But the words which a person uses may
give to his gestures or preparation such a meaning as may make those gestures or preparations
amount to an assault.
Illustrations
(a) A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to
believe that A is about to strike Z, A has committed an assault.
(b) A begins to unloose the muzzle of a ferocious dog, intending or knowing it to be likely that he
may thereby cause Z to believe that he is about to cause the dog to attack Z. A has committed an
assault upon Z.
(c) A takes up a stick, saying to Z, “I will give you a beating”. Here, though the words used by A
could in no case amount to an assault, and though the mere gesture, unaccompanied by any other
circumstances, might not amount to an assault, the gesture explained by the words may amount to
an assault.
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 effect 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 lota or 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.
Assault with Intent to Dishonour a Person
Whoever assaults or uses criminal force on that person, hereby intending to dishonour that person,
otherwise on grave and sudden provocation given by that person, shall be imprisoned for two years
or be fined, or both.
(1) A person assaults, or uses criminal force to another person
(2) He intends to thereby to dishonor that person.
(3) The act is done otherwise than on grave and sudden provocation given by that person.
Kidnapping and Abduction
Kidnapping
Definition of Kidnapping
The offence of kidnapping , according to the section 359 of the Indian Penal Code , is of two kinds
-- 1) kidnapping from India , and 2) kidnapping from lawful guardianship .
1) Kidnapping from India is defined by section 360 of the Indian Penal Code
According to this section , whoever , conveys any person beyond the limits of India , without the
consent of that person or of some person legally authorized to consent on behalf of that person , is
said to commit the offence of kidnapping from India .
The essentials of this section are, therefore, the conveying of any person beyond the limits of India
and such conveying must be without the consent of that person. It is apparent from the above that
the offence with regard to kidnapping from India may be committed on a grown up person or a
minor by conveying him or her beyond the limits of India.
2) Kidnapping from lawful guardianship is defined by section 361 of the Indian Penal Code .
According to this section, whoever takes or entices a minor male under 16 years of age if a male ,
or under 18 years of age if a female , or any person of unsound mind , out of the keeping of the
lawful guardianship of such minor or person of unsound mind , without the consent of such
guardian , is said to commit the offence of kidnapping from lawful guardianship .
The words lawful guardianship in this section includes any person lawfully entrusted with the care
or custody of such minor or other person.
But this section does not extend to the act of any person who in good faith believes himself to be
the father of an illegitimate child, or who in good faith believes himself to be entitled to the lawful
custody of such child, unless such act is committed for an immoral or unlawful purpose.
The essential elements of the offence of kidnapping from lawful guardianship are as follows
a) The offender took or enticed away a minor or a person of unsound mind;
b) Such minor, if male, must be under 16 years of age, and if female must be less than 18 years of
age;
c) The act must be one of taking or enticing out of the keeping of the lawful guardianship of such
minor or person of unsound mind;
d) The act of taking or enticing out must be done without the consent of the lawful guardian.
The object of Section 361 is at least as much to protect children of tender age from being abducted
or seduced for improper purposes as for the protection of the rights of parents and guardians.
The offence of kidnapping from lawful guardianship arises when a minor, under 16 in the case of
a male or under 18 in the case of a female is taken or enticed from the keeping of the lawful
guardian.
Section 361 has no application to children without any guardian, legal, lawful or de facto such as
a street (i.e., a poor) Arab, who may permit himself to be taken away by any one who may choose
to do so.
The person taking away such a child may himself become the ‘lawful guardian’ of the child, and
any other person taking or enticing the child out of his keeping may be guilty of kidnapping. The
same rule applies to a lunatic without a lawful curator.
Meaning of ‘takes or entices’
The word ‘take’ means to cause to, to go to, escort, or to get in the possession. The word ‘take’
implies want of wish and absence of desire of the person taken. Taking implies neither force nor
misrepresentation.
‘Enticing’ is an act of the accused by which the person kidnapped is induced of his own accord to
go to the kidnapper. The word ‘entice’ involves an idea of inducement or allurement by exciting
hope or desire in the other.
There is an essential distinction between the two terms ‘take’ and ‘entice’. The mental attitude of
the minor is not of relevance in the case of taking. The word ‘take’ means to cause to go, to escort
or to get into possession.
The word ‘entice’ involves an idea of inducement by exciting hope or desire in the other. One does
not entice another unless the latter attempted to do a thing which she or he would not otherwise
do.
The juxta position of these two words makes it clear that the act of taking is complete when the
accused takes her with him or accompanies her in the ordinary sense of the term, irrespective of
her mental attitude.
When the accused took the minor with him, whether she was willing or not, the act of taking was
complete and it amounted to ‘taking’ her out of the father’s custody within the meaning of Section
361.
The expression ‘enticing’ involves that, while the person kidnapped might have left the keeping
of the lawful guardian willingly, still the state of mind that brought about that willingness must
have been induced or brought about in some way by the accused.
Meaning of ‘Lawful guardian’
The word ‘lawful’ is different from the term ‘legal’. A guardian may be lawful without being a
legal guardian. A legal guardian is the guardian appointed by law, or whose appointment is in
consonance with the general law of the land and the person whose guardian he is. A lawful
guardian is a guardian whose custody is merely sanctioned by law.
A legal guardian is necessarily a lawful guardian but not necessarily vice versa e.g., a school master
or an employer is a lawful guardian, a parent of the minor is a legal guardian. The expression
‘lawful guardian’ would include a natural guardian, a testamentary guardian, appointed by court
and a person lawfully entrusted with the care and custody of a minor.
The guardian is described in this section as a ‘lawful guardian’ and not as a legal guardian’, and
the significance of the adjective ‘lawful’ is emphasised by the explanation which shows that it
includes any person who is lawfully entrusted with the care or custody of the ward concerned.
The expression ‘lawful guardian’ in Section 361 would include a person who voluntarily
undertakes the care and custody of the minor in a lawful manner. If an orphan is left without the
protection of the legal guardian and a philanthropic person out of humanitarian or charitable
motives, takes up the care and custody of such an orphan and treats him as his child, the person so
taking the custody and care of the orphan comes within the meaning of Section 361.
If the guardian though not a de jure guardian, was still a guardian de facto if his custody was not
illegal and he had accepted the child. The explanation to Section 361 says that the words ‘lawful
guardian’ would include any person lawfully entrusted the care or custody of such minor.
‘Legal guardian’ would be parents or guardians appointed by courts. ‘Lawful guardian’ would
include within its meaning not only legal guardians, but also such persons like a teacher, relative
etc. who are lawfully entrusted with the care and custody of minor.
Out of the keeping of the lawful guardian:
The word ‘keeping’ implies neither apprehension nor detention but rather maintenance, protection
and control, manifested not by continued action but as available on necessity arising. It is not
necessary that the minor should be in the physical possession of the guardian. It is enough if the
minor is under a continuous control which is for the first time terminated by the act complained
of.
Section 361 makes the taking or enticing of any minor person or person of unsound mind ‘out of
the keeping of the lawful guardian’, an offence. The meaning of the words ‘keeping of the lawful
guardian’ came up for consideration before the Supreme Court in State of Haryana v. Raja Ram
[AIR 1973 SC 819].
The court observed that the word ‘keeping’, in the context connotes the idea of charge, protection,
maintenance and control. The court compared it with the language used in English statutes, where
the expression used was ‘take out of the possession’ and not ‘out of the keeping’.
The difference in the language between the English statutes and this section only goes to show that
Section 361 was designed to protect the sacred right of the guardian with respect to their minor
wards.
Without the consent of such guardian:
The taking or enticing of the minor out of the keeping of the lawful guardian must be without his
consent. The consent of the minor is immaterial. If men by false and fraudulent representations
induce the parents of a girl to allow him to take her away, such taking will amount to kidnapping.
Consent given by the guardian after the commission of the offence would not cure it.
In GooroodossRajbunsee v. R [(1865) 4 WR (Cr) 7], where a person carried off, without the
consent of her father, a girl to whom he was betrothed by her father, because the father suddenly
changed his mind and broke off the engagement, it was held that he was guilty of kidnapping.
Entrustment:
‘Entrustment’ means the giving, handing over or confiding of something by one person to another.
It involves the idea of active power and motive by the person reposing the confidence towards the
person in whom the confidence is reposed.
The ‘entrustment’ may be by a legal guardian; it may be written or oral, express or implied.
Entrustment which this section requires may be inferred from a well- defined and consistent course
of conduct governing the relations of the minor and the person alleged to be the lawful guardian.
In Abdul v. Emperor [AIR 1928 Mad. 525] the accused wrote several letters to the minor girl
alluring her to come away from her father’s house. The Court held that the accused was guilty of
the offence of kidnapping from lawful guardian.
In BhagavanPaanigrahi v. State [1989 Cr.LJ 103], the minor girl aged sixteen years, came from a
village for education. Her father used to visit her monthly once or twice and was looking after her
necessities. She stayed in a rented room. She came into contact with the accused.
Both of them went away from that town to another place with an intention to get married. The
consent of the minor girl was not considered and the court convicted the accused under Section
361 as there was no guardian’s consent.
In Ram Das v. State of MP [AIR 1970 SC 864], the girl compelled the accused to marry and got
the marriage registered. When she informed the same, her father locked her in a room. She broke
open the room and went to stay with the accused. The court acquitted the accused since there was
no enticing or taking to constitute the offence.
In Varadarajan v. State of Madras [AIR 1965 SC 942], a 16 year old girl voluntarily fell in love
with the accused and got the marriage agreement registered. The Supreme Court held that, though
she was a minor girl, the offence would not amount to kidnapping since there was no taking or
enticing.
The Supreme Court further observed: ‘There is a distinction between ‘taking’ and ‘allowing’ a
minor to accompany a person. Two expressions are not synonymous though cannot be laid down
that in no conceivable circumstances can the two be regarded as the same meaning for the purposes
of Section 361.
Where the minor leaves her father’s house knowing and having capacity to know the
circumstances of what she is doing voluntarily, it means the accused person cannot be deemed to
have taken away from the lawful guardianship. Something more has to be shown in a case of this
kind and some kind of inducement held out by the accused person or an active participation by
him in the information of the intention of the girl to leave the house of the guardian”
Abduction
Definition of Abduction:-
The offence of abduction is defined by section 362 of the Indian Penal Code. According to this
section, whoever, by force compels, or by any deceitful means induces , any person to go from any
place , is said to commit the offence of abduction.
According to Blackstone, “Abduction in general signifies the act of illegally taking or leading
away, carrying off by force a child, wards, voter or wife. This may be by fraud, persuasion, or
open violence”.
To constitute the offence of abduction the following ingredients must remain present
i) The offender enticed a person by deceitful means or by forcible compulsion to go away from
any place;
ii) The offence of abduction was committed for any of the purposes enumerated in section 366 of
the IPC.
The term ‘force’ as embodied in S. 362, IPC, means the use of actual force and not merely show
of force or threat of force. Where an accused threatened the prosecutrix with a pistol to make her
go with him, it would amount to abduction under this section.
Deceitful means:‘Deceitful’ means misleading a person by making false representation and

