Offences Against Human Body Under Indian Laws

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Offences against Human Body

(Under Law of Crime)

Introduction

Under Indian Penal Code, offences against human body are defined.
Humans, who claim to be the only intelligible species on this earth, feel
they have humanity amongst them but the fact is that the humans in
21st century are the ones who do not have a humanistic approach;
they are self-centered. They think only about themselves and can go
to any extent to achieve what they want; even harming the other
person.

There are categorically many offences mentioned as Offences


against Human Body which includes but is not limited to:

Culpable Homicide,

Murder,

Dowry Death,

Various kinds of hurt,

Kidnapping- Abduction,

Wrongful restraint and confinement,

Rape,

Unnatural offences etc.

Murder
Homicide (Latin homo- man, cide-cut) is the killing of a human
being by a human being. Causing the death of an animal is not
murder. It might amount to the offence of mischief or to cruelty to
animals. It may be lawful or unlawful. Lawful homicide (cases
falling under General Exceptions- Secs. 76-106)) is of two types -
excusable and justified homicide.
Unlawful homicide includes:
I. Culpable homicide not amounting to murder (Sec. 299),

II. Murder (Sec. 300), and,

III. Homicide by rash or negligent acts (Sec. 304-A).

Sec. 299: Culpable Homicide

Section 299 defines culpable homicide which is a wider offence than


that of murder: Whoever causes death, by doing an act with the
intention of causing death, or with the intention of causing such bodily
injury as is likely to cause death, or with the knowledge that he is
likely by such act to cause death, commits the offence of culpable
homicide.

Illustrations

A lays sticks and turf over a pit, with the intention of thereby causing
death, or with the knowledge that death is likely to be thereby caused.
Z, believing the ground to be firm, falls in and is killed. A has
committed the offence of culpable homicide.

A knows Z to be behind a bush. B does not know it. A, intending to


cause, or knowing it to be likely to cause Z's death, induces B to fire at
the bush. B fires and kills Z. Here B may be guilty of no offence, but A
has committed the offence of culpable homicide.
A, by shooting at a foul with intent to kill and steal it, kills B, who is
behind a bush; A not knowing that he was there. Here, although A was
doing an unlawful act, he was not guilty of culpable homicide, as he
did not intend to kill B, or to cause death by doing an act that he knew
was likely to cause death.
Essential Ingredients of Sec. 299

Whoever causes death - It is immaterial if the person whom the


accused intended to kill was not killed but some other person. The
death could be caused by words deliberately used by a person. For
example, a seriously ill person may die by hearing some agitating
words.

The death must result as a proximate and not a remote consequence


of the act of violence. There should not be the intervention of any
considerable change of circumstances between the act of violence and
the death. Where the victim died three weeks after the occurrence due
to negligence on his part and sepsis consequent to the bad handling of
the wound, this section was held not attracted.

By doing an act with the intention of causing death - It is important to


note that acts done extend to illegal omission also.

Intention is a question of fact which is to be gathered from the acts of


the parties (viz. nature of the weapon used, the part of the body on
which the blow was given, the force and number of blows, etc.). The
legal maxim is that everyone must be presumed to intend the normal
consequences of his act. Intention does not imply or assume the
existence of some previous design, it means an actual intention, the
existing intention of the moment. Causing serious injury on a vital part
of the body of the deceased with a dangerous weapon must
necessarily, lead to inference that the accused intended to kill.

With the intention of causing such bodily injury as is likely to cause


death - It means an intention to cause a particular injury, which injury
is, or turns out to be, one likely to cause death. It is neither the death
itself which is intended nor the effect of the injury. Thus, where bodily
injury sufficient to cause death is actually caused, it is immaterial to
go into the question of whether the accused had intention to cause
death. For example, where a person falsely arrested in a dacoity case,
and mercilessly beaten at the police station which resulted in his
death; beating for exorcising evil spirit resulting in death.
With the knowledge that he is likely by such act to cause death -
Knowledge in comparison to intention is a strong word and imports a
certainty and not merely a probability. Intention is the purpose or
design with which an act is done. It is the fore knowledge of the act
coupled with the desire of it. Knowledge is an awareness of the
consequences of the act. A person who voluntarily inflicts injury such
as to endanger life must always, except in the most extraordinary
circumstances, be taken to know that he is likely to cause death (e.g.
when the accused fired his gun in the air to scare away the opposite
party and in the act one stray pellet caused gunshot wound to a
person killing him).

The word knowledge includes all cases of rash acts by which death is
caused, for rashness imports a knowledge of the likely result of an act
which the actor does inspite of the risk. In some cases, gross
negligence may amount to knowledge. For example, where the
accused kills a person by hitting him under the belief that he was
hitting at a ghost.

In Palani Goundan v. Emperor [1919 ILR 547 (Mad)], the


accused struck his wife on the head with a ploughshare, which made
her unconscious. Believing her to be dead, in order to lay the
foundation of a false defence of suicide by hanging, the accused
hanged her. The hanging actually caused her death. The court
observed that the intention of the accused must be judged not in the
light of actual circumstances, but in the light of what he supposed to
be the circumstances.

