Offences affecting the Human body
Culpable Homicide and Murder
Culpable Homicide in the simplest understanding refers to taking the life of a person. The term constitutes of two words, culpable which refers to the mental element and homicide which refers to the physical element Culpable denotes a ‘blameworthy state of mind’ and homicide refers to killing a person.
Thus culpable homicide refers to taking life of another person, where the act has been done with criminal intent.
Culpable Homicide is defined in _Section 299 of the IPC. If you study the definition you shall find that the definition stresses both on the physical and mental element, where an act is committed which is done with the intention of causing death, or with such knowledge that the act which he or she is going to undertake is going to kill someone, or causes such bodily or physical injury which will lead to a person’s death.
Also read the explanations to the Section which are actually clarifications to the Section.
1. Explanation One: Tells us that where knowingly a person accelerates someone’s death in such as situation it is considered culpable homicide.
Example: Y is diagnosed with terminal illness and needs certain drugs to live from day to day. X confines him in a room and denies him his medication as a result of which Y dies. X is guilty of Culpable Homicide.
2. Explanation Two: Tells us that where a person inflicts such bodily injury on someone and the latter dies because of such injury, it will not be an excuse that if the person had received medical attention his life would have been saved.
Example: Ganda mows over a pedestrian deliberately. The pedestrian bleeds on the road and no one helps him and he dies as a result of Ganda’s actions. Ganda cannot take the excuse that if the pedestrian had taken medical treatment at the right time, the pedestrian would have lived and there would be no culpable homicide
3.Explanation Three: Tells us that abortion does not constitute culpable homicide. However if any part of the child is outside the womb, and the child is then killed, it constitutes culpable homicide. A word of caution, however, infanticide and abortion on the basis that the womb is bearing a female child is a criminal offence in India.
Culpable Homicide can happen by commission or by omission, i.e. by an overt or conscious act or failure to act, by which a person is, deprived of his/her life. Now let us study the ingredients in detail.
The Act should be of such a nature that it would put to peril someone’s life or damage someone’s life to such an extent that the person would die. In most cases the act would involve a high degree of violence against the person.
Instances such stabbing a person in vital organs, shooting someone at point blank range, administering poison would include instances which would constitute culpable homicide.
However this is not always the rule and there are exceptions to this rule. Remember the section says “causes death by doing an act”, so given the special circumstances certain acts which may not involve extreme degree of violence, but may be sufficient to cause someone’s death.
For example, starving someone may not require violence in the normal usage of the term, but may cause a person’s death. The Section also covers administration of bodily injury which is “likely” to cause death.
Sometimes one is required to do certain dangerous acts, even in everyday life where there is a risk of death or causing hurt to such an extent that a person may die. Mundane things such as driving possess the potential of taking someone’s life. The question however is was the act committed with the “intention of causing death”.
Thus where you push someone for a joke and the person falls on his head has a brain injury and dies, there was no “intention of causing death” but when you pushed the person deliberately with the idea that the person falls and dies, in that case the act is with the “intention of causing death”
To prove intention in acts where there is bodily injury is “likely to cause death”, the act has to be can be of two types. Firstly where bodily injury itself is done in a fashion which cause death. For example bludgeoning someone on the head repeatedly with a blunt instrument.
Secondly in situations where there are injuries and there are intervening events between the injuries and the death provided the delay is not so blatant, one needs to prove that injuries were administered with the intention of causing death.
Knowledge is different from intention to the extent that where a person may not have the intention to commit an act which kills, he knows that the act which he commits will take someone’s life or is likely to take someone’s life will be considered having the “knowledge that he is likely by such act to cause death”.
For example, a doctor uses an infected syringe knowingly on a patient thereby infecting him with a terminal disease. The act by itself will not cause death, but the doctor has knowledge that his actions will lead to someone’s death.
Culpable Homicide Amounting to Murder
Section 300 deals with Culpable Homicide amounting to murder. In other words the Section states that culpable homicide is murder in certain situations. This makes us come to two conclusions, namely:
For an act to be classified as murder it must first meet all the conditions of culpable homicide.
Secondly, all acts of murder are culpable homicide, but all acts of culpable homicides are not murder. Pictorially speaking:-
Now, let us study the situations in which culpable homicide does amount to murder. Section 300 states, that except for situations states (which do not concern us as of now) culpable homicide is murder in four situations:
1. When an act is done with the intention of causing death
The degree of intention required is very high for murder. There must be intention present and the intention must be to cause the death of the person, not only harm or grievous hurt without the intention to cause death.
