This article is written by Sujitha S, from the School of Excellence in law, Chennai. This article deals with offences against the human body as laid down in the Indian Penal Code. It further elaborates the legal provisions with relevant case laws.
This article has been published by Sneha Mahawar.
‘Offences against the human body’ encompasses a wide range of criminal offences that typically entail bodily violence, the fear of bodily harm, or other actions taken against an individual’s will. Section 299 to 377 lays down several offences relating to the human body. The most important ones are discussed in this article.
According to Section 11 of the Indian Penal Code (1860), the word ‘person’ includes any company or association or body of persons, whether incorporated or not. Further the term ‘men’ and ‘women’ is defined in Section 10 of the IPC. The word ‘man’ denotes a male human being of any age and the word ‘woman’ denotes a female human being of any age. These crimes are usually perpetrated by inflicting physical harm or using force on another person. The nature of such offences is usually divided into four categories, they are:
- sexual, and
Culpable homicide and murder, assault and criminal force, deprivation of liberty, sexual offences (rape), domestic violence, are some of the instances of crimes against the human body.
Offences against the human body
Culpable homicide (Section 299)
- The word ‘homicide’ is a combination of two Latin words: homo and cido. Homo signifies human, and cido denotes human killing. Homicide is defined as the killing of a person by another person. Homicide might be lawful or unlawful. Lawful homicide refers to instances in which a person who has caused the death of another person cannot be held responsible for that person’s death. For example, when exercising one’s right to private defence (Section 96) or in other cases described in Chapter IV of the General Exceptions of the Indian Penal Code, viz Section 76 to 106.
- In English law, culpable homicide is referred to as manslaughter. Second-degree murder is the legal term in the United States, whereas murder is referred to as first-degree murder.
- There are two types of culpable homicide:
- Culpable homicide that does not rise to the level of murder (Section 299).
- Culpable homicide amounting to murder (Section 300).
- Culpable homicide, as defined in Sections 299 and 300, refers to the extra elements that render culpable homicide a murder. The definition emphasises both the physical and mental elements of an act committed with the aim of causing death, or with the knowledge that the act he or she is about to do will kill someone, or will cause such bodily or physical injury that will result in a person’s death.
- Culpable homicide and murder are both cognizable offences that are not bailable or compoundable. Both can only be tried in a court of session.
As per Section 299 of the Indian Penal Code, “Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide”.
The following basic characteristics of culpable homicide are discerned from the examination of Section 299:
- The accused must have done an act.
- The act must have been done with one or more of the following intentions or knowledge:
- The intent to kill someone.
- The intention to cause bodily injury that is likely to result in death.
- The knowledge that death is likely to result.
- The victim must have died as a result of the actions of the accused.
Illustration: A is aware that Z is hiding behind a bush. B is completely unaware of this. A causes B to fire at the bush with the intent of causing, or knowing that it is likely to cause, death. Z is killed by B’s fire. In this case, B may have committed no crime, but A has committed culpable homicide.
Leading case laws related to culpable homicide
In the case of Re: Palani Goundan vs. Unknown (1919), the accused struck his wife in the head with a plough, which, while not demonstrated to be a blow likely to cause death, rendered her unconscious, and believing her to be dead, the accused strangled her on a beam with a rope, thus, causing her death by strangling. The defendant was found not guilty of culpable homicide, instead, he was found guilty of grievous hurt by the Court.
In the case of Joginder Singh vs. State of Punjab (1979), a person who was being pursued was found not guilty of culpable homicide. When a man was being pursued in an open field by his enemies, who had already killed one of his relatives in the incident, he jumped into a well to save himself and died in the process, it was determined that the accused’s actions did not constitute an act done with the intent or knowledge specified in Section 299 of the Indian Penal Code, and they were acquitted.
Murder (Section 300)
Culpable homicide amounting to murder
Culpable homicide amounting to murder is dealt with under Section 300. In other words, the Section stipulates that in some circumstances, culpable homicide constitutes murder. As a result, in order to be categorised as murder, an act must first meet all of the criteria for culpable homicide.
Section 300 stipulates that, unless in the following circumstances, culpable homicide constitutes murder:
- When an act is committed with the intent to kill someone. For murder, a high level of intention is required. There must be intent present, and that desire must be to cause the person’s death, not just injury or serious harm without the intent to kill.
- Causing physical harm that the criminal knows would result in death. The second scenario involves an offender who has particular knowledge of the victim’s health and utilises that knowledge to damage the victim in such a way that the person dies. For this, one can refer to Section 300 which states that the perpetrator ‘knows to be likely to cause the death,’.
- Bodily harm that results in death in the natural course of things. These instances include acts involving bodily injury that, in the normal course of events, would result in the person’s death.
- Committing an impending risky act for no valid reason would result in death or physical damage that would result in death. This category includes acts that are so dangerous that if they are committed, they will result in death or bodily injury that will result in the death of a person, and they are done without any legal justification.
When culpable homicide doesn’t amount to murder
1. In the following situations, culpable homicide would not be considered murder:
- Culpable homicide would not be considered murder if it did not meet the additional standards of the corresponding clause of Section 300.