thereby persuading the person to leave any place. The expression ‘deceitful means’ includes a
misleading statement. Deceitful means is used as an alternative to ‘use of force’. It is, really
speaking, a matter of intention. The intention of the accused is the basis and gravamen of the
charge.
Inducement:
In inducement there is some active suggestion on the part of the abductor which is the case of the
person abducted to move to some place where he would not have gone but for this suggestion. The
change of mind of the victim must have been caused by an external pressure of some kind.
To go from any place:
An essential element of abduction is compelling or inducing a person to go from any place. It need
not be only from the custody of lawful guardian as in the case of kidnapping. For unlike
kidnapping, abduction is a continuing offence. The offence of kidnapping is complete, the moment
a person is removed from India or from the keeping of lawful custody of guardian.
But, in the case of abduction, a person is being abducted not only when he is first taken away from
any place, but also when he is subsequently removed from one place to another place. The words
‘from any place’ indicate the meaning that abduction is a continuing offence.
Continuous offence:
Abduction is a continuing offence and a person is liable not only when a person is first moved
from one place to another but all those who are involved in subsequently moving that person to
other places are also liable
Difference between Kidnapping from lawful guardianship and Abduction The differences
between the offences of Kidnapping and abduction are as follows
1) The offence of abduction can be committed with respect to a person of any age. Likewise, the
offence of kidnapping from India can also be committed with respect to a person of any age.
On the other hand kidnapping from lawful guardianship can only be committed with respect to a
minor under 16 years of age , if male , and under 18 years of age , if a female . But the offence of
kidnapping from lawful guardianship can be committed with respect to a person of unsound mind
of any age.
2) In case of abduction, the offender must use compulsion, force, or deceitful means. But in
kidnapping, the minor is simply taken away or enticed away.
3) In case of abduction or kidnapping from India, if the victim is capable by law of giving consent,
the offence is not committed. But in case of kidnapping from lawful guardianship giving consent
by the victim is immaterial or inoperative.
4) In case of kidnapping from lawful guardianship, the person kidnapped must be removed out of
the custody of a lawful guardian. A person without a guardian cannot be kidnapped. But abduction
has reference exclusively to the person abducted.
5) Abduction is an auxiliary act, not punishable by itself, but made criminal only when it is
committed with one or other intents mentioned in section 364 onwards of IPC. But kidnapping is
a substantive offence, either from India or from lawful guardianship.
6) Kidnapping from lawful guardianship cannot be abetted, but if there is a conspiracy, conviction
for abetment can be sustained. But abduction or kidnapping from India can be abetted.
7) In case of kidnapping, intention of the offender is wholly irrelevant. But in case of abduction
intention of the offender is an important factor.
Sec. 364 kidnapping or abduction in order to murder.
Sec. 364 –A kidnapping for ransom(the accused here asks a huge sum for his captives release
Sec.365 kidnapping or abduction wrongfully to confine a person.
Sec.366 Kidnapping or abducting a woman to compel her marriage.
Sec. 367 Kidnapping or abducting in order to cause grievous hurt,

slavery.
Sec. 368 Wrongfully keeping in confinement kidnapped or abducted persons.
Sec. 369 kidnapping or abducting a child under 10 years of age.
Meaning of Human Trafficking: “Trafficking involves an act of recruiting, transporting,