Instances would include:
Shooting someone at point blank range.
Stabbing someone in the hurt
Hanging someone by the neck till he dies
Strapping a bomb on someone
Administering poison to someone.
Remember the act must be accompanied with the intention to “cause death.”
2. Inflicting of bodily injury which the offender knows is likely to cause death The second situation covers instances where the offender has special knowledge about the victim’s condition and causes harm in such a manner which causes death of the person. Look at this part of Section 300 very carefully. It states that the offender “knows likely to be the cause of death”
Instances would include:
Sundar is a hemophilic patient. Bandar knows this and cuts him in multiple places, which if carried out on an ordinary person would not have cost him his life.
Lolo is suffering from jaundice. Bebo knows this and slips in alcohol in Lolo’s medicine in order to rupture Lolo’s liver so Lolo dies. Lolo dies as a result of consuming the adulterated medicine.
3. Bodily injury which causes death in the ordinary course of nature
These situations cover such acts where there is bodily injury which in ordinary sequence of events leads to the death of the person. Read the part of the section carefully. The section actually has two conditions-
Firstly, the bodily injury inflicted is inflicted with the intention of causing death of the person on whom it is inflicted.
Secondly, the bodily injury caused in the ordinary course of events leads to death of someone.
An instance of the same would be:
Musharraf wants Sharif dead. In order to kill Musharraf picks up a hockey stick and repeatedly hits him on the head. Sharif dies as a result of the injury.
4. Commission of an imminently dangerous act without any legitimate reason which would cause death or bodily injury which would cause death.
This head covers the commission of those acts which are so imminently dangerous which when committed would cause death or bodily injury which would result in death of a person and that such an act is done without any lawful excuse.
Cases under this head have three requirements _ Commission of an inherently dangerous act _ the knowledge that the act in all probability will cause death or bodily injury which will cause death and _ the act is done without any excuse (the excuse must be lawful or legitimate excuse) Instances would include:
Throwing a high intensity bomb in a crowded public place.
Thrown loaded cast iron boxes from a multi storied building in a busy thoroughfare.
Culpable Homicide Not Amounting to Murder
When not murder, culpable homicide is a crime by itself. As stated above a situation must first become culpable homicide before it becomes murder.
Though dealt with in detail in the following section, the basic difference between culpable homicide and murder is the level of intention involved. Where there is a very high level of intention involved the act usually falls under murder.
In addition to this general understanding (that acts when not murder are culpable homicide) the IPC itself lists certain cases when death is caused to be read as culpable homicide not amounting to murder covers five specific situations:
1. Acts under grave and sudden provocation
When a person looses self control on account of certain situation and causes the death of some person. The provocation must be grave, it must be sudden, i.e. there must be no scope for pre meditation and thirdly, it must not be self invited so as to use it as an excuse to deprive a person of his/her life.
An example of this situation will be:
A has an affair with S. A’s husband returns home to find A in a compromising position with S. Seeing his wife in such a position and without further thinking he reaches out for a knife and kills S. S will have committed culpable homicide not amounting to murder.
2. When Private Defense is exceeded in good faith
In exercising private defense either with respect to property or person, if a person accidently exceeds his or her right in good faith or in wrong judgment and the act causes the death of a person, the act is culpable homicide and not murder
3. Exceeding the Ambit of Discharging Public Duties
When an officer or public servant exceeds his or her mandate of duties or authority given to him or an officer or public servant assisting him exceeds the same, it is considered culpable homicide not amounting to murder.
Inspector Chulbul was given instructions to capture Gabbar but not shoot him. When the transport convoy broke down and Gabbar moved from his seat Chulbul thought he is going to escape and shot him. At best Chulbul would have committed culpable homicide not amounting to murder.
4. When death is caused in sudden fight or heat of passion upon a sudden quarrel Similar to the first situation, when at times fight gets out of hand and a person hits someone or injures a person in such a fashion that may cause death of a person.
A CLAT question has been asked on this exception before. Let us study the example: _ Principles:
- If a person commits an act by which death is caused to another person and the act is done with the intention of causing death the person is liable for murder
- A person has a right of self defence to the extent of causing death to another provided he apprehends the death by the act of the latter
Facts: Shuva went to a hardware shop owned by Anup. Bargaining on some item Led to an altercation between the two and Shuva picked up a sharp object and hit at Anup. When Anup started bleeding, his wife Mridula intervened and she was also hIt by Shuva and she became unconscious.
Finding himself totally cornered, Anup delivered a severe blow to Shuva with a Sharp object. Shuva died instantly.
