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Class :

Paper Code :​ ​LLB 206

Subject :​ ​Law of Crimes-II

UNIT-I OFFENCES AGAINST THE HUMAN BODY I

HOMICIDE

Homicide from the earliest times has fascinated the human mind and has always been considered
as most heinous of offences. The word homicide has been derived from the latin word ‘homo’
which means a man, and ‘caedere’ which means to cut or kill. Thus, homicide means the killing
of a human being, by a human being. But then, not all cases of homicide are culpable as all
systems of law do distinguish between lawful and unlawful homicide For instance, killing in self
defence or in pursuance of a lawful authority or by reason of mistake or fact, is not culpable.
Likewise, if death is caused by accident or misfortune, or while doing an act in good faith and
without any criminal intention for the benefit of the person killed, the man is excused from
criminal responsibility for homicide.

Further in some cases the accused may be punished for lesser offences (for e.g. hurt) even though
death has resulted, if the injury resulting in death though voluntarily caused was not likely to
cause death . For example, A gives B a blow and B, who suffers from an enlarged spleen of
which A was not aware, dies as a result. A is not guilty of Culpable Homicide as his intention
was merely to cause an injury that was not likely to cause death.
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It is in connection with with homicide that the maxim ‘​actus non facit reum nisi mens sit rea’
has been frequently cited as stating the two fundamental requirements of criminal liability.

Culpable Homicide/ Manslaughter

The crime of manslaughter is termed as Culpable Homicide. It is a term in the law of Scotland
and England that covers a number of criminal homicides equivalent to manslaughter in legal
criminal jurisdictions.

Section 299 of the Indian Penal Code deals with Culpable Homicide and it is stated as follows –
“Whoever causes death by doing an act with the intention of causing death , or with the
knowledge that he is likely by such act to cause death, commits the offence of Culpable
Homicide.”

The Penal Code has first defined Culpable Homicide simpliciter (Section 299, I.P.C) termed as
manslaughter under English law which is genus, and then murder (Section 300, I.P.C) which is
species of homicide.

Explanation 1 – A person who causes bodily injury to another who is labouring under a
disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be
deemed to have caused his death.

Explanation 2 – Where death is caused by bodily injury, the person who causes such bodily
injury shall be deemed to have caused the death, although by resorting to proper remedies and
skilful treatment the death might have been prevented.
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Explanation 3 – The causing of the death of a child in the mother’s womb is not homicide. But
it may amount to Culpable Homicide to caused the death of a living child, if any part of that
child has been brought forth, though the child may not have breathed or completely born.

Homicide is the killing of a human being by a human being. It is either a) lawful, or b) unlawful.

a) ​Lawful Homicide​: It is also known as Simple Homicide, includes several cases falling under
the General Exceptions. The death is caused in one of the following ways :-

● Where death is caused by accident or misfortune, and without any criminal intention or
knowledge in the doing of a lawful act, in a lawful manner, by lawful means, and with
proper care and caution (s. 80)
● Where the death is caused justifiably, that is to say,
➢ By a person, who is bound, or by mistake of fact in good faith believes himself
bound, by law (s.76)
➢ By a Judge when acting judicially when acting judicially in the exercise of any
power which is, or which in good faith he believes to be, given to him by law.
(s.77)
➢ By a person acting in pursuance of the judgement or order of a Court of Justice.
(s.78)
➢ By a person who is justified or who by reason of a mistake of fact, in good faith,
believes himself to be justified by law.(s.79)
➢ By a person acting without criminal intention to cause harm and in good faith, for
the purpose of preventing or avoiding other harm to person or property (s.81)
➢ Where death is caused in the exercise of the right of private defence of person or
property (ss. 100, 103)
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● Where death is caused by a child, or person of unsound mind, or an intoxicated person as


will come under ss. 82,83,84 and 85.
● Where death is caused unintentionally by an act done in good faith for benefit of the
person killed, when
➢ He or, if a minor or lunatic, his guardian, has expressly or impliedly consented to
such an act (ss. 87, 88); or
➢ Where it is impossible for the person killed to signify his consent or where he is
incapable of giving consent, and has no guardianfrom whom it is possible to
obtain consent, in time for the thing to be done with benefit. (s.92)

b) ​Unlawful Homicide : Culpable Homicide is the first kind of unlawful homicide. It is the
causing of death by doing:

i. An act with the intention of causing death.

ii. An act with the intention of causing such bodily injury as is likely to cause death; or

iii. An act with the knowledge that it was likely to cause death.

Without one or other of those elements, an act, though it may be in its nature criminal and may
occasion death, will not amount to the offence of Culpable Homicide.

Culpable Homicide – Essential Elements:

Culpable Homicide is the first kind of unlawful homicide as defined in Section 299, I.P.C it
purports to define and explain as to when an act of causing death constitutes Culpable Homicide.
The important elements are:-

1) Causing of death of a human being.


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2) Such death must have been caused by an act

i. With the intention of causing death; or

ii. With the intention of causing such bodily injury as is likely to cause death; or.

iii. With the knowledge that the doer is likely by such an act to cause death.

The fact that the death of a human being is caused is not enough. Unless one of the mental states
mentioned in ingredient is present, an act causing death cannot amount to Culpable Homicide.
Thus where a constable who had 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, it was held that
accused could not be held guilty of Culpable Homicide

Circumstances For Culpable Homicide

a) Causes Death: In order to hold a person liable under the impugned Section there must be
causing of death of a human being as defined under Section 46 of the Code. The causing
of death of a child in the mother’s womb is not homicide as stated in Explanation 3
appended to Section 299, I.P.C. But the person would not be set free. He would be
punishable for causing miscarriage either under Section 312 or 315 I.P.C depending on
the gravity of the injury. The act of causing death amounts to Culpable Homicide if any
part of that child has been brought forth, though the child may not have breathed or been
completely born. The clause ‘though the child may not have breathed’ suggests that a
child may be born alive, though it may not breath (respire) , or it may respire so
imperfectly that it may be difficult to obtain clear proof that respiration takes place.
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Causing of death must be of a living human being which means a living man, woman,
child and at least partially an infant under delivery or just delivered.

b) ​By Doing An Act With The Intention Of Causing Death: Death may be caused by a
hundered and one means, such as by poisioning, drowning,striking,beating and so on and
so forth. As explained under Section 32, I.P.C the word ‘act’ has been given a wider
meaning in the Code in as much as it includes not only an act of commission, but illegal
omissions as well and the word ‘illegal’ is applicable to everything which is an offence or
which is prohibited by law, or which is prohibited by law, or which furnishes ground for
civil action (s.43). Therefore death caused by illegal omission will amount to Culpable
Homicide.

Death caused by effect of words on imaginations or passions: The authors of the Code observe :
“ The reasonable course, in our opinion , is to consider speaking as an act, and to treat A
as guilty of voluntary Culpable Homicide, if by speaking he has voluntarily caused Z’s
death, whether his words operated circuitously by inducing Z to swallow a poison or
throwing Z into convulsions.”

c) With The Intention Of Causing Such Bodily Injury as is likely to cause death: . The word
‘intention’ in clause (a) to Section 299, I.P.C has been used in its ordinary sense, i.e.,
volitional act done without being able to forsee the consequence with certitude. The
connection between the ‘act’ and the death caused thereby must be direct and distinct;
and though not immediate it must not be too remote. If the nature of the connection
between the act and the death is in itself obscure, or if it is obscured by the action of
concurrent causes, or if the connection is broken by the intervention of subsequent
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causes, or if the interval of time between death and the act is too long, the above
condition is not fulfilled. Where a constable fired five shots in succession at another
constable resulting in his death, it was held that it would be native to suggest that he had
neither intention to kill nor any knowledge that injuries sufficient to kill in ordinary
course of nature would not follow. His acts squarely fell in clauses 2,3 and 4 of s.300,
I.P.C i.e Culpable Homicide amounting to murder.