transferring and receiving person or persons by using threats, force, abduction or by abuse of power
to them to do any illegal acts.”
We know Thousands of Indians are trafficked everyday to some destination and are forced to lead
lives of slavery. It may be in brothels, factories, guesthouses, dance bars etc
Ex. Slumdog millionaire, traffic signal movies.
Through Criminal Amendment Act 2013 “Buying or disposing of any person as a slave” is
substituted to “Trafficking of person.”
Trafficking in Women and Children is the gravest form of abuse and exploitation of human beings.
Import, export, removal, buying, selling of a person as a slave;
The disposal of a person as a slave and
Detention, acceptation of any person against his will as a slave.
Then who is A Slave is a human being without any rights, status and is treated a property of
another. The owner has absolute power of disposal by sale, gift or otherwise of such a slave
It may be ‘physical exploitation’ or any form of ‘sexual exploitation. ‘The consent of the victim is
immaterial in determination of the offence of trafficking
Provision under Constitution:
Article 23 : Prohibition of traffic in human beings and forced labour.
Section 374 Whoever unlawfully compels any person to labour against the will of that person.
There must be unlawful compulsion ofany person.
Such compulsion must be that he labours against his will.
Exception: Compulsion authorized by law, is a lawful compulsion.
Eg. A prisoner sentenced to rigorous imprisonment may be compelled to work against his will.
Sexual offences
Rape and unnatural offences:
Rape:
According to Section 375- A man is said to commit "rape" if he-—
a. penetrates his penis, to any extent, into the vagina, mouth, urethra or anus of a woman or makes
her to do so with him or any other person; or
b. inserts, to any extent, any object or a part of the body, not being the penis, into the vagina, the
urethra or anus of a woman or makes her to do so with him or any other person; or
c. manipulates any part of the body of a woman so as to cause penetration into the vagina, urethra,
anus or any ~ of body of such woman or makes her to do so with him or any other person; or
d. applies his mouth to the vagina, anus, urethra of a woman or makes her to do so with him or any
other person, under the circumstances falling under any of the following seven descriptions:—
First.—Against her will.
Secondly.—Without her consent.
Thirdly.—With her consent, when her consent has been obtained by putting her or any person in
whom she is interested, in fear of death or of hurt.
Fourthly.—With her consent, when the man knows that he is not her husband and that her consent
is given because she believes that he is another man to whom she is or believes herself to be
lawfully married.
Fifthly.—With her consent when, at the time of giving such consent, by reason of unsoundness of
mind or intoxication or the administration by him personally or through another of any stupefying
or unwholesome Substance, she is unable to understand the nature and consequences of that to
which she gives consent.
Sixthly.—With or without her consent, when she is under eighteen years of age.
Seventhly.—When she is unable to communicate consent.
Explanation I.—For the purposes of this section, "vagina" shall also include labia majora.
Explanation 2.—Consent means an unequivocal voluntary agreement when the woman by words,
gestures or any form of verbal or non-verbal communication, communicates willingness to
participate in the specific sexual act:
Provided that a woman who does not physically resist to the act of penetration shall not by the
reason only of that fact, be regarded as consenting to the sexual activity.
Exception I.—A medical procedure or intervention shall not constitute rape.
Exception 2.—Sexual intercourse or sexual acts by a man with his own wife, the wife not being
under fifteen years of age, is not rape.
:Section 376 provides for Punishment for rape
1. Whoever, except in the cases provided for in sub-section (2), commits rape, shall be punished
with rigorous imprisonment of either description for a term which shall not be less than ten years,
but which may extend to imprisonment for life, and shall also be liable to fine.
2. Whoever,—
a. being a police officer, commits rape—
i. within the limits of the police station to which such police officer is appointed; or
ii. in the premises of any station house; or
iii. on a woman in such police officer's custody or in the custody of a police officer subordinate to
such police officer; or
b. being a public servant, commits rape on a woman in such public servant's custody or in the
custody of a public servant subordinate to such public servant; or
c. being a member of the armed forces deployed in an area by the Central or a State Government
commits rape in such area; or
d. being on the management or on the staff of a jail, remand home or other place of custody
established by or under any law for the time being in force or of a women's or children's institution,
commits rape on any inmate of such jail, remand home, place or institution; or
e. being on the management or on the staff of a hospital, commits rape on a woman in that hospital;
or
f. being a relative, guardian or teacher of, or a person in a position of trust or authority towards the
woman, commits rape on such woman; or
g. commits rape during communal or sectarian violence; or
h. commits rape on a woman knowing her to be pregnant; or
i. commits rape on a woman when she is under sixteen years of age; or
j. commits rape, on a woman incapable of giving consent; or
k. being in a position of control or dominance over a woman, commits rape on such woman; or
l. commits rape on a woman suffering from mental or physical disability; or
m. while committing rape causes grievous bodily harm or maims or disfigures or endangers the
life of a woman; or
n. commits rape repeatedly on the same woman, shall be punished with rigorous imprisonment for
a term which shall not be less than ten years, but which may extend to imprisonment for life, which
shall mean imprisonment for the remainder of that person's natural life, and shall also be liable to
fine.
Explanation.—For the purposes of this sub-section,—
a. "armed forces" means the naval, military and air forces and includes any member of the Armed
Forces constituted under any Jaw for the time being in force, including the paramilitary forces and
any auxiliary forces that are under the control of the Central Government, or the State Government;
b. "hospital" means the precincts of the hospital and includes the precincts of any institution for
the reception and treatment of persons during convalescence or of persons requiring medical
attention or rehabilitation
c. "police officer" shall have the same meaning as assigned to the expression "police" under the
Police Act, 1861;
d. "women's or children's institution" means an institution, whether called an orphanage or a home

for neglected women or children or a widow's home or an institution called by any other name,
which is established and maintained for the reception and care of women or children.
Section 376A provides for Punishment for causing death or resulting in persistent vegetative state
of victim: Whoever, commits an offence punishable under sub-section (l) or sub section (2) of
section 376 and in the course of such commission inflicts an injury which causes the death of the
woman or causes the woman to be in a persistent vegetative state, shall be punished with rigorous
imprisonment for a term which shall not be less than twenty years, but which may extend to
imprisonment for life, which shall mean imprisonment for the remainder of that person's natural
life, or with death.
SECTION 376 AB: PUNISHMENT FOR RAPE ON WOMAN UNDER 12 YEARS OF AGE
Rape of a girl below the age of 12 years attracts rigorous imprisonment of at least 20 years
extendable to life imprisonment, along with fine to meet medical expenses and rehabilitation cost
of the victim, or, with death.
Section 376B provides- 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 376C provides-
Whoever, being—
a. in a position of authority or in a 6duciary relationship; or
b. a public servant; or
c. superintendent or manager of a jail, remand home or other place of custody established by or

under any law for the time being in force, or a women's or children's institution; or
d. 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 6ve years, but which may extend to ten years, and shall also be
liable to fine.
Explanation l.—In this section, "sexual intercourse" shall mean any of the acts mentioned in
clauses (a) to (d) of section 375.
Explanation 2. —For the purposes of this section, Explanation I to section 375 shall also be
applicable.
Explanation 3.—"Superintendent", in relation to a jail, remand home or other place of custody or

a women's or children's institution, includes a person holding any other office in such jail, remand
home, place or institution by virtue of which such person can exercise any authority or control
over its inmates.
Explanation 4.—The expressions "hospital" and "women's or children's institution" shall

