Bangladesh Penal Code Blog

Sunday, December 4, 2016

Assault and criminal force occupy important places in criminal offences. Under Penal Code, 1860

Criminal Force: Criminal Force has been defined under section 350 of the Penal Code, 1860. However, for complete understanding of criminal force, we must have to gather knowledge about “Force” which is defined under section 349 of the Code.

Force: The term “Force” defined in section 349 contemplates force used by one human being on another human being. In order to constitute force there must be at least....

a. Causing of motion; or

b. Change of motion; or

c. Cessation of motion.

In Jai Ram v. Emperor, the accused raises his stick to strike the plaintiff, the plaintiff seeing the accused raising the stick moves away. It was held by the Court that A uses the force within the meaning of this section.

In Ramkant Rajaram v. Manuel Ferandes, It was held that a motion or change of motion caused to propertywithout affecting a human being is not the ‘Use of Force to Another within the meaning of this section.’

Criminal Force:

The last Section defined ‘force’ which by itself is not an offence , for the use of force may take place under circumstances the most benevolent, as where a person pulls another out of a well to save him from being drowned in the well, such an act is not an offence.

Section 350 defines criminal forces as of the following...

Whoever intentionally uses force to any person, without that person's consent, in order to the committing of any offence, or intending by the use of such force to cause, or knowing it to be likely that by the use of such force he will cause injury, fear or annoyance to the person to whom the force is used, is said to use criminal force to that other.

###Intentional: The word intentional excludes all Involuntary, accidental or even negligent acts. An Attendant at a bath, who from pure carelessness turns on the wrong tap and causes boiling water to fall on another, could not be convicted for the use of Criminal Force.

Force becomes criminal only when....

a. It is used without consent and in order to the committing of an offence.

b. When it is intentionally used to cause injury, fear or annoyance to another to whom the force is used.

Essential Ingredients: The essential ingredients of this section are as follows:

(i) Intentional use of force to any person.

(ii) Such Force must have been used without the person’s consent

(iii) The Force must have been used: - (a) in order to committing of an offence. (b) Intending to cause or knowing that is likely to cause Injury, fear or the annoyance to the person to whom the Force is used.

Criminal Force Criminal Force is Equivalent to “battery” in English law which means the intentional infliction of force by one person upon another against latter’s consent. If A spits over B, then A would be liable for use of Criminal Force as it must have cause annoyance to B.

In, Bihari Lal v. Emperor:

A person broke the house in the absence of the occupant, then it is clear that the accused had taken the possession of the house without any force or criminal force. But if, a person struck a pot which another person was carrying and which was in contact with his body, it constitutes the offence of criminal force. Thus the physical presence of a person makes a crucial difference, between an act amounting to criminal force or not.

Assault: An assault is nothing more than a threat of violence exhibiting an intention to use criminal force, and the present ability and intention to carry the threat into execution.

Assault has been defined under section 351 which basically requires two things:-

(i) Making of any gesture or preparation by a person in the presence of another.

(ii) Intention or knowledge of the likelihood that such gesture or preparation will cause the person present to apprehend that the person making it is about to use Criminal Force to him.

Gesture or Preparation: According to this section, the mere gesture or preparation with the intention or knowledge that it is likely to cause apprehension in the mind of the victim, amounts to an offence of assault. The explanation to this section provides that mere words do not amount to assault, unless the words are used in the aid of the gesture or preparation which amounts to an assault.

In, Read v. Cooker: An assault is constituted by an attempt to apply unlawful force to another or any threat which is accompanied by or consists of any act or gesture showing a present intent to use unlawful force and also accompanied by “a present ability to carry the threat into Execution”.

##Difference between Assault and Criminal Force:

1. Assault is defined in Sec. 351 of the Penal Code while criminal force is explained in section 350 of the Code.
2. There is no physical contact in an assault but there is physical contact or fear in the mind of the aggrieved person in the application of criminal force is seen.
3. Assault is an ‘attempt’ to commit criminal force whereas in Criminal Force the action of the wrong-doer is completed.
4. Every assault may not include criminal force but every criminal force must always include assault.
5. An assault is an over act indicating an immediate to commit criminal force coupled with the capacity of carrying out the intention into effect while the criminal force is something more in it an intentional application of force to the person of another without lawful justification.
6. In order to constitute an assault it is also necessary that the person so assaulted must, on reasonable grounds, believe that the person assaulting has the ability to apply the force/criminal force so attempted by him but no such belief is needed in force/criminal force. On the other hand, the application of even the slightest amount of force is actionable. Even a slight touch to person or causing fear is sufficient.
7. Throwing the water upon a person is an assault while as soon as the water falls on the person, it becomes force.

