UNIT - III OFFENCES AFFECTING THE HUMAN BODY

Transcription

1 trictly for Internal Circulation - KCL UNIT - III OFFENCE AFFECTING THE HUMAN BODY Offences affecting life (ection ) Culpable Homicide & Murder General: Following are the main offences affecting human life: a) Culpable homicide. b) Murder Culpable homicide Culpable homicide 1. Culpable homicide is called manslaughter under English law. Under U Law it is called second degree murder. 2. Under Us law, murder is called first degree murder. 3. Culpable homicide has following two kinds : a) Culpable homicide not amounting to murder. (Culpable homicide implicitor) b) Culpable homicide amounting to murder (Murder) 4. Both in Culpable homicide (not amounting to murder) and in murder, death of a human being takes place. The degree of criminality is different in the two offences. 5. Culpable homicide as defined in ec. 299 & ec. 300 specifies the additional requirements which aggravate culpable homicide to make it a murder. 6. Every murder is primarily a culpable homicide. In fact, murder is only a species of culpable homicide, which is a genus. 7. ir Tames tephan has criticized the definitions of the offences-culpable homicide and the murder. He is of the view that the definitions are not well drawn. 8. These definitions are the weakest part of the code. (Homo-man, cido- cut) 9. a) Culpable homicide is defined u/s 299 and is punishable u/s 304 of the code. b) Murder is defined u/s 300. ec. 300 is to be read with ec Murder is punishable u/s 302 IPC th culpable homicide and murder are cognizable, non bailable and non compoundable. 80th are 38

2 trictly for Internal Circulation - KCL exclusively triable by court of session. Definition of Culpable Homicide - ection- 299: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide. From the analysis of ec. 299, following essential elements of culpable homicide are made out: a) The accused must have committed some act b) The act must have been committed with any of the following intentions or knowledge: i) Intention to cause death. ii) iii) Intention to cause such bodily injury as is likely to cause Knowledge that the death is likely to be caused thereby. c) The victim must have died in consequence of the act of the accused person. Death caused by an act done with the intention of causing death constitutes culpable homicide of the first degree. This is the gravest form of culpable homicide. It constitutes murder. (If the case does not fall under any of the exceptions to ec. 300). Illustration: (a) of Bare Act: A lays sticks and turf over a pit, with the intention of thereby causing death or with the knowledge that the death is likely to be thereby caused. 'Z' believing the ground to be firm, treads on it, falls in and is killed. '/\ has committed the offence of culpable homicide. Death resulting from an act done with the intention of causing such bodily injury as is likely to cause death constitutes culpable homicide in the second degree. It is not invariably murder. It would be murder if it satisfies the requirements of clause II or III to sec (If the case does not fall in any of the exceptions to ec. 300) Illustration: (b) of Bare Act: A knows Z to be behind a bush. 8 does not know it A, intending to cause, or knowing it to be likely cause's death, induces 8 to fire at the bush. 8 fires and kills Z. Here 8 may be guilty of no offence but A has committed the offence of culpable homicide. Death caused by an act done with the knowledge that death was likely to be caused thereby constitutes culpable homicide of third degree. This culpable homicide is also not a murder invariably. It may amount to murder if the requirements of clause IV to ec. 300 are satisfied. (If the case does not fall under any of the exceptions to ec. 300) Illustration: (c) of Bare Act: A, by shooting at a fowl with the intent to kill and steal it, kills 8 who is behind a bush, A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill 8 or to cause death by doing an act that he knew was likely to cause death. Explanation 1 to ec. 299: A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of the other, shall be deemed to have caused his death. (culpable homicide of second degree) Explanation 2 to ec. 299: Where death is caused by bodily injury, the person who causes such bodily 39