5. When death is caused of a person above eighteen years of age who voluntarily took the risk of death
When death is caused in a situation where a person has by his own consent put himself to risk the same would be culpable homicide and not murder
An example of this illustration would be:
Bhola instigates Bobby to commit suicide. Bobby after independently considering the suggestion and without any pressure from Bhola commits suicide. If Bhola was an adult , then Bhola would be guilty for assisting in culpable homicide.
Section 312- Causing miscarraige
Whoever voluntarily causes a woman with child to miscarry, shall if such miscarriage be not caused in good faith for the purpose of saving the life of the woman, be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both; and, if the woman be quick with child, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.
- A woman who causes herself to miscarry, is within the meaning of this section.
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.
Section 314:- Death caused by act done with intent to cause miscarriage
Whoever, with intent to cause the miscarriage of a woman with child, does any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine;
If act done without woman’s consent – and if the act is done without the consent of the woman, shall be punished either with imprisonment for life, or with the punishment above mentioned.
- It is not essential to this offence that the offender should know that the act is likely to cause death.
Section 315:- Act done with intent to prevent child being born alive or to cause it to die after birth
Whoever before the birth of any child does any act with the intention of thereby preventing that child from being born alive or causing it to die after its birth, and does by such act prevent that child from being born alive, or causes it to die after its birth, shall, if such act be not caused in good faith for the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
Section 316:- Causing death of quick unborn child by act amounting to culpable homicide-
Whoever does any act under such circumstances, that if he thereby caused death he would be guilty of culpable homicide, and does by such act cause the death of a quick unborn child, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
- A, knowing that he is likely to cause the death of a pregnant woman, does an act which, if it caused the death of the woman, would amount to culpable homicide. The woman is injured, but does not die; but the death of an unborn quick child with which she is pregnant is thereby caused. A is guilty of the offence defined in this section.
Section 317:- Exposure and abandonment of child under twelve years, by parent or person having care of it
Whoever being the father or mother of a child under the age of twelve years, or having the care of such child, shall expose or leave such child in any place with the intention of wholly abandoning such child, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
- This section is not intended to prevent the trial of the offender for murder or culpable homicide, as the case may be, if the child die in consequence of the exposure.
Offences of hurt
Section 319 provides that “whoever causes bodily pain, disease or infirmity to any person is said to cause hurt” (One year and fine). The definition of pain contemplates the causing of pain, etc. by one person to another.
Where serious mental derangement is caused by some voluntary act, a hurt is caused. But harm so slight that no person of ordinary sense and temper would complain of it is excluded by Section 95 of the Code.
Section 320 lays down the following kinds of hurt only which are designated as “grievous”:
- Emasculation i.e., depriving a person of masculine vigour;
- Permanent privation of the sight of either eye;
- Permanent privation of hearing of either ear;
- Privation of any member of joint
- Destruction or permanent impairing of the powers of any member or joint:
- Permanent disfiguration of the head or face
- Fracture or dislocation of bone or tooth; and
- Any hurt which endangers life or which causes the sufferer to be during the space of 20 days in severe bodily pain, or unable to follow his ordinary pursuits—(seven years, and fine).
- It could not be said that the accused intended or knew that the kicking on the abdomen was likely to endanger life and consequently the accused was guilty of causing hurt only.
- It was held in similar circumstances in Shahe Rai (3 Cal. 623) that the accused had committed hurt on the infant under the circumstances of sufficient aggravation to bring the offence within the definition of grievous hurt.
- The offence committed is neither of grievous hurt, not of culpable homicide, but of simple hurt. (1917 Bom. 259).
Is the accused guilty of either murder or culpable homicide not amounting to murder in the following case?
The accused struck his wife a blow on her head with a ploughshare which, though not shown to be a blow likely to cause death, did in fact render her unconscious and believing her to be dead in order to lay the foundation of false defence of suicide by hanging, the accused hanged her on a beam by a rope and thereby caused her death by strangulation.
In the above circumstances it was held by a Full Bench of the Madras High Court in Palani Goudon v. Emperor (I.L.R. 42 Madras 547, F.B.) that the accused was not guilty of either murder or culpable homicide not amounting to murder.
A man is not guilty of culpable homicide if his intention was directed only to what he believed to be a lifeless body.
Their lordships held that on the facts as found the accused could not be convicted either of murder or culpable homicide; he could of course he punished both of his original assault on his wife and for his attempt to create false evidence by hanging her. The accused was ultimately convicted of grievous hurt under Section 326, I.P.C.