respectively have the same meaning as in Explanation to sub-section (2) of section 376.
Section 376D provides for offence of gang rape- Where a woman is raped by one or more persons
constituting a group or acting in furtherance of a common intention, each of those persons shall be
deemed to have committed the offence of rape and shall be punished with rigorous imprisonment
for a term which shall not be less than twenty years, but which may extend to life which shall mean
imprisonment for the remainder of that person's natural life, and with fine.
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation
of the victim:
Provided further that any fine imposed under this section shall be paid to the victim.
SECTION 376DA: PUNISHMENT FOR GANG RAPE ON WOMAN UNDER 16 YRS
Where a woman under sixteen years of age is raped by one or more persons constituting a group
or acting in furtherance of a common intention, each of those persons shall be deemed to have
committed the offence of rape and shall be punished with imprisonment for life, which shall mean
imprisonment for the remainder of that person’s natural life, and with fine:
Provided that such fine shall be just and reasonable to meet the medical expenses and rehabilitation
of the victim
SECTION 376 DB: PUNISHMENT FOR GANG RAPE ON WOMAN UNDER 12 YEARS OF
AGE
Gang rape of a girl below the age of 12 years has been made punishable with life imprisonment,
along with fine, to meet medical expenses and rehabilitation cost of the victim, or, with death.
Section 376E provides- Whoever has been previously convicted of an offence punishable under
section 376 or section 376A or section 376 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.
Law prior to 2013 Amendment Act:
KiranBedi., Joint Commissioner, Special Branch observed: "The law of rape is not just a few
sentences. It is a whole book, which has clearly demarcated chapters and cannot be read
selectively. We cannot read the preamble and suddenly reach the last chapter and claim to have
understood and applied it."
In the Mathura rape case , wherein Mathura- a sixteen-year-old tribal girl was raped by two
policemen in the compound of Desai Ganj Police station in Chandrapur district of Maharashtra.Her
relatives, who had come to register a complaint, were patiently waiting outside even as the heinous
act was being committed in the police station. When her relatives and the assembled crowd
threatened to burn down the police chowky, the two guilty policemen, Ganpat and Tukaram,
reluctantly agreed to file a panchnama.The case came for hearing on 1st June, 1974 in the sessions
court. The judgment however turned out to be in favour of the accused. Mathura was accused of
being a liar. It was stated that since she was her consent was voluntary; under the circumstances
only sexual intercourse could be proved and not rape.On appeal the Nagpur bench of the Bombay
High Court set aside the judgment of the Sessions Court, and sentenced the accused namely
Tukaram and Ganpat to one and five years of rigorous imprisonment respectively. The Court held
that passive submission due to fear induced by serious threats could not be construed as consent
or willing sexual intercourse.However, the Supreme Court again acquitted the accused policemen.
The Supreme Court held that Mathura had raised no alarm; and also that there were no visible
marks of injury on her person thereby negating the struggle by her.The Court in this case failed to
comprehend that a helpless resignation in the face of inevitable compulsion or the passive giving
in is no consent. However, the Criminal Law Amendment Act, 1983 has made a statutory provision
in the face of Section.114 (A) of the Evidence Act, which states that if the victim girl says that she
did no consent to the sexual intercourse, the Court shall presume that she did not consent.
In Mohd.Habib v. State, the Delhi High Court allowed a rapist to go scot-free merely because there
were no marks of injury on his penis, which the High Court presumed was a indication of no
resistance. The most important facts such as the age of the victim (being seven years) and that she
had suffered a ruptured hymen and the bite marks on her body were not considered by the High
Court. Even the eye- witnesses, who witnessed this ghastly act, could not sway the High Court’s
judgment. Another classic example of the judicial pronouncements in rape cases is the case of
Bhanwari Devi, wherein a judge remarked that the victim could not have been raped since she was
a dalit while the accused hailed from an upper caste- who would not stoop to sexual relations with
a dalit.
In another instance of conscience stirring cases, Sakina- a poor sixteen year old girl from Kerala,
who was lured to Ernakulam with the promise of finding her a good job, where she was sold and
forced into prostitution. There for eighteen long months she was held captive and raped by clients.
Finally she was rescued by the police- acting on a complaint filed by her neighbour. With the help
of her parents and an Advocate, Sakina filed a suit in the High Court- giving the names of the
upper echelons of the bureaucracy and society of Kerala. The suit was squashed by the High Court,
while observing that ‘it is improbable to believe that a man who desired sex on payment would go
to a reluctant woman; and that the version of the victim was not so sacrosanct as to be taken for
granted.
Whereas, in State of Punjab v. Gurmit Singh, the Supreme Court has advised the lower judiciary,
that even if the victim girl is shown to be habituated to sex, the Court should not describe her to
be of loose character.
The Supreme Court has in the case of State of Maharashtra v. Madhukar N. Mardikar, held that
"the unchastity of a woman does not make her open to any and every person to violate her person
as and when he wishes. She is entitled to protect her person if there is an attempt to violate her
person against her wish. She is equally entitled to the protection of law. Therefore merely because
she is of easy virtue, her evidence cannot be thrown overboard."
Also the Bandit Queen case, which depicts the tragic story of a village girl.Phoolan Devi, who was
exposed from an early age to the lust and brutality of some men. She was married to a man old
enough to be her father. She was beaten and raped by him. She was later thrown out of the village-
accused of luring boys of the upper caste. She was arrested by the police and subjected to
indignation and humiliation. Was also kidnapped and raped by the leader of dacoits and later by
the leader of a gang of Thakurs, who striped her naked and paraded her in front of the entire village.
This is truly one story that shows the apathy of the existing society. In Chairman, Railway Board
v. Chandrima Das , a practicing Advocate of the Calcutta High Court filed a petition under
Article.226 of the Constitution of India against the various railway authorities of the eastern
railway claiming compensation for the victim (Smt. HanufaKhatoon)- a Bangladesh national- who
was raped at the Howrah Station, by the railway security men. The High Court awarded Rs.10 lacs
as compensation.
An appeal was preferred and it was contended by the state that:
a) The railway was not liable to pay the compensation to the victim for she was a foreigner.
b) That the remedy for compensation lies in the domain of private law and not public law. i.e. that
the victim should have approached the Civil Court for seeking damages; and should have not come
to the High Court under Article.226.
Considering the above said contentions, the Supreme Court observed:
"Where public functionaries are involved and the matter relates to the violation of fundamental
rights or the enforcement of public duties, the remedy would be avoidable under public law. It was
more so, when it was not a mere violation of any ordinary right, but the violation of fundamental
rights was involved- as the petitioner was a victim of rape, which a violation of fundamental right
of every person guaranteed under Article.21 of the Constitution."
The Supreme Court also held that the relief can be granted to the victim for two reasons-firstly, on
the ground of domestic jurisprudence based on the Constitutional provisions; and secondly, on the
ground of Human Rights Jurisprudence based on the Universal Declaration of Human Rights, 1948
which has international recognition as the ‘Moral Code of Conduct’ adopted by the General
Assembly of the United Nation.
Position after 2013 Amendment Act:
The Criminal Law (Amendment) Act, 2013 came into force on 3rd February, 2013 following the
outrage of the entire nation behind the homicidal gang rape that took place in New Delhi on the
night of 16th December 2012. The protest in the Delhi after the barbarous Rape Incident indicated
the whole of India, the enormity as well as the seriousness for an immediate reform in Rape Laws.
The Act recognizes the broad range of sexual crimes to which women may fall victim, and a
number of ways in which gender based discrimination manifests itself. It also acknowledges that
lesser crimes of bodily integrity often escalate to graver ones. It seeks to treat cases as “rarest of
the rare” for which courts can award capital punishment if they decide so. The Act clarifies and
extends the offense of sexual assaults or rape as a result of abuse of position of trust. As per the
Act, the police will also be penalized for failing to register FIRs – this will make it easier for rape
victims to report their cases.
The 2013 Act expands the definition of rape to include oral sex as well as the insertion of an object
or any other body part into a woman’s vagina, urethra or anus.
The punishment for rape is seven years at the least, and may extend up to life imprisonment. Any
man who is a police officer, medical officer, army personnel, jail officer, public officer or public
servant commits rape may be imprisoned for at least ten years. A punishment of life imprisonment,
extending to death has been prescribed for situations where the rape concludes with the death of
the victim, or the victim entering into a vegetative state. Gang rape has been prescribed a
punishment of at least 20 years under the newly amended sections.
The new amendment defines ‘consent’, to mean an unequivocal agreement to engage in a particular
sexual act; clarifying further, that the absence of resistance will not imply consent. Non-consent is
a key ingredient for commission of the offence of rape. The definition of consent therefore is key
to the outcome of a rape trial, and has been interpreted systemically to degrade and discredit
victims of rape.
Exceptions to the Section
Marital rape, a contentious issue among feminist groups in India, is an exception to section 375,
provided that the wife is not under 15 years of age.
An exception also has been provided for the purpose of medical examination. In April, 2013, the
Supreme Court criticised present medical tests for rape survivals, and has castigated the standard
two-finger test in the case of Lillu @ Rajesh v. State of Haryana AIR 2013 SC 1784. Justices BS
Chauhan and Kalifulla have directed the centre to provide better medical tests that do not violate
the dignity of rape-survivors, thus preventing a “second rape”.
Unnatural Offences:
Section 377 provides- Whoever voluntarily has carnal intercourse against the order of nature with
any man, woman or animal, shall be punished with 1[imprisonment for life], or with imprisonment
of either description for a term which may extend to ten years, and shall also be liable to fine.
Explanation.—Penetration is sufficient to constitute the carnal intercourse necessary to the offence
described in this section.
Lacking precise definition, Section 377 became subject to varied judicial interpretation over the
years. Initially covering only anal sex, it later included oral sex and still later, read to cover penile
penetration of other artificial orifices like between the thighs or folded palms. The law made
consent and age of the person irrelevant by imposing a blanket prohibition on all penilenon-vaginal
sexual acts under the vague rubric of ‘unnatural offences’
Though ostensibly applicable to heterosexuals and homosexuals, Section 377 acted as a complete
prohibition on the penetrative sexual acts engaged in by homosexual men, thereby criminalising
their sexual expression and identity. Besides, the society too identified the proscribed acts with the
homosexual men, and the criminalisation had a severe impact on their dignity and self-worth.
Section 377 was used as a tool by the police to harass, extort and blackmail homosexual men and
prevented them from seeking legal protection from violence; for fear that they would themselves
be penalized for sodomy. The stigma and prejudice created and perpetuated a culture of silence
around homosexuality and resulted in denial and rejection at home along with discrimination in
workplaces and public spaces.
The Naz Foundation (India) Trust, a Delhi-based non-governmental organization and working in
the field of HIV prevention amongst homosexuals and other men having sex with men (MSM),
realised that Section 377, IPC constituted one of the biggest impediments in access to health
services for MSM. MSM remained a hidden population due to fear of prosecution under the law.
Through its interactions with clients, Naz Foundation became acutely aware of the
disproportionate and invidious impact of Section 377 on homosexuals.
Naz Foundation (India) Trust v. Government of NCT of Delhi and Ors. [Writ Petition (Civil) No.
4755 of 2001]
In 2001, Lawyers Collective, on behalf of Naz Foundation (India) Trust, filed a writ petition in
Delhi High Court challenging the constitutionality of Section 377 on grounds of violation of right
to privacy, dignity and health under Article 21, equal protection of law and nondiscrimination
under Articles 14 and 15 and freedom of expression under Article 19 of the Constitution. Notice
was issued to Union of India in 2002 and the Attorney General was asked to appear. The Ministry
of Home Affairs filed an affidavit opposing the petition in September, 2003. The petition was
dismissed by the High Court on 02.09.2004 for lack of cause of action as no prosecution was
pending against the petitioner.
The Petitioner filed a review petition (RP 384/2004) in the High Court against the order of
dismissal but that too was dismissed on 03.11.2004. Aggrieved by the same, the Petitioner filed a
Special Leave to Appeal (C.N. 7217-18/2005) in the Supreme Court of India in 2005. On
03.02.2006, the Supreme Court passed an order holding that “the matter does require consideration
and is not of a nature which could have been dismissed on the ground aforestated”. Remitting the
matter back to the High Court of Delhi to be decided on merits, the Supreme Court set aside the
said order of the High Court. Subsequently, the Ministry of Health and Family Welfare through
National AIDS Control Organisation (NACO) submitted an affidavit in support of the petition in
the High Court contending that Section 377 acted as an impediment to HIV prevention efforts in
July, 2006.
Thereafter, the final arguments in the matter ensued in November, 2008 before the division bench
of Chief Justice of Delhi High Court A.P. Shah and Justice S. Muralidhar.
On 02.07.2009, the Delhi High Court passed a landmark judgment holding Section 377 to be
violative of Articles 21, 14 and 15 of the Constitution, insofar as it criminalised consensual sexual
acts of adults in private.
Suresh Kumar Koushal&Ors. v. Naz Foundation (India ) Trust &Ors.[Special Leave Petition
(Civil) No. 15436 of 2009]Following the High Court decision, 15 Special Leave Petitions (SLPs)
were filed in the Supreme Court appealing against the said decision on behalf of mostly faith based
and religious groups from all parts of India. Importantly, the Union of India did not appeal against
the judgment and the Supreme Court too did not grant a stay on the operation of the same. In
February, 2012, final arguments began in this matter before the division bench of Justice G.S.
Singhvi and Justice S.J. Mukhopadhyay and continued till the end of March, 2012.The panel of
two Supreme Court judges deciding the case allowed the appeal and overturned the High Court’s
previous decision, finding its declaration to be “legally unsustainable”. The Supreme Court
ultimately found that Section 377 IPC does not violate the Constitution and dismissed the writ
petition filed by the Respondent.
Naz Foundation vs. Govt. of NCT of Delhi (2009)
Delhi High Court struck off section 377, legalising consensual homosexual activities between
adults.
Suresh Kumar Koushal Case (2013)
SC overturned the previous judgment by Delhi High Court (2009) that decriminalised homosexual
acts and criminalised homosexuality once again.
SC argued that in 150 years, less than 200 persons had been prosecuted under Section 377.
Therefore, "plight of sexual minorities" could not be used as argument for deciding
constitutionality of law.
Further, SC ruled that it was for the legislature to look into desirability of deleting section 377 of
IPC.
Justice K.S. Puttaswamy vs. Union of India (2017)
SC ruled that Fundamental Right to Privacy is intrinsic to life and liberty and thus, comes under
Article 21 of the Indian constitution.
SC declared that bodily autonomy was an integral part of the right to privacy.
This bodily autonomy has within its ambit sexual orientation of an individual.
Navtej Singh Johar vs. Union Of India (2018)
Decriminalised homosexuality.
Dismissed the position taken by SC in Suresh Kumar Koushal case (2013) that the LGBTQ
community constitute a minuscule minority and so there was no need to decriminalise homosexual
sex.
Impact of Decriminalising Homosexuality
Sexual minorities in India are one step closer to living with dignity.
LGBTQ Community will be able to come out in the open with their sexual preferences.
Discrimination faced by them in accessing health and their harassment by Police will cease.
Decriminalisation has also been associated with more self-acceptance as well as psychological and
emotional security among LGBTQ Community.
This judgement will spur LGBTQ Community to demand more progressive laws like Gay marriage
laws, right to form partnerships, inheritance, employment equality, protection from gender-
identity-based discrimination among others.
The judgment has opened up grey areas, and guidelines will be needed to deal with cases where,
say, a gay individual withdraws “consent” and lodges a complaint against the partner. India’s laws
on sexual assault do not recognise men as victims of rape.
Key Observations
SC made it clear that Article 14 of the Constitution guarantees equality before law and this applies
to all classes of citizens therby restoring ‘inclusiveness’ of LGBTQ Community.
SC upheld the pre-eminence of Constitutional morality in India by observing that equality before
law cannot be denied by giving precedence to public or religious morality.
SC noted that modern psychiatric studies and legislations recognise that gay persons and
transgender do not suffer from a mental disorder and therefore cannot be penalized.
SC observed that homosexuality is not unique to humans, which dispels the prejudice that it is
against the order of nature.
Supreme Court stated that the ‘Yogyakarta Principles on the Application of International Law in
Relation to Issues of Sexual Orientation and Gender Identity’ should be applied as a part of Indian
law.
Section 377
Section 377 of the Indian Penal Code 1860, a relic of British India, states that “whoever voluntarily
has carnal intercourse against the order of nature with any man, woman or animal shall be
punished.”
This included private consensual sex between adults of same sex.
After the recent SC judgement, provisions of Section 377 remain applicable in cases of non-
consensual carnal intercourse with adults, all acts of carnal intercourse with minors, and acts of
bestiality.
Issues Involved
Fundamental Rights
Sexual orientation and its relationship to the Fundamental Rights of the individuals has been at the
heart of the debate.
SC in its judgement specifically said that the Right to Privacy and the protection of sexual
orientation lie at the core of the fundamental rights guaranteed by Article 14 (Equality before Law),
Article 15 (Prohibition of discrimination on the basis of race, religion, caste, sex, place of birth),
Article 21 (Protection of life and liberty) and Article 19 (Freedom of expression) of the
Constitution.
The Supreme Court, while decriminalising consensual sex between homosexuals, observed that
members of the LGBTQ community possessed the same fundamental rights as others.
Health Issues
Criminalisation of homosexuality leads to discrimination and results in LGBTQ people getting