3 trictly for Internal Circulation - KCL injury shall be deemed to have caused the death, although by resorting to proper remedies and skillful treatment the death might have been prevented, (will amount to culpable homicide of second degree). The principle underlining explanation II is that one who supplies the primary cause of death is to be held liable for deemed death. In such cases the secondary cause of death is to be ignored. Constructive doer is liable as the actual doer is. The above principle has its basis in public policy. Explanation 3 to ec. 299 : The causing of the death of a child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born Nirbhaya ingh v/s tate : A constable who had a loaded but defective gun with him wanted to arrest an accused who was going on a bullock cart by climbing on the cart and there was a scuffle between him and the accused and in course of which the gun went off and killed the constable. 2. Held: The accused Nirbhaya ingh was not liable for culpable homicide because the intention or knowledge contemplated in ec. 299 could not be proved Joginder ingh v/s tate : Where a person being pursued could not be held guilty of culpable homicide. Where a person being pursued closely on his heels in an open field by his enemies who had already killed one of his relations in the incident jumped into a well in order to save himself and in the process met with his death, it was held that the act of the accused did not constitute an act which was done with the intention or knowledge specified in ec. 299, IPC, and as such they had to be acquitted Basappa v/s tate : Where a person was attacked by his enemies on a roof and given a few cuts with a dangerous weapon and in order to avoid the attack he jumped from the roof to his death, it was held that even if the death was caused by his own act of jumping, the accused were guilty of murder as jumping was necessitated by their act Punchanun Tanti v/s tate : The accused, having received great provocation from his wife, pushed her with both arms so as to throw her with violence to the ground, and after she was down, slapped her with his open hand. The woman died on account of the rupture of her spleen which was diseased. It was held that he was guilty of causing hurt. 6. Chatur Nath v/s tates: In the course of an altercation between the accused and the complainant on a dark night, the former aimed a blow with his stick at the head of the latter. To ward off the blow, the complainant's wife, who had a child on her arm, intervened between them. The blow missed its aim, but fell on the head of the child, causing severe injuries, from the effects of which it died. It was held that inasmuch as the blow, if it had reached the complainant, would have caused simple hurt, the accused was guilty of simple hurt only Culpable Homicide when Amounts to Murder - ection- 300: Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death. (ec.300 para1). Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is 40

4 trictly for Internal Circulation - KCL caused is done with the intention of causing bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused (ec. 300 para 2). Except in the cases hereinafter excepted culpable homicide is murder, if the act by which the death is caused is done with the intention of causing bodily injury to any person and the bodily injury intended is sufficient in the ordinary course of nature to cause death (ec. 300 para 3). Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is known to the doer to be so imminently dangerous that it must in all probability, cause death or such bodily injury as is likely to cause death and commits such act without any excuse for incurring the risk of causing death of such injury as aforesaid (ection 300 para 3). Culpable Homicide when it does not amount to Murder: 1. Culpable homicide would not amount to murder in the following cases: a) Culpable homicide would not amount to murder if it does not satisfy the additional requirements of the corresponding clause of ec b) Culpable homicide would not amount to murder if it falls under any of the five exceptions to ec Following are the exceptions to ec a) Grave and suddedn provocation b) Exceeding in the exercise of right of Private defence. d) Public servant exceeding powers given to him by law. e) Causing of death in a sudden fight, without premeditation. f) Consent of the deceased above the age of 18. Grave and udden Provocation : Culpable homicide is not murder if the offender whilst deprived of power of self-control by grave and sudden provocation causes the death of person who gave the provocation or of any other person by mistake or accident. It only reduces criminal liability. No complete exception from criminal liability. Exception 1: to ec. 300 is subject to following limitations: a) The provocation must not be sought or voluntarily provoked as an excuse for killing or doing harm to any person. a. Provocation is not given by: a. Anything done in obedience to the law. b. Anything done by a public servant in lawful exercise of his powers. c. Anything done in the lawful exercise of the right of private defence. Whether the provocation was grave and sudden to prevent the offence from amounting to murder is a question of fact. 41

5 trictly for Internal Circulation - KCL 6 Artificial Provocation KM Nanawati v/s tate of Bombay Held : 1. In India, words and gestures may, under certain circumstances, cause grave and sudden provocation. 2. The mental background created by previous acts of the victim may be taken into account when the plea taken is of grave and sudden provocation. 3. Nature of the act of the victim is also to be taken into consideration. The court has to see whether a reasonable man belonging to the same class of society to which the accused belongs, if placed in the same situation, would suffer provocation of a nature so as to lose his self-control. 4. The fatal blow should be clearly traceable to the passion arising from the provocation. A fatal blow after the passion has cooled down cannot be the basis of sudden and grave provocation. Where there was time and scope for premeditation and calculation, the benefit of exception 1 cannot be given. tate v/s Ullah, 1950, Cuttack: Held: Mere words howsoever provocative cannot so provoke a reasonable man as to induce him to commit a violence. (This case was overruled in KM Nanawati's case, 1962, C) Exception II - Exceeding the limits prescribed by law in exercise in good faith of Right of Private defence: Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property exceeds the power given to him by law and causes the death of the person against whom he exercises the right. Benefit of exception can be availed if it is further shown that the offender, without premeditation and without any intention of doing more harm than is necessary, has caused the death in question. 1. Culpable homicide is not a murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the power given to him by law, and causes death. 2. Benefit of exception can be claimed only if the act done was in good faith and only in the belief that the act done was lawful and necessary in the due di,scharge of his duties. Further, it has to be shown that the offender did not have any ill will towards the deceased. Exception IV- Death Caused in a udden Fight: 1. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel or unusual manner. 2. Here it is immaterial as to which party offers provocation or commits the assault. Exception V: Culpable Homicide with Consent: Culpable homicide is not murder if the person whose death is caused, being above age of 18 years, suffers death or takes the risk of death with his own consent. 42