8. Assault is a lesser form of offence, comparing with criminal force.
9. Illustrations: A shakes his fist at Z, intending or knowing it to be likely that he may thereby cause Z to believe that A is about to strike Z. A has committed an assault.
A incites a dog to spring upon Z, without Z's consent. Here, if A intends to cause injury, fear or annoyance to Z, he uses criminal force to Z.

##Punishment for assault or criminal force otherwise than on grave provocation: Under section 352, Whoever assaults or uses criminal force to any person otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to three months, or with fine which may extend to five hundred taka, or with both.

##Assault or criminal force to deter public servant from discharge of his duty: Under section 353, Whoever assaults or uses criminal force to any person being a public servant in the execution of his duty as such public servant, or with intent to prevent or deter that person from discharging his duty as such public servant, or in consequence of anything done or attempted to be done by such person in the lawful discharge of his duty as such public servant, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

##Assault or criminal force to woman with intent to outrage her modesty: Under section 354, Whoever assaults or uses criminal force to any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

##Assault or criminal force with intent to dishonour person, otherwise than on grave provocation: Under section 355, Whoever assaults or uses criminal force to any person, intending thereby to dishonour that person, otherwise than on grave and sudden provocation given by that person, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

##Assault or criminal force in attempt to commit theft of property carried by a person: Under section 356, Whoever assaults or uses criminal force to any person in attempting to commit theft on any property which that person is then wearing or carrying shall be punished with imprisonment of either description for a term which may extent to two years, or with fine, or with both.

##Assault or criminal force in attempt wrongfully to confine a person: Under section 357, whoever assaults or uses criminal force to any person, in attempting wrongfully to confine that 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 taka, or with both.

##Assault or criminal force on grave provocation: Under section 358, whoever assaults or uses criminal force to any person on grave and sudden provocation given by that person, shall be punished with simple imprisonment for a term which may extend to one month or with fine which may extend to two hundred taka, or with both.

Wrongful restraint

Wrongful restraint means preventing a person from going to a place where he has a right to go.

According to S. 339 of the Penal Code, 1860, 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 person cannot be convicted for the offence of wrongful restraint if he has not a right to proceed in the direction in which he was proceeding at the time of his restraint. AIR 1916 Mad 696.

An obstruction by a person of one community to a person of another community from passing a public way is an offence under this section.

AIR 1927 Mad 938.

Exception. The obstruction of a private way over land or water which a person in good faith believes himself to have a lawful right to obstruct, is not an offence within the meaning of this section.

Where A claims a private right of way over B’s Property and B in good faith believes that A has no such right and obstructs him in his attempt to proceed on that way, the proper remedy of A in such a case lies in the Civil Court. AIR 1964 J and K 4.

Illustration: A obstructs a path along which Z has a right to pass, A not believing in good faith that he has a right to stop the path. Z is thereby prevented from passing. A wrongfully restrains Z.

Ingredients: This section requires –

v Voluntary obstruction of a person.

v The obstruction must be such as to prevent that person from proceeding in any direction in which he has a right to proceed.

Obstruction means physical obstruction, though it may cause by physical force or by the use of 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.

Punishment

Whoever wrongfully restrains any person shall be punished with simple imprisonment for a term which may extend to one month, or with fine which may extend to five hundred taka, or with both. [ S.341]

Wrongful Confinement:

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.

According to S. 340 of the Penal Code, 1860, Whoever wrongfully restrains any person in such a manner as to prevent that person form proceeding beyond certain circumscribing limits, is said "wrongfully to confine" that person.

##Wrongful confinement is a wrongful prevention of a person from proceeding beyond certain circumscribing limits. Where there was no desire to proceed in a certain way on the part of the complaint it cannot be said that there was obstruction though the accused may have intended and even expressed his intention to restrain the complaint should he move from his present position. AIR 1957 Orissa 130.

##Wrongful confinement is a species of wrongful restraint. The essential ingredient of this offence is physical obstruction to the movement of a person. The mere keeping of a watch on a person without in any way hindering his movement by physical impediments in this way does not fall under this section.