poor or inadequate access to services within the health system.
It also creates barriers to both the availability and the ability to access HIV prevention, testing and
treatment services.
Public health evidence also indicates a clear relationship of a lack of social acceptance and legal
rights with substance abuse, violence, isolation, and mental illness.
Law and morality
Those against legalising gay sex argue that it is against the moral values of the society. However,
activists arguing for it say what is forbidden in religion need not be prohibited in law.
Aggravated Forms of Assault or Criminal Force
Aggravated forms of assault or use of criminal force includes aggravating elements that consist of
the intention to outrage the modesty of a woman and he has the knowledge that will outrage his
modesty. It comes under Section 354 of the Indian Penal Code
Assault or Criminal Force to Woman to Outrage her Modesty
A person who assaults another woman, intending to outrage her and thus likely to outrage her
modesty, shall be punishable under this act under Section 354 of the Indian Penal Code. It consists
of assault or use of criminal force, mere knowledge is also sufficient without any deliberate
intention.
Assault or Criminal Force with Intent to Disrobe a Woman
Any man who assaults or uses criminal force on another woman abets such act with the intention
of disrobing or compelling her to be naked, shall be punished with the sentence of the term of 3
years minimum with the sentence also extending to seven years and also shall be liable to a fine.
This comes under Section 354B of the Indian constitution.
Specific Acts Offending Decency of a Woman
There are specific acts which offend the modesty and decency of a woman. Whoever, intending to
insult the modesty of any woman, utters any word, says something bad, makes any sound or
gesture, such an action may be seen by the woman, and in order to protect her privacy, shall be
punished with imprisonment for a term which may simply be for a year, or a fine, or with both.
Sexual Harassment
A man committing any of the following acts:
• Physical contact and advances involving unwelcome and specific sexual overtures.
• A demand or request for sexual favours.
• Showing porno against the desire of a woman.
• Making sexually coloured remarks shall be guilty of the offence of sexual harassment.
Any man that commits the offence laid out in clause (i) or clause (ii) or clause (iii) of sub-section
(1) shall be penalised with rigorous imprisonment for a term which can extend to 3 years, or with
fine, or with both of these.
Any man that commits the offence laid out in clause (iv) of sub-section (1) shall be penalised with
imprisonment of either description for a term which can be one year or with fine, or with both.
This comes under Section 354A of the Indian Penal code.
Voyeurism
Any man that watches, or captures the image of a lady participating in an exceedingly personal act
in circumstances wherever she would typically have the expectation of not being discovered either
by the culprit or by the other person at the dictation of the culprit or disseminates such image shall
be penalized on initial conviction with imprisonment of either description for a term that shall not
be but one year, however, it may add up to 3 years, and shall even be at risk of a fine, and be
penalized on a second or subsequent conviction, with imprisonment of either description for a term
which shall not be but 3 years, however, which can add up to seven years, and shall be liable to
fine.
Explanation: For the aim of this section, “private act” includes an act of observation allotted in a
place that, within the circumstances, would fairly be expected to produce privacy and where the
victim’s private parts, posterior or breasts are exposed or covered solely in underwear; or the victim
is employing a lavatory, or the victim is doing a sexual act that is not of a form unremarkably done
in public.
Where the victim consents to the capture of the pictures or any act, however not to their
dissemination to third persons and wherever such image or act is disseminated, such dissemination
shall be thought of an offence under this section. This comes under Section 354C of the Indian
Penal Code.
Stalking Sec 354 D
In the groundswell of support for exploited women, the one common experience most girls have
undergone has been that of stalking. Before the advent of the internet age, the offence was not even
recognized in the statute. Social media platforms like Facebook, Twitter, etc. have given stalkers
a replacement weapon to victimize girls and harass them online. The recognition of stalking as an
offence was a slow and gradual method that finally got introduced within the statute once the 2013
criminal law amendment. The Indian Penal Code, 1860, being a colonial law, did not contemplate
stalking as an offence at all.
The only protection to girls was under Section 354 for harassment and Section 509 of IPC for
victimization words or gestures to insult the modesty of a lady. Under Section 354 of the IPC,
whoever assaults a woman knowing that it would outrage her modesty is liable to be punished
under the law. The essence of a woman’s modesty is her sex.
The ultimate check to be seen if the lady’s modesty is incensed is to examine if the act or assault
would be enough to stun the sense of decency of a woman. The law makes it punishable providing
3 ingredients are met- i.e, the assault should be on a lady, the suspect should have used criminal
force and that it should outrage her modesty. This comes under Section 354D of the Indian Penal
Code.
Offences relating to marriage
Chapter XX (section 493- 498), IPC, deals with offences relating to marriage. All these offences
deal with infidelity within the institution of marriage in one way or another. Chapter XX-A,
containing only one section (s 498A) dealing with cruelty to a woman by her husband or his
relatives to coerce her and her parents to meet the material greed of dowry, was added to the IPC
by the Criminal Law (Second Amendment) Act 1983.
The following are the main offences under this chapter:
• Mock or invalid marriages (ss 493 and 496);
• Bigamy (ss 494 and 495);
• Adultery (s 497);
• Criminal elopement (s 498);
• Cruelty by husband or relatives of husband (s 498A)
Section 493-Cohabitation caused by a man deceitfully inducing a belief of lawful marriage:
Every man who by deceit causes any woman who is not lawfully married to him to believe that
she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief,
shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.
Section 496-Marriage ceremony fraudulently gone through without lawful marriage:
Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being married,
knowing that he is not thereby lawfully married, 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 essential elements of both the sections i.e. 493 and 496, is that the accused should have
practiced deception on the woman, as a consequence of which she is led to believe that she is
lawfully married to him, though in reality she is not. In s 493, the word used is ‘deceit’ and in s
496, the words ‘dishonestly’ and ‘fraudulent intention’ have been used. Basically both the sections
denote the fact that the woman is cheated by the man into believing that she is legally wedded to
him, whereas the man is fully aware that the same is not true. The deceit and fraudulent intention
should exist at the time of the marriage. [KAN Subrahmanyam v. J Ramalakshmi (1971) Mad
LJ(Cr) 604] Thus mensrea is an essential element of an offence under this section.
Section 494-Marrying again during lifetime of husband or wife:
Whoever, having a husband or wife living, marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine.
Exception.-This section does not extend to any person whose marriage with such husband or wife
has been declared void by a Court of competent jurisdiction, nor to any person who contracts a
marriage during the life of a former husband or wife, if such husband or wife, at the time of the
subsequent marriage, shall have been continually absent from such person for the space of seven
years, and shall not have been heard of by such person as being alive within that time provided the
person contracting such subsequent marriage shall, before such marriage takes place, inform the
person with whom such marriage is contracted of the real state of facts so far as the same are within
his or her knowledge.
The important ingredients are:
• deceit or fraudulent intention
• causing of false belief
• cohabit or have sexual intercourse
Section 495-Same offence with concealment of former marriage from person with whom
subsequent marriage is contracted:
Whoever commits the offence defined in the last preceding section having concealed from the
person with whom the subsequent marriage is contracted, the fact of the former marriage, shall be
punished with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.
The essential ingredients are:
• existence of a previous marriage
• second marriage to be valid
• second marriage to be void by reason of first husband or wife living
Section 497-Adultery:
Whoever has sexual intercourse with a person who is and whom he knows or has reason to believe
to be the wife of another man, without the consent or connivance of that man, such sexual
intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and shall be
punished with imprisonment of either description for a term which may extend to five years, or
with fine, or with both. In such case the wife shall not be punishable as an abettor.
Before the IPC was enacted, adultery was not an offence in India either for men or women. It was
also not included in the first draft of the penal code. However, the second Law Commission it. The
Law Commissioner noted that the then prevalent social infrastructure and the secondary and
economically dependent position of women were not conducive to punish adulterous men. Further,
they noted, that a wife was socially conditioned to accept her husband’s adulterous relationship as
polygamy was an everyday affair. Thus they incorporated adultery as an offence punishing only
adulterous men.
In Kashuri v. Ramaswamy, (1979) CrLJ 741 (Mad) it was held that the proof of sexual intercourse
has to be inferred from the facts and circumstance of a case as direct evidence can rarely be proved.
• sexual intercourse
• woman must be married
• knowledge
• consent or connivance of husband
• should not constitute rape
Section 498-Enticing or taking away or detaining with criminal intent a married woman:
Whoever takes or entices away any woman who is and whom he knows or has reason to believe
to be the wife of any other man, from that man, or from any person having the care of her on behalf
of that man, with intent that she may have illicit intercourse with any person, or conceals or detains
with that intent any such woman, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.
• takes or entices away
• woman to be a married woman
• knowledge
• taken from control of husband or person having care of her on behalf of her husband
• intention to have illicit intercourse
• conceals or detains such women
In Alamgir v. State of Bihar, AIR 1969 SC 436 it was observed that if a man knowingly goes away
with the wife of another in such a way to deprive the husband of his control over her, with the
intent to have illicit intercourse, then it would constitute an offence within the meaning of the
section.
Cruelty to married woman
Cruelty by Husband or Relatives of Husband:
Section 498A:
Matrimonial Cruelty in India is a cognizable, non bailable and non-compoundable offence. It is