It follows that a man is not guilty of culpable homicide if his intention


was directed only to what he believes to be a lifeless body. It was held
that the accused cannot be convicted of culpable homicide or murder,
but for the offence of grievous hurt and attempt to create false
evidence by hanging his wife (However, the accused could be guilty of
murder if he had an intention to kill the deceased when the deceased
was alive).
Death caused without requisite intention or knowledge is not culpable
homicide. In the absence of intention or knowledge, the offence
committed may be hurt or grievous hurt. It may be noted that
ordinarily, without corpus delicti (i.e. dead body of the victim), it is
dangerous to convict. However, if there is strong evidence the accused
can be convicted.

Explanations to Sec. 299

Explanation I: A person, who causes bodily injury to another who is


labouring under a disease, disorder or bodily infirmity, and thereby
accelerates the death of the other, shall be deemed to have caused his
death.

However, it is one of the elements of culpable homicide as contained in


Sec. 299 and the court must be satisfied, that the death at the time
when it occurs is not caused solely by the disease; and that it is
caused by the bodily injury to the extent, that it is accelerated by such
injury.

It is important that the accused knows that condition of the deceased


was such that his act was likely to cause death. When the accused has
no knowledge of victim's ailment, the accused held guilty of grievous
hurt.

Explanation II: Where death is caused by bodily injury, the person


who causes such bodily injury shall be deemed to have caused the
death, although by resorting to proper remedies and skilful treatment
the death might have been prevented.

Even the fact that victim dies because of wrong treatment could not
absolve the accused of his guilt. If victim dies as a result of the original
injuries as well as the operation, the accused will be guilty.
Explanation III: The causing of the death of child in the mother's
womb is not homicide. But it may amount to culpable homicide to
cause the death of a living child, if any part of that child has been
brought forth, though the child may not have breathed or been
completely born.

Sec.301

Culpable homicide by causing death of person other than person


whose death was intended - If a person by doing anything which he
intends or knows to be likely to cause death, commits culpable
homicide by causing the death of any person, whose death he neither
intends nor knows himself to be likely to cause, the culpable homicide
is said to be committed.

This section embodies what the English authors describe as the


doctrine of transfer of malice or the trans-migration of motive. An
accident makes no difference - if A makes a thrust at B, and C
throwing himself between the two dies. A will be guilty. Where wife
gave poisoned food to her husband, eaten also by four others. One
person died. She was held guilty of murder. Similarly, held in Public
Prosecutor v. Mushunooru Suryanaraycmmoorthy [(1912) 13
Cr. L.J. 145], where the accused with the intention of killing A, gave
him some poisoned halva. A ate a portion of it and threw the rest
away and this was picked up by accused's brother-in-law's daughter (a
girl of 8 years) who ate it and also gave some to another child. The
two child died, but A eventually recovered.

Sec. 300: Murder


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, or;
If it is done with the intention of causing such bodily injury as the
offender knows to be likely to cause the death of the person to whom
the harm is caused, or

If it is done with the intention of causing bodily injury to any person


and the bodily injury intended to be inflicted is sufficient in the
ordinary course of nature to cause death, or

If the person committing the act knows that it is 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 or such injury as
aforesaid.

Illustrations

A shoots Z with the intention of killing him. Z dies in consequence. A


commits murder. A, knowing that Z is labouring under such a disease
that a blow is likely to cause his death, strikes him with the intention
of causing bodily injury. Z dies in consequence of the blow. A is guilty
of murder, although the blow might not have been sufficient in the
ordinary course of nature to cause death of a person in a sound state
of health.

A without any excuse fires loaded cannon into a crowd of persons and
kills one of them. A is guilty of murder, although he may not have had
a premeditated design to kill any particular individual.

Distinction between Culpable Homicide and Murder

In the scheme of the Penal Code, culpable homicide is genus and


murder' its species. All murder' is culpable homicide' but not vice
versa. Speaking generally culpable homicide' (manslaughter) is
culpable homicide not amounting to murder'. Murder is an aggravated
form of culpable homicide [Anda v. State of Rajasthan AIR 1966
SC 148].
For the purpose of fixing punishment, proportionate to the gravity of
this generic offence, the Code recognizes three degrees of culpable
homicide.

Culpable homicide of first degree - gravest form of culpable homicide


i.e. murder under Sec. 300, punishable under Sec. 302.

Culpable homicide of second degree - punishable under the 1st part


of Sec. 304.

Culpable homicide of third degree - punishable under the 2nd part of


Sec. 304 (lowest punishment).

The safest way of approach to the interpretation and application of


these provisions; as suggested by the Supreme Court is to keep in
focus the key words used in the various clauses of Sec. 299 and 300
[State of A.P. v. R. Punnayya, AIR 1977 SC 45].

There is a broad difference between the offences of murder and


culpable homicide. In the case of murder, the offender has a positive
intention to cause the death of the victim. In the case of culpable
homicide the intention or knowledge is not so positive or definite. The
injury caused may or may not cause death. Degree of probability of
death ensuing is high in case of murder. In cl. (3) of Sec. 300 instead
of the words likely to cause death', occurring in the corresponding
clause (b) of Sec. 299, the words sufficient in the ordinary course of
nature' have been used.