6 trictly for Internal Circulation - KCL Distinction between Culpable Homicide and Murder: 1. The main point of distinction between murder and culpable homicide is degree of criminality. Degree of criminality is higher in case of murder in comparison to culpable homicide. 2. Every murder is primarily and necessarily a culpable homicide. But every culpable homicide is not necessarily a murder. In other words culpable homicide is a genus, while murder is only a species thereof. 3. Murder has been defined u/s 300. It is punishable U/s 302. Culpable homicide is less serious an offence and is punishable u/s 304 IPC. 4. The distinction between culpable homicide and murder is very fine but is appreciable. In order to distinguish the two offences the key words occurring in the different clauses of ec. 300 must be taken note of. 5. R V/s Govinda, (1876, Bombay): In this case Melvile J. distinguished the offence of culpable homicide from murder by undertaking a comparison between the corresponding clauses of the two sections. 6. tate v/s R. Punnaya, 1977, C: a) The code practically recognizes three degrees or kinds of culpable homicide. b) Culpable homicide in the first degree has been defined as murder in ec It is the gravest form of culpable homicide. c) econd culpable homicide is termed as culpable homicide in second degree. It is punishable under clause I of ec d) Culpable homicide in the third degree is the lowest from. It is punishable under clause II of ec e) The courts must first see whether the death complained of has resulted from the act of the accused. If the act of the accused in question is in affirmative ec. 300 should be taken into consideration. f) If the case is not covered u/s 300 it would not be a murder. Further, if case falls in any of the exceptions to ec. 300 again it would not be a murder. g) The above guidelines, if kept in mind, would facilitate the task of the court. Punishment: 1) Culpable homicide (not amounting to murder) is punishable u/s 304. Culpable homicide of the first and second degrees are punishable under clause I to ec The punishment provided is life imprisonment or imprisonment of either description which may extend up to 10yrs and fine. Culpable homicide of third degree is punishable with an imprisonment of either description which may extend up to 10yrs or with fine or with both. 43

7 trictly for Internal Circulation - KCL 2) Murder is punishable u/s 302 IPC. Life imprisonment is the general punishment to be given for murder. In the rarest of the rare case murder may be punished with death. The rarest of the rare cases are the cases in which the offender commits murder in the most cruel and unusual manner. Culpable Homicide by Causing Death of Person other than Person whose Death was Intended : ection The accused must have intended or known to be likely to cause death. 2. The offender must have caused death of a person by the act though he neither intended nor knew to be likely to cause death of a person actually killed. 3. In the above case, the accused would be liable to be punished as if he had caused the death of the person whose death he intended or known or likely to be caused. 4. The principle incorporated in ec. 301 is generally known as Doctrine of Transfer of Malice. 5. A person whose case, falls u/s 301 is to be punished U/s 302 or 304 as the case may be. Punishment for Murder Committed by a Person under Life Imprisonment. The section provides for death as the only punishment - ection- 303 Mithu V/s tate of Punjab7: This section has been struck down by the upreme Court as void and unconstitutional being violative of both Arts. 14 and 21 of the Constitution. It regards life-convict to be a dangerous class without any scientific basis and thus violates Art. 14 and similarly by completely cutting out judicial discretion it becomes a law which is not just, fair and reasonable within the meaning of Art. 21. a) It was declared unconstitutional as it deprives the court of its discretionary power and compels the judge to act like a machine. b) Death penalty given by Court of ession shall not be executed unless it is confirmed by the High Court. c) Doctrine of transfer of malice is also known as Doctrine of transmigration of malice. Hurt (ection 319) 1. ections provides for hurt and its different aspects. 2. ec. 319 defines the term 'hurt'. ec. 320 lists certain kinds of hurts which have been designated as grievous. 3. Hurt is causing: a) bodily pain; or b) bodily disease; or c) bodily infirmity, to a person. Grievous Hurt - ection- 320: The following kinds of hurt only are designated as grievous: 44