Illustrations:

(a) A causes Z to go within a walled space, and locks Z in. Z is thus prevented from proceeding in any direction beyond the circumscribing line of wall. A wrongfully confines Z.

(b) A places men with firearms at the outlets of a building, and tells Z that they will fire at Z if Z attempts to leave the building. A wrongfully confines Z.

Punishment:

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 taka, or with both. [S. 342]

Difference between wrongful restraint and confinement: There are following important distinction between wrongful restraint and wrongful confinement:

1. Confinement Degree of Offence: Wrongful restraint is not serious offence, and the degree of this offence is comparatively less then confinement; Whereas, wrongful confinement is a serious offence, and the degree of this offence is comparatively intensive then restraint.

2. Principal element: Voluntarily wrongful obstruction of a person personal liberty, where he wishes to, and he have a right to; Whereas, voluntarily wrongful restraint a person where he wishes to, and he has a right to, within a circumscribing limits.

3. Personal liberty: 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. Whereas, it is an absolute or total restraint or obstruction of a personal liberty.

4. Nature: Confinement implies wrongful restraint. Whereas, wrongful confinement not implies vice – versa.

5. Necessity: No limits or boundaries are required. Whereas, certain circumscribing limits or boundaries requires.

Causing Death of Quick Unborn Child

Section-312: Causing miscarriage.- Whoever voluntarily causes a women with child to miscarry, shall, if such miscarriage be not caused in good faith for the purpose of saving the life of the women be punished with imprisonment of either description for a term which may extend to three years or with fine or both 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.

Explanation: In fact the section deals with the causing of miscarriage with the consent of woman. The Medical Termination of Pregnancy Act, 1971 provides for the termination of pregnancy by registered medical practitioners where in continuance would involve a risk to the life of pregnant woman or grave injury to her mental or physical health or where there is a substantial risk that if the child born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. The termination of a pregnancy by a person who is not a registered medical practitioner will be an offence under Indian Penal Code-1800.

Section-312 can ever apply to a pregnant woman herself who causes her won miscarriage. Good faith by itself is not enough. It has to be good faith for the purpose of saving. The life of mother or child and not otherwise.

Ingredients of this section:

1. At first it has to be proved that the women was pregnant.

2. It had been done willingly.

3. It had been done without good faith.

4. Perception by the mother of the movements of the fetus.

Case References :

v Meeru Bhatia Prasad VS State, 2002 Cr LJ1674(Del): Section-312 can even apply to a pregnant women herself who causes her own miscarriage. Good faith for the purpose of saving life of mother and child and not otherwise.

v Akhil kumar VS State of M.P, 1992 Cr LJ 2029(MD): A woman had pregnancy of 24 weeks out of illicit relations and a doctor administered an injection for determination of the pregnancy but the women died next day without miscarriage . It was held that the act of doctor amounted to “Voluntarily Causing miscarriage” within the meaning of section-312, as the doctor presumed to know the possible effects of the medicine.

Section-313: Causing miscarriage without women’s consent.- Whoever commits the offence defined in the last preceding section without consent of 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 10 years and shall also be liable to fine.

Explanation: Under the section the act should have been done without the consent of woman under it, the person procuring the abortion is alone punished under section-312 such person as well as the woman who causes herself to miscarry are both punished. When the accused woman kicked a pregnant woman in her abdomen resulting in miscarriage, her conviction under section-313 was sustained. It is a non-bailable offence.

Ingredients:

1) The woman was pregnant.

2) Miscarriage was done without her consent.

3) Done by willing by.

4) Without good faith.

Case References :

v Tulsi Devi VS State of u.p – 1996: Under these section the act should have been done without the consent of the woman where the accused woman kicked a pregnant woman in her abdomen resulting in miscarriage, her conviction under section-313 was sustained.

Section-314: Death caused by act done with intent to cause miscarriage.- Whoever with intent to cause the miscarriage of a woman with child, dose any act which causes the death of such woman, shall be punished with imprisonment of either description for a term which may extend of ten years, and shall also be liable to fine.

If the 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 punishment, or above mentioned.

Explanation: This section provides for the case where death occurs is causing miscarriage. The act of the accused must have been done with intent to cause the miscarriage of a woman with child.

Ingredients:

1) She will be a pregnant woman.

2) The miscarriage was done intentionally.

