Parvathi Bakshi BA LLB 2015

Crimes Notes 2

Culpable Homicide (Manslaughter) and Murder

S. 299
To first enter into the realm of S.299, the act of the accused must result in the death of
the victim. The causa causans of the death must bear a direct nexus with the act of the
accused.
What is the meaning of the term death?
- Permanent stoppage of the heart as well as the brain

Next you must establish intention:

1. First you must determine the type of injury
- Abrasive
- Incisive
- CLW – contused lacerated wound

Gunshot injury and bullet is different.

2. What type of weapon was used?

3. Weather a thing was used as a weapon. (Everyday item)
4. Act of the accused before and after the incident. (Dr. Saxena v. State of UP)

Ø Intention to cause death

Ø Intention to cause bodily injury
Ø Knowledge that death is likely
Ø Explanation 1 – talks about situations where a person is suffering from a
bodily pain or injury or disease and the perpetrator uses active means to
accelerate the same. For e.g. in India according to the judgement of Aruna
Shanbaug, if one uses active euthanasia, he shall be held guilty for culpable
homicide by the virtue of explanation 1.
Ø Explanation 2 – If an injury is caused and at that very juncture there is no
proper medical treatment and because of that the injury becomes serious
which results in the death of the victim, it will be culpable homicide.

Criteria For S.300

Ø Premeditation
Ø Injury must be sufficient in the ordinary course of nature to cause death
o Or is likely to cause death – nature of injury is very simple however it
is the special knowledge possessed by the guilty of the victim’s
biology (not allergies unless it causes death – very grave)
o You must know the gravity of the offence. You incur (deliberately
undertake) the act without any excuse for incurring that risk.

Case: Gudar Dusadh v. State of Bihar [1972 3 SCC 118]

Lathi in the paddy field.
Even a single blow is enough as long as the prosecution is able to prove that the blow
was sufficient. And the accused had the intention to cause an injury. Therefore the act
of the accused giving a lathi blow resulting in the death of the victim.
Relevant Paragraphs: 7, 8 and 9.
Parvathi Bakshi BA LLB 2015

Case: Virsa Singh v. State of Punjab [AIR 1958 SC 465]

Relevant Paragraphs: 5 and 11 to 19.
It has been held that as far as the test to determine the injury, is concerned it is a
threefold test.
1. Injury present on the body of the victim
2. Injury must be sufficient in the ordinary course of nature to cause death
The above mentioned tests are objective in nature and has to be opined by the
medical practitioner at the time of post mortem
3. Whether the accused intended to cause that injury. If the prosecution is
able to show that the injury was deliberate, pre-planned and not accidental
it will be safely assumed that the accused has committed murder. No other
explanation by the accused shall lie in such a case.

Case: Emperor v. Mt. Dhirajia [1940 ILR 647]

Read the Headnotes
Charges. 302 and 309
Reading S. 300 explanation fourthly we see that she had a reasonable excuse as she
was a frightened woman and had no option but to jump.

Case: Ghyasibai v. State of MP [AIR 1953 MP 61]

Relevant Paragraphs: 2, 3, 5 and 8
Caught by clause fourthly in S. 300
In Ghyasibai it was held that it is a case where she was indicted under clause fourthly
of S. 300 because there was no reasonable excuse of incurring the risk of the harm
which was done. Therefore SC held her liable for murder but because of the fact that
she was an illiterate woman and she committed the act out of desperation the HC
thought it best to give her in this peculiar facts and circumstances of the case, an
imprisonment of six months and not one for the rest of her life.

Case: B.D. Khunte v. UOI [2015 1 SCC 286]

Relevant Paragraphs: 8 to 13 and 15 to 20.
Whether the defence of grave and sudden provocation will be applicable to the facts
and circumstances of the case.
Incident at 2:00 and shooting at 9:00 – 7hrs gap.
Between the time of the carnal intercourse and him being thrashed is the time when he
should have retaliated.
This test is not applicable in the fact situation.