- If a culpable homicide occurs within one of the five exceptions to Section 300, it is not considered murder.
2. The exceptions to Section 300 are listed below.
- Grave and sudden provocation.
- Exceeding in the exercise of the right of private defence.
- Public servant exceeding powers given to him by law.
- Causing death in a sudden fight, without premeditation.
- Consent of the deceased above the age of 18.
Grave and sudden provocation
Culpable homicide will not amount to murder if the offender loses his or her ability to control himself or herself as a result of the grave and sudden provocation and kills the person who provoked him or her or any other person by mistake or accident. It just lowers the risk of being charged with a crime. There is no absolute immunity from criminal culpability.
In the KM Nanavati vs. State of Bombay (1961), also known as the Nanavati case, the Supreme Court held that-
- In India, certain words and actions might provoke serious and unexpected provocation.
- When the plea is for grave and abrupt provocation, the mental backdrop produced by the victim’s earlier acts may be considered.
- The nature of the victim’s act must also be taken into account. The court must determine whether a reasonable man from the same social class as the accused, if placed in the same situation, would be subjected to natural provocation to the point of losing his self-control.
- The fatal blow should be clearly traceable to the provocation-induced rage. After the passion has died down, a lethal blow cannot be used as the basis for a sudden and grave provocation. The advantage of exception 1 cannot be awarded when there was time and scope for premeditation and calculation.
Exceeding the limits prescribed by law in the exercise of the right of private defence in good faith
Culpable homicide will not amount to murder if the offender, in the exercise of a right of private defence of person or property in good faith, exceeds the power granted to him by law and kills the person against whom he exercises the right.
The benefit of the exception can be obtained if it is also demonstrated that the criminal caused the death in question without premeditation or with the aim to cause more harm than is required.
Public servant exceeding powers given to him by law
- Culpable homicide will not amount to murder if the perpetrator while acting as a public servant or assisting a public servant in the pursuit of public justice, exceeds the authority granted to him by law and causes death.
- The benefit of the exception can only be claimed if the act was done in good faith and in the belief that it was legal and essential in the proper discharge of his duties. It must also be demonstrated that the criminal had no enmity against the deceased.
Death caused as a result of a sudden fight
- Culpable homicide will not amount to murder if it is performed in the heat of passion during a sudden quarrel and without the offender taking advantage of the situation or acting in a cruel or unusual manner.
- It makes no difference who provokes or conducts the assault in this case.
Consent of the deceased above the age of 18
Culpable homicide will not amount to murder if the person who is killed is over the age of 18 and suffers or risks death with his or her own consent.
Distinction between murder and culpable homicide
- The degree of criminality is the main distinction between murder and culpable homicide. In the instance of murder, the level of criminality is higher than in the case of culpable homicide.
- Every homicide is first and foremost a responsible homicide. However, not every culpable homicide is murder. To put it another way, responsible homicide is a genus, whereas murder is simply a species.
- The term ‘murder’ has been defined under Section 300. It is illegal under Section 302 of the Criminal Code. Culpable homicide is a less serious crime that is penalised under Section 304 of the Indian Penal Code.
- There is a narrow line between culpable homicide and murder, yet it is discernible. The important words contained in the separate clauses of Section 300 must be noted in order to identify the two offences.
- In the State of Andhra Pradesh vs. R. Punnayya (1975), it was held that-
- There are three degrees or types of culpable homicide recognised by the Code.
- In Section 300, culpable homicide in the first degree is defined as murder. It is the most serious type of culpable homicide.
- Second-degree culpable homicide is known as culpable homicide. It is penalised under Section 304, Clause I.
- The lowest level of culpable homicide is a culpable homicide in the third degree. It is penalised under Section 304, Clause II.
- The courts must first determine whether the death in question was caused by the accused’s actions. If the accused’s actions are affirmative, Section 300 should be considered.
Culpable homicide by causing the death of a person other than the person whose death was intended
Under Section 301 of the Indian Penal Code-
- The accused must have planned or known that his or her actions were likely to result in death.
- The act must have resulted in the death of a person, even if the offender had no intention or knowledge that the act would result in the death of a person who was actually murdered.
- In the foregoing situation, the accused would face the same punishment as if he had killed the person whose death he intended, knew, or was likely to kill.
- The Doctrine of transferred malice is the broad name for the notion enshrined in Section 301. According to this doctrine, when a person does injury to a different object than the one he intended due to an accident or error, thereby causing death, he is criminally liable for the offence.
- A person whose case falls under Section 301 will be penalised under Sections 302 or 304, depending on the situation.
This is a crime that is committed against a lady. Dowry is a crime that has existed in Indian civilization for hundreds of years, and despite several efforts, this evil has not been totally abolished. The word ‘dowry’ under Section 304B of the Indian Penal Code has the same meaning as in Section 2 of the Dowry Prohibition Act,1961, which defines the word as any property or valuable security given or agreed to be given directly or indirectly
- by one party to a marriage to the other party to a marriage; or
- by the parents of either party to a marriage, or by any other person to either party to the marriage; or
- by any other person to either party to the marriage,
at or before, or any time after (on three occasions) the marriage in connection with the said parties’ marriage.