d) With the knowledge that he is likely by such act to cause death : ‘Knowledge’ is a strong
word and imports certainty and not merely a probability. If the death is caused under
circumstances specified under Section 80, the person causing the death will be
exonerated under that Section. But, if it is caused in doing an unlawful act, the question
arises whether he should be punished for causing it. The Code says that when a person
engaged in the commission of an offence, without any addition on account of such
accidental death. The offence of Culpable Homicide supposes an intention, or knowledge
of likelihood of causing death. In the absence of such intention or knowledge, the offence
committed may be grievous hurt, or simple hurt. It is only where death is attributed to an
injury which the offender did not know would endanger life would be likely to cause
death and which in normal conditions would not do so notwithstanding death being
caused, that the offence will not be Culpable Homicide but grievous or simple hurt. Every
such case depends upon the existence of abnormal conditions unkown to the person who
inflicts injury. Once it is established that an act was a deliberate acct and not the result of
accident or rashness or negligence, it obvious that the offence would be Culpable
Homicide.
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e) Death Caused of Person Other Than Intended: To attract the provisions of this Section it
suffices if the death of a human being is caused whether the person was intended to be
killed or not. For instance, B with the intention of killing A in order to obtain the insured
amount gave him some sweets mixed with poison. The intended victim ate some of the
sweets and threw the rest away which were picked up by two children who ate them and
died of poisoning. It was held that B as liable for murder of the children though he
intended to kill only A.

f) Death Caused Inadvertently without Intention While Doing an Unlawful Act: It has been
clearly stated in I.P.C that a person will not be liable for Culpable Homicide, if he causes
the death of a person while doing an unlawful act, provided he did not intend to kill or
cause death by doing an act that he knew was likely to have that effect. On the other
hand, under English law, if a person whilst committing an unlawful act accidently kills
another, he would be liable for manslaughter or murder according to whether his act
constituted a felony or misdemeanor.

g) Consent is not a defence to Manslaughter: The House of Lords in R v Walker held that
the respondent a truck driver carrying illegal immigrants will be criminally responsible
for involuntary manslaughter, if the act results in death, even if the victim has consented
to take such risk engaged in some joint unlawful activity. In this case the defendant, truck
driver ( a Dutch national) drove a lorry from Rotterdam (Netherlands) to Zeebrugge
(United Kingdom). The lorry had been loaded with a refrigerated container in which 60
Chinese (illegal immigrants) had been hidden to conceal the illegal human cargo behind a
load of tomatoes. The container was sealed apart from a small air vent which was closed
for 5 hours prior to the ferry crossing to Dover to preserve secrecy. On disembarkation at
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Dover (in England) the customs officers examined the container and discovered the
bodies of 58 immigrants, who had suffocated to death. Wacker was charged with 58
offences of manslaughterand conspiracy to facilitate the entry of illegal entrants into
United Kingdom. Applying the doctrine of negligence​( ex turpi causa non oritur actio)
for causing death of the victims the trial convicted and sentenced the respondent to 6
years imprisonment for each the manslaughter charges to run concurrently and eight
years imprisonment for the conspiracy to facilitate entry of illegal immigrants with a total
of 14 years. This decision was upheld by the House of Lords as well.

Section 301​; 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 committed by the
offender is of the description of which it would have been if he had caused the death of the
person, whose death he intended or knew himself to be likely to cause..

1) ​Doctrine of Transferred Malice: Blow aimed at the intended victim, if alights on another,
offence is the same as it would have been if the blow had struck the intended victim. This
Section lays down that Culpable Homicide may be committed by causing the death of a person
whom the offender neither intended, nor knew himself to be likely, to kill. This Section
embodies what the English authors describe as the Doctrine of Transfer of Malice or the
transmigration of motive. Under this Section, if A intends to kill B but kills C whose death he
neither intends nor knows himself to be likely to cause, the intention to kill C is, by law
attributed to him. Where the accused was deliberately trying to shoot a fleeing man who had
criticized his father in a School Committee Meeting but unfortunately his own maternal uncle
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came in between him and the intended victim and thus got killed, it was held that the act of the
accused ws nothing but murder under s.302 read with s.301, I.P.C

Section 304​: Whoever commits Culpable Homicide not amounting to murder, shall be punished
with imprisonment for life, or imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine, if the act by which the death is caused is done with the
intention of causing death, or causing such bodily injury as is likely to cause death;

Or with imprisonment of either description for a term which may extend to ten years, or with
fine, or with both, if the act is done with the knowledge that it is likely to cause death, but
without any intention to cause death, or to cause such bodily injury as is likely to cause death.

This Section provides punishment for Culpable Homicide not amounting to murder . Under it
there are two kinds of punishments applying to two different circumstances:

a) If the act by which death is caused is done with the intention of causing death or such bodily
injury as is likely to cause death, the punishment is imprisonment for life, or imprisonment of
either description for a term which may extend to ten years and fine.

b) If the act is done with knowledge that it is likely to cause death but without any intention to
cause death or such bodily injury as is likely to cause death, the punishment is imprisonment of
either description for a term which may extend to ten years, or with fine, or with both.

Where the deceased , an old man with an enlarged and flabby heart, was lifted by the accused
during a quarrel and thrown on the ground from some distance with sufficient force and the
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deceased got his ribs fractured and died of a rupture of the heart, it was held that the offence fell
under Section 325 rather than 304 as the accused had no intention or knowledge to cause death.

Section 304 A​: 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 finr, or both.

The original Penal Code had no provision for punishment in those cases where a person causes
death of another by negligence. That is to say, liability for causing death was limited only to
cases of murder and Culpable Homicide not amounting to murder. Section 304A was inserted in
the Penal Code by the Indian Penal Code Act 27 of 1870 to cover those cases which under
English law are termed Manslaughter by negligence.

The impugned Section provides punishment of either description for a term which may extend to
two years, or fine, or both in case of homicide by rash or negligent act. The Law Commission of
India in 1971 on the basis of strong demand for the increase in punishment for the offences under
this Section recommended for enhancements of the sentence of imprisonment upto 5 years.But it
was not implemented.

Principle of Criminal Liability For Negligence: Adomado

The House of Lords in Adomado while dismissing the appeal against conviction of an anesthetist
for gross negligence during an eye operation had failed to notice that the supply of oxygen has
been discontinued, resulting in death of the patient held that to establish negligence the general
principles of law as follows may apply:
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● Whether or not defendant was in breach of a duty of care owed to the victim who had
died. If so, the general principle of ex turpi causa applied.
● Whether that breach of duty caused the death of the victim: If so, should that breach of
duty be categorized as gross negligence and therefore as a crime.
● This will depend upon the seriousness of the breach committed by the defendant when
the breach occurred.
● In essence, it is permissible for gross negligence manslaughter to be established without
necessity to enquire into defendant’ state of mind.

Essential Ingredients:

To bring a case of Homicide under Section 304A I.P.C the following condition must exist, viz;

1) There must be death of the person in question

2) The accused must have caused such death; and

3) That such act of the accused was rash or negligent and that it did not amount to Culpable
Homicide.

The requirement of Section 304A, I.P.C are that the death of a person, must have been caused by
doing only rash or negligent act, and that there must be a direct nexus between death of a person
and the rash and negligent act of the accused, Section 304 A. I.P.C will not apply. Where the
accused was allowed to manufacture of wet paints in the same room where varnish and
turpentine were stored, fire broke out due to a proximity of open burners to the stored varnish
and turpentine. The direct or proximate cause of the fire which resulted in 7 deaths was the act of
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one Hatim. Apparently in a hurry, he had perhaps not allowed the resin to cool sufficiently and
poured the turpentine too quickly.

The deaths were therefore not directly the result of the rash act on the part of the accused, nor
one that was proximate and efficient cause without the intervention of another’s negligence. The
accused was therefore acquitted of the offence under Section 304 A and held liable for negligent
conduct with respect to fire or combustible matter is punishable under Section 285 of the I.P.C. It
must be causa causans(immediate cause); it is not enough that it may have been the causa sine
qua non (a necessary or inevitable cause).

RASH AND NEGLIGENT ACT

A rash act is primarily an over hasty act. It is opposed to deliberate act. It basically denotes want
of proper care and caution and connotes and overt act with a consequence of risk that evil
consequences might follow but with hope it will not happen.

Negligence is a breach of duty imposed by law. Negligence may be either civil or criminal
negligence depending upon the nature and gravity of the negligence. Criminal negligence is
gross and culpable, neglect or failure to exercise reasonable and proper care to guard against
injury, either to public generally, or to an individual in a particular, which having regard to al the
circumstances out of which charge has arisen, it was duty of person to have adopted.