defined in Chapter XXA of I.P.C. under Section 498A as Husband or relative of husband of a
woman subjecting her to cruelty.
Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty shall
be punished with imprisonment for a term, which may extend to three years and shall also be liable
to a fine.
Explanation – for the purpose of this section, “cruelty” means:
(a) any willful conduct which is of such a nature as is likely to drive the woman to commit suicide
or to cause grave injury or danger to life, limb or health (whether mental or physical) of the woman;
or
(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demands for any property or valuable security or is on account
of failure by her or any person related to her to meet such demand.
For safeguarding the interest of a woman against the cruelty they face behind the four walls of
their matrimonial home, the Indian Penal Code,1860 was amended in 1983 and S.498A was
inserted which deals with ‘Matrimonial Cruelty’ to a woman. The section was enacted to combat
the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act,
1983 (Act 46 of 1983). By the same Act section 113-A was been added to the Indian Evidence
Act to raise presumption regarding abetment of suicide by married woman. The main objective of
section 498-A of I.P.C is to protect a woman who is being harassed by her husband or relatives of
husband.
Section 113-A of Indian Evidence Act, reads as follows:
When the question is whether a person has committed the dowry death of a woman and it is shown
that soon before her death such woman has been subjected by such person to cruelty or harassment
for, or in connection with, any demand for dowry, the Court shall presume that such person had
caused the dowry death.
Explanation- For the purpose of this section ‘dowry death’ shall have the same meaning as in
section 304-B of the Indian Penal Code (45 of 1860).
The object with which section 498A IPC was introduced is amply reflected in the Statement of
Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As
clearly stated therein, the increase in number of dowry deaths was a matter of serious concern. The
extent of the evil was commented upon by the Joint Committee of the Houses to examine the work
of the Dowry Prohibition Act, 1961. In some of cases, cruelty of the husband and the relatives of
the husband culminated in suicide by or murder of the helpless woman concerned. Therefore, it
was proposed to amend IPC, the Code of Criminal Procedure,1973 (in short ‘the Cr.P.C’) and the
Evidence Act suitably to deal effectively not only with cases of dowry deaths but also cases of
cruelty to married women by the husband, in- law’s and relatives. The avowed object was to
combat the menace of dowry death and cruelty. [Sushil Kumar Sharma vs. Union of India; JT
2005(6) SC266]
Meaning of Cruelty:
Cruelty includes both physical and mental torture. Wilful conduct in Explanation (a) to section
498A, I.P.C. can be inferred from direct and indirect evidence. The word cruelty in the Explanation
clause attached to the section has been given a wider meaning.
It was held in Kaliyaperumal vs. State of Tamil Nadu [2004 (9) SCC 157], that cruelty is a common
essential in offences under both the sections 304B and 498A of IPC. The two sections are not
mutually inclusive but both are distinct offences and persons acquitted under section 304B for the
offence of dowry death can be convicted for an offence under sec.498A of IPC. The meaning of
cruelty is given in explanation to section 498A. Section 304B does not contain its meaning but the
meaning of cruelty or harassment as given in section 498-A applies in section 304-B as well.
In the case of Inder Raj Malik vs. Sunita Malik [1986 (2) Crimes 435] it was held that the word
‘cruelty’ is defined in the explanation which inter alia says that harassment of a woman with a
view to coerce her or any related persons to meet any unlawful demand for any property or any
valuable security is cruelty.
The Supreme Court, in Mohd.Hoshan vs. State of A.P. [2002 Cr.L.J 4124] observed: “Whether one
spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of
complaints, accusation or taunts on a person amounting to cruelty depends on various factors like
the sensitivity of the victim concerned, the social background, the environment, education etc.
Further, mental cruelty varies from person to person depending on the intensity of the sensitivity,
degree of courage and endurance to withstand such cruelty. Each case has to be decided on its own
facts whether mental cruelty is made out”
Constitutional Validity of Section 498A:
In Inder Raj Malik and others vs. SunitaMalik[1986 (2) Crimes 435], it was contended that this
section is ultra vires Article 14 and Article 20 (2) of the Constitution. There is the Dowry
Prohibition Act, 1961 which also deals with similar types of cases; therefore, both statutes together
create a situation commonly known as double jeopardy. But Delhi High Court negatived this
contention and held that this section does not create situation for double jeopardy. Section 498-A
is distinguishable from Section 4 of the Dowry Prohibition Act because in the latter mere demand
of dowry is punishable and existence of the element of cruelty is not necessary, whereas section
498-A deals with an aggravated form of the offence. It punishes such demands of property or
valuable security from the wife or her relatives as are coupled with cruelty to her. Hence a person
can be prosecuted in respect of both the offences punishable under section 4 of the Dowry
Prohibition Act and this section. It was thus held that though, this section gives wide discretion to
the courts in the matters of interpretation of the words occurring in the laws and also in matters of
awarding punishment.
Similarly, its constitutionality was challenged in the case of PolavarpuSatyanarayana v.