Distinction between simple and grievous hurt
Section 319, I.P.C. specifies hurt as “bodily pain, disease or infirmity” caused to one person by another. Section 320 specifies what constitutes grievous hurt.
The expression ‘simple hurt’ has nowhere been defined or explained. It follows that a hurt which does not come within the scope of grievous hurt (Section 320) is simple.
Now grievous hurt includes:
- Permanent privation of the sight of either eye.
- Permanent privation of the hearing of either ear.
- Privation of any member or joint.
- Destruction or permanent impairing of the powers of any member or joint.
- Permanent disfigurement of the head or face.
- Fracture of dislocation of a bone or tooth.
- 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.
Any other hurt caused by a person to another which causes bodily pain, disease or infirmity is simple.
Offences of Wrongful Restraint
Section 339. Wrongful restraint
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has right to proceed, is said wrongfully to restrain that person.
Wrongful restraint means preventing a person from going to a place where he has a right to go. In wrongful confinement, a person is kept within certain limits out of which he wishes to go and has a right to go.
In wrongful restraint, a person is prevented from proceeding in some particular direction though free to go elsewhere. In wrongful confinement, there is restraint from proceeding in all directions beyond a certain area.
One may even be wrongfully confined in one’s own country where by a threat issued to a person prevents him from leaving the shores of his land.
Object – The object of this section is to protect the freedom of a person to utilize his right to pass in his. The slightest unlawful obstruction is deemed as wrongful restraint. Physical obstruction is not necessary always. Even by mere words constitute offence under this section.
The main ingredient of this section is that when a person obstructs another by causing it to appear to that other that it is impossible difficult or dangerous to proceeds as well as by causing it actually to be impossible, difficult or dangerous for that to proceeds.
- An obstruction.
- Obstruction prevented complainant from proceeding in any direction.
Obstruction mans physical obstruction, though it may cause by physical force or by the use of menaces or threats. When such obstruction is wrongful it becomes the wrongful restraint. For a wrongful restraint it is necessary that one person must obstruct another voluntarily.
In simple word it means keeping a person out of the place where his wishes to, and has a right to be.
This offence is completed if one’s freedom of movement is suspended by an act of another done voluntarily.
Restraint necessarily implies abridgment of the liberty of a person against his will.
What is require under this section is obstruction to free movement of a person, the method used for such obstruction is immaterial. Use of physical force for causing such obstruction is not necessary.
Normally a verbal prohibition or remonstrance does not amount to obstruction, but in certain circumstances it may be caused by threat or by mere words. Effect of such word upon the mind of the person obstructed is more important than the method.
Obstruction of personal liberty:
Personal liberty of a person must be obstructed. A person means a human being, here the question arises whether a child of a tender age who cannot walk of his own legs could also be the subject of restraint was raised in Mahendra Nath Chakarvarty v. Emperor.
It was held that the section is not confined to only such person who can walk on his own legs or can move by physical means within his own power. It was further said that if only those who can move by physical means within their own power are to be treated as person who wishes to proceed then the position would become absurd in case of paralytic or sick who on account of his sickness cannot move.
Another points that needs our attention here is whether obstruction to vehicle seated with passengers would amount to wrongful restraint or not.
An interesting judgment of our Bombay High Court in Emperor v. Ramlala : “Where, therefore a driver of a bus makes his bus stand across a road in such a manner, as to prevent another bus coming from behind to proceed further, he is guilty of an offence under Sec. 341 of the Penal Code of wrongfully restraining the driver and passengers of another bus”.
“It is absurd to say that because the driver and the passengers of the other bus could have got down from that bus and walked away in different directions, or even gone in that bus to different destinations, in reverse directions, there was therefore no wrongful restraint” is the judgment of our High Court which is applicable to our busmen who suddenly park the buses across the roads showing their protest on some issues.
- A was on the roof of a house. B removes the ladder and thereby detains A on the roof.
- A and B were co-ower of a well. A prevented B from taking out water from the well .
Offences of Wrongful Confinement
Section 340. Wrongful Confinement
Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person.
Object – The object of this section is to protect the freedom of a person where his personal liberty has totally suspended or abolish, by voluntarily act done by another.
- I. Wrongful confinement of person.
- Wrongful restraint of a person
- Such restraint must prevent that person from proceeding beyond certain limits.
Prevent from proceedings
Wrongful confinement is a kind of wrongful restraint, in which a person kept within the limits out which he wishes to go, and has right to go.
There must be total restraint of a personal liberty, and not merely a partial restraint to constitute confinement.
For wrongful confinement proof of actual physical obstruction is not essential.