3) For the miscarriage the woman caused death.

4) Miscarriage was done without consent of woman.

Case References :

v Surendra chauhan VS State of MP 2000 se.1436: A person, name C, was alleged to have had illicit relations with the deceased woman. He took her to a doctor for the purpose of aborting her of pregnancy. The doctor caused her death in that process. The doctor was not qualified for the purpose, nor his clinic was approved by the Government and was also not having the basic facilities for abortion. There was a concurrent finding that the act was done by the doctor in furtherance of the common intention with C. It was held that the conviction of C under this section read with section-34 was proper.

v Raqib Sheikh vs State 57 DLR 568.- The prosecution having proved beyond reasonable doubt that the convict with intent to cause miscarriage of his deceased wife got a piece of plant-root placed in her uterus resulting in her death, the convict-husband is guilty of offence under section 314, Penal code.

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 due after its birth and does by such act prevent that child from being born alive or causes it the purpose of saving the life of the mother, be punished with imprisonment of either description for a term which may extend to 10 years or with fine or both.

Explanation: Any act done with the intention here mentioned which results in the destruction of the child’s life, whether before or after its birth, is made punishable.

Ingredients:

1) The work was done by the accused to prevent the birth of the child.

2) The work was done intentionally.

3) Good faith was absent.

4) The accused was intended to cause death of the new born child.

Section-316:

Causing Death of Quick Unborn Child:- Section-316 deals with causing death of quick unborn child by an act amounting to culpable homicide. It says,” 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 ,shall also be liable to fine.”

Explanation:- This section punishes the causing of death of a quick unborn child by an act amounting to culpable homicide .That means, if a person strikes a pregnant woman and thereby cause death of her quick unborn child ,he will be guilty of the offence defined in this section if the blow was intended by him to cause the woman’s death or was one which he knew or had reason to believe to be likely to cause it. So, any act or omission of such a nature and done under such circumstances as would amount to the offence of culpable homicide, if the sufferer were a living person ,will if done to a quick unborn child whose death is caused by it, constitute the offence here punished.

Ingredients:- From the above discussion ,in order to constitute any offence under this section requires the following ingredients-

(1) That the woman was quick with child.

(2) That the accused did an act to cause death of the child.

(3) That the circumstances under which the act was done were such as to make the accused guilty of culpable homicide if death had been caused.

(4) That such act caused the death of the quick unborn child.

Case References :

v Murugan vs state of T.N.1991Cr.LJ 1680(mod); A husband striking his wife dead was held guilty of the offence under this section. The medical evidence showed that she was carrying a male child of 20 weeks. A foetus gets life after 12 weeks of conception.

v Jabbar air 1966 All 590; In order to constitute offence this section the act complained of must be done with the necessary intention on knowledge which is specified in s.299 of the penal code. Merely because the death of the quick unborn child has resulted. The act would not amount to an offence under this section. The accused must be shown to have act under circumstances from which it can be inferred that he had the necessary intention or knowledge to cause death of the victim of his assault and which would amount to the offence of culpable homicide.

v (1970)36 Cut LT 711; In order to constitute offence under this section it must be proved that such act did cause the death of quick unborn child. The unborn child should already have been quick insider the womb of the mother.

v 1971 Mad LW(Cri)240; Form the act of the accused, it must be possible to state that he had the necessary mens rea which renders him liable for punishment for culpable homicide such an act must result in the death of a quick unborn child . Then this section is attracted.

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.

Explanation: This section is intended to prevent the abandonment or desertion by a parent of his or her children of tender years. In such a manner that the children not being able take care of themselves, may run the risk of dying or being injured. That means the offence under this section may be done by parent of illegitimate child or parents in distress and the gist of the offence is the exposure or leaving of such child in any place with the intention of abandoning it. In other words it is the desertion of the child by persons bound to support and protect it or by one who has taken up on himself the duty of protecting it either by adoption or otherwise (18 Cri LJ98).

Ingredients: This section requires these four essentials to prove any offence under this section-

(1) That the child is under twelve years of age.

(2) That the accused person is the father or mother or the person having the care of that child.

(3) That he exposed or left such child at the place in question.

(4) That he so exposed or left the child with the intention of wholly abandoning it.