By Section 304B, to construct a case of dowry death, a woman must have died of burns or other physical injuries or otherwise under normal circumstances within seven years of her marriage. She should have been subjected to brutality or harassment by her husband or in-laws in connection with a dowry demand shortly before her death.
In the case of Kamesh Panjiyar vs. State of Bihar (2005), the Supreme Court stated the key ingredients of dowry death (Section 304B, IPC) as follows:
- A woman’s death should be caused by burns, physical injuries, or some other unusual event.
- She should have died during the first seven years of her marriage.
- Her husband or a relative of her husband must have treated her cruelly or harassed her.
- Such cruelty or harassment should be in response to or in conjunction with a dowry demand.
- It must be proven that the lady was subjected to such brutality or harassment shortly before her death.
Hurt (Section 319-338)
Hurt, which may be simple or grievous, is one of the many offences against the human body.
- Sections 319-338 deal with injury and its many forms.
- The term ‘injury’ is defined in Section 319, whereas, Section 320 specifies the types of injuries that have been categorised as grievous
Section 319 defines simple hurt according to which whoever causes bodily pain, disease or infirmity to any person is said to cause hurt.
The term ‘bodily pain’ indicates that the pain must be physical rather than mental. As a result, inflicting mental or emotional harm on someone will not be considered ‘injury’ under Section 319. However, there is no requirement that the victim suffers any visible injuries in order to fall under this clause. Anyone who causes bodily discomfort, sickness, or disability to another person is considered to inflict injury, according to Section 319 of the Indian Penal Code.
i. Bodily pain, disease, or infirmity must be inflicted
Bodily pain is a type of harm with the exception of minor harm for which no one would object. Pricking someone with a pointed item such as a needle, hitting someone in the face, or pulling a woman’s hair are some examples of bodily pain. It makes no difference how long the suffering lasts. When anybody’s organ is unable to operate regularly, it is referred to as infirmity. It might be either transitory or long-term. It also encompasses mental states like hysteria or panic.
ii. It must be the result of the accused’s own free will
The accused, in Marana Goundan vs. Unknown (1940), wanted money from the deceased, which he owed him. The deceased stated that he would pay later. The accused then kicked him in the abdomen, causing the victim to collapse and die. The accused was found guilty of causing bodily harm since there was no evidence that he intended or understood that kicking on the abdomen would risk life.
Grievous hurt (Section 320)
The following kinds of hurt only are designated as grievous:
- Emasculation (making a person sexually incapable or weak).
- Loss of vision in one eye for the rest of one’s life.
- Permanent loss of hearing in one or both ears.
- Any member or joint being privatised.
- Destruction or permanent impairment of the powers of any member or joint.
- Permanent disfiguration of the head or face.
- Fracture or dislocation of bone or tooth
- Any injury that puts the sufferer’s life in jeopardy or renders him unable to pursue his normal activities for a period of twenty days due to significant bodily pain.
Voluntarily causing hurt (Section 321)
- As per Section 321, anyone who does anything with the intent of inflicting harm to another person and succeeds in doing so voluntarily commits hurt.
- Such an act must have been committed:
- with the intent of causing harm; or
- with the intent of causing harm to anyone.
The offence under Section 321 is punishable under Section 323 (either one year in prison or a fine of up to Rs. 1000/-, or both). It’s non-cognizable, bailable, compoundable, and a Magistrate can try it.
Hurt (Section 334) or Grievous hurt (Section 335) on provocation
Section 334 describes the circumstances in which harm is produced as a result of provocation. If the voluntary causation of harm is related to the grave and abrupt provocation, the penalty may extend to one month of jail or a fine of Rs. 500/-, or both.
- Anyone who does anything with the goal of causing grievous harm to another person and succeeds in doing so freely causes grievous harm.
- A person who knowingly causes terrible harm to another person and then causes grievous harm to that person is said to have freely caused grievous harm.
- The accused must have committed some sort of crime.
- Such an act must have been committed:
- With the intent to cause grievous harm; or
- Knowing that harm was likely to result; and
- Must have caused serious harm to any person as a result.
Under Section 335 of the Indian Penal Code, if the voluntarily giving of serious harm is related to the grave and abrupt provocation, the penalty will be reduced to either four years of imprisonment or a fine of Rs. 2000/-, or both.
Wrongful confinement (Section 340)
According to Section 340 of the Indian Penal Code, whoever wrongfully restrains any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limits, is said ‘wrongfully to confine’ that person.
- A moves Z into a walled location and locks him there. As a result, Z is unable to move beyond the wall’s circumscribing line in any direction. Z is wrongly imprisoned by A.
- Unlawful restraint of a person, and
- The restraint must be aimed at preventing that person from going beyond specific circumscribing bounds beyond which (s)he has the legal right to go. There must be complete restraint, not partial restraint.