8 trictly for Internal Circulation - KCL 1. Emasculation (making a person sexually incapable or weak) 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. Any hurt which endangers life or which causes the sufferer to be in bed during the space of twenty days in severe bodily pain, or unable to follow his ordinary pursuits. There is no importance of intention u/s 319 or 320. Voluntarily causing Hurt ection 321, 323, Whoever does any act with the intention of causing hurt to any person and does cause hurt to any person voluntarily commits hurt. 2. Whoever does any act with the knowledge that he is likely to cause hurt to any person, and does cause hurt, is said voluntarily to cause hurt. b) uch an act must have been done: i) With the intention of causing hurt; or c) Must have thereby caused hurt to any person. The offence u/s 321 is punishable u/s 323 (Imprisonment of either description up to one year or fine up to Rs. 1000/- or both). It is non-cognizable, bailable, compoundable and triable by a Magistrate. ection- 334: Provides where the hurt is caused under provocation. If the voluntary causing of hurt is referable to grave and sudden provocation, the punishment may be reduced to imprisonment of either description up to 1 month or fine up to Rs. 500 or both. 1) Whoever does any act with the intention of causing grievous hurt to any person and does cause grievous hurt to any person voluntarily commits grievous hurt. 2) Whoever does any act with the knowledge that he is likely to cause grievous hurt to any person, and does cause grievous hurt is said voluntarily to cause grievous hurt. a) The accused must have done some act. b) uch an act must have been done: i) With the intention of causing grievous hurt; or ii) With the knowledge that hurt was likely to be caused thereby; and c) Must have thereby caused grievous hurt to any person. The offence u/s 322 is punishable u/s 325 (Imprisonment, of either description up to 7yrs and also fine.) It is cognizable, bailable and compoundable offence. It is triable by Magistrate. 45

9 trictly for Internal Circulation - KCL ection- 335: If the voluntarily causing of grievous hurt is referable to grave and sudden provocation the punishment into be reduced to imprisonment, of either description up to four years or with fine up to Rs or both. ub. ec. 334 & 335 are to be read with exception 1 to ec. 300 (requirements (proviso) to exception 1 to ec. 300 also apply to ection 334 and 335). Wrongful Confinement and Wrongful Restraint General : ec Wrongful restraint ec Wrongful confinement Law is not after form but is after effect. Wrongful confinement is called False imprisonment under the law of torts (It is a civil wrong also). Form of obstruction is immaterial. It is sufficient that a person is wrongfully abstained from exercising his right to go. 1. Chapter XVI (ections ) provides for offences affecting the human body. 2. ections 339 and 340 of Chapter XVI define wrongful restraint and wrongful confinement respectively. 3. Every wrongful confinement is primarily a wrongful restraint. However, every wrongful restraint is not necessarily a wrongful confinement. Therefore, wrongful restraint is a genus and wrongful confinement is its species. 4. Wrongful restraint is punishable U/s 341. (simple imprisonment up to one month or fine up to Rs. 500 or both). Wrongful confinement is punishable U/s342. (imprisonment up to 1 year or fine up to Rs or both) Wrongful Restraint - ection- 339 read with ec.- 341: Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said to wrongfully restrain that person. ec. 339 allows one exception. Therefore, it is not a wrongful restraint to obstruct a private way to a land or water which a person in good faith believes himself to have a lawful right to obstruct. Essential Elements: 1) The complainant must have a right to proceed in any direction. 2) The accused must have made a voluntary obstruction. 3) On account of the obstruction the complainant must have been obstructed from proceeding in a direction in which he had a right to proceed. 4) The accused must not have made restriction under a belief in good faith that he had a legal right. 46