A Person Convicted Under Section 304A, I.P.C is not entitled to the benefit of probation and
lenient Punishment- The apex court in Dalbir Singh, rejected the plea of the accused driver for
invocation of the benevolent provision of Section 4 of the Probation of the Offenders Act, 1958.
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Medical Negligence: There is an “implied undertaking” by the member of medical profession


that he would use a fair, reasonable and competent degree of skill. However, a medical
practitioner cannot be found guilty merely because in matter of opinion he made an error of
judgement. The doctor would not be liable for taking and adopting one course of treatment,
whereas other course might have been preferable.

Doctor liable For Negligence Both in Civil and Criminal Law: A doctor when consulted by a
patient owes him certain duties, viz,

1)A duty of care in deciding whether to undertake the case;

2) A duty of care in deciding what treatment to give;

3)A duty of care in administering that treatment.

A breach of duty gives a cause of action under (i) Law of Torts, or (ii) Consumer Protection Act,
1986. The doctor is liable to pay compensation to victim if found liable . In case of civil case in
law of torts the plaintiff is required to pay ad valorem court fee, which is about 10% of the
amount claimed apart from other expense incurred. However under Consumer Protection Act,
1986 the plaintiff is not required to pay the court fees or engage a lawyer. He may present his
case personally.

A doctor may also be held liable under the Penal Code for punishment in case of criminal
negligence, for:

a) causing death by rash and negligent act under Section 304A, I.P.C.

b) causing grievous hurt endangering life under Section 388, IPC


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c) causing hurt endangering life under Section 337, I.P.C

Both the proceedings (civil and criminal) are may go simultaneously as laid down by Supreme
Court in Union Carbide

In order to prove criminal liability in medical negligence there must be causa causans and merely
proving causa sine quo non, will not be enough. In criminal law the burden of proof will be much
higher on prosecution as compared to civil law. The prosecution will have to prove its case
beyond reasonable doubt and the victim will get nothing but mental satisfaction therefore, most
of these cases are filed in civil courts preferably under Consumer Protection Act,

UNIT-II AGAINST HUMAN BODY II

1. HURT AND GRIEVOUS HURT


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Section 319 to 338 of Indian Penal Code deals with hurt in various forms. Section 319 defines
simple hurt as causing bodily pain, disease, or infirmity, and section 321 makes voluntary
causing of hurt an offence punishable under section 323, IPC.

Hurt Grievous hurt


Definition: Definition:

Hurt defined under Section 319 of the According to Section 320 of Indian Penal Code - The
Indian Penal Code- following kinds of hurt only are designated as "grievous" -
“Whoever causes bodily pain, disease
or infirmity to any person is said to First - Emasculation.
cause hurt.”
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.


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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 nature of Hurt is simple The nature of Grievous hurt is grievous.

It Covers bodily pains disease or According to Section 320 there are eight kinds of hurt
infirmity to any person which are said grievous in nature.

The offence is non-cognizable, The offence is cognizable, bailable, compoundable with the
bailable and triable by any Magistrate permission of the Court before which any prosecution of
such offence is pending and triable by any Magistrate .

Punishment : Punishment :

Whoever, except in the case provided Whoever, except in the case provided for by section 335,
for by section 334, voluntarily causes voluntarily causes grievous hurt, shall be punished with
hurt, shall be punished with imprisonment of either description for a term which may
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imprisonment of either description for extend to seven years, and shall also be liable to
a term which may extend to one year, fine.(Section 325 IPC)
or with fine which may extend to one
thousand rupees, or with both.
(Section 323 IPC)

2. CRIMINAL FORCE AND ASSAULT

Force: ​According to S. 349, a person is said to use force to another if the causes in one of the
three following ways:​
(a) motion, or​
(b) change of motion, or​
(c) cessation of motion:​
to that other, or to any substance, so as to bring it into contact with any part of that other, or
anything which that other is wearing or Tying or anything so situated that such contact affects
the sense of feeling of the other’s:​
Firstly: be his own bodily power.​
Secondly: by disposing any substance in such a manner that the motion, change of motion,
cessation of motion takes place without any other person.​
Thirdly by inducting any animal to move, to change its motion or to cease its motion.

Criminal Force: ​According to Section 350; whoever intentionally uses force to another without
his consent:​
(a) in order to the committing of offence, or​
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(b) intending or knowing it to be likely that by the use of such force, he will cause injury or fear,
or annoyance to the latter, is said to use criminal force to that other.

Assault: ​Section 351 lays down that whoever makes gesture, or any preparation intending or
knowing it to be likely C such gesture or preparation will cause any person present apprehend
that he who makes that gesture or preparation is about use criminal force to their person, is said
to commit an assault.​
Mere words do not amount to an assault. But the words w’ a person uses may give to his gestures
or preparation such a mea as may make those gestures or preparations amount to an assault.

3. WRONGFUL RESTRAINT AND WRONGFUL CONFINEMENT

Sr.
No Wrongful Restraint Wrongful Confinement
1 Meaning : Meaning :
Wrongful restraint means obstructing a man In wrongful confinement, a person is
from moving from one place to another where wrongfully restrained from proceeding
he has the right to be and wants to go. beyond certain circumscribing limits.
2 Definition: Definition :
Section 339 of the Indian Penal Code defines Section 340 of Indian Penal code defines
wrongful restraint as, “Whoever voluntarily Wrongful confinement as “Whoever
obstructs any person so as to prevent that wrongfully restrains any person in such a
person from proceeding in any direction in manner as to prevent that person from
which that person has a right to proceed, is proceeding beyond certain circumscribing
said wrongfully to restrain that person.”
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limits, is said “wrongfully to confine” that


person.”
3 Illustrations: Illustrations:
I) A obstructs a path along which Z has a right I) A causes Z to go within a walled space,
to pass. A not believing in good faith that he and locks Z. Z is thus prevented from
has a right to stop the path. Z is thereby proceeding in any direction beyond the
prevented from passing. A wrongfully restrains circumscribing line of wall. A wrongfully
Z. confines Z.

II) A places men with firearms at the outlets


of a building, and tells Z that they will fire at
Z if Z attempts leave the building. A
wrongfully confines Z.

4 Seriousness: Seriousness:
Wrongful restraint is not serious as wrongful Wrongful confinement is serious offence and
confinement and hence lesser punishment is hence more punishment provided by the
provided by the code. code.

5 Punishment : Punishment :
Whoever wrongfully restrains any person shall Whoever wrongfully confines any person
be punished with simple imprisonment for a shall be punished with simple imprisonment
term which may extend to one month, or with of either description for a term which may
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fine which may extend to five hundred rupees, extend to one year, or with fine which may
or with both. extend to one thousand rupees, or with both.

4. KIDNAPPING AND ABDUCTIONS

The terms abduction and kidnapping are sometimes used interchangeably. At common law,
kidnapping consisted of the forcible abduction or stealing or carrying away of a person
from one’s own country to another. Kidnapping is the taking away of a person by force, threat,
or deceit, with intent to cause him or her to be detained against his or her will. Kidnapping may
be done for ransom or for political or other purposes. Abduction is the criminal taking away a
person by persuasion, by fraud, or by open force or violence.

Although, abduction and kidnapping were considered separate and independent crimes, they are
not always mutually exclusive. In fact, some state statutes have used the terms “abduct” and
“abduction” in defining the offense of kidnapping. However, both the terms refer to the
unlawful taking or detention of one person by another.

Abduction is the unlawful interference with a family relationship, such as the taking of a child
from its parent, irrespective of whether the person abducted consents or not. Kidnapping is the
taking or detention of a person against his or her will and without lawful authority.

No. Kidnapping Abduction


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1 Section 359, I.P.C. : Section 362 of Indian Penal Code defines,


Abduction: “Whoever by force compels,
Kidnapping is of two kinds​: or by any deceitful means induces any
1) kidnapping from India, and person to go from any place, is said to
2) kidnapping from lawful guardianship. abduct that person.

2 There are two types of kidnapping It is only of one kind


1) kidnapping from India
2) kidnapping from lawful guardianship

3 It is committed against minor (below 16 years Anybody can be abducted


of age if male and below 18 years of age if
female) and person of unsound mind of any
age.