Section 342 discusses the punishment for wrongful confinement. Under Section 342, whoever wrongfully confines any person, shall be punished with imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both.
The victim in the case of Deep Chand vs. State of Rajasthan (1961) was the son of a wealthy businessman. Two masked guys entered his apartment one day, one of them was armed with a revolver. If he made any noise, the two people threatened to shoot him. They led him outside, where two camels awaited his arrival. A cloth was draped over the victim’s face. They rode him on a camel for a distance before transporting him to the accused’s home, where he was held for 17 days. He was obliged to write three letters to the victim’s father demanding a ransom of Rs 50,000. They released the victim after the ransom was paid. Following that, the offenders were identified and charged under Sections 347, 365, 382 and 452 of the Indian Penal Code.
Wrongful restraint (Section 339-341)
As per Section 339, wrongful restraint is defined as, whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has a right to proceed, is said wrongfully to restrain that person.
A blocks a path that Z has the right to use, despite A’s good faith belief that he has the right to do so. As a result, Z is unable to pass. Z is illegally restrained by A.
Punishment for wrongful restraint
Section 341– Whoever wrongfully restrains another person shall be punished by simple imprisonment for a period not exceeding one month, or a fine not exceeding five hundred rupees, or both.
Wrongful restraint is defined under Section 339. The following are the basic elements of wrongful restraint:
- A person’s voluntary obstruction, and
- the obstruction must be such that it prevents the person from advancing in any direction in which he has a right to proceed.
A mother and a 13-year-old child were summoned to the police station for questioning in Raja Ram vs. State of Haryana (1972). The provision to Section 160 of the Criminal Procedure Code states that no woman or male under the age of 15 should be summoned to the police station for questioning. Instead, they must be questioned in their current location. The accused, a police officer, was found guilty of violating Section 160 of the Criminal Procedure Code. In light of this, the detention of a woman and a 13-year-old child in a police station was deemed unjust restraint. The accused was found guilty under Section 341, but not under Section 342 of the Indian Penal Code.
Criminal force (Section 350)
According to Section 350, anyone who intentionally uses force against another person without that person’s consent in order to commit an offence, or intends or knows it is likely that by using such force, he will cause injury, fear, or annoyance to the person to whom the force is applied, is said to use criminal force against that other.
(a) Z is seated in a moored riverboat. A purposely loosens the moorings, causing the boat to wander down the stream. Here A causes the motion to Z on purpose, and he does so by disposing of chemicals in such a way that the motion is produced without the involvement of anyone else. A has so knowingly used force against Z; and if he has done so without Z’s agreement, in order to commit any offence, or intending or knowing that this use of force will likely cause hurt, fear, or irritation to Z, A has used criminal force against Z.
In English law, criminal force is analogous to ‘battery,’ which refers to the intentional infliction of force by one person on another without their assent.
- The use of force as defined by Section 349;
- such force must be used purposefully;
- the force must be used in order to commit an offence against a person; and
- the force must have been used without the will of the person against whom it is used.
- the force must be used with the intention to cause injury, fear or annoyance to the person against whom it is used.
By Section 351, whoever makes any gesture or preparation with the intent or knowledge that such gesture or preparation will lead any person present to suspect that he or she is about to use criminal force against that person is said to have committed an assault.
- A shakes his fist at Z, intending or knowing that doing so will likely lead Z to assume A is preparing to strike Z. In this case, A has committed an assault.
The following are the essential elements of assault:
- the accused makes a gesture or preparation to use criminal force;
- such gesture or preparation is made in the presence of the person in respect of whom it is made;
- the accused has the intention or knowledge that such gesture or preparation will cause apprehension in the victim’s mind that criminal force will be used against him; and
- such a gesture or preparation has a physical effect on the victim.
Difference between criminal force, assault and hurt
In the IPC, the terms ‘assault,’ ‘criminal force,’ and ‘injury’ have different meanings and definitions. An assault is nothing more than a threat of violence that demonstrates a willingness to use unlawful force and the potential to do so. When force is used, it transforms into criminal force. Now, criminal force is defined as the act of creating motion, change of motion, or stoppage of motion without the agreement of the person in order to commit an offence or with the intent to cause or knowledge that it will cause injury, fear, or irritation. For instance, a man who inappropriately wraps his arms around a lady’s waist, squirts water at a person, or orders a dog to attack a person uses illegal force without really inflicting bodily harm or injury is said to have committed the offence of criminal force. However, if the use of such unlawful force results in the infliction of bodily suffering or injury, it will be considered a ‘hurt’, which is an offence under Section 323 of the Indian Penal Code.
The act of any criminal force perpetrated on a woman with the aim to insult her modesty is covered by Section 354 of the Indian Penal Code. The Criminal Law Amendment Act (2013) expanded the scope of Section 354 by including four additional provisions. Section 354A, Section 354B, Section 354 C, and Section 354 D are the novel Sections. In the case of State of Punjab vs. Major Singh (1966), the Supreme Court observed that ‘Outraging the modesty of a woman is a crime- indecent behaviour, not the woman’s age, is the test to define the offence of outraging the modesty punishable under section 354, IPC.’