10 trictly for Internal Circulation - KCL Right to Obstruct: The form, kind or reason of the obstruction is not relevant. Law is after the consequence and not after the form of obstructions. Penal laws are to be strictly construed as they have direct a impact on the personal liberty and life of the accused. 1) han Mugham, 1971 Cr. LJ 182: Held: ec. 339 contemplates physical obstruction. Other obstructions may also be covered under it. 2) Arumuga Nadar, 1910 : Held: During the absence of complainant and his wife the accused put a lock at the outer door of the house. The accused is guilty of wrongful restraint. 3) Gopala Reddi vis Laxmi Reddy, 1947: The accused obstructed a bus in which the passengers were traveling. Accused was held liable for wrongful restraint. 4) Ram Lal, 1912: Held: There would be no wrongful restraint if the passengers sitting in the bus can get down and proceed without being obstructed. Punishment for Wrongful Restraint: ection imple imprisonment up to one month or with fine up to Rs. 500 or with both. Wrongful confinement ection -340 a) ec. 340 provides: Whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said wrongfully to confine that person. Following essential elements are made out from the analysis of ec. 340: a) The accused must have committed a wrongful restraint within the meaning of ec b) By such wrongful restraint the victim must have been prevented from proceeding beyond certain circumscribing limits. 2) GM Rangacharya, 1985 : Held: For wrongful confinement no wall, wire or enclosure is necessary. Confinement may be effected even in an open land. 3) Malice is not essential for wrongful confinement. The time/period of confinement is also not material except in the matter of punishment (to determine punishment). A person may be wrongfully confined even without being aware of that (no knowledge of confinement). Punishment for Wrongful Confinement - ection- 342: Imprisonment of either description up to one year or with fine up to Rs or with both. Wrongful confinement is also a tort. Under law of torts, it is known as false imprisonment or false arrest. The victim any institute civil as well as criminal proceedings simultaneously. Distinction between Wrongful Restraint and Wrongful Confinement 47

11 trictly for Internal Circulation - KCL Wrongful Restraint a) It is partial restraint of the personal liberty of a person. b) It does not imply wrongful confinement. c) It does not require any limits or boundary. d) In wrongful restraint movement in only one or some direction is obstructed leaving thereby a choice for victim to move in any other direction. Wrongful Confinement a) It is absolute or total restraint or obstruction of personal liberty. b) It implies wrongful restraint. c) It requires certain circumscribing limits which are always necessary. d) In wrongful confinement movement in all directions is obstructed and a person is either not allowed to move or is compelled to move against his wishes. CRIMINAL FORCE AND AAULT 1. ections ( ) provide for offences against human body. 2. ections ( ) provide for criminal force and assault defines force defines criminal force Whoever 1) Intentionally uses force to any person, without that person's consent. Uses that force : 1) Knowledge that he is likely to cause injury, fear or annoyance to that person is said to use criminal force to that other. 4. ection 351- defines assault: Whoever; - makes any - gesture - preparation With intention knowledge A such gesture/preparation will cause any person present to apprehend that he is about to use criminal force to that person is said to commit an assault. - Mere words do not amount to assault. Words+gestures/prep-assault. 48

12 trictly for Internal Circulation - KCL punishment assault Gave provocation Criminal force A otherwise than on Imprisonment up to 3 months or R.500/- fine or both Assault to deter punishment from discharge of his duty: Imprisonment up to 2yrs or fine or both Assault to woman to outrage her modesty Imprisonment up to 2yrs or with fine or with both to dishonour Assault on grave provocation 2 months/fine/both 356- to commit theft- simple imprisonment up to 2 months/with fine/with both 1 month/fine/both 357 to wrongfully confine a person 2 months/100/b KIDNAPPING AND ABDUCTION General 1. ec. 359 provides for two kinds of kidnapping: a) Kidnapping from India (ec. 360) b) Kidnapping from lawful guardianship. (ec. 361) 2. Both the offences are punishable U/s ec. 362 defines Abduction. Abduction by itself is no offence. Kidnapping from India - ection- 360 Kidnapping has following two kinds: 1. Kidnapping has following two kinds: a) Kidnapping from India. b) Kidnapping from lawful guardianship. 2. ub. 360 defines kidnapping from India. It provides: "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 kidnap that person from India." From the analysis of ec. 360 following essentials are made out: 1. The accused must have conveyed the victim. 2. The conveying must have been beyond the limits of India. 49