Wrongful confinement means the notion of restraint within some limits defined by a will or power exterior to our own.
Moral force: Detention through the excise of moral force, without the accomplishment of physical force is sufficient to constituted this section.
Degree of Offense
Wrongful restraint is not a serious offence, and the degree of this offense is comparatively lees then confinement.
Wrongful confinement is a serious offence, and the degree of this offense is comparatively intensive then restraint.
Voluntarily wrongful obstruction of a person personal liberty, where he wishes to, and he have a right to.
Voluntarily wrongfully restraint a person where he wishes to, and he has a right to, within a circumscribing limits.
It is a partial restraint of the personal liberty of a person. A person is restraint is free to move anywhere other than to proceed in a partial direction.
it is a absolute or total restraint or obstruction of a personal liberty.
Confinement implies wrongful restraint.
Wrongful confinement not implies vice-versa.
No limits or boundaries are required
Certain circumscribing limits or boundaries requires.
Conclusion — persuasion is not obstruction, physical presence, for obstruction is not necessary, reasonable apprehension of force is sufficient, restraint implies will and desire are some of the salient features of such decisions.
Offences of Kidnapping and Abduction
Definition of Kidnapping
The offence of kidnapping , according to the section 359 of the Indian Penal Code , is of two kinds — 1) kidnapping from India , and 2) kidnapping from lawful guardianship .
- Kidnapping from India is defined by section 360 of the Indian Penal Code .
According to this section , whoever , conveys any person beyond the limits of India , without the consent of that person or of some person legally authorized to consent on behalf of that person , is said to commit the offence of kidnapping from India .
- Kidnapping from lawful guardianship is defined by section 361 of the Indian Penal Code .
According to this section , whoever takes or entices a minor male under 16 years of age if a male , or under 18 years of age if a female , or any person of unsound mind , out of the keeping of the lawful guardianship of such minor or person of unsound mind , without the consent of such guardian , is said to commit the offence of kidnapping from lawful guardianship .
The words lawful guardianship in this section includes any person lawfully entrusted with the care or custody of such minor or other person .
But this section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child , or who in good faith believes himself to be entitled to the lawful custody of such child , unless such act is committed for an immoral or unlawful purpose .
The essential elements of the offence of kidnapping from lawful guardianship are as follows :-
- The offender took or enticed away a minor or a person of unsound mind ;
- Such minor , if male , must be under 16 years of age , and if female must be under 18 years of age ;
- The act must be one of taking or enticing out of the keeping of the lawful guardianship of such minor or person of unsound mind ;
- The act of taking or enticing out must be done without the consent of the lawful guardian.
Definition of Abduction :-
The offence of abduction is defined by section 362 of the of the Indian Penal Code . According to this section , whoever , by force compels , or by any deceitful means induces , any person to go from any place , is said to commit the offence of abduction.
To constitute the offence of abduction the following ingredients must remain present :-
- The offender enticed a person by deceitful means or by forcible compulsion to go away from any place ;
- The offence of abduction was committed for any of the purposes enumerated in section 366 of the IPC.
The differences between the offences of Kidnapping and abduction
Difference between Kidnapping from lawful guardianship and Abduction
- The offence of abduction can be committed with respect to a person of any age . Likewise , the offence of kidnapping from India can also be committed with respect to a person of any age.
On the other hand kidnapping from lawful guardianship can only be committed with respect to a minor under 16 years of age , if male , and under 18 years of age , if a female . But the offence of kidnapping from lawful guardianship can be committed with respect to a person of unsound mind of any age.
- In case of abduction , the offender must use compulsion , force , or deceitful means . But in kidnapping , the minor is simply taken away or enticed away .
- In case of abduction or kidnapping from India , if the victim is capable by law of giving consent , the offence is not committed . But in case of kidnapping from lawful guardianship giving consent by the victim is immaterial or inoperative.
- In case of kidnapping from lawful guardianship , the person kidnapped must be removed out of the custody of a lawful guardian . A person without a guardian can not be kidnapped . But abduction has reference exclusively to the person abducted.
- Abduction is an auxiliary act , not punishable by itself , but made criminal only when it is committed with one or other intents mentioned in section 364 onwards of IPC . But kidnapping is a substantive offence , either from India or from lawful guardianship.
- Kidnapping from lawful guardianship cannot be abetted , but if there is a conspiracy , conviction for abetment can be sustained. But abduction or kidnapping from India can be abetted.
- In case of kidnapping, intention of the offender is wholly irrelevant . But in case of abduction intention of the offender is an important factor.
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