Clause (b) of Sec. 299 corresponds with cls. (2) and (3) of Sec.
300. The distinguishing feature of the mens rea requisite under cl. (2)
is the knowledge possessed by the offender regarding the particular
victim being in such a peculiar condition or state of health (e.g.
enlarged spleen) that the intentional harm caused is likely to be fatal,
notwithstanding the fact that such harm would not in the ordinary way
of nature be sufficient to cause death of a person in health (see
illustration (b) to Sec. 300). Clause (b) of Sec. 299 does not postulate
any such knowledge on the part of the offender. Thus, if the assailant
had no knowledge about the disease of the victim, nor an intention to
cause death or bodily injury sufficient in the ordinary course of nature
to cause death, the offence will not be murder, even if the injury which
caused the death was intentionally given.

Analysis of Sec. 300


Clause 1: Act by which the death is caused is done with the intention
of causing death - A question of intention is always a matter of fact.
Where the accused gave repeated knife blows to the victim resulting in
his death, it was held that the intention was to kill.

Clause 2: With the intention of causing such bodily injury as the


offender knows to be likely to cause death - The expression intention
to cause bodily injury as is likely to cause death merely means an
intention to cause a particular injury which injury is, or turns out to be,
one likely to cause death. It is not the death itself which is intended
nor the effect of the injury.

A person inflicting a violent blow on the head of his victim with a lethal
weapon such as an ironstone must be presumed to intend to cause
such injury as he knew was likely to cause death.

Clause 3: With the intention of causing bodily injury to any person


sufficient in the ordinary course of nature to cause death - Clause
thirdly consists of two parts. Under the first part, it has to be shown
that there was an intention on the part of the accused to inflict the
particular injury found on the body of the deceased i.e. the injury
caused was not unintentional or accidental.

The second part requires that the bodily injury intended to be inflicted
was sufficient in the ordinary course of nature to cause death. When
both these parts are satisfied, then the offence is under Sec. 300
thirdly. It does not matter that there was no intention (or knowledge)
to cause death. [Virsa Singh v. State of Punjab, AIR 1958 SC
465].

Even if none of the injuries by themselves was sufficient in the


ordinary course of nature to cause the death, but were cumulatively
sufficient to cause death in the ordinary course of nature, the case is
covered by Sec. 300 thirdly [Brij Bhushan v. State of U.P, AIR
1957 SC 460].

In Rajwant Singh v. State of Kerala (AIR 1966 SC 1874), while


committing a burglary, death took place as a direct result of the acts
of the accused (the nostrils of the victim were closed and he died of
breathlessness). It was held that thirdly was attracted. In another
case, there was an intention to cause an injury to the victim. A single
knife blow was administered, which accidently fell upon the left
shoulder cutting a wound through it and tearing up vital arteries which
came in the path of knife. The injury was sufficient in the ordinary
course of nature to cause death. Held that to come under thirdly of
Sec. 300, the intention to cause the requisite type of injury is
absolutely necessary.

In Gurmail Singh v. State of Punjab 1982 Cr.LJ 1946(SC),


when A attempted to intervene to save B and C from further harm a
barcha was given by accused D which landed on A. There was nothing
to indicate in the evidence that D ever intended to cause any injury
to A. It was held that it could not be said that accused D intended to
cause that particular bodily injury which in fact was found to have
been caused. It does not matter that injury was sufficient in the
ordinary course of nature to cause death. Thirdly was not attracted.

Clause 4: Person committing the act knows that it is so imminently


dangerous that it must, in all probability, cause death or such bodily
injury as is likely to cause death... without any excuse for incurring the
risk of causing death - Unlike the first three clauses of Sec. 300,
intention is not an essential ingredient of this clause. The 4th clause
contemplates the doing of an imminently dangerous act in general,
and not the doing of any bodily harm to any particular individual
[illustration (d) to sec. 300]. This clause cannot be applied until it is
clear that clauses 1, 2 and 3 of the section each and all of them fail to
suit the circumstances.

An act done with the knowledge of its consequences is not prima facie
murder. It becomes murder only if it can be positively affirmed that
there was no excuse. When a risk is incurred even a risk of the gravest
possible character which must normally result in death - the taking of
that risk, is not murder, when there is an excuse to do so [Emperor
v. Dhirajia, AIR 1940 All. 486]. In the above case, a woman
jumped into a well with a baby in her arms due to panic or fright
caused by her incoming husband with whom she had quarreled.

The court held that the act of jumping into a well with a baby in one's
arm was so imminently dangerous an act that however primitive a
person may be and however frightened he or she may be, the
knowledge of the likely consequences must be supposed to have
remained with him or her. The court held it to be a case of culpable
homicide. However, she had an excuse and that excuse was panic or
fright.

Thus, the clause 4thly was not attracted. She was held guilty of
culpable homicide not amounting to murder under Sec. 304.

However, in Gyarsibcti v. State (AIR 1953 M.B. 61), where the


woman jumped into a river with her three children as her life had
become unbearable on account of family discord, it was held that there
was no excuse for the accused for incurring the risk of causing death
of her children. Thus, the case was held to be covered under 4thly of
Sec. 300.
Sec. 302: Punishment for Murder
Whoever commits murder shall be punished with death or
imprisonment for life, and shall also be liable to fine. It is to be noted
that the death sentence is awarded only in rarest of rare' cases
e.g. assassination of Prime Minister Indira Gandhi.