13 trictly for Internal Circulation - KCL 3. uch conveying must have been without the legally authorized on his behalf to consent. 4. Kidnapping from India may be committed against a person of any age. The conveying must have been of a natural person. 5. The word 'person' has been used in narrower sense in ec Here the word 'person' is restricted to natural persons. Any company or body of persons or association are not persons for the purposes of ec The word conveying has not been defined in the code. Ordinarily it suggests carrying away or getting carried away. The offence u/s 360 is punishable u/s 363. Punishment of either description which may extend up to 7 yrs and also fine. Kidnapping from Lawful Guardianship - ection ec. 361 provides: "Whoever takes or entices any minor under 16 yrs of age if is a male of under 18 yrs of age if is a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian is said to kidnap such minor or person from lawful guardianship." 2. From the analysis of ec. 361 following essentials are made out: a) The accused must have taken or enticed a minor. (under 16 yrs in case of a male or under 18 yrs of age in case of a female) or a person of unsound mind. b) uch taking or enticing must have been out of the keeping of the lawful guardian. c) uch taking or enticing must have been without the consent of lawful guardian. 3. The word lawful guardian has been used in wider sense in ec The explanation to ec. 361 provides: "Lawful guardian includes any person lawfully entrusted with the care or custody of the minor or other person." 4. Exception: ec. 361 does not extend to the acts of following persons: a) A person who in good faith believes himself to be the father of the illegitimate child. b) A person who in good faith believes himself to be entitled to the lawful custody of such child. The above persons may also be held liable for offence defined u/s 361 if their act is unlawful and for an immoral purpose. 5. There is difference in ages of minors on the basis of their sexes. In case of male minor the age is under 16yrs. In case of female minor the age is under 18 yrs. of age. Taking or Enticing 1. Taking or enticing suggests inducement or external influence. It has its basis in temptation or creation of a false expectation. In it the act of the victim is not voluntary. 50

14 trictly for Internal Circulation - KCL 2. Taking or enticing suggests an active role of the accused persons Varadrajan v/s tate of Madras : Held: Taking or enticing a minor is entirely different from permitting a minor to accompany a person. The two expressions are not synonymous. In taking or enticing external influence or inducement is necessary Nemai Chattroj vis Emperor : X took away J, a minor girl, from her husband's house and keep her in his own house for two days. One M removed her to his house and kept her for twenty days. Thereafter, M clandestinely removed J to V's house and took her to Calcutta. Held : Y could not be convicted of kidnapping J from lawful custody. Y cannot be said to have taken or enticed J out of the keeping of her guardian. 3. Baldeo v/s tate, 1870 : The accused met a girl aged about 14 years, who was living with a Brahmin woman in the sarai of a village, where they maintained themselves on begging. The girl was persuaded by a goldsmith-named Ghasi and was married to his son. But as she was no given enough food to eat, she lent herself to the persuasion of the accused to quit Ghasi's house and to go with him for which he was prosecuted. High Court held that since Ghasi from whose house the girl was abducted was not her lawful guardian, as he had not been lawfully entrusted with the care and custody of the minor, the accused was not liable for kidnapping. 4. Rasool vis tate, 1976, Alld: Held: It would be no defence to say that the victim was 0 immoral character or that she had consented. Abduction ection 362 1) ec. 362 provides: "Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person." 2) One who commits abduction is not a criminal. Abduction by itself is no offence, it is only a helping or accessory act. 3) Abduction is punishable only if it is committed by some criminal intention. Abduction in the circumstances as contemplated by ec. 364 to 368 may be punishable. 4) Allah Rakhyo, 1934, indh Held: To constitute abduction compelling by force or inducement by necessary means is necessary. For abduction it must be proved that the change of the mind of the victim was by external influence. 5) Fatnaya, 1942, Lahore : Held: Taking a woman forcibly and against her desire constitutes abduction not withstanding that the purpose was to take her to her husband. 6) Ganga Devi, 1914, Alld-: Held: Every time there is a fresh abduction when a person abducted is taken to a fresh place. Thus abduction is a continuous act. 51