4 Intention of the accused is immaterial Intention of accused is very important

5 In kidnapping consent of the person is In case of abduction, consent of person


immaterial abducted is very much materialistic and is
good evidence.
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6 Kidnapping is not continuing offence. The Abduction is a continuing process in which


offence is complete when the person is a person kidnapped moves from place to
removed from lawful guardianship place.

7 Whoever kidnaps any person from India or Abduction itself is not punishable, but it is
from lawful guardianship shall be punished made criminal offence only when it is
with imprisonment of either description for a committed with one or other intents
term which may extend to seven years, and specified in Sections 363A, 364, 364A to
shall also be liable to fine. 369 of the Indian Penal Code
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UNIT III OFFENCES AGAINST WOMEN

I. SECTION 354 ASSAULT OR CRIMINAL FORCE TO WOMAN WITH INTENT TO OUTRAGE HER

MODESTY

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be
likely that he will thereby outrage her modesty, shall not be less than one year but which may
extend to five years, and shall also be liable to fine

GENERAL COMMENTS

Section 354 of the IPC has been enacted with a view to protect a woman against indecent assault
as well as to safeguard public morality and decent behaviour. The section punishes an assault, or
use of criminal force to any women with the intention or knowledge that woman’s modesty will
be outraged. In order to seek conviction under section 354 of the IPC the prosecution has to
prove not only the accused assaulted or used criminal force to the women but also that he did it
with either the intent to outrage her modesty or the knowledge that it would outrage her modesty.

MEANING OF MODESTY
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Modesty is the quality of being modest which means, as regards women, decent in manner and
conduct, scrupulously chaste, shrinking from indecency, avoidance of obscene propriety of
behaviour, what is required by good taste or delicacy, avoidance of obscene language and gesture
and of undue exposure of person, and respectability. Decorum means propriety of speech,
manner, etc., and dignity. Modesty of women can also be described as the quality of being
modest and in relation to woman ‘womanly propriety of behaviour, scrupulous chastity of
thought, speech and conduct; reserve or sense of shame of proceeding from instinctive aversion
to impure or coarse suggestions’. It is a virtue attached to a woman owing to her sex.

Essential Ingredients

1. A woman was assaulted or criminal force was used against her;


2. The accused intended to outrage her modesty or knew that her modesty was likely to be
outraged.

TEST WHETHER MODESTY OF WOMAN HAS BEEN OUTRAGED OR NOT?

The ultimate test for ascertaining whether modesty has been outraged is whether the assault to, or
criminal force used against, the prosecutrix woman by the accused is capable of shocking the
sense of decency of the woman. The hon’ble Supreme Court has given various decisions
with regards to this test. In the case of State of Punjab v Major Singh99 the Supreme Court
held that in order to constitute an offence under section 354 of the IPC the reaction of the
woman concerned is not the test of the offence. The real test of section 354 is whether the
assault or criminal force which the accused did was such as had a connotation of sex. If yes,
then section 354 will apply.
PUNISHMENT
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The offence under section 354 of IPC shall be liable to be punished for minimum imprisonment for
one year which may be extended to five years and shall also be liable for fine. Prior to
Criminal Amendment Act, 2013 offence under section 354 is liable to be punished for
imprisonment for a term which may extend to two years or fine or with both

II. SECTION 313 CAUSING MISCARRIAGE WITHOUT WOMAN'S CONSENT


Whoever commits the offence defined in the last preceding section without the consent of the
woman, whether the woman is quick with child or not, shall be punished with
imprisonment for life, or with imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.
General Comments
Section 313 of the IPC deals with the offence relating to miscarriage of women with child.
Section 313 of IPC is an extension to section 312 of the IPC. For the offence under
section 313 of the IPC it is essential to fulfil essential ingredients of Section 312 of the
IPC. Section 312 talks about the voluntarily causing the miscarriage of women with her
consent. Section 313 of the IPC is an aggravated form of section 312 of the IPC. In
section 313 the miscarriage of woman carry child is without her consent.
MEANING, EXTENT AND SCOPE OF CAUSING MISCARRIAGE
The term ‘miscarriage’ is no where defined in the IPC. The word ‘miscarriage’ is used
synonymously with the word ‘abortion’. As per Modi’s Medical jurisprudence, ‘Legally,
miscarriage means the premature expulsion of the product of conception and ovum or a
foetus from the uterus, at any period before the full term is reached’. Medically, three
distinct terms, namely, abortion, miscarriage and premature labour, are used to denote the
expulsion of a foetus at different stages of gestation. The term miscarriage is used when a
foetus is expelled from the fourth to the seventh month of gestation, before it is viable,
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while ‘premature labour’ is the delivery of a viable child, possibly capable of being
reared, before it has become fully mature. Section 313 penalises causing miscarriage of a
woman with child (whether she has attained the stage of quickening or not) without her
consent, i.e. it relates to the commission of an offence of causing miscarriage of a woman
when the woman, who primarily interested in the result, is not consenting party to the act.
Section 313 of the Indian Penal Code provide for enhanced punishment in cases of
aggravating nature of the offence of miscarriage
ESSENTIALS INGREDIENTS
Various essentials of section 313 are provided in the case of Prabhu@ Kulandaivelu v State of
Madras (2015) Madras High Court. Essentials of section 313 of IPC are as follows:
1. That accused caused miscarriage to a woman with child;
2. That he do voluntarily;
3. That he causes miscarriage without her consent.
EXCEPTION
Section 313 of the IPC is an extension of section 312 of the IPC. So the exceptions provided
under section 312 of the IPC are also applicable on section 313 of the IPC. Section 312 of
the IPC provides exception to the offence of miscarriage:
a) Abortion permitted on therapeutic (medical) grounds
Section 312 of the IPC permits abortion only on therapeutic (medical) grounds in order to
protect the life of mother. That is to say, the unborn child must not be destroyed
except for the purpose of preserving the yet more precious life of the mother. The
provision by implication recognises the foetus right to life. The threat of life,
however, need not be imminent or certain. If the act is done in good faith, the person
is entitled to the protection of law.
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In a case of Sharif v State of Orissa 7 1996 Cr Lj 2826 (Ori) the Orissa High Court held that
where termination of pregnancy of a minor girl was performed to save the life of the
mother section 312 of the IPC is not attracted.
b) Medical Termination of Pregnancy Act, 1971
To soften the rigours of the law of abortion contained in the Indian Penal Code, the Medical
Termination of Pregnancy Act, 1971 was passed. The object of the Act, besides being
the elimination of the high incidence of illegal abortions, is perhaps to confer on the
woman the right to privacy. Section 3 of the MTP Act, 1971 lays down the conditions
under which a pregnancy may be terminated by registered medical practitioners.108
Section 312 of the IPC permits abortion under following situations:
i. A risk of life of a pregnant women; or
ii. A risk of grave injury to her physical or mental health; or
iii. If the pregnancy is caused by rape; or
iv. There exists a substantial risk that, if the child were born, it would suffer from
some physical or mental abnormalities so as to be seriously handicapped; or
v. Failure of any device or method used by the married couple for the purpose
of limiting the number of children; or
vi. Risk to the health of the pregnant woman by reason of her actual or
reasonably foreseeable environment.

Punishment:

The offence under section 313 of the IPC is punishable with imprisonment for life or
imprisonment up to ten years of either description and also liable for fine. Offence is cognizable,
non-bailable, non-compoundable, and may be tried by Court of Session.
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III. OFFENCES RELATING TO MARRIAGE

Chapter XX (section 493- 498), IPC, deals with offences relating to marriage. All these offences
deal with infidelity within the institution of marriage in one way or another. Chapter XX-A,
containing only one section (s 498A) dealing with cruelty to a woman by her husband or his
relatives to coerce her and her parents to meet the material greed of dowry, was added to the IPC
by the Criminal Law (Second Amendment) Act 1983.

The following are the main offences under this chapter:

● Mock or invalid marriages (ss 493 and 496);


● Bigamy (ss 494 and 495);
● Adultery (s 497);
● Criminal elopement (s 498);
● Cruelty by husband or relatives of husband (s 498A)

Section 493-Cohabitation caused by a man deceitfully inducing a belief of lawful marriage

Every man who by deceit causes any woman who is not lawfully married to him to believe that
she is lawfully married to him and to cohabit or have sexual intercourse with him in that belief,
shall be punished with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.

