Define criminal force
Sec 350
- Intentional use of force
- Without the consent of other person
- Force must have been used - to commiting an offence, intention or knwing that it would cause IFA
Assault
Sec 351
- Gesture or prep
- In the presence of other
- Knowing that such gesture or prep would cause apprehension of an imminent attack in the mind of other
- Such apprehension is caused in the mind of other
Fetching a sword and advancing toward the victim - yes
Person standing on a running train and threatning gesture to someone standing in platform - no
Sec 354 (74 OF BNS)
Assault or CF on a woman to outrage her modesty
- Woman - female human being of any age
- Ramkripal case - modesty= sex of the woman
- Major singh vs state - essence is sex. The intention of culprit is the crux. Can be idiot, anesthesia, sleeping. Reaction relevant but it’s absence not very decisive
- Rupen deol bajaj case - dgp patting the posterior
So sec 354 will apply to crimes which falls one step short away from penetration
Sec 509 fills the gap of 354 - insult to the modesty of a woman
- Utters a word,makes gesture, display object
- With the intent of it being heard, seen, or intrudes upon the privacy of such women
Changes after Nirbhaya case
Criminal law amendment Act 2013 .. What are the changes that were brought forth
Ipc
- 326 A - acid attack - gender neutral
- 326 B - attempt to acid attack
- 354A - sexual harassment- only women
- 354B- act with intent to disrobe a woman
- 354C - voyeurism - only woman
- 354 D - stalking - woman
- 375&376- expanded the defn of rape to include oral sex as well as the insertion of an object or any other body part in v/u/a
- 376A- death or vegitative state - 20 years to LI or death
- Gang rape - punishment increased to 20 years to LI
- Age of consent raised to 18
Crpc
1. Recording of fir in certain caress wrt women should be done by a women officer
IEA
1. Barred the use of past sexual history in determining consent of the victim
Juvenile justice act, 2015
1. Minor between 16-18 who committed serious crime will be tried as an adult
Wrongful restraint.
- Sec 339
- Voluntarily restrains, proceeding in any direction that he has right to procced
Key elements
1. Obstruction is the crux. Means used is immaterial
2. Complainant has to prove his right of way in that direction . If not no offence.
2 person includes huma beings, children, disabled
3. Vehicles, still free to get down and walk in direction of choice
5. Presence of accuses not required ( arumuga nadar )
6. Any direction including vertical - lift / stairs
7. If tenant having right of possession is blocked by landlord- WR.
exception - obstruction of pvt land which one in good faith believes has the rt to obstruct
Vijay kumar vs SN Rao- school dismissed. Locked hostel room
Wrongful confinement
Sec 340
Wrongfully restraints any person in such a manner as to prevent that person to move beyond circumscribing limits which he/she has the right to move
Even use of moral force enough
The victim must be unwilling to remain in the circumscribed limits. Exception - not fear of a future
Wrongful restraint vs wrongful confinement
- Sec 339 vs 340
- 341 - simple imrisonement upto a month vs 342- IED upto a year + fine
- Particular direction vs circumscribing limits
- Confinement implies wrongful restraint but not vice versa
- Partial restraint vs full restraint
- No limits or boundaries vs circumscribing limits
What is kidnapping?? What are the essentials
Sec 361 (137(1) b- bns- gender neutral now)
- Taking or enticing a minor or undound mind
- Out of the keeping of the lawful guardian
- Must have been without the consent of the lawful guardian
Exception
- Believes in good faith to be the lawful guardina
- Father of illegitimate child
Principles of kidnapping
- Taking or enticing- active role - false promise, threat, temptation
- Only when under the domain of lawful guardian.. Ex: orphans
- At the same time physical presence not needed. Ex: schools
- Consent of minor immaterial
- Consent given by the guardian after commission of offence - immaterial
- Kidnapping is not a continuing offence
- Distance is immaterial in kidnapping ( chajju ram case)
- Motive of kidnapper is also immaterial (Except the exemptions)
Define abduction
Art 362
Whoever by force compels or by any deceitful means induces any person to go from any place is abducting
Murder -364
Wrongfully confine
Compel her to marraige
Subject a person to grevious hurt or slavery
Child under 10 years to steal from her person
Different between kidnapping and abduction
- Minor or unsound mind vs age immaterial
- Lawful domain of the Guardian vs abduction has reference only to the person abducted
- Taking away or enticing. MEANS used is irrelevant vs COMPELLED BY FORCE AND INDUCED BY DECEPTION
- Not a continuing offence
- consent of minor immaterial vs consent obtained by deciet or force
- Intention of the person immaterial vs intention determines the punishment
- Substantive offence vs offecence only in aggravated form
Sec 375- S63 of BNS
His action of 1. Penetration of penis 2. Any part of his body or any object 3. Manipulation to cause penetration 4 application of mouth
Into 1. Mouth 2 vagina 3. Anus 4. Urethra
By
- Him
- Any other
Circumstances 1. Against her will 2. Without her consent 3. C given because if fear of death or hurt 4. Mistake of marraige 5. Unsoundness of mind or drunknenes 6. Less than 18 7. Inability to communicate her consent .