15 trictly for Internal Circulation - KCL Punishable abductions 1) Abduction in order to murder (ec. 364) 2) Abduction with intent secretly and wrongfully to confine a person (sec. 365) 3) Abduction of a woman to compel her marriage etc. (ec. 366) 4) Abduction in order to subject a person to grievous hurt or slavery etc. (ec. 367) 5) Wrongfully concealing or keeping in confinement abducted person (ec. 368) 6) Abducting a child under 10 yrs of age with intent to steal from its person (ec. 369) Kidnapping Abduction 1 ) Minor male 1 ) Any age female unsound mind 2) Refers to the person kidnapped/ abducted need not be in the keeping of any body. 2) Removed out of lawful custody, no 3) Force, compulsion or deceitful means used. Kidnapping of an orphan 3) imple taking or enticing away of 4) Consent, if free and given voluntarily, a unsound mind minor or condones the offence. 4) Consent of person taken immaterial. 5) Intention is important because abduction is not an offence unless committed with certain intent 5) Intention of kidnapper is irrelevant. 6) Not a continuing offence; complete 6) Continuing offence so long as person is the moment a person is deprived of moved from one place to other lawful guardianship 7) ubstantive offence 7) Auxiliary offence, not punishable by itself Till intention specified EXUAL OFFENCE Rape: ection 375, IPC lays down that the sexual intercourse must be under circumstances falling under any of the six clauses. A man is said to commit 'rape' who has sexual intercourse with a woman: i) Against her will; or ii) without her consent; or iii) with her consent by putting her in fear of death or of hurt; or iv) with her consent, when the man knows that he is not her husband and that her consent is 52

16 trictly for Internal Circulation - KCL given because she believes that he is another man to whom she is lawfully married; or v) with her consent, when, at the time of 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; or Explanation: Penetration is sufficient to constitute sexual intercourse. Exception - exual intercourse by a man with his own wife is not rape, if the wife is above 15 years of age. It may be noted that if the woman is under 16 years of age, it is immaterial that the act be done with her consent or even at the invitation of woman herself (or that she had sex experiences already), for the policy of the law is to protect children of such immature age against sexual intercourse. This is also known as 'statutory rape'. A 'man' is defined by ec. 10 of the Code as a male human being of any age. Thus, a boy above 12 years of age is capable of committing rape under this section, whereas a boy below 12 but above 7 years of age enjoys a qualified immunity. Punishment for Rape:. 376 provides the punishments for various categories of rape as follows: Rigorous imprisonment for not less than 10 years and upto life (i. e. life-imprisonment) and fine, for the following persons, viz., whoever: a) being a police officer commits rape- i) within the limits of the police station to which he is appointed; or ii) iii) in the premises of any station house whether or not situated in the police station to which he is appointed; or on a woman in his custody or in the custody of a police officer subordinate to him; b) being a public servant, takes advantage of his official position and commits rape on a woman in his custody as such public servant or in the custody of a public servant subordinate to him; or c) 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, takes advantage of his official position and commits rape on any inmate of such jail, remand home, place or institution; or d) being on the management or on the staff of a hospital, takes advantage of his official position and commits rape on a woman in that hospital; or e) commits rape on a woman knowing her to be pregnant; or f) commits rape on a woman when she is under twelve years of age; or g) commits gang rape. In all the above cases, the minimum period of imprisonment is 10 years. However, in a fit case, the Court 53

17 trictly for Internal Circulation - KCL may impose a sentence of simple or rigorous imprisonment for a term of less than 10 years, for adequate and special reasons to be mentioned in the judgment. imple or rigorous imprisonment for not less than 7 years and upto life (i. e. life-imprisonment) and fine in all other cases, except where the woman raped is his own wife and is not under 12 years of age, in which case the maximum imprisonment is 2 years or fine, or both. Here also, the Court may impose a sentence of less than 7 years, for adequate and special reasons to be mentioned in the judgment. It is also clarified that when a woman is raped by one or more of a group of persons, acting in furtherance of their common intention, each of such persons is deemed to have committed "gang rape". Various ingredients explained.-from the definition given above, it is clear that "rape" is forcible ravishment of a woman, and the essence of the crime consists in the act being done against the will or without the consent of the woman. Clauses (b) to (d) are only explanatory of non-consent. Against her Will: An act done against a woman's will when she is in full possession of her senses and reason, is aware of what is being done and objects or resists. Without her Consent: This occurs when the woman is incapable of knowing the nature of the act and thus legally unable to give rational consent or being aware of its nature, thinks that it is being done under circumstances which make it an innocent act. Man: A man of any age may commit the offence. Under the English law, a boy under 14 years of age, owing to physical immaturity, is presumed to be incapable of committing this offence. But this presumption has no application in India. Fear of Death: This means fear of death of herself or of any other person in whom she is interested. Thus, if a person obtains consent of a woman by putting her in fear of death of her infant, such consent is not valid. Intercourse with a Girl under ixteen: The policy of the law is to protect a girl of immature age against sexual intercourse; hence, connection with even a girl under 16 would be rape, even though she consents to the act. Explanation: The degree of penetration is immaterial. But some penetration, however slight is essential. It is not essential that the hymen should be ruptured, or that there should be emission of semen. Without some penetration, there can be no rape, though the act may amount to an attempt to rape. Exception: A man cannot be guilty of rape of his own wife, if she is over the age of 15 years, on account of the matrimonial consent she has given which she cannot retract. But he has no right to enjoy her person without regard to the question of her safety. Physical Incapacity: A person who, through impotency or otherwise, is physically incapable of committing rape cannot be guilty of its attempt, but he may be found guilty under sec. 354 of indecent assault. Can a Husband Abet Rape on his Own Wife? : A husband, no doubt, has a right to the person of his wife, and he cannot be charged for forcible connection, but he has no right to invite others to ravish her. If he does so, he can be said to abet the offence. 54