Section 496-Marriage ceremony fraudulently gone through without lawful marriage

Whoever, dishonestly or with a fraudulent intention, goes through the ceremony of being
married, knowing that he is not thereby lawfully married, shall be punished with imprisonment
of either description for a term which may extend to seven years, and shall also be liable to fine.
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The essential elements of both the sections i.e. 493 and 496, is that the accused should have
practiced deception on the woman, as a consequence of which she is led to believe that she is
lawfully married to him, though in reality she is not. In s 493, the word used is ‘deceit’ and in s
496, the words ‘dishonestly’ and ‘fraudulent intention’ have been used. Basically both the
sections denote the fact that the woman is cheated by the man into believing that she is legally
wedded to him, whereas the man is fully aware that the same is not true. The deceit and
fraudulent intention should exist at the time of the marriage. Thus​mens rea​ is an essential
element of an offence under this section.

Section 494-Marrying again during lifetime of husband or wife

Whoever, having a husband or wife living, marries in any case in which such marriage is void by
reason of its taking place during the life of such husband or wife, shall be punished with
imprisonment of either description for a term which may extend to seven years, and shall also be
liable to fine.

Exception​.-This section does not extend to any person whose marriage with such husband or
wife has been declared void by a Court of competent jurisdiction, nor to any person who
contracts a marriage during the life of a former husband or wife, if such husband or wife, at the
time of the subsequent marriage, shall have been continually absent from such person for the
space of seven years, and shall not have been heard of by such person as being alive within that
time provided the person contracting such subsequent marriage shall, before such marriage takes
place, inform the person with whom such marriage is contracted of the real state of facts so far as
the same are within his or her knowledge.

The important ingredients are​:


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● deceit or fraudulent intention


● causing of false belief
● cohabit or have sexual intercourse

Section 495​-Same offence with concealment of former marriage from person with whom
subsequent marriage is contracted

Whoever commits the offence defined in the last preceding section having concealed from the
person with whom the subsequent marriage is contracted, the fact of the former marriage, shall
be punished with imprisonment of either description for a term which may extend to ten years,
and shall also be liable to fine.

The essential ingredients are:

● existence of a previous marriage


● second marriage to be valid
● second marriage to be void by reason of first husband or wife living

Section 497-Adultery

Whoever has sexual intercourse with a person who is and whom he knows or has reason to
believe to be the wife of another man, without the consent or connivance of that man, such
sexual intercourse not amounting to the offence of rape, is guilty of the offence of adultery, and
shall be punished with imprisonment of either description for a term which may extend to five
years, or with fine, or with both. In such case the wife shall not be punishable as an abettor.

Before the IPC was enacted, adultery was not an offence in India either for men or women. It
was also not included in the first draft of the penal code. However, the second Law Commission
it. The Law Commissioner noted that the then prevalent social infrastructure and the secondary
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and economically dependent position of women were not conducive to punish adulterous men.
Further, they noted, that a wife was socially conditioned to accept her husband’s adulterous
relationship as polygamy was an everyday affair. Thus they incorporated adultery as an offence
punishing only adulterous men.

In ​Kashuri v. Ramaswamy ​(1979) CrLJ 741 (Mad)​ it was held that the proof of sexual
intercourse has to be inferred from the facts and circumstance of a case as direct evidence can
rarely be proved.

The essential ingredients are:

● sexual intercourse
● woman must be married
● knowledge
● consent or connivance of husband
● should not constitute rape

Section 498-Enticing or taking away or detaining with criminal intent a married woman

Whoever takes or entices away any woman who is and whom he knows or has reason to believe
to be the wife of any other man, from that man, or from any person having the care of her on
behalf of that man, with intent that she may have illicit intercourse with any person, or conceals
or detains with that intent any such woman, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.

The essential ingredients are:

● takes or entices away


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● woman to be a married woman


● knowledge
● taken from control of husband or person having care of her on behalf of her husband
● intention to have illicit intercourse
● conceals or detains such women

In ​Alamgir v. State of Bihz ​AIR 1969 SC 436​, it was observed that if a man knowingly goes
away with the wife of another in such a way to deprive the husband of his control over her, with
the intent to have illicit intercourse, then it would constitute an offence within the meaning of the
section.

Section 498A-Cruelty

Matrimonial Cruelty in India is a cognizable, non bailable and non-compoundable offence. It is


defined in Chapter XXA of I.P.C. under Section 498A as

Husband or relative of husband of a woman subjecting her to cruelty.

Whoever being the husband or the relative of the husband of a woman, subjects her to cruelty
shall be punished with imprisonment for a term, which may extend to three years and shall also
be liable to a fine.

Explanation – for the purpose of this section, “cruelty” means:

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit
suicide or to cause grave injury or danger to life, limb or health (whether mental or physical) of
the woman; or
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(b) harassment of the woman where such harassment is with a view to coercing her or any person
related to her to meet any unlawful demands for any property or valuable security or is on
account of failure by her or any person related to her to meet such demand.

For safeguarding the interest of a woman against the cruelty they face behind the four walls of
their matrimonial home, the Indian Penal Code,1860 was amended in 1983 and S.498A was
inserted which deals with ‘Matrimonial Cruelty’ to a woman. The section was enacted to combat
the menace of dowry deaths. It was introduced in the code by the Criminal Law Amendment Act,
1983 (Act 46 of 1983). By the same Act section 113-A was been added to the Indian Evidence
Act to raise presumption regarding abetment of suicide by married woman. The main objective
of section 498-A of I.P.C is to protect a woman who is being harassed by her husband or
relatives of husband.

Section 113-A of Indian Evidence Act, reads as follows:

When the question is whether a person has committed the dowry death of a woman and it is
shown that soon before her death such woman has been subjected by such person to cruelty or
harassment for, or in connection with, any demand for dowry, the Court shall presume that such
person had caused the dowry death.

Explanation- For the purpose of this section ‘dowry death’ shall have the same meaning as in
section 304-B of the Indian Penal Code (45 of 1860).

The object with which section 498A IPC was introduced is amply reflected in the Statement of
Objects and Reasons while enacting Criminal Law (Second Amendment) Act No. 46 of 1983. As
clearly stated therein, the increase in number of dowry deaths was a matter of serious concern.
The extent of the evil was commented upon by the Joint Committee of the Houses to examine
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the work of the Dowry Prohibition Act, 1961. In some of cases, cruelty of the husband and the
relatives of the husband culminated in suicide by or murder of the helpless woman concerned.
Therefore, it was proposed to amend IPC, the Code of Criminal Procedure,1973 (in short ‘the
Cr.P.C’) and the Evidence Act suitably to deal effectively not only with cases of dowry deaths
but also cases of cruelty to married women by the husband, in- law’s and relatives. The avowed
object was to combat the menace of dowry death and cruelty.

Meaning of Cruelty

Cruelty includes both physical and mental torture. Wilful conduct in Explanation (a) to section
498A, I.P.C. can be inferred from direct and indirect evidence. The word cruelty in the
Explanation clause attached to the section has been given a wider meaning.

It was held in ​Kaliyaperumal vs. State of Tamil Nadu ​2004 (9) SCC 157​, that cruelty is a
common essential in offences under both the sections 304B and 498A of IPC. The two sections
are not mutually inclusive but both are distinct offences and persons acquitted under section
304B for the offence of dowry death can be convicted for an offence under sec.498A of IPC. The
meaning of cruelty is given in explanation to section 498A. Section 304B does not contain its
meaning but the meaning of cruelty or harassment as given in section 498-A applies in section
304-B as well.