Case references:

v Where a woman immediately after giving birth to an illegitimate child threw it into a thorn bush and concealed the act without showing any solicitude for the child , she was guilty under this section .(AIR 1914 Upp Bur 22)

v Where a pregnant widow who has travelling by trail had labour pains at the station, went to the close-by public latrine on the platform delivered an illegitimate child and returned to the adjacent bridge for rest it was held that her conduct was consistent with innocence and she was given benefit of doubt(AIR 1920 Nay 181) .

v So, this section mainly meant to protect children below 12 years of age who are unable to take care of themselves. Abandonment and exposure of such children by their parents or by persons under whose care they have there for been made penal (1871)16 Suth WR 12(12)(DB) .

Section-318: Concealment of birth by secret disposal of dead body.- Whoever, by secretly burying or otherwise disposing of the dead body of a child whether such child die before or after or during its birth, intentionally conceals or endeavors to conceal the birth of such child, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.

Explanation: This section is intended to prevent infanticide. It is directed against concealment of birth of a child by secretly disposing of its body. This section deals with the secret burial of a child and applies only where one intentionally conceals the birth of a child from the world at large. The section contemplates that the child must have reached such a stage of development and maturity that it may be born alive and be capable of living.(1906)3.Cri LJ432

Ingredients: This section requires the following elements to prove any offence under it. These are-

(1) That there was the birth of the child.

(2) That the child died either before, during or after its birth.

(3) That the accused buried or otherwise disposed of the dead body.

(4) That such burial or disposal of the body was secretly done.

(5) That the accused thereby intentionally concealed, or endeavored to conceal, the birth of such child.

Case References:

v According to “Laibu (1898) Unrep Cr.C961” the offence under this section becomes complete when the birth i.e. the delivery of a child, dead or living is concealed by any means.

v When the accused gave her new born illegitimate dead child to a woman with instruction to dispose of it security and the latter carried out the instructions by throwing it into a river. It was held that the accused was no guilty of a substantive offence under this section, though the facts more appropriately came under the definition of abetment.(Baji (1895)Unrep Cr.C775)

v Where the body of a newborn child was found thrown in an open pit and the evidence was conflicting as to whether it was alive if dead at the time it was so thrown, the court held that the case should be considered as falling under this section and not under section 302 which would have been applicable if the child had been alive when it was thrown in the pit.(1906)3Cri LJ317

v The intention conceal or endeavor to conceal the birth is necessary ingredient of the offence under this section.(1905)2 Cri LR(Cri)5

Book References:

(1) Ratanlal and Dhirajlal.

(2) Md. Zahurul Haque.

(3) Md. Jeaul Hasan.

(4) Bare Act

Submitted by:

Rama das -> 13219058. Hure Jannat-> 13209070. Taslima Akter->13219073.Fouzeya Nisat Jeba->13209035.Most. Hiramon khatun->13209056

Tuesday, October 4, 2016

Of Offences Affecting the Human Body

Chapter XVI of the penal code deals with the offences affecting the human body. This chapter describes which deaths are to be called murder and provides punishment for that. This chapter consists of 15(fifteen) sections.

The penal code, 1860 was the result of the then British parliament which was much different from the Act of England. As because then India was the colony of England, the British parliament under the supervision of lord.

Historical background of punishment of culpable Homicide:

Homicide means the killing of a human being by a human being. Homicide may be of two types.

a) Culpable homicide: which is a criminal offence and punishable under the Statutory law of all countries under the penal code, 1860

b) lawful or simple homicide: which in not considered as an offence and which is not punishable under statutory law. In our country, such homicide are under also the penal code.

Culpable Homicide is such type of offence which has been considering as an offence from time immemorial. But the relief or punishments were not same at different times. Ratanlal and Dhirajlal discussed almost nothing about the punishment for murder¹ before the arrival of the British.But there existed punishments provision for murder even before British.

Al-Biruni, and Islamist scholar wrote, “If the killer is a Brahmins and the killed is of another cast the punishment is “upobas’ prayer (yagga), and charity. Such type of murder is called “Bajra Brahma” But there are different provisions for other castes”².

In Mughal period, there were also provision for murder. Death penalty,blood money were the punishment.

The penal code, 1860 was a new one to say the truth, the first compiled code passed by the British parliament after they took over the charge of the administration of Indian sub-continent.

The penal code. 1860, deals with the offences of culpable homicide and the punishment for that chapter XVI consists of sections from 299 to 311.

Section-299, at first lays down that which deaths are to be considered as culpable homicide. The section state that, “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.