Sec. 304: Punishment for Culpable Homicide Not Amounting to


Murder

Part I of this section provides punishment of imprisonment for life or


imprisonment for 10 years and fine.

Part II provides imprisonment for 10 years, or with fine, or both. If


the offence comes under clause 2 of Sec. 299 (i.e. with intention),

Part III applies. If offence comes under clause 3 of Sec. 299 (only
knowledge), than PartIV applies. If the offence falls within clauses 1, 2
and 3 of Sec. 300 but is covered by any of the five exceptions, it will
be punishable under Part I. If the offence comes under clause 4 of
Sec. 300 but is covered by any of the exceptions, it will be punishable
underPartII.

Exceptions to Offence of Murder


Exceptions to Sec. 300 of the IPC reduce the offence of murder to that
of culpable homicide not amounting to murder. The five exceptions
specified in this section are special exceptions in addition to the
general exceptions mentioned in Chapter IV.
The special exceptions are:

Provocation,

Right of private defence,

Exercise of legal powers,

Absence of premeditation and heat of passion, and,


Consent.

Strictly speaking, they are not exactly defenses, but are in the nature
of mitigating or extenuating circumstances. Burden is on the accused
to establish circumstances which would bring his case within any
exception. However, the general burden to establish the guilt of the
accused is on the prosecution.

Exception I,

Sec.300(Provocation)Culpable homicide is not murder if the offender,


whilst deprived of the power of self- control by grave and sudden
provocation, causes the death of the person who gave the provocation
or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos

First - That the provocation is not sought or voluntarily provoked by


the offender as an excuse for killing or doing harm to any person.
Second - That the provocation is not given by anything done in
obedience to the law or by a public servant in the lawful exercise of
the powers of such public servant.
Third - That the provocation is not given by anything done in the
lawful exercise of the right of private defence.

Explanation - Whether the provocation was grave and sudden


enough to prevent the offence from amounting to murder, is a
question of fact.

Illustrations

A, under the influence of passion excited by a provocation given by Z,


intentionally kills Y, Z's child. This is murder, in as much as the
provocation is not given by the child, and the death of the child was
not caused by accident or misfortune in doing an act caused by the
provocation.

Y gives grave and sudden provocation to A. A, on this provocation,


fires at Y, neither intending nor knowing himself to be likely to kill Z,
who is near him, but out of sight. A kills Z. A has not committed
murder, but merely culpable homicide.

A is lawfully arrested by Z,. A is excited to sudden and violent passion


by the arrest, and kills Z. This is murder, in as much as the
provocation was given by a thing done by a public servant in the
exercise of his powers.

A attempts to pull Z's nose. Z, in the exercise of the right of private


defence, lays hold of A to prevent him from doing so. A is moved to
sudden and violent passion in consequence, and kills Z. This is murder,
in as much as the provocation was given by a thing done in the
exercise of the right of private defence.

Z strikes B. B is, by this provocation, excited to violent rage. A, a


bystander, intending to take advantage of B's rage, and to cause him
to kill Z, puts a knife into B's hand for that purpose. B kills Z with the
knife. Here B may have committed only culpable homicide, but A is
guilty of murder.

The essential ingredients of first exception to Sec. 300 are:

The provocation must be both grave and sudden and should not be
from the side of the accused.

The provocation must be such as would deprive any reasonable man


(and not a hasty or hot-tempered or unusually excitable person) of his
power of self-control over himself.

The act of killing must be done under the immediate impulse of


provocation. It must be distinguished from provocation which inspires
an actual intention to kill.

The offender must not have reflected, deliberated or cooled, between


the provocation and the mortal stroke. However, the mental
background created by the previous act of the victim may be taken
into consideration for ascertaining whether the subsequent act caused
grave and sudden provocation.
The offender must have caused the death of the person who gave the
provocation or that of any other person by mistake or accident.

Mere words or gestures or confession are enough in some cases to


cause grave and sudden provocation (However, under English law, it is
not so) [K.M. Nanavati v. State of Maharashtra AIR 1962 SC
605].

In the above case, the wife confessed to husband of her illicit intimacy
with one Ahuja. The accused drove his wife and children to a cinema,
left them there, went to his ship, took a revolver, drove his car to
Ahuja's flat and shot him dead. Between his wife's confession and
Ahuja's murder, three hours had elapsed, and therefore the accused
had sufficient time to regain his self control. His conduct clearly shows
that the murder was a deliberate and calculated one. Consequently,
Exception 1 do not apply.

Where an accused sees his wife in company with her lover and kills
her, he must be held to have acted under grave and sudden
provocation [Fatta v. Emperor, 30 Cr. L.J. 481]. However, mere
suspicion of unchastity would not be a sudden provocation. A
statement by the wife that she intends to commit adultery or live with
another person is not grave and sudden provocation

Exception 2, Sec. 300 (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 is exercising such right of defence without premeditation,
and without any intention of doing more than is necessary for the
purpose of such defence.

This exception deals with death caused by the excessive exercise of


the right of private defence, provided the accused caused the death of
a person without premeditation and when the accused caused the
death of a person he had no intention of doing more harm than was
necessary for the purpose of defence.