Grave and Sudden provocation

Ø Reasonable man test
Ø Cooling period test

Sustained cumulative provocation – the straw which broke the camels back (cross the
threshold.)

Case: Regina v. Kiranit Ahluwalia [1992 4 ALLER 889]

Parvathi Bakshi BA LLB 2015

Case: Muthu v. State of TN [2009 17 SCC 433]

Relevant Paragraphs: 6, 8, 9, 10, 11, 14, 16 and 19
The act of continuously throwing garbage in the waste paper shop, run by the
appellant – accused, tantamount to cumulative or sustained provocation. The incident
which took place with the help of a knife was never carried by the accused. It was
incidentally there, so the question of pre-meditation is ruled out and the two tests
being satisfied the accused is entitled to the benefit of exception 1. And shall be held
liable for the offence of culpable homicide not amounting to murder.

Case: Sanjeev v. State of Haryana [2016 4 SCC 387]

Relevant paragraphs: 13 to 20

1st Exception – grave and sudden

2nd Exception – exceeding right to private defence
5th Exception -

Case: Nankaunoo v. State of UP [2016 3 SCC 317]

Relevant Paragraphs: 2, 11, 12 and 13
Test 2 as established in Virsa’s case. It is up to the doctor.

304A – in a charge under this section (criminal negligence) death has to be caused by
the rash or negligent act of the accused. Further the mens rea which is required in the
case of culpable homicide under S.299 must be absent. If only these two conditions
are satisfied can the person be indicted for criminal negligence under S. 304A.

Case: Cherubin Gregory v. State of Bihar [AIR 1964 SC 205]

Relevant Paragraphs: 2, 4 and 7.
Rightly held liable for negligence since copper wire was installed and no one was
warned.

Case: Dr. Suresh Gupta v. UOI

Relevant Paragraphs: 12 and 20 to 26
When in cases of medical negligence the onus is always on the prosecution to prove
that there was tortious liability involved. Further once tortious liability is proved the
prosecution has to prove that the doctor or medical practitioner was criminally rash
and negligent in causing death of the patient. If both these tests are satisfied, only then
can a charge of criminal negligence under S. 304-A of the IPC be sustained.
However if the defence is able to satisfy the Bolam test, that there was a reasonable
care and caution exercised by the doctor in conducting the operation and the person
unfortunately died because of a certain injury then the doctor shall be completely
absolved of these charges.
Bolam Test.
Parvathi Bakshi BA LLB 2015

Kidnapping and Abduction

Ø Kidnapping from lawful guardianship
Ø Kidnapping from India

Age of the victim has to be determined.

• 16yrs and under for male child
• 18yrs and under for female child

How is the age determined?

• School Certificate
• Birth Certificate
• Ossification Test

Ossiphication test: Human hand has Radi and Ulna – With an X-ray of the wrist area
you can measure the calcium deposit, now you can determine with a scale of + - 6
years.

Whoever takes or entices a minor from the custody of the guardian, natural or
artificial (school, orphanage,) amounts to kidnapping.
The consent of the minor has no value and it is the consent of the guardian which
takes importance.

The term taking has a physical connotation. It can be immediate or it can relate to past
acts of persuasion or soliciting. The taking and enticement must be read together not
seperately, since taking also involves a degree of enticement. Taking or enticing a
minor from the custody of the guardian, natural or artificial, amount to kidnapping.

By virtue of Locus Parentis

Case: S. Varadharajan v. State of Madras (AIR 1965 SC 942)

Relevant Paragraphs: 3 to 7, 8 to 12, 14 to 19
Although she was underage and in custody of her parents, the question before the
court was, whether she was taken or enticed by Varadarajan.
Must show that the perpetrator solicited or persuaded and enticed the victim to leave
without the consent of guardians.