This section has two elements to prove whether a murder is culpable or not. These are——

i. Causing death of a human being

ii. Such death must have been caused by doing an act

a) With intention of causing death; or

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

c) With the knowledge that the doer is likely by such act to cause death³

At first the matter is to be noticed that the offender has a bad intention to cause death or such bodily injury as is likely to cause death.

When death is probable it is culpable homicide and when death is most probable it is murder. Mere killing of a person is not murder or culpable homicide, but it is so when caused with guilty intention.⁴ The offence of culpable homicide supposes an intention, or knowledge of likelihood of cussing death. In the absence of such intention or knowledge, the offence committed may be grievous hurt or simple heart. The intention of the murder is the most important to the charge of murder mere killing accidental killing is not culpable homicide.

Section 299 is introductory section of chapter 16 defines which murder or death is punishable.

Section 300 deals with murder. All the culpable homicide are not murder. That means it fixes which killing are to treated as murder. Murder is the most heinous crime of world. There are five exceptions to this sections. These five types of killing though cause death are not treated as murder. An offence cannot amount to murder when it falls within the definition of culpable homicide; for this section merely points out the cases in which culpable homicide is murder. But an offence may not amount to culpable homicide without amounting to murder.

It does not follow that a case of culpable homicide is murder, because it does not fall within any of the exceptions to section 300. To render culpable homicide murder the case must within the provisions of clauses 1, 2, 3, 4 of sec -300 and must not fall within any one of the five exception attached thereto.

“Excepting the general exceptions attached to the definition of murder an act constituted culpable homicide amounting to murder If the criminal act is done with intention of causing death then it is murder. Clear and simple that if death is likely result of the injuries it is homicide not amounting to murder; and if death is the most likely result, then it is muder.⁵

Section 300 is more important than another section of the Penal Code,1860. This section should be read with section 34 and 35 and 38. It is of special consideration that, Where the act causing death directly is amounted as murder but the doer If has no intention or knowledge to cause death or such bodily injury may cause death can not be treated as murder under section 300.

The weapon used was a lethal one and the injury grave in nature was caused on the vital part of the body the act was done with the intention of causing death such bodily injury intended to be inflicted as was sufficient in the ordinary course of nature to cause death. It falls clearly within the 1^st, 2^nd, & 3^rd clauses of section 300 of penal code.⁶

Section 301 deals with the murder which was intended to cause to another’s death.

Section- 301 states, “If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends not knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.

According to section 300, The killer has the intention to cause death of a particular person but he causes death of another person; it is to be dealt under section 301.

If the accused commits an offence under section 301, the offence is regarded as an offence under section 300.

Blow aimed at the intended victim, if alights on another, offence is the same as it would have been if the blow had struck the intended victim,⁷.

The intention of the accused was to kidnap a girl. In doing so with weapon they killed another person. It was held that they were to be punished under section 302 and 149.⁸

Section 299, 300, 301 actually define what are culpable homicide. But there is no penal provision in these sections.

Section 302 provides the punishment for offences committed under sections 299, 300 and 301.

Section 302 states “Whoever commits murder shall be punished with death, or imprisonment for like, and shall also be liable to fine.

If the charge brought against the accused is proved without doubt, then and only then death penalty is to be awarded.

The charge brought under this section can be proved by—

a. The death of the victim actually occured

b. Such death was caused by the activities of the accused

c. Such activities were conducted only to cause the death

d. The accused used poison to cause death

The punishment of death is only to be awarded in the rarest cases. The court observed that the following principles should apply:

a. Where the facts of the case disclose that the culpability of the accused has assumed extreme depravity; where the accused is found to be an ardent criminal and menace to the society; where the crime is committed in an organized manner and is gruesome, cold blooded heinous, atrocious and cruel, where innocent unarmed persons were attacked and murdered without any provocation and where the murder is committed by an accused who was in duty bound to protect the victim.

b. The court shall consider both the aggravating as well as the mitigating circumstances in the case.

c. Number of ipso facto will not make a case. The rarest of the rare case but will be a relevant aggravating circumstances and the mental condition of the accused will be relevant mitigating circumstances.

section 302 states the punishment of committing murder.

According to section 302 whoever commits murder shall be punished with death or imprisonment for life and shall also be liable to fine.