Exception 3, Sec. 300 (Exercise of Legal Powers)

The ingredients of this exception are:

The person accused must be a public servant.

He must believe in good faith that the act which resulted in the death
was lawful and necessary for the due discharge of his duties.

He must bear no ill-will to the deceased.

Where a suspected thief who has been arrested by a police officer,


escapes by jumping down from the train and the police officer finding
that he is not in a position to apprehend him, shoot at him and kills
him. Held that the case is covered by Exception 3 to Sec. 300.

Exception 4, Sec. 300 (Sudden Quarrel)

Culpable homicide is not murder if it is committed Without


premeditation in a sudden fighting the heat of passion upon a sudden
quarrel and without the offender having taken undue advantage or
acted in a cruel or unusual manner.

Explanation - It is immaterial in such cases which party offers the


provocation or commits the first assault.

Where, on a sudden quarrel, a person in the heat of the moment picks


up a weapon which is handy and causes injuries, one of which proves
fatal, he would be entitled to the benefit of this Exception provided he
has not acted cruelly. Where the deceased was an old man and was
innocent intervener who was asking the parties not to quarrel, there
was no justification for the appellant to have given such a serious
injury (a blow by iron bar on the head) to him resulting in his death.
Moreover, the appellant acted in a cruel manner [Pandurang v. State
of Maharashtra AIR 1978 SC 1082]
.
Exception 5, Sec. 300 (Death by Consent)

Culpable homicide is not murder when the person whose death is


caused, being the age of eighteen years, suffers death or takes the
risk of death with his own consent.

Illustration. A, by instigation, voluntarily causes Z, a person under


eighteen years of age, to commit suicide. Here, on account of Z's
youth, he was incapable of giving consent to his own death; A has
therefore abetted murder.

In order to bring the offence under Exception 5, the consent by the


deceased must be given unconditionally and without any reservation.
In a case, the wife flatly refused to go back to her mother and said
that if her husband insisted on her doing so she would rather be killed.
The husband killed her. Here the consent was not the type which is
contemplated by Exception 5, and the husband was held guilty of
murder.

A doctor pleading consent to an operation which proved fatal must


prove that the patient accepted the risk and was fully aware of it.
Where the accused because of successive failures in examinations
decided to end his life and informed the wife of his decision, and the
wife asked him to first kill her and then kill himself, and the accused
killed his wife but was arrested before he could kill himself, it was held
that the case is covered by Exception 5 [Dasarath v. State of Bihar
AIR 1958 Pat 190]. The consent was not given by deceased under a
fear of injury or under a misconception of fact.

Sec. 304-A: Causing Death by Negligence

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.
This section does not apply to the following cases:

Death is caused with any intention or knowledge (voluntary


commission of offence), i.e. the act must not amount to culpable
homicide,

Death has arisen from any other supervening act or intervention which
could not have been anticipated, i.e. death was not the direct or
proximate result of the rash or negligent act,

Death occurred due to an accident (e.g. where an accused on dark


night believing a man to be a ghost killed him.)

Sec. 304-A applies where there is a direct nexus between the death
of a person and the rash or negligent act. The act must be the causa
causans, it is not enough that it may have been the causa sine qua
non. Criminal rashness' is hazarding a dangerous or wanton act with
the knowledge that it is so, and that it may cause injury, but without
intention to cause injury, or knowledge that it will probably be caused.
The criminality lies in running the risk of doing such an act with
recklessness or indifference as to its consequences (i.e. without belief
in the result of such doing).

Criminal negligence is the gross and culpable neglect or failure to


exercise the reasonable and proper care and precaution to guard
against injury either to the public generally or to a particular individual
[Bala Chandra v State of Maharashtra AIR 1968 SC 1319]. An
illegal omission if negligent may come under this section.

Rash and negligent driving:

The mere fact that a fatal motor run-over accident took order to
impose criminal liability on the accused, it must be found as a fact that
a collision was entirely or at least mainly due to rashness or negligence
on the part of the driver. An error of judgment on the part of the
driver would not make him liable under Sec. 304-A.
In Cherubin Gregory v State of Bihar (AIR 1964 SC 205), the
accused fixed up a naked live electric wire in the passage to latrine so
that no trespasser may come and use the latrine. There was no
warning that the wire was live. A trespasser, who manages to enter
the latrine without touching the wire, happens to receive a shock while
coming out and dies soon. It was held that the act of the accused was
an actionable wrong under Sec. 304-A. The mere fact that the person
entering a land is a trespasser does not entitle the owner or occupier
to inflict on him personal injury by direct violence or indirectly by
doing something on the land the effect of which he must know was
likely to cause serious injury to the trespasser.

In S.N. Hussein v. State of A.P. (AIR 1972 SC 685), the accused,


a bus driver, finding a level crossing gate open at a time when there is
no train scheduled to pass, tried to cross the railway line and the bus
collided with an on-coming goods train resulting in death of four
passengers and injuring others. Held that there was no rashness on
the part of the driver: It is very clear from the evidence that the driver
received no warning either from the approaching train or from
passengers in bus in sufficient time to prevent the collision. The train
while approaching the level crossing did not give any whistle. The
railway track was at a higher level and the road was lined by babool
trees and, therefore, a passing train coming from a distance was not
visible from the bus.