Soundaravalli [1988 Cr.L.J 1538 (AP)] where it was again held that 498A is not ultra vires of
constitution.
In the case of SurajmalBanthia&Anr.v. State of West Bengal[II (2003) DMC 546 (DB)], the
deceased was ill-treated and tortured for several days and not given food several times. The court
acknowledging that this is the treatment that several young brides face when they move out of their
parents’ home and into the house of her in-laws, held the husband and his father liable under 498A.
In VijaiRatna Sharma v. State of Uttar Pradesh[1988 Cr.L.J 1581]the Allahabad High Court took
a pragmatic view in a criminal proceeding initiated by a dowry victim, by doing away with
jurisdictional technicalities in the matter. The court brushed aside the argument of lack of
jurisdiction on technical grounds and held that since from the very beginning, the dowry demand
had been present and subsequent behaviour was an ensuing consequence, all the offences can be
tried together.
In Bhagwant Singh v. Commissioner of Police [AIR 1983 SC 826], Supreme Court held that the
greed for dowry and the dowry system as an institution calls for the severest condemnation by all
sections.
Section 498A and the Allegation of Misuse:
In the last 20 years of criminal law reform a common argument made against laws relating to
violence against women in India has been that women misuse these laws. The police, civil society,
politicians and even judges of the High Courts and Supreme Court have offered these arguments
of the misuse of laws vehemently. The allegation of misuse is made particularly against Sec 498A
and against the offence of dowry death in Sec 304B. One such view was expressed by former
Justice K T Thomas in his article titled ‘Women and the Law’, which appeared in The Hindu. The
2003 Malimath Committee report on reforms in the criminal justice system also noted,
significantly, that there is a “general complaint” that Sec 498A of the IPC is subject to gross
misuse; it used this as justification to suggest an amendment to the provision, but provided no data
to indicate how frequently the section is being misused.
Again Supreme Court, in a relatively recent case, Sushil Kumar Sharma vs. Union of India and
others [JT 2005(6) 266], observed: “The object of the provision is prevention of the dowry menace.
But as has been rightly contented by the petitioner that many instances have come to light where
the complaints are not bonafide and have been filed with oblique motive. In such cases acquittal
of the accused does not in all cases wipe out the ignominy sufferedduring and prior to trial.
Sometimes adverse media coverage adds to the misery. The question, therefore, is what remedial
measures can be taken to prevent abuse of the well-intentioned provision. Merely because the
provision is constitutional and intra vires, does not give a licence to unscrupulous persons to wreck
personal vendetta or unleash harassment. It may, therefore, become necessary for the legislature
to find out ways how the makers of frivolous complaints or allegations can be appropriately dealt
with.
The Supreme Court in its recent judgment in Arnesh Kumar v. State of Bihar and Anr. [SLP (Cri)
No. 9127 of 2013] said that no arrest should be made immediately in the offences which are
allegedly committed by the accused and the offence is cognizable and non-bailable, with particular
reference to S. 498A. It laid down certain guidelines for the police officers to follow relating to
the arrests made under the section, due to increase in number of false complaints.