If the charge brought against the accused in proved undoubtedly, then and only then punishment provided under section 302is to be awarded.

Distinction between culpable homicide and murder

Culpable homicide (s. 299)	Murder (s.300)
A person commits culpable homicide, if the act by which the death is cursed is done	Subject to certain exception, culpable homicide is murder, if the act by which death is caused is done
a. With the intention of causing death. b. With the intention of causing such bodily injury as is likely to cause death. c. With the knowledge that the act is likely to cause death	1. With the intention of causing death. 2. With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused. 3. With the intention of causing bodily injury to any per son and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death: 4. With the knowledge that the act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death.

Punishment for murder by life-convict: 303. This section deals with punishment for murder by a life convict.

Ingredients of section 303:To prove a conviction under section 303 of the Penal Code ,the following ingredients must be needed;

a. Whether death was caused to any person;

b. whether that death was caused by the act of the accused;

c. Whether the accused did the act with the intention to cause death and

d. Whether the accused had been suffering the sentence for life while he committed the offence.

Punishment for culpable homicide not amounting to murder: 304. Section 304 of the Penal code deals with punishment for culpable homicide not amounting to murder. Section 304 provides that if any person commits culpable homicide not amounting to murder, shall be punished with imprisonment for life or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine,if the act by which the death is caused with intention of causing death ,or of causing bodily injury as is likely to cause death.

Ingredients of section 304: To secure a conviction under section 304 of the Penal Code ,the following ingredients must be needed;

a. Whether any person was killed.

b. whether that death was caused by the act of the accused

c. Whether the accused did the act with the intention to cause death or intended to cause hurt likely to cause death.

Causing death by negligence: 304A. Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

This section relates to cases where the homicide is caused negligence.it does not apply to cases where death has arisen, not from the negligent or rush mode of doing the act, but from some result supervening upon the act which could not have been anticipated. Under this section rush or negligent act must be the direct or proximate cause or death .

Ingredients of section 304 A: To secure a conviction under section 304A of the Penal Code ,the following ingredients must be needed;

a. Whether any person was killed.

b. whether that death was caused by the act of the accused

c. Whether the act of the accused was rush or full of negligence.

A driver of motor vehicle who is himself negligent can not be his defence, the negligence of pedestrian though is not unconscious and killed [Abdul Rashid Vs State, 9 DLR 207]

Causing death by rash driving or riding on a public way 304 B. Whoever causes the death of any person by rash or negligent driving of any vehicle or riding on any public way not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both.

Ingredients of section 304 B: To secure a conviction under section 304B of the Penal Code ,the following ingredients must be needed;

a. Whether any person was killed.

b. whether that death was caused by the act of the accused

c. Whether that death was caused by rash driving or riding on a public way.

In Criminal law journal it is stated that “A is coming from a link road to a main road driving on a motor cycle ,the motor cycle colliding with the accused’s car which was laying main road .Car not colliding with motor cycle ,Fact that accused was driving a car at a first speed could not make him liable for rashness and negligence if road was clear.

Duty of a person coming deriving from a link road towards main road ,to see that main road was clear before entering same.

It was held doubtful ,if death of deceased was due to any rash or negligence act of accused .Accused given benefit of doubt and acquitted.[1985-Crlj -2794]

Abetment of suicide of child or insane person 305. If any person under eighteen years of age, any insane person, any delirious person, any idiot, or any person in a state of intoxication commits suicide, whoever abets the commission of such suicide shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Ingredients of section 305: To secure a conviction under section 305 of the Penal Code ,the following ingredients must be needed;

a. Whether any person committed suicide

b. Whether the person who committed suicide was under the age of eighteen years, or an insane or an idiot or a person in state of intoxication and

c. Whether the accused abetted him to commit suicide

Abetment of suicide 306. If any person commits suicide, whoever abets the commission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Ingredients of section 305: To secure a conviction under section 305 of the Penal Code ,the following ingredients must be needed;

a. Whether any person committed suicide

b. Whether the accused abetted him to commit suicide

Attempt to murder:Section-307

This section deals with one of the major offences affecting to human body.

Simply this section states as follows:

‘A person when does any act with intention or knowledge an under such circumstances that if he by that act caused deaths would be guilty of murder and he shall be punished with imprisonment of either description upto 10 years, and fine shall also be given.’