18 trictly for Internal Circulation - KCL Rape by Husband: It should be remembered that the distinction between rape by a husband on his wife and rape by a man on any other woman lies in the age of the woman. If the woman is under 15 years of age, any man who has sexual intercourse with her, be he her husband or not, and be it with her consent or not, would be guilty of the offence of rape. For, under the exception to. 375, a husband is not guilty of rape on his wife if she is above 15 years: but under the other clause of that section, subject to the exception of the husband's case, a man is guilty of rape if he has sexual intercourse with a woman who is under 16 years of age, even though the act be done with her consent or even at the invitation of woman herself, for the policy of the law is to protect children of such immature age against sexual intercourse. This is also known as statutory rape. Rape, Assault and Criminal Force Distinguished 1. The offence of assault or criminal force to a woman (. 354) is of lesser gravity than the offence of rape: (. 376). 2. In rape, there is sexual intercourse with a woman; in assault or criminal force to a woman, there is only assault or criminal force to a woman with the intention or knowledge that her modesty will be outraged. Intercourse by a Man with his eparated Wife ( A) - Under. 376 : A, if a man has sexual intercourse with his own wife, who is living separately from him, under any decree of separation, or under any custom or usage, and such intercourse is without her consent, he is punishable with imprisonment upto 2 years and fine. Intercourse by Public ervant with Woman in his Custody - ( ): If a public servant, taking advantage of his official position, induces or seduces any woman in his custody to have sexual intercourse with him, and such intercourse does not amount to "rape", he is punishable with imprisonment upto 5 years and fine. Intercourse by uperintendent of Jailor Remand Home - ( C): If a superintendent or manager of a jail, remand home or of a women's or children's institution, taking advantage of his official position, induces or seduces any female inmate of such jail, remand home or institute to have sexual intercourse with him, and such intercourse does not amount to - "rape", he is punishable with imprisonment up to 5 years and fine. Intercourse by any Member of the Management or taff of Hospital - ( ): Whoever being on the management of a hospital or being on the staff of a hospital, takes advantage of his position and has sexual intercourse with any woman in that hospital, and such intercourse does not amount to "rape", he is punishable with imprisonment upto 5 years and fine. Note : ections 376 A to (above) were inserted by the Criminal Law (Amendment) Act, 1993) UNNATURAL OFFENCE (ECTION 377) Lastly, the sixth kind of offence against the human body is of unnatural offence. ection 377 defines unnatural offences as under: 55

19 trictly for Internal Circulation - KCL Whosoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or 10 years and fine. Explanation: Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section: ection 377. This section provides punishment for what is known as sodomy, buggery and bestiality. The offence consists in a carnal intercourse committed against the order of nature by a man with man, or in the same manner with a woman, or by a man or woman in any manner with a beast. As in rape, penetration, however slight, is essential. Consent is immaterial in a case under this section. The person who takes a passive part is equally guilty as an abettor with the person actively participating in the act. IMPORTANT QUETION Q.1. Q.2. Q.3. Q.4. Q.5. Q.6. "Without culpable homicide there can not be a murder." Discuss. Explain culpable homicide not amounting to murder. Define culpable homicide and explain its essential ingredients with the help of suitable illustration. Distinguish between culpable homicide and murder. Define criminal force and distinguish from assault. Define kidnapping and abduction and distinguish between them. Are they continuing offences? Discuss the law relating to grave and sudden provocations as laid down in IPC and state the extent to which it mitigates the responsibility of the accused for the offence of murder. Refer to case laws. 56