In the case of ​Inder Raj Malik vs. Sunita Malik ​1986 (2) Crimes 435​, it was held that the word
‘cruelty’ is defined in the explanation which ​inter alia​ says that harassment of a woman with a
view to coerce her or any related persons to meet any unlawful demand for any property or any
valuable security is cruelty.
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The Supreme Court, in ​Mohd. Hoshan vs. State of A.P. 2002 Cr.L.J 4124 ​observed: “Whether
one spouse has been guilty of cruelty to the other is essentially a question of fact. The impact of
complaints, accusation or taunts on a person amounting to cruelty depends on various factors like
the sensitivity of the victim concerned, the social background, the environment, education etc.
Further, mental cruelty varies from person to person depending on the intensity of the sensitivity,
degree of courage and endurance to withstand such cruelty. Each case has to be decided on its
own facts whether mental cruelty is made out”

Constitution Validity of Section 498A

In ​Inder Raj Malik and others vs. Sunita Malik​, it was contended that this section is ​ultra
vires​ Article 14 and Article 20 (2) of the Constitution. There is the Dowry Prohibition Act, 1961
which also deals with similar types of cases; therefore, both statutes together create a situation
commonly known as double jeopardy. But Delhi High Court negatived this contention and held
that this section does not create situation for double jeopardy. Section 498-A is distinguishable
from Section 4 of the Dowry Prohibition Act because in the latter mere demand of dowry is
punishable and existence of the element of cruelty is not necessary, whereas section 498-A deals
with an aggravated form of the offence. It punishes such demands of property or valuable
security from the wife or her relatives as are coupled with cruelty to her. Hence a person can be
prosecuted in respect of both the offences punishable under section 4 of the Dowry Prohibition
Act and this section. It was thus held that though, this section gives wide discretion to the courts
in the matters of interpretation of the words occurring in the laws and also in matters of awarding
punishment.
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Similarly, its constitutionality was challenged in the case of Polavarpu ​Satyanarayana v.


Soundaravalli ​1988 Cr.L.J 1538 (AP) ​where it was again held that 498A is not ​ultra vires ​of
constitution.

In the case of ​Surajmal Banthia & Anr. v. State of West Bengal ​ II (2003) DMC 546 (DB)​, the
deceased was ill-treated and tortured for several days and not given food several times. The court
acknowledging that this is the treatment that several young brides face when they move out of
their parents’ home and into the house of her in-laws, held the husband and his father liable
under 498A.

In ​Vijai Ratna Sharma v. State of Uttar Pradesh ​1988 Cr.L.J 1581 ​the Allahabad High Court
took a pragmatic view in a criminal proceeding initiated by a dowry victim, by doing away with
jurisdictional technicalities in the matter. The court brushed aside the argument of lack of
jurisdiction on technical grounds and held that since from the very beginning, the dowry demand
had been present and subsequent behaviour was an ensuing consequence, all the offences can be
tried together.

In ​Bhagwant Singh v. Commissioner of Police ​ AIR 1983 SC 826​, Supreme Court held that the
greed for dowry and the dowry system as an institution calls for the severest condemnation by all
sections.

Sec 498A and the Allegation of Misuse

In the last 20 years of criminal law reform a common argument made against laws relating to
violence against women in India has been that women misuse these laws. The police, civil
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society, politicians and even judges of the High Courts and Supreme Court have offered these
arguments of the misuse of laws vehemently. The allegation of misuse is made particularly
against Sec 498A and against the offence of dowry death in Sec 304B. One such view was
expressed by former Justice K T Thomas in his article titled ‘Women and the Law’, which
appeared in The Hindu. The 2003 Malimath Committee report on reforms in the criminal justice
system also noted, significantly, that there is a “general complaint” that Sec 498A of the IPC is
subject to gross misuse; it used this as justification to suggest an amendment to the provision, but
provided no data to indicate how frequently the section is being misused.

Again Supreme Court, in a relatively recent case, ​Sushil Kumar Sharma vs. Union of India and
others ​JT 2005(6) 266 , observed: “The object of the provision is prevention of the dowry
menace. But as has been rightly contented by the petitioner that many instances have come to
light where the complaints are not bonafide and have been filed with oblique motive. In such
cases acquittal of the accused does not in all cases wipe out the ignominy suffered during and
prior to trial. Sometimes adverse media coverage adds to the misery. The question, therefore, is
what remedial measures can be taken to prevent abuse of the well-intentioned provision. Merely
because the provision is constitutional and ​intra vires​, does not give a licence to unscrupulous
persons to wreck personal vendetta or unleash harassment. It may, therefore, become necessary
for the legislature to find out ways how the makers of frivolous complaints or allegations can be
appropriately dealt with.

The Supreme Court in its recent judgment in ​Arnesh Kumar v. State of Bihar and Anr ​SLP (Cri)
No. 9127 of 2013​ said that no arrest should be made immediately in the offences which are
allegedly committed by the accused and the offence is cognizable and non-bailable, with
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particular reference to S. 498A. It laid down certain guidelines for the police officers to follow
relating to the arrests made under the section, due to increase in number of false complaints.

Section 304B-Dowry Death

The Indian Penal Code under defines it as-

Dowry death.—(1) Where the death of a woman is caused by any burns or bodily injury or
occurs otherwise than under normal circumstances within seven years of her marriage and it is
shown that soon before her death she was subjected to cruelty or harassment by her husband or
any relative of her husband for, or in connection with, any demand for dowry, such death shall be
called “dowry death”, and such husband or relative shall be deemed to have caused her death.

Explanation, For the purpose of this sub-section, “dowry” shall have the same meaning as in
section 2 of the Dowry Prohibition Act, 1961 (28 of 1961).

(2) Whoever commits dowry death shall be punished with imprisonment for a term which shall
not be less than seven years but which may extend to imprisonment for life.]

Punishment—Imprisonment of not less than 7 years but which may extend to imprisonment for
life—Cognizable—Non-bailable—Triable by Court of Session—Non-compoundable.

Essential ingredients

1. Death of a woman should be caused by burns or bodily injury or otherwise than under
normal circumstances.
2. Death should have occurred within seven years of her marriage
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3. The woman must have been subjected to cruelty or harassment by her husband or any
relative of her husband.
4. Cruelty or harassment should be for or in connection with the demand for dowry.
5. Cruelty or harassment should have been meted out to the woman before her death.

In ​Prema S. Rao v. Yadla Srinivasa Rao ​AIR 2003 SC 11​,it was held that to attract the provisions
of section 304B, one of the main ingredients which is required to be established is that “soon
before her death” she was subjected to cruelty and harassment “in connection with the demand of
dowry”.

Expression ‘soon before her death’

The expression ‘soon before her death’ used in the substantive section 304B, I.P.C. and Section
113B of the Evidence Act is connected to the idea of proximity text. No definite period has been
indicated and the expression ‘soon before her death’ is not defined. The determination of the
period which can come within the term ‘soon before’ is to be determined by the courts,
depending upon facts and circumstances of each case. Suffice, however, to indicate that the
expression ‘soon before’ would normally imply that the interval should not be much between the
concerned cruelty or harassment and the death in question. There must be existence of a
proximate and live-link between the effect of cruelty based on dowry demand and the concerned
death. If alleged incident of cruelty is remote in time and has become stale enough not to disturb
mental equilibrium of the woman concerned, it would be of no consequence.

Applicability

In the case of ​Vadde Rama Rao v. State of Andhra Pradesh​, 1990 Cr LJ 1666 it was argued that
the husband or any of his relative could be guilty of the offence only if he or she directly
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participated in the actual commission of the offence. This contention was rejected by the Andhra
Pradesh High Court. It observed that in its real import, section 304B would be applicable if
cruelty or harassment was inflicted by the husband on any of his relative for, or in connection
with demand for dowry, immediately preceding the death by bodily injury or by burning.

Burden of Proof

The prosecution under section 304B cannot escape from the burden of proof that the harassment
to cruelty was related to the demand for dowry and that it was caused “soon before her death”.
The word “dowry” has to be understood as it is defined in section 2 of the Dowry Prohibition
Act, 1961. There are three occasions related to dowry, i.e., before marriage, at the time of
marriage and at an unending period. The customary payment in connection with the birth of child
or other ceremonies, are not involved within ambit of “dowry”.

In ​Patil Paresh Kumar Jayanti Lal v. State of Gujarat ​1994 Cri LJ 1684​, it was held that where
the evidence revealed that accused-husband killed deceased-wife for not satisfying his dowry
demand but there was nothing on record to show involvement of co-accused in-laws, co-accused
in-laws are not guilty of offence under sections 304B.

Section 304B and Section 498A – Distinction

There is a clear distinction between section 304B and 498A of the Indian Penal Code. Now,
under section 304B it is a dowry death that is punishable and such death should have occurred
within seven years of marriage and this period of limitation is not there in 498A.