Ø Further, if he by that act caused hurt shall be liable to either life imprisonment or such punishment as aforesaid

Ø Attempt when done by person who is convicted of life imprisonment and hurt caused would be punished with death.

For the exhaustive understanding of this section we have to scrutinize the words used in the section, besides there are such other things to consider which are as follows:

Attempt and preparation:

we have to be clear about what is attempt and what is preparation.

An attempt to commit a crime, is more than a mere preparation and must be move directly towards the commission of a crime.[ AIR 1961, Mad 498].

When the preparations are complete and the culprit commences to do something with the intention of committing the offence are said to attempt. [AIR 1961 SC 1698.]

Intention or knowledge:

In the section there it is said that the doer must have intention or knowledge. That means either intention or knowledge any one of the above two elements is necessary to prove him guilty. Further, such intention as refered in the section refer to the intention as said in sec: 300 of the penal code that is

1. intention to cause death

2. intention of casing such bodily injury as the offender knows to be likely to cause death.[ 1978 Raj Cric 432.]

Under such circumstances:

The word under such circumstances indicates the requirement that the act to which the section applies must be capable of causing death.[ (1956) 9 SauLR 407].

Further the act which would amount to an attempts under this section must be one which is capable of causing death.

Causing injury :

It is not necessary for the applicability of the section that any injury should have been caused to person whose murder is attempted [1979 CriLJ, 400 (BoM)]

If injuries are caused due to the act, the accused would be liable to enhanced punishment as mentioned in the section. [1969 ker LT 488.]

Attempt to commit culpable homicide: Sec-308 of the penal code, 1860 deals with the offence relating to attempt to commit culpable homicide. According to this section, whoever does any act with such intention or knowledge and under such circumstances that, if he by that act caused death, he would be guilty of culpable homicide not amounting to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine or with both; and if hurt is caused to any person by such act, shall be punished with imprisonment of either description for a term which may extend to seven years or with fine or with both. So we find that, if any person attempts to commit culpable homicide not amounting to murder he/she will be punished with imprisonment up to seven years or fine or both; incase the person is hurt and in case of not being hurt while attempting to commit culpable homicide the punishment will be imprisonment up to three years or fine or both.

An example can be given thus:

A, on grave and sudden provocation, fires a pistol at z, under such circumstances that if he there by caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section. (Ratanlal and Dhirajlal)

Attempt to commit suicide: Sec-309 of the penal code, 1860 provides provisions for attempting to commit suicide. The section states that, whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment for a term which may extend to one year or with fine or with both. Suicide is not a crime under the penal code, 1860 only attempt to commit suicide is punishable. The act done must be in the course of the attempt, otherwise no offence is committed. Where a woman with the intention of committing suicide by throwing herself in a well, actually ran towards it, when she was seized by a person, it was held that she changed her mind, and she was caught before she did anything might have been regarded as the commencement of the offence. Her act simply amounted to preparation. [Ramakka, (1884) 8 Mad 5]

Thug: Sec-310 and sec-311 of the penal code, 1860 deals with the offence of thug and its punishment. According to Sec-310 of the penal code, whoever at any time after the passing of this Act, shall have been habitually associated with any other or others for the purpose of committing robbery or child-stealing by means of or accompanied with murder and According to sec-311 of the code, whoever is a thug, shall be punished with imprisonment for life and shall also be liable to fine.

1. The Indian penal code. Ratanlal & Dhirajlal 35 edition.

2. Tahkik-E-Hind-wl-Biruni, Translated by muhmmad Jalal Uddin Biswas.

3. The Indian penal code, Ratanlan Drajlalad, 55edition. page 451.

4. State represented by the solicifor to the government of the peoples republic of Bangladesh Vs Ashraf Ai and others 46 DLR (AD) 245.

5. State vs tayeb ali & others 1987 BLD (AD) 265, 40 DLR (AD) 6; BCR 1987 (AD) 312.

6. Md. Abdul Masid Vs State 40 DLR (AD), 83.

7. Viswanath pillai vs state of serals, 1994 cr LJ 1037

8. 22 DLR (SC) 127

9. Ashok komar pandey vs state of Delhi 2002 crLj 1844.

Submitted by:

Chandrima Gosh - 13209112
Fajlea Rabby - 13019020
Mohammad Ashikur Rahman 13089051
Shanta Rahman - 13219074
Swarochita Anubhab Drishty - 13219104
Abdur Rahman - 13109002