The Court also held that there was no negligence on the part of the
driver: Where a level crossing is unmanned it may be right to insist
that the driver of a vehicle should stop and look both way to see if a
train is approaching. But where a level crossing is protected by a
gateman and gateman opened out the gate allowing vehicles to pass,
it will be too much to expect of any reasonable and prudent driver to
stop his vehicle and look out for any approaching train. The Court held
that the accident was due to the negligence of the gateman.
Distinction between Civil and Criminal Negligence

Negligence in a criminal case must be culpable and gross and not


negligence based on error of judgement. Thus, for the purpose of
criminal law, a high degree of negligence is required to be established.

Principles of the avoidance of liability, when there is contributory


negligence by the injured person, are no defence in criminal law.
Where there is ample proof that the accused had brought about the
accident by his own negligence and rashness, it matters not whether
the deceased was deaf, or drunk, or, in part contributed to his own
death.

Mere carelessness is not sufficient for fixing criminal liability. Sec.


304-A, like other sections of the Penal Code, requires a mens rea or
guilty mind. Criminal rashness or negligence requires a particular
mens rea which is very helpful in distinguishing a criminal culpable
wrong from a tort.

Sec. 319: Hurt


Whoever caused bodily pain, disease or infirmity to any person is said
to cause hurt.
There is nothing in this section to suggest that the hurt should be
caused by direct physical contact between the accused and the victim.
However, the pain must be bodily and not mental and may be caused
by any means. Dragging by hair in aggressive manner and fisting in
course of attack are not trivial acts and constitute offence of causing
hurt. Infirmity has been defined as inability of an organ to perform its
normal function which may either be temporary or permanent. A state
of temporary impairment or hysteria or terror would constitute
infirmity.
Sec. 320: Grievous Hurt
The following kinds of hurt only are designated as grievous

First-Emasculation.
Secondly - Permanent privation of the sight of either eye.

Thirdly - Permanent privation of the hearing of either ear.

Fourthly - Privation of any member or joint

Fifthly - Destruction or permanent impairing of the powers of any


member or joint.

Sixthly - Permanent disfiguration of the head or face.

Seventhly- Fracture or dislocation of a bone or tooth.

Eighthly - Any hurt which endangers life or which causes the sufferer
to be during the space of twenty days in severe bodily pain, or unable
to follow his ordinary pursuits.

The mere fact that the injured remained in the hospital for 20 days
would not be enough to conclude that he was unable to follow his
ordinary pursuits during that period.

An injury may be called grievous only if it endangers life'. A simple


injury cannot be called grievous simply because it happens to be
caused on a vital part of the body close to the carotid artery, unless
the nature and dimensions of the injury or its effect are such that in
the opinion of the doctor it actually endangers the life of the victim.
Hurt or grievous hurt to be punishable must be caused voluntarily, as
defined in Sec. 321 and 322 of IPC.

Sec. 321: Voluntarily Causing Hurt


Whoever does any act with the intention thereby causing hurt to any
person, or with the knowledge that he is likely thereby to cause hurt to
any person, and does thereby cause hurt to any person, is said
voluntarily to cause hurt.

Sec. 322: Voluntarily Causing Grievous Hurt

Whoever voluntarily causes hurt, if the hurt which he intends to cause


or know himself to be likely to cause is grievous hurt, and if the hurt
which he causes is grievous hurt, is said voluntarily to cause grievous
hurt.

Explanation - A person is not said voluntarily to cause grievous hurt


except when he both causes grievous hurt and intends or knows
himself to be likely to cause grievous hurt. But he is said voluntarily to
cause grievous hurt, if intending or knowing himself to be likely to
cause grievous hurt of one kind, he actually causes grievous hurt of
another kind.

Illustration - A, intending or knowing himself to be likely


permanently to disfigure Z's face, gives Z a blow which does not
permanently disfigure Z's face, but which causes Z to suffer severe
bodily pain for the space of twenty days. A has voluntarily caused
grievous hurt.

Punishment for voluntarily causing hurt or grievous hurt is provided


under Sec. 323 (imprisonment up to one year, or with fine up to one
thousand rupees, or with both) and Sec. 325 (imprisonment for a
term which may extend to seven years and shall also be liable to fine)
respectively.

Grievous Hurt Resulting in Death

In Government of Bombay v. Abdul Wahab (AIR 1946 Bom 38)


the court observed that the line between culpable homicide not
amounting to murder and grievous hurt is very thin. In one case the
injuries must be such as are likely to cause death and in the other they
endanger life. Where death results on account of grievous hurt and
evidence shows that the intention of the assailants was to cause
death, the case would fall under Sec. 302 and not under Sec. 325
[Laxman v State of Maharashtra AIR 1974 SC 1803].

Where an accused squeezed the testicles of a victim resulting in his


death almost instantaneously and the incident took place all of a
sudden, it could not be said that the accused had any intention casuing
the death of deceased nor could he be attributed with knowledge that
such act was likely to cause his cardiac arrest resulting in his death. It
was held that the case fell under Sec. 325, IPC [State of Karnataka
v. Shivlingaiah AIR 1988 SC 115].