- Section 354A: Sexual harassment and punishment for sexual harassment
- Section 354B: Assault or use of criminal force to woman with intent to disrobe
- Section 354C: Voyeurism
- Section 354D: Stalking
Sexual harassment and punishment for sexual harassment : Section 354 A
A male who engages in any of the following behaviours:
- Unwelcome and explicit sexual overtures; or
- A request or demand for sexual favours; or
- exposing a woman to pornography against her will; or
- Making sexually tinged comments.
shall be held responsible for sexual harassment.
Any man who commits the crime described in clauses (i), (ii), or (iii) of paragraph (1) must be punished by rigorous imprisonment for a term of up to three years, or by a fine, or both.
Any person who commits the crime described in paragraph (iv) of subsection (1) must be punished by imprisonment of any type for a term up to one year, a fine, or both.
Vishaka vs. State of Rajasthan (1997)
Vishaka vs. State of Rajasthan (1997) is a Significant case dealing with the heinous crime of sexual harassment of a woman at the workplace. The key question was whether the enactment of rules was required to safeguard women from sexual harassment at work. The court said that under Articles 14, 19(1)(g) and 21 of the Indian Constitution, every profession, trade, or vocation shall provide employees with a safe working environment. It impeded the right to life as well as the right to a dignified life. The Supreme Court ruled that women had a basic right to be free from workplace sexual harassment. It also outlined a number of critical principles for employees to follow in order to avoid workplace sexual harassment of women. Finally, in 2013, the Sexual Harassment of Women at Workplace Act, 2013 was implemented, bringing to light a number of much-needed protections.
Assault or use of criminal force to woman with intent to disrobe : Section 354B
This provision clearly specifies that a male who uses criminal force to disrobe (undress) a woman will be punished for a prescribed period of time. A violation of this section is similarly a cognizable offence, although it is not punishable by imprisonment.
Voyeurism : Section 354C
Any man who watches, captures the image of a woman engaged in a private act in circumstances where she would normally expect not to be observed either by the perpetrator or by any other person at the perpetrator’s behest, or disseminates such image shall be punished on first conviction with either description for a term not less than one year, but not more than three years, and shall also be liable to fine. On a second or subsequent conviction, the offender shall be sentenced to imprisonment of either kind for a period of not less than three years, but not more than seven years, as well as a fine.
Stalking : Section 354 D
- Follows a woman and constantly contacts or seeks to contact her in order to encourage intimate relationship, despite her evident indifference; or
- Keeps track of a woman’s internet, email, or other forms of electronic communication;
Commits the offence of stalking.
Kidnapping (Section 359-363)
Kidnapping, in any form, restricts an individual’s freedom. It essentially infringes on the right to life given by Article 21 of the Indian Constitution as well as human rights. It instils fear in people’s minds and has a negative impact on civilised society.
As per Section 359 of the Indian Penal Code, kidnapping is of two kinds: kidnapping from India, and kidnapping from lawful guardianship.
As per Section 360, kidnapping from India is said to be committed when one person conveys any person beyond the limits of India without the consent of that person, or of some person legally authorised to consent on behalf of that person.
As per Section 361, kidnapping from lawful guardianship is said to be committed when one person takes or entices any minor under sixteen years of age if a male, or under eighteen years of age if a female, or any person of unsound mind, out of the keeping of the lawful guardian of such minor or person of unsound mind, without the consent of such guardian.
- Taking or enticing away a minor or a person of unsound mind;
- such a minor must be under the age of sixteen years, if a male, or under eighteen years, if a female;
- the taking or enticing away must be out of the custody of the minor’s or person’s lawful guardian; and
- such taking or enticing away must be without the consent of the guardian.
In S Varadarajan vs. State of Madras (1964), a girl approaching majority willingly left her father’s house, made plans to meet the accused at a specific location, and went to the sub-office of the registrar where the accused and the girl signed a marriage agreement. There was no proof that the accused had taken her out of her parents’ legal care because the accused had played no active role in persuading her to leave the residence. It was decided that there was no evidence of an offence under this Section.
Abduction (Section 362)
Under Section 362 of the Indian Penal Code, whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.
- Forcible compulsion, or inducement by deceptive means, and
- The intention of such compulsion or inducement must be the removal of a person from any location.
The term ‘force’, as defined in Section 362, IPC, refers to the use of actual force, not just the threat or display of force. As per this Section, it would be kidnapping if an accused threatened the prosecutrix with a pistol to force the victim to accompany him.
Inducing a person to leave a location through deception is also a crime under this provision. As an alternative to ‘use of force,’ deception is deployed. As a result, a person can use force to compel, or alternatively, deceive, another person to leave a location. In either case, it is regarded as kidnapping.
To go from anywhere
Compelling or convincing a person to leave any location is an important part of abduction. It does not have to be from a lawful guardian’s custody, as in the case of kidnapping. Abduction, unlike kidnapping, is a continuous crime. When a person is removed from India or from the legitimate custody of a guardian, the crime of kidnapping is committed. However, in the instance of abduction, a person is abducted not only when he is taken from one location to another, but also when he is transported from one location to another.