In the case of ​Soni Devrajbhai Babubhai v. State of Gujarat ​1991 Cr LJ (313) (SC)​ it was held
that Section 304B is a substantive provision creating a new offence and not merely a provision
effecting a change in procedure for trial of a pre-existing substantive offence. As a consequence,
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accused cannot be tried and punished for the offence of dowry death provided in section 304B
with the minimum sentence of seven years’ imprisonment for an act done by them prior to
creation of the new offence of dowry death.

In Shanti v. State of Haryana, in-laws insisted for dowry from the daughter-in-law. Ultimately, it
appeared that she was done to death and her body was cremated without sending any information
to her parents or any relatives. The Supreme Court held that, if it was natural death, there was no
need for the appellants to act in such unnatural manner and cremate the body in great and unholy
haste without even informing the parents. In the result it was an unnatural death, either homicidal
or suicidal. But even assuming that it is a case of suicide even then it would be death which had
occurred in unnatural circumstances. Even in such a case, section 304B is attracted and this
position is not disputed. Therefore, the prosecution has established that the appellants have
committed an offence punishable under section 304B beyond all reasonable doubts.

Section 294- Obscene acts and songs

Whoever, to the annoyance of others,

(a) Does any obscene act in any public place, or

(b) Sings, recites or utters any obscene song, ballad or words, in or near any public place,

Shall be punished with imprisonment of either description for a term which may extend to three
months, or with fine, or with both.
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Section 294 intends to promote public decency and morality. It can be understood as preventing
‘eve teasing’ in general sense. In order to secure a conviction under this section, the prosecution
has to prove two particulars, namely:

● the accused has done an obscene act in public place or has sung, recited or uttered any
obscene songs or words in or near any public place and
● has caused annoyance to others.

In ​Pawan Kumar v. State of Haryana ​AIR 1996 SC 3300​, it was held that if the act complained
of is not obscene, or is not done in any public place, or the song recited or uttered is not obscene,
or is not sung, received or uttered in or near any public place, or that it causes no annoyance to
others, the offence is, obviously, not committed. Uttering words in private place, therefore, does
not constitute an offence under section 294.

In ​Deepa v. SI of Police ​(1986) CrLJ 1120 (Ker.)​, the Kerala High Court was called upon to
djudge the question as to whether cabaret dance being performed in a posh hotel attracts section
294 of the IPC. It was held that an enclosed area in a posh hotel where cabaret dance is
performed cannot be said to be a private place, merely by the reason that entry is restricted to
persons purchasing highly priced tickets and the costly drinks and food served. Keeping in view
the object of section 294, the court refused to accept the contention that persons who willingly
come to witness cabaret dance with full knowledge of what is going to happen and even if
annoyance is caused, they have no right to complain.

Offences Outraging the Modesty of a Woman

“Modesty is not only an ornament, but also a guard to virtue…”


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We may think that the position of women has changed in our society, especially in metropolitan
cities, but that is nothing but a myth. We might have progressed but what’s the point in boasting
of our growth-story if it hasn’t taught us to respect the modesty of women?​[xxx]

The offence of outraging the modesty of a woman has been dealt with in the Indian Penal Code
under Section 509 and Section 354, which is an aggravated form of the offence mentioned under
Section 509.

Section 509

This section reads-

Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or
gesture, or exhibits any object, intending that such word or sound shall be heard, or that such
gesture or object shall be seen, by such woman, or intrudes upon the privacy of such woman,
shall be punished with simple imprisonment for a term which may extend to one year, or with
fine, or with both.

The object of this section is to protect the modesty and chastity of a woman. The offence under
this section is cognizable, bailable, non-compoundable and triable by a Magistrate of first class.
The punishment under this section may extend to one year with simple imprisonment or fine or
both.

On a close reading of the section we can infer that, the basic constituents of the offence under
Section 509 are-

● Intention to insult the modesty of a woman.


● The insult must be caused-
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o By uttering some words, or making some sound, or gesture or exhibiting any


object so as to be heard or seen by such woman, or
o By intruding upon the privacy of such woman

The question of what constitutes an insult to female modest requires no description.​[xxxii]​ Any
song, picture, or figure exhibiting lewd suggestions are considered as immoral and insulting
women’s modesty.

If the above two ingredients are being fulfilled then a person can be held liable under Section
509.

In​ Mrs. Rupan Deol Bajaj & Anr v. Kanwar Pal Singh Gill & Anr​, the accused was held liable
of outraging the modesty of an Officer of the Indian Administrative Service (I.A.S), belonging to
the Punjab Cadre. He was held liable under both sections 509 and 354 of the IPC.

Section 354

Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be
likely that he will there by outrage her modesty, shall be punished with imprisonment of either
description for a term which may extend to two years, or with fine, or with both.

The essential ingredients of the offence under this section are:

1. A woman was assaulted or criminal force was used against her;


2. The accused intended to outrage her modesty or knew that her modesty was likely to be
outraged
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What constitutes an outrage to female modesty is nowhere defined, however, the Supreme Court
of India in ​Ramkripa​l case decided by Justices Ajit Pasayat and S.H. Kapadia brought clarity to
section 354. The bench defined modesty as ‘The essence of a woman’s modesty is her sex, and
thus giving skeleton to the flesh.’

​Section 354 Under The Criminal Law (Amendment) Act, 2013

After section 354 of the Penal Code, the following sections have been inserted, namely:––

Section 354A-Sexual Harassment

(​1​) The following acts or behaviour shall constitute the offence of sexual harassment

(i) ​Physical contact and advances involving unwelcome and explicit sexual overtures; or

(ii) ​A demand or request for sexual favours; or

(iii) ​Making sexually coloured remarks; or

(iv) ​Forcibly showing pornography; or

(v) ​Any other unwelcome physical, verbal or non-verbal conduct of sexual nature.

(​2​) Any person who commits the offence specified in clause (​i​) or clause (​ii​) of sub-section (​1​)
shall be punished with rigorous imprisonment which may extend to five years, or with fine, or
with both.

(​3​) Any person who commits the offence specified in clause (​iii​) or clause (​iv​) or clause (​v​) of
sub-section (​1​) shall be punishable with imprisonment of either description that may extend to
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one year, or with fine, or with both. Assault or use of criminal force to woman with intent to
disrobe.

Section 354B

Whoever assaults or uses criminal force to any woman or abets such act with the intention of
disrobing or compelling her to be naked in any public place, shall be punished with
imprisonment of either description for a term which shall not be less than three years but which
may extend to seven years and with fine.

Section 354C- Voyeurism

Whoever watches, or captures the image of, a woman engaging in a private act in circumstances
where she would usually have the expectation of not being observed either by the perpetrator or
by any other person at the behest of the perpetrator shall be punished on first conviction with
imprisonment of either description for a term which shall not be less than one year, but which
may extend to three years, and shall also be liable to fine, and be punished on a second or
subsequent conviction, with imprisonment of either description for a term which shall not be less
than three years, but which may extend to seven years, and shall also be liable to fine.

Explanation ​1.–– For the purposes of this section, “private act” includes an act of watching
carried out in a place which, in the circumstances, would reasonably be expected to provide
privacy, and where the victim’s genitals, buttocks or breasts are exposed or covered only in
underwear; or the victim is using a lavatory; or the person is doing a sexual act that is not of a
kind ordinarily done in public.
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Explanation ​2.–– Where the victim consents to the capture of images or any act, but not to their
dissemination to third persons and where such image or act is disseminated, such dissemination
shall be considered an offence under this section.

Section 354D -Stalking

(​1​) Whoever follows a person and contacts, or attempts to contact such person to foster personal
interaction repeatedly, despite a clear indication of disinterest by such person, or whoever
monitors the use by a person of the internet, email or any other form of electronic
communication, or watches or spies on a person in a manner that results in a fear of violence or
serious alarm or distress in the mind of such person, or interferes with the mental peace of such
person, commits the offence of stalking: Provided that the course of conduct will not amount to
stalking if the person who pursued it shows––

(​i​) that it was pursued for the purpose of preventing or detecting crime and the person accused of
stalking had been entrusted with the responsibility of prevention and detection of crime by the
state; or

(​ii​) That it was pursued under any law or to comply with any condition or requirement imposed
by any person under any law; or

(​iii​) That in the particular circumstances the pursuit of the course of conduct was reasonable.