Unit IV Law of Crimes: Offences Affecting The Human Body

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Unit IV Law of Crimes

Offences affecting the Human body

Culpable Homicide Amounting to Murder

i. When an act is done with the intention of causing death

Instances would include:

• Shooting someone at point blank range.

• Stabbing someone in the heart

• Hanging someone by the neck till he dies

• Strapping a bomb on someone

• Administering poison to someone.

Instances would include:

An instance of the same would be:

Instances would include:

i. Acts under grave and sudden provocation

An example of this situation will be:

ii. When Private Defence is exceeded in good faith

iii. Exceeding the Ambit of Discharging Public Duties

Attempts by life convicts:-

The essentials for criminal attempt are:

Causing such bodily injury as is likely to cause death,

Causes the death of another person instead of the intended person.

The object of transferred malice Section 301

Applicability of Transferred malice

Only in these cases, the ‘Doctrine of Transferred Malice’ will apply.

R v Latimer (1886) 17 QBD 359

R v. Saunders (1573) 2 Plowd 473

Rajbir Singh vs State Of U.P. & Anr on 8 March 2006

R v Pembleton (1874) LR 2CCR 119

Emperor vs Mushnooru Suryanarayana Murthy on 2 January 1912

Punishment for murder by life-convict:

Being under sentence of imprisonment for life

Constitutionality of section 303

Rash and Negligent Act

304B. Dowry Death

113B. Presumption as to Dowry Death

Attempt and abetment to suicide

Section 309 reads thus:

This decision was, however, subsequently overruled in GianKaur v. State of Punjab by a

Hurt and Grievous Hurt

Based on this, the essential ingredients of Hurt are -

‘Causing disease’ means communicating a disease to another person. However, the

(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

2) Permanent privation of the sight of

3) Permanent privation of the hearing of either ear.

4) Privation of any member or joint .

5) Destruction or permanent impairing of the powers of any member or joint .

6) Permanent disfiguration of the head or face .

7) fracture or dislocation of a bone or tooth.

Wrongful Restraint and Wrongful confinement

Section 339. Wrongful restraint

2. Obstruction prevented complainant from proceeding in any direction.

Obstruction of personal liberty:

Section 340.Wrongful confinement.