In Rambaran Mahton v The State (AIR 1958 Pat 452), the


deceased and the accused were brothers. On one day, an altercation
took place between two, the accused dashed the deceased to the
ground and sat upon his stomach and hit him with fists and slaps. The
deceased became senseless and eventually died. The deceased had
received some serious injuries on the head, chest and the spleen.

The High Court held: The essential ingredients of the offence of


voluntarily causing grievous hurt are:

Grievous hurt must first be caused. If the hurt caused is simple, a


person voluntarily causing grievous hurt even if he intended.

The offender intended, or knew himself, to be likely to cause grievous


hurt. If he intended or knew himself to be likely to cause only simple
hurt, he cannot be convicted for the offence under Sec. 325 even if the
resultant hurt was grievous.

When the act the accused did in the process of causing hurt, is such as
any person of ordinary intelligence knows it likely to cause grievous
hurt, he may safely be taken to have intended or contemplated
grievous hurt. In the present case, there could have been no intention
on the part of accused to cause grievous hurt.

But the way in which he assaulted his brother (who did not tried to
defend himself), he should have known that he was likely to cause
grievous hurt. Three ribs and the spleen of the deceased was ruptured
- these injuries could not have been caused unless blows were given to
the deceased with great force.

Having regard to the relationship between the parties and also the fact
that this unfortunate incident occurred on the spur of the moment due
to provocation given by the deceased himself and also considering the
fact that there was absolutely no intention on the part of the appellant
either to kill him or to cause him such bodily injury as was likely to
cause his death. Thus, the act of the accused amounts to grievous hurt
even though the death has resulted.

Kidnapping and Abduction

The mischief intended to be punished by the provisions relating to


kidnapping and abduction may partly consist, in the violation or the
infringement of the guardian right to keep their wards under their care
and custody but more important object is to afford security and
protection to the wards themselves against seduction or abduction for
improper purposes [State v. Harbans Singh Kishan Singh AIR
1954 Bom 339].
Sec. 359: Kidnapping
Kidnapping is of two types: kidnapping from India, and
kidnapping from lawful guardianship.
The literal meaning of kidnapping is child stealing. The two forms of
kidnapping may overlap each other. For example a minor kidnapped
from India may well at the same time be kidnapped from his lawful
guardianship also.

Sec. 360: Kidnapping from India


Whoever conveys any person beyond the limits of India without the
consent of that person, or of some person legally authorized to
consent on behalf of that person, is said to kidnap that person from
India.

India means, the territory of India.


For an offence under this section, it does not matter that the victim is
a major or minor. If a person has attained the age of majority and has
given his consent to his being conveyed, no offence is committed.

The age of consent for the purposes of the offence of kidnapping is 16


years for boys and 18 years for girls.

Sec. 361: Kidnapping from Lawful Guardianship


Leading Cases: S. Vardarajan V State Of Madras (Air 1965 SC
942) Whoever takes or entices any minor under sixteen years of age if
a male, or under eighteen years of age if a female, or any person of
unsound mind, out of the keeping of the lawful guardian of such minor
or person of unsound mind, without the consent of such guardian, is
said to kidnap such minor or person from lawful guardianship.

Explanation - The words lawful guardian in this section include any


person lawfully entrusted with the care or custody of such minor or
other person.
Exception - This section does not extend to the act of any person who
in good faith believes himself to be the father of an illegitimate child,
or who in good faith believes himself to be entitled to the lawful
custody of such child, unless such act is committed for an immoral or
unlawful purpose.

Besides the four essential ingredients of this offence mentioned


in Sec. 361, the courts have formulated certain other guiding
principles:

In the case of minor girls this section is attracted irrespective of the


question whether she is married or unmarried [State of H.P. v. Mt
Kala AIR 1957 H.P. 42].

The consent of the minor is immaterial [State of Haryana v. Raja


Ram AIR 1973 SC 819].

The motive or intention of the kidnapper is also immaterial [State v.


Sulekh Chand AIR 1964 Punj. 83]. That is why, kidnapping is a
strict liability offence.

The intention with which kidnapping is effected can be ascertained


from the circumstances of the offence at the time of occurrence or
prior or subsequent to it. A kidnapping does not per se lead to any
inference of intent or purpose of kidnapping [Badshah v. State
ofU.P. (2008) 3 SCC 681].

If the kidnapped girl turns out be under 18 years of age, the kidnapper
must take the consequences, even though he bona fide believed and
had reasonable ground for believing that she was over eighteen [R. v.
Prince (1875) L.R.2],

The defence that the girl was of easy virtue would not be sufficient to
make accused not liable. Analysis of Sec. 361
is intended more for the protection of the minors and persons of
unsound mind than for the right of guardians of such persons.
Taking or enticing - The word takes means to cause to go, to escort
or to get into the possession; it does not imply force, actual or
constructive. When the accused takes the minor with, whether she was
willing or not, the act of taking is complete.

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 he or she would not otherwise do. There
is an essential distinction between taking and enticing. Unlike taking,
the mental attitude of the minor is relevant in enticing. The word
entice' involves the idea of inducement or allurement [Biswanath
Mallick v. State, 1995 CrLJ 1418 (Ori)].