(​2​) Whoever commits the offence of stalking shall be punished with imprisonment of either
description for a term which shall not be less than one year but which may extend to three years,
and shall also be liable to fine.
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Rape and Custodial Rape (As per Criminal law Amendment, act 2013)

Section 375: Rape- The Indian Penal Code in sections 375, 376, 376A to 376E has dealt with
sexual offences against a woman. These sections were amended recently in Criminal
Amendment Act, 2013 after the J.S Verma Committee Report.

Essential Ingredients​- Following are the essential ingredients of the offence of rape:

1) There must be penetration or insertion of any object or manipulation of body for


penetration or any like act as provide under clause (1) (2) (3) (4) of section 375 of the
IPC with a woman by a man;
2) Such penetration or any such act should be under any of the following circumstances:
a) Against her will;
b) Without her consent;
c) With consent obtained under fear of death or hurt;
d) With consent given under misconception of fact that the man is her husband;
e) Consent given by reason of unsoundness of mind, intoxication or under influence of any
stupefying or unwholesome substance;
f) With a woman under 18 years of age, with or without consent g) When woman is unable to
communicate the consent
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UNIT-IV: OFFENCES AGAINST PROPERTY

Property is mainly divided into two parts, namely movable and immovable. Any offence which
is committed in regard to any property whether it is movable or immovable is punishable under
the provisions of the law of Crimes or the Indian Penal Code. These offences and the
punishments relating to them are explained in details in ​sections 378 to 460 of the Indian Penal
Code, 1860 (Act No. XLV of 1860)​.

The offences which are mainly recognized in the said Code are ten in number.

1. THEFT.

This offence is defined in section 378 of the Code and it relates only to movable property. Thus
it can be said that the immovable property can not be made a subject-matter of theft. But
sometime the property which is immovable, after it is taken out from the earth can be stolen, for
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example a tree so long attached to earth can not be made a subject of the offence of theft is
complete. This term is defined as : whoever, intending to take dishonestly any movable property
out of the possession of any person without that person's consent moves that property in order to
such taking, is said to commit theft.

There are five exceptions to this definition.

The punishment for this offence is given in section 379 which says that the offence shall be
punished with imprisonment to the extent of 3 years or with fine or with both.

2. EXTORTION.

This is defined in section 383 of the code which in short lays down that if one puts any person in
fear of any injury and induces him to deliver any property or valuable security commits
extortion. The punishment for the offence is shown in section 384 of the code which is the same
as that for theft.

Main ingredients of the offence are-

(a) intentionally putting a person in fear of injury to himself or another: and

(b) Dishonestly inducing the person so put in fear to deliver to any person any property or
valuable security.

3. ROBBERY AND DACOITY.


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In all types of robbery there is either theft or extortion, when theft or extortion becomes robbery
is explained in section 390 of the code giving.

The offence of dacoity is defined in section 391 of the code as when five or more persons
conjointly commit or attempt to commit robbery, or where the whole number of persons
conjointly committing or attempting to commit a robbery, and persons present and aiding such
commission or attempt, amounts to five or move every person and aiding such commission in or
aiding is said to commit dacoity' thus it is clear that it robbery is committed by five or more
persons or even it is attempted or aided by that number of persons it will become dacoity.

The punishment for the offence of robbery vide section 392 may extend to 10 years of rigorous
imprisonment, but if it is committed on a high way between sunrise and for the offence of
dacoity is given in section 395 which says that the offender may be punished with transportation
for life or rigorous imprisonment for a term which may extend to 10 years and also be liable to
fine.

4.CRIMINAL MISAPPROPRIATION OF PROPERTY.

Section 403 of the code which says whoever dishonestly misappropriates or converts to his own
use any movable property, shall be punished with imprisonment which may extend to 2 years or
with fine or both.

5.CRIMINAL BREACH OF TRUST.

This offence is defined in section 405 and its punishment is detailed in section 406 of the
code.The main ingredients to complete the offence are ;
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a) Entrusting any person with property;


b) The person so entrusted;
i. Either dishonestly misappropriates or converts that property to his own use;
ii. Dishonestly using or disposing of that property in violation of;
iii. any direction of law in which such trust is to be discharged; or
iv. Any legal contract made touching the discharge of such trust, this offence can be
committed by carrier, whar-finger, ware housekeeper, clerk, servant, public servant,
banker, merchant, agent, broker, attorney and the like.

6.RECEIVING STOLEN PROPERTY.

This is the subject-matter of section 411 of the code which prescribes that the receiver of stolen
property shall be punished with imprisonment for a term which may extent to 3 years or with
fine or with both. From this it is clear that the receiver \of stolen property is punished in the same
way as the person who actually steals the property vide section 379.

The essential requirements for convicting a person under this section are mainly two, one is
dishonest receipt or retention of the stolen property and second is that he had knowledge at the
time of receipt that the property was obtained in one of the ways as laid down in section 410

Section 412 deals with dishonestly receiving property in the commission of dacoity.

Section 413 lays down punishment for a person who habitually deals in stolen property;

Section 414 punishes the person who assists in concealment of the stolen property.

7. CHEATING
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This is a very common offence and is generally heard of in the society. It is dealt with in section
412 to 423. Out of this section 416 deals with cheating by impersonation which is punished vide
section 419. Section 417 punishes for the offence of cheating and the last section 420 which is
very commonly known deals with the offence of cheating and dishonestly inducing delivery of
property. The punishment in this section is prescribed as imprisonment for either description for
a term which may extend to seven years and also liable to fine.

The main ingredients of the offence of cheating are

a) Description of any person;


b) fraudulently of dishonestly inducing that person;
to deliver any property to any person; or
to consent that any person shall retain any property; or
c) intentionally inducing that person to do or omit to do anything which he would not do or
omit if he was not so deceive, and which act or omission caused or is likely to cause
damage or harm to the person in body, mind, reputation or property.

8. FRAUDULENT DEEDS AND DISPOSITION OF PROPERTY.

This subject is covered in sections 421 to 424 and the subject in regarding benami transaction in
fraud of creditors, that is, the offence consisted, in dishonest disposition of property with intent
to cause wrongful loss to creditors. The offence may be against movable or immovable property.
This is given in section 421 of the code. Sections 422,423 and 424 deal in the same way with an
offence which defrauds creditors in different ways.

9. MISCHIEF.
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Ingredients of mischief as given in section 405 are as under ;

a) Intention or knowledge of likelihood to cause wrongful loss or damage to the public or to


any person;
b) Causing destruction of property or any change in the same or in the situation;
c) by such change the property must be destroyed or its value is diminished or its utility is
marred. The punishments for this offence is inflicted vide section 426 and it is only
punishment for 3 months or with fine or with both. Different types of mischievous are
dealt in sections 427 to 440.

10. CRIMINAL TRESPASS.

Offences of this type are dealt in sections 441 to 460. The 3 essential heads of this offence are;

a) Entry into the property which is in possession of other person without consent;
b) if such entry is with permission then staying after the permission is withdrawn, that is ,
if the said entry was lawful in the beginning, but if one remains there unlawfully
afterwards;
c) The entry and remaining there unlawfully with the intention:
d) To commit offence;
e) To insult, annoy or intimidate the person who is in possession of the property.

This offence is defined in section 440 of the code. There are several types of trespass as house
trespass, house breaking, and lurking house trespass.

Summarized distinction between theft, extortion, robbery and dacoity are as follows:
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Theft Extortion Robbery Dacoity

Movable property Consent of the person The offender There is no consent or


is taken away is obtained wrongfully takes property it is obtained wrongly
without owners by coercion without consent,
consent in theft robbery being the
aggravated form
of theft or
extortion

Theft is of movable It may be movable or Robbery may be Dacoity may be


property only immovable property committed in committed in respect
respect of of immovable property
immovable where it is in the form
property where it of extortion but not
is in the form of otherwise
extortion, but not
otherwise

It can be committed It can be committed by It can be To commit the offence


by one person one or more committed by one of dacoity, there must
or more persons be at- least five
persons or more
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There is no element Force or compulsion Force may or may Force may or may not
of force or exists in extortion, the not be used be used
compulsion person being put in fear
of injury to himself or
to any other persons

Element of fear is Element of fear is Element of fear Element of force exists


absent present exists if robbery in dacoity

Thee is no delivery There is delivery of There is no There is no delivery of


of property by the property delivery of property in dacoity if
victim property in theft is committed in
robbery if theft is the course of dacoity
committed in the
course of robbery
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