Marital rape cases- BNS retains immunity for husbands in cases of marital rape but the age of consent has been increased from 15 to 18 years
- Nimeshbhai - courts fear that it would destabilize the institution of marraige
- independent thought vs UOI - read down. >18 years not a rape
- 2022, Karnataka HC in HRISHIKESH SAHOO VS STATE :
A. archaic and regressive notion that husband is the ruler of wife has led to mushrooming of marital rape
b. Grave consequences on mental state of wife
C. Marraige do not confer any special privilege on men to unleash brutal behaviour
D. Distinction between M and UM woman and M and UM men destroys the soul of constn - right to equality - Recent Supreme Court ruling on marital rape a valid ground for seeking abortion under MTP act
- RIT Foundation v. UOI, Delhi high court passed a split verdict - dissenting judge Rajiv shakdher-Modern-day marriage is a relationship of equals”
Sec 376 b punishes husband for rapping wife during separation , by a decree of separation without her consent
Sexual intercourse by a person in authority
Sec 376C
Below persons who abuse their position of authority and induces or seduces a person under their custody or premise to have sexual intercourse with them, such si not amounting to rape - 5years
- Position of authority, fiduciary relationship
- Public servant
3 Supredent of jail, remand home - Hospital
Rationale : The subordinate knows of the enormous influence the fiduciary exercises on her, and that refusing his offer is extremely costly.[9] It warps her perspective and stupefies her.
Gang rape
376D
- One or more person offence under 375
- Act in furtherance of common intention
- Separately liable for 20 years, fine to meet the medical expenses
Key points
1. Need not prove rape by each and every member, even 1 will fasten
2. Not mere presence can make a person liable
3. Direct or circumstantial evidence
New provision in the BNS bill, if victim <18 years, death peanlty
Define force under section 349
Said to cause force
1. He causes motion, changes direction of motion or cessation of motion
2. Causes motion, changes d of m, c of m of an object which is then brought into contact with another persons body, belonging or even affects others sense of feeling
3. The above motion is caused by
A. His bodily power
B. Disposing any substance, such that no further action required for motion to take place
C. Inducing any animal
Account snatched book from inspector
Girl running away with lover , kidnapping
Several cases like Varadarajan vs state of madras, Rohit Kaushal vs state etc can be considered here
- Actively do something which he believes would lead the child to move away from the guardian. But if the child, without any act from the person, follows the person — not kidnapping
- No kidnapping if the girl leaves the guardian when there is
NO PRESSURE, NO ACTIVE INDUCEMENT, NO PROMISES or offerfrom the accused
A illtreated by parents, lives with B. Kidnapping
Cases like emperor vs ramchander , somgir vs state
Several factors into consideration
1. Conduct of parties, especially accused before they going away together
2. Maturity of minor
3, circumstances under which minor felt it necessary to leave her guardians
Minor may not be competent to give consent, but certainly competent to leave her guardians or her own accord
Absence of evidence of inducement or actual taking
Can a women be held for rape
In Priya Patel vs state : relying upon the biological fact held that it’s inconceivable that a woman can rape a woman.
But in the recent SUNEETA PANDEY vs STATE (2023)- cannot be held for tape. But if she facilitated the act of rape with a group of people , she may be prosecuted for gang rape. Essence of 376D is joint liability , which presupposes common intention that can be determined from the conduct of those committing the crime .
Promise to marry . Rape
uNDER section 375- constent vittitated by mistake of fact of marraige. However the falsity of promise doesnt ipso facto vittitate consent
3 important factors
- Prosecutrix consented on the basis of such promise
- Accused must know/ have reasons to believe that , prosecutrix consented because of the fact of promise
- accused never wanted to marry her. Promise was false from the beginning. Made with the sole intention of having sex with the prosecutrix
Only when all 3
Navneeth nath vs state : no rape charges merely because the relationship turned sour
Pramod Pawar vs state : false promise should have a direct nexus to the women’s decision to engage in sexual act
Section 69 OF bns specific provision for Sexual intercourse by employing deceitful means etc. Punishment of upto 10 years +fine
1983 amendment after mathura rape case
Criticised for considering passive submission as consent
Ipc
1. Sec 376(2)- stricter punishment for rape by person in authority - policemen, public servants etc
IEA
1. Presumption as to the non consent of the victim if the victim says so in court
2. Onous of prof on Defendant to prove consent
2018 amendment- mohd Akhtar vs state - Kathua case
IPC
1. Increased the severity of punishment- of rape 10 yrs ( before that min 7years)
- 376AB - rape order minor below 12 years - upto death peanalty
- 376 DA and 376 DB - gang rape of women < 16, < 12
Crpc
1. Compulsory compensation to minor victim
2. Anticipatory bail inapplicable to R AND GR of victim < 16 yrs
3. Reduced time period of investigation
Cases for misuse of sec 498A
CRUELTY
Wilful conduct that drive a woman to suicide or an act dangerous to her life, limb, safety. Harassment with a view to coerce her to obtain dowry or failure to do so
Misuse observed by malimath committee of 2013. Law commission report- conviction rate quite low at 20%
- Rajesh Sharma case - police officer shouldn’t arrest immediately but validate the consideration for arrest wrt 41 of Crpc ( only after satisfaction, police must specify reason) , constitution of Family welfare committees to screen complaints before arrest
- Social Action Forum for Manav Adhikar v. Union of India - FWC was struck down due to its conflicting nature with provisions of Crpc
- Parties who reached a settlement , they can approach the high court for quashing
- DGP of each state- rigorous training to investigating officers - But recently Allahabad high court in MUKESH Bansal case called for setting up of FWC ,,,, detailed guidelines for the same