The punishment for kidnapping is covered under Section 363 of the Indian Penal Code. It states that anyone who kidnaps any person from India or from lawful guardianship will suffer imprisonment of a term which may extend to seven years, and shall also be liable to pay a fine.
Sexual offences (Section 375-376D)
According to Section 375 of the Indian Penal Code, sexual intercourse must occur under one of the six clauses. When a man has sexual intercourse with a woman:
- against her will; or
- without her consent; or
- with her consent by putting her in fear of death or harm; or
- with her consent, when the man knows that he is not her husband and that her consent is given because she believes he is another man to whom she is lawfully married; or
- with her consent, if she is unable to understand the nature and consequences of that to which she consents due to insanity, intoxication, or the administration by him personally or via another of any stupefying or unwholesome substance at the time of such consent; or
- with or without the consent of a woman under the age of fourteen.
The Apex Court declared clearly in Tulshidas Kanolkar vs. State of Goa (2003), that consent granted by a mentally challenged girl cannot be called ‘consent’ for sexual intercourse since she is incapable of understanding the ramifications of her approval.
Debate on marital rape
The act of sexual intercourse with one’s spouse against the will of the spouse is known as marital rape. Around the globe, 140 of 195 countries have already made marital rape a criminal offence. The United States, the United Kingdom, Germany, France, Australia, and Russia are among the countries on the list. India is one of the few nations where marital rape is not illegal. Its legal roots may be traced back to Section 375 of the Indian Penal Code, which deals with rape and has an “exception” that states, “Sexual intercourse by a man with his own wife if the wife is not under the age of fifteen years, is not rape.”
In March 2000, the Law Commission of India issued its 172nd report on “Review of Rape Laws,” which stated that it would not propose the elimination of the exemption clause in Section 375 “since that may amount to inappropriate interference with the marital relationship.”
In 2015, the petition from RIT Foundation challenged the legality of the “marriage exception.” In 2022, it will be heard by the Delhi High Court for the final round. Another important case was Independent Thought vs. Union of India (2017) in which the question of contention was whether a husband is considered to have committed rape if he had sexual intercourse with his wife between the ages of 15 and 18. Articles 14, 15, and 21 of the Indian constitution were the topics of discussion. The Apex Court held that If the wife is under the age of 18, Exception 2 of Section 375 of the IPC cannot be applied.
Arguments against the criminalization of marital rape
- As such issues are handled under the Protection of Women from Domestic Violence Act 2005, there is no need for a separate law to cover marital rapes or to remove the exclusion from IPC section 375.
- Several individuals, jurists, and even men’s rights advocates have expressed concern over the criminalization of marital rape, citing misapplication of the law as a major factor.
- The burden of proof is a complicated problem that has precluded the criminalization of marital rape.
- One of the primary reasons against criminalising marital rape is that it might cause the institution of marriage to break down, with wives unjustly accusing husbands.
Arguments for the criminalization of marital rape
- The disparity between married and unmarried women under the exemption was considered to be arbitrary and artificial and to contravene Article 14 of the Constitution, which ensures equal protection under the law.
- It was also contended that the marital rape exemption violated married women’s right to autonomy and privacy under Article 21 and their right to non-discrimination under Article 15 by denying them protection under Section 375. (1).
- It is a statistically proven fact that the vast majority of sexual assaults are perpetrated by those who are acquainted with the victim – often spouses and partners.
- The actuality and prevalence of marital rape against women, which underscores the necessity for its punishment, must be distinguished from the issue of legal misapplication.
The Section 376D of the Indian Penal Code, states that when a woman is raped by one or more people who are part of a group or acting in concert for a common goal, each of those people is guilty of rape and is sentenced to a minimum of twenty years in prison and a maximum of life in prison, which means they will be imprisoned for the rest of their lives, and with fine.
The Supreme Court in Pradeep Kumar vs. Union Administrator, Chandigarh (2006), emphasised that the prosecution must prove that:
- there was a group of persons who decided to act in concert with the common intention to commit rape on the victim,
- more than one person from the group acted or participated in a concert in the commission of rape with a pre-arranged plan, and
- the act of rape has been committed by one or more members of the group (not necessarily everyone) in furtherance of the group’s common objective.
The rape is believed to have been committed by all members of the group. The existence of a common intention is the essence of culpability. The mere presence of a person at the time of another’s rape is inadequate to establish that he had a prior concert or meeting of minds with others, and thus to convict him of gang rape.
Unnatural offences (Section 377)
Lastly, the sixth kind of offence against the human body is an unnatural offence. Section 377 defines unnatural offences as:
Whosoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal, shall be punished with imprisonment for life, or 10 years and be liable to fine.
This Section deals with the punishments for sodomy, buggery, and bestiality. Carnal intercourse done against the natural order by a man with a man, or in the same manner with a woman, or by a man or woman in any manner with a beast constitutes the offence. Penetration, even if it’s only a slight hint, is crucial in rape. In a case under this Section, consent is irrelevant. The individual who takes a passive role is just as guilty as the person who actively participates in the act as an abettor.