It is not necessary that the taking or enticing must be shown to have


been by means of force or fraud. Persuasion by the accused person
which creates willingness on the part of the minor to be taken out of
the keeping of the lawful guardian would be sufficient to attract the
section [Prakash v State of Haryana AIR 2004 SC 227]. However,
if the minor herself leaves her father's house without any inducement
by the accused who merely allows her to accompany him, he cannot
be said to have taken her out of the keeping of the father [State of
Haryana v Raja Rani].

Dowry Death:

This is essentially a crime that happens against a woman. Dowry is


essentially a crime that has been prevalent in Indian society for
hundreds of years and in spite of many steps taken this evil till now is
not completely eradicated.

According to Black's Law Dictionary, Dowry means money and


property brought into a marriage by a bride.

Dowry is the main reason which has resulted in female feticide and
infanticide. Since centuries the death of many unborn girls has taken
place because of dowry.

Dowry death means when the death of a woman is caused by any


burns or bodily injury within 7 years of marriage not under natural
circumstances rendering a great suspicion who is the offender of such
a crime.

Dowry is a serious threat to society as it has resulted in many women


either committing suicide as such they cannot handle such torture and
stress or else they are killed by the in-laws and later it is forged into
an accident. Though Indian Penal Code section 304-B punishes the
person for committing dowry death which is not less than 7 years but
which may extend to life imprisonment, this has not helped the nation
to solve the problem of dowry.

Dowry Prohibition Act, 1961 has also been passed to protect the
evil of dowry.

According to one data, a woman becomes the victim of dowry death


every one hour in India. Dowry death happens but now within the 4
walls of the house which protects the offender.
Hence, strict vigilance and law enforcement is required to check on
these laws.

Rape:

According to the Black's Law Dictionary:

RAPE is defined as having sex with a person without their permission


(such as if they are sleeping or unconscious) or forcing them to have
sex against their consent.
IPC does not define consent in positive terms but what cannot be
regarded as consent is explained by Section 90 which reads as consent
given firstly under fear of injury and secondly under a misconception
of fact is not consent at all.

Rape has been a serious menace in today's era. A hell lot of rape cases
are being heard in India the recent being raping and murder of an
eight-year-old girl, Asifa whose death once again united the whole
nation to fight for a common cause. Earlier the nation was united to
fight for the Nirbhaya Gang rape case.

The crime of rape is considered a serious offence against the human


body, especially against females. The female who becomes the victim
of rape feels shame, regret, have suicidal tendencies and she is
believed to bring dishonor to the family; she keeps herself locked in
the 4 walls of the house.

It is the society because of which the rape victims are unable to boost
themselves. The concept of Victim Blaming is very much prevalent in
Indian society though steps are taken to eradicate it. According to this
concept, people blame the victim for her rape rather than the
perpetrator.

Society passes such comments, Why was the girl out of the house
after 10, Why was she wearing such a short dress, What was she
doing at such a place where people don't usually go, She might have
asked for etc. Such remark of the society accuses the woman of her
rape rather than the actual accused. Rape is Rape and nothing can
justify rape. Even if the perpetrator was drunk and then raped a
woman cannot justify his committing rape.

Sexual violence apart from being a dehumanizing act is an unlawful


intrusion in the right to privacy and sanctity of women.
SIRIYA v. STATE OF M.P
In this case, a 13-year-old girl was raped by her own father. The SC
held that if the protector becomes the violator, punishment needs to
be increased.

Even if the accused rapes a prostitute or woman of easy virtue, he


cannot take the defense that the woman being of loose character, he
can rape her as her consent was implied. Even the woman of loose
character or prostitute can also file complains of rape.

Case: STATE OF MAHARASHTRA v. MADHUKAR NARAIN


In this case, a police officer went to the house of the victim; she is a
woman of easy virtue, he asked her to have sex with him but she
denied. When he forced her, she shouted and people from nearby
came. In the court, the officer said that as she was a woman of easy
virtue, her statement should not be relied on but then held him guilty.

A murderer kills the body but a rapist kills the soul. - Hon'ble Mr.
Justice Krishna Iyer

In spite of so many provisions made for a woman to save them from


sexual violence still, it is going up the scale rather than coming down.

The ruling Government 2 days back passed an ordinance after the


gruesome Asifa rape case; how much this ordinance will be
successful is yet to be known.

Every coin has two sides


The rape provisions are made very stringent for protecting the girls
but in recent times it has come out that women are misusing the
provisions.

There must come an amendment that equalizes the burden of proof on


both sides and the law works smoothly. It should be such that
contradicts the statement i.e. Law is there for vigilant.
Conclusion

Crimes are committed in every part of the world and there is not a
single country that is crime-free. Countries still have to struggle to
bring a complete stoppage on crimes against the human body because
humans are having emotions and in the course of their life various
emotions such as revenge, jealousy, ego are expected to crop up and
because of all this they commit a crime.

After a person commits a crime he should not be punished but we as a


society should believe in a reformative approach rather than a punitive
approach; we should understand the person's nature, the reason he
turned delinquent and the other factors connected thereto to
understand why the person committed a crime.

Once the reasons are to be known, steps should be taken to reform


the person and make him a better citizen so that he can adjust himself
in society according to the people's expectations. We all know of the
stringent laws like death penalty or life imprisonment in cases of
murder, rape and like; in spite of such provisions being there people
commit a crime which means legislations have failed to stop the
people from committing a crime.

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