Differentiation:

Kidnapping Abduction
Kidnapping is committed only in respect Abduction is in respect of a person of any
of a minor under 16yrs of age if a male age
and under 18yrs of age if a female or a
person of unsound mind
The person kidnapped is removed out of Abduction has reference exclusively to
lawful guardianship. A child without a the person abducted. Consent is
guardian cannot be kidnapped. Ex: important
Orphan on the streets
The minor is simply taken away. The Force, compulsion or deceitful means are
means used may be innocent used
Parvathi Bakshi BA LLB 2015

The consent of the person taken or
enticed is immaterial
The intent of the offender is wholly
irrelevant.
Kidnapping from guardianship is a
substantive offence
It is not a continuing offence
Consent of the person moved, if freely
and voluntarily give, condones abduction
Intent of the offender is the all-important
factor
It is an auxiliary act, not punishable by
itself but made criminal only when it is
done with one or other of the intents
specified in Section 364 onwards
Abduction is or can be a continuing
offence

Transfer of Malice

S. 301
If you intended to kill Mr. X but ended up killing Mr. Y, you will be held guilty as
much; if you had killed the intended victim.

Case: Emperor v. Mushnorru Suryanarayana Murthy [1912 22 MLJ 333]

Husband intended to kill wife with poisoned Mysore pakh. She threw it after a bite
and the child consumed and died.

Case: Ram Kailash v. State of Rajasthan [2016 4 SCC 590]

Relevant Paragraphs: 13

S. 320 – grievous hurt

S.326A – Voluntarily causing grievous hurt by acid
S.326B – voluntarily attempting to throw acid

S. 350 & S. 351

- Criminal force of assault
- Criminal force and assault was used on a woman
- The criminal force was used with intention of outraging her modesty
- S.354 to S.354D
- Outraging of modesty
S.354A
- Man commits the act against a woman
- It has both civil and criminal – Penal provision (Criminal trial) and the Act
(domestic enquiry)

Case: Saurabh Kumar v. Comptroller & Auditor General of India [2008 SCC DEL
563]
Relevant Paragraphs: 2, 3, 4, 5, 12, 13, 14, 15, 23 and 33
Workplace would mean any place where not only work is being conducted but also
includes those places where the owner or the principal employer has some control
over the rent, lease, accommodation, maintenance etc.

Case: Additional District & Sessions Judge X v. Registrar General High Court of
MP [2015 4 SCC 91]
Parvathi Bakshi BA LLB 2015

Relevant Paragraphs: 2, 5, 6, 7, 13 and 20

Ensure the pattern of victimization as it is usually a series of acts which entrap the
victim.

S. 354B – offence of disrobing

S.354C – peeping tom phenomena – private act can be biological or sexual
- It can only be done by a man
S.354D
- Can be done only by a man
- An attempt at fostering personal relations
- Facebook
- Phone messages
- The aim of the amendments by the Verma committee was to give more
appendages or hands to women by widening the scope and ambit of section
S.354.
- These minor amendments are basically trying to protect a woman’s modesty
from being corroded physically, verbally and electronically by male
perpetrators.

S.375
- The definition of sexual intercourse has expanded and it would include all
sexual acts include insertion of foreign objects into the body of a woman.
- By the virtue of section 376A, if a man commits rape and leaves her in a PVS,
he shall be liable for life imprisonment or death.
- Though marital rape is not an offence, but by 376B if a man has intercourse
with his wife who is living separately by order of decree of separation and
there is no consent, it is rape.
- If there is an establishment for women/children and a person in authority and
uses his fiduciary authority to have sexual intercourse with one of the
inhabitants it is called rape.

S. 376DIn gang rape

- All acted in a group or in concert in the furtherance of the common intention.
Can a woman be convicted for the offence of gang rape?
Case: Om Prakash v. State of Haryana [2015 2 SCC 84]
Relevant Paragraphs: 12, 15, 16 and 17
Abetment by luring and enticing.

Case: Satish Kumar v. State of Gujurat [2015 7 SCC 359]

Age of consent of a minor girl.