The constitutional validity of Section 377
In Naz Foundation vs. Government of NCT of Delhi (2009), a non-governmental organisation challenged the constitutional legality of Section 377 in the Delhi High Court. Naz argued that Section 377, by encompassing consensual sexual intercourse between two adults in private, violates the Constitution’s basic rights granted in Articles 14, 15, 19, and 21. It was emphasised that Section 377, in essence, goes against the spirit of the right to equality before the law (which prohibits any classification based on irrational rationale)and rights to personal liberty (which includes the right to privacy, dignity, and individual autonomy) guaranteed by the Constitution’s Articles 14 and 21, respectively. It stated that Section 377 is in violation of Article 15 of the Constitution. The Delhi High Court accepted all of the parties’ contentions after a thorough examination of their arguments and counter-arguments in light of appropriate constitutional provisions and aspirations; judicial pronouncements and juristic opinions from home and abroad; moral justifications for and against (de)criminalization of consensual homosexuality; and reforms carried out in overseas law relating to sexual act between two willing adults in private. It determined Section 377 to be partially unconstitutional. It decided that Section 377 is illegal in as much as it criminalises consenting sexual actions of adults (i.e., persons aged 18 and up) in private, as it violates Articles 14,15 and 21 of the Constitution.
After hearing equally compelling reasons for and against the retention of Section 377 in the IPC, the Supreme Court rejected the Delhi High Court’s Naz Foundation Dictum and upheld the constitutional validity of Section 377 of the IPC in Suresh Kumar Koushal vs. NAZ Foundation (2013).
In 2018, the Supreme Court of India’s landmark ruling in Navtej Singh Johar & Ors. vs. Union of India (2018) decriminalised all consensual sex among adults, including homosexual sex. The Court maintained Section377 provisions that make non-consensual actions or sexual acts on animals illegal.
Criminal Law Amendment Bill, 2019
- Reforms to the legislation dealing with sexual offences against women, as a result of the Nirbhaya Case, have made a substantial contribution to women’s safety. As a result, the Criminal Law (Amendment) Bill, 2019, aims to make progress by advocating for a gender-neutral component that punishes all forms of sexual assault.
- The bill attempts to add a definition of “modesty” to Section 2 of the IPC. It seeks to describe it as a personality feature pertaining to any man, woman, or transgender person’s generally held belief in morality, decency, and integrity of speech and behaviour.
- Sections 354, 354A, 354B, 354C, and 354D of the IPC are proposed to be modified. Outraging women’s modesty, sexual harassment, intent to disrobe, voyeurism, and stalking are all prohibited. These laws will be amended to account for the rape perpetrator’s and victim’s gender. The words “guy” or “any male who” are planned to be replaced with “anyone,” whereas “a woman” is proposed to be replaced with “any person.”
- Section 375 of the Indian Penal Code has been changed. The bill proposes to replace pronouns like “any person” or “other person” with terms like “any person” or “other person,” making rape a gender-neutral offence.
- The bill also seeks to merge the terms “penis” and “vagina” with the term “genital,” which is defined in Explanation 1 as the penis and vagina.
- The bill proposes a novel Section 375A, which defines sexual assault as the intentional touching of the genitals, anus, or breasts, or forcing another person to touch such parts of the other person without consent, or the use of unwelcome words or gestures that create an “unwelcome threat of actionable nature,” punishable by up to three years in prison and/or a fine.
- Besides particular sub-sections dealing with the rape of women and children in custody, this bill aims to gender-neutralize the crimes listed in Sections 376A, 376B, 376C, and 376D of the IPC by replacing the word “woman” with “any person.”
Punishments for offences against the human body
Section 53 of the IPC prescribes five kinds of punishments:
- Death penalty,
- Life imprisonment,
- Imprisonment (rigorous/simple),
- Forfeiture of property, and
Chapter 3 of the Indian Penal Code 1860, titled punishment, deals with the various types of punishment ranging from Sections 53 to 75.
The taking away of an offender’s life as a penalty for an offence is known as capital punishment. It is only given in the rarest of rare cases in India. It may be imposed as a penalty for the following offences:
- Waging war against the Government of India (Section 121),
- Abetment of mutiny (Section 132),
- Giving for fabricating false evidence upon which an innocent person suffers death (Section 194),
- Murder (Section 302),
- Murder by life convicts (Section 303),
- Abetment of suicide of a minor or an insane or intoxicated person (Section 305), and;
- Dacoity accompanied with murder (Section 396),
- Kidnapping for ransom (Section 364A).
It is a sort of punishment in which the offender is just imprisoned and not forced to work. Some of the offences that are punished by simple imprisonment are:
- Wrongful restraint (Section 341),
- Uttering any word on making any sound or gesture with an intention to insult the modesty of a woman (Section 509),
- Misconduct in a public place by a drunken person (Section 510),
- Defamation (Section 500, 501, 502),
- Dishonest misappropriation of property (Section 403).
In this type, the offender is forced to perform manual labour such as grinding grain, digging, and cutting wood, among other things. In the case of State of Gujarat vs. High Court of Gujarat (1998), the imposition of hard labour on inmates undergoing rigorous imprisonment was found to be constitutional. It can be awarded in the following offences:
- kidnapping in order to murder (Section 364),
- robbery (Section 392)
- dacoity (Section 395), and
- housebreaking in order to commit an offence punishable with death (Section 449).
Imprisonment for life
Imprisonment for life implies that the offender will be imprisoned for the rest of his or her natural life. According to Section 57, a sentence of life imprisonment is equivalent to a sentence of 20 years. However, for the purposes of calculating fractions of periods of punishment, life imprisonment is equivalent to 20 years of imprisonment; otherwise, the sentence of life imprisonment is of unlimited duration.
Forfeiture of property
The confiscation of property as a punishment has a longstanding past. Section 53 of the Indian Penal Code, fifthly, allows forfeiture of property as a method of punishment. It was repealed by the Indian Penal Code (Amendment) Act 1921 (16 of 1921), which deleted Sections 61 and 62 of the Code. Absolute seizure of the offender’s property is no longer a method of punishment. The Indian Penal Code, on the other hand, has three offences for which the offender is liable to forfeit his property. They are as follows:
- Depredations against the territory of Power in alliance or at peace with the Government of India are punishable by confiscation of property used or intended to be used in committing, or obtained by, such depredations (Section 126).
- Receiving property taken in the course of a war or depredation is punishable by forfeiture of that property (Section 127).
- A public official who illegally purchases or bids on property in his or her own name or in the name of another is penalised by having the property confiscated (Section 169).
Almost every provision dealing with the imposition of punishment contains a fine as a punishment. Where a sum is specified to which a fine may extend, however, Section 63 states that the amount of fine to which the offender is accountable is limitless, but not excessive.
In Soman vs. State of Kerala (2012), the Supreme Court noted a number of criteria that it has considered while exercising sentence discretion, including proportionality, deterrence, and rehabilitation. The Court said that mitigating and aggravating elements should be considered as part of the proportionality analysis.
Prevention of crimes : the way forward
In India, crimes include a wide range of offences such as murder, money laundering, fraud, and human trafficking, among others. These crimes have various statistical tendencies that alter over time as human views evolve. Currently, crime is no longer a component of social issues; rather, it has evolved into a sociocultural, political, and economic issue for a nation. By intervening to influence their variety of causes, crime prevention methods and initiatives strive to lower the chance of crimes happening, as well as their potential adverse impacts on individuals and society, especially fear of crime.
Coordination refers to the necessity for national crime prevention diagnoses and strategies to include the linkages between local criminal problems and international organised crime, if applicable.
Role of executives
The executives’ primary attention should be on preventing the conditions that lead to criminality and, eventually, the conduct of crimes. This may be accomplished by a methodical, integrated, and coordinated strategy, with punitive measures being used only as a last option. Governments should strive to develop a system based on a state of equilibrium between repression and prevention, as well as rehabilitation initiatives that would have a significant impact on people’s psyche, therefore diluting criminality.
Human rights instruments
Ensure that the international treaties, legislation, and other measures to safeguard human rights are followed and monitored.
Given the broad nature of the causes of crime and the skills and responsibilities required to address them, government commitment at all stages is required to create and maintain an institutional framework for effective crime prevention.
Only enough resources for establishing and maintaining programmes and assessment, as well as clear accountability for financing, implementation, evaluation, and accomplishment of desired results, can ensure sustainability and accountability.
Policies and programmes
Knowledge-based strategies, policies, and programmes must be founded on a wide interdisciplinary basis of knowledge, as well as evidence of specific crime issues, causes, and proven approaches.
- The need to incorporate crime prevention into applicable social and economic policies, as well as an emphasis on the social integration of at-risk communities, children, families, and youth, is referred to as socio-economic development and inclusion.
- The NGO programmes can offer multimedia training to young people at risk/ex-offenders and their families, as well as rehabilitation, training, career possibilities, microcredit, and support for survivors, as well as peer education training and awareness-raising.
- While governments in most countries play an active role in crime prevention through specific policies and legislation, non-governmental organisations (NGOs) must demonstrate an increasing interest in assisting in the creation of safe and crime-free communities.
- Non-governmental intervention programmes that take the shape of public-private partnerships have a lot of success. The majority of non-governmental activities should be based on development, with a focus on training and rehabilitation.
There are crimes committed in every country, and there is no such thing as a crime-free state. Crime is like an unavoidable disease that cannot be completely eliminated from the world, but it can be reduced in severity and frequency by adopting the deterrence jurisprudence, which states that the punishments for crimes must be such that they instil fear in the minds of those who commit them, thus deterring them from committing them. Because it is a truth that individuals in today’s period may perform activities to the point that they cost human life, a valuable gift from God, only then can human behaviour be regulated, restrained, and steered in good faith to reach the common goal of peace.
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