Culpable Homicide

Introduction To Cupable Homicide

Homicide is the act of one human killing another. A homicide requires just a volitional act by someone else that results in death, and along these lines, a homicide may result from accidental, negligent, or careless acts regardless of whether there is an intent to cause hurt. Culpable Homicide is the killing of one individual by another with the intention of causing death.

In India, Culpable Homicide is mentioned in Section 299 of the Indian Penal Code.
Section 299:” Culpable homicide.— 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 offense of culpable homicide.”

Components of Culpable Homicide

• Actus Reus (Act)
• Mens Rea (Intention)

Essentials of Culpable Homicide

1) Causing the death of an individual.

2) Such death must be caused by an act

i. With the intention of causing death; or
ii. With the intention of making such bodily injury as is likely reason death; or
iii. With the information that the doer is likely by such an act to cause death.

The fact that the death of an individual is caused isn’t sufficient. Except if one of the mental states referenced in the element is available, an act of causing death can’t add up to Culpable Homicide.

Types Of Culpable Homicide

I. Culpable homicide amounting to murder.

II. Culpable homicide not amounting to murder.

Culpable homicide is the Genus, and murder is the Species. All murder is culpable homicide yet not the other way around, it has been held in Nara Singh Challan v/s State of Orrisa (1997). Section 299 can’t be taken to be meaning of culpable homicide not amounting to murder. Culpable homicide is the genus. Section 300 characterizes murder which implies murder is the species of culpable homicide. It is to be noted here that culpable homicide not amounting to murder isn’t characterized independently in IPC, it is characterized as a part of Murder in section 300 of IPC.

Section 300 – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or

Culpable Homicide isn’t adding up to murder:

Special case 1 to 5 of s300 of IPC characterizes conditions when culpable Homicide isn’t amounting to murder:

I. Provocation
II. Right of private defense
III. Public servant surpassing his power.
IV. Sudden fight
V. Consent

Special case 1-culpable homicide isn’t adding up to murder if the guilty party, while deprived of self-control by grave and sudden provocation, caused the death of the individual who gave the provocation or causes the death of any individual by accident or mistake.

The above exemption is liable to these provisions:-

1. The provocation isn’t looked for or intentionally provoked by the guilty party as a reason for killing or harming any individual.
2. The provocation isn’t given by anything done in compliance with the law, or by a public servant in the legal exercise of the powers of such a public servant.
3. The provocation isn’t given by anything done in the lawful exercise of the right of private defense.

The provocation must be grave: maintained in Venkatesan v/s State of Tamil Nadu (1997)

The trial of the grave and sudden provocation is whether a reasonable man having a place with the same class of society as the accused, set in the circumstance in which the accused was set would be so provoked as to lose his self-control.
In India, words and gestures may likewise, in specific situations, cause grave and sudden provocation
The mental background made by the last act of the victim might be taken into consideration in deciding whether the consequent act caused grave and sudden provocation for committing the offense.

Section 300 likewise characterizes the situation when culpable homicide turns into the murder which is punished under Section 302. Under the following 4 conditions:

The intention of causing death-

I. Culpable homicide turns into murder if the act by which the deaths is caused is done with the Intention of Causing death or
II. In an act done with the intention of causing such bodily injury as the offender knows to probably make the death of the individual whom the harm is caused, or
III. In the done with the intention of causing bodily injury to any individual and the bodily injury intended to be inflicted is adequate in the ordinary course of nature to cause death, or
IV. On the off chance that the individual committing the act realizes that it is so imminently dangerous that it must, most likely, cause death or such bodily injury as is probably going to cause death, and commits such act with no reason for acquiring the danger of causing deaths or such injury as previously mentioned.

Whoever commits culpable homicide not amounting to murder will be punishable with
(i) imprisonment for life or imprisonment of either up to ten years, and will likewise be subject to fine if the act by which the death is caused is with the intention of causing death, or of such bodily injury as is probably going to cause death; or
(ii) with imprisonment of either depiction up to ten years or fine or both, if the act is done with the knowledge that it is probably going to cause death, however with no intention to cause death or to make such bodily injury as is likely reason death.

The field of Culpable Homicide is tremendous and is of practical utility. It incorporates all felonious homicide not amounting to murder. It is fundamentally a killing which the killer neither intended nor anticipated as likely to occur; it is an unintentional, accidental felonious killing. There have been numerous cases in which this field of law has been utilized and correctly applied too. The Sections 299, 301, 304, 304A deal with the diverse angles covered under this subject in an elaborate way every one of the provisions are not exhaustive and there is a need to put into application a considerable lot of the recommendation of the Law Commission for better organization of Justice since it would help in the evolvement of this subject with time.

Section 34 of the Indian Penal Code, 1860

Introduction

Section 34 of the Indian Penal Code talks about the joint liability of persons involved in a criminal act. It says that if more than one person is involved in a criminal act done to satisfy a common intention, then each of such persons will be liable in the same way as if it was done by him alone.

The ingredients of Section 34 are as follows

• There should be a criminal act;
• Several persons should do the act;
• The criminal act must be done to satisfy a common intention of all;
• There must be actual participation of all the persons in some way or the other in furthering the common intention.

Common Intention

When the Indian Penal Code was enacted in 1860, Section 34 at that time did not include the provision of common intention, and later an amendment was made in the year 1870 to include it. Intention occupies a very crucial place in criminal law. The term ‘intention’ is not defined anywhere in the Indian Penal Code, but Section 34 of it deals with common intention. It implies a pre-decided plan and acting in accordance to execute that plan. It comes into the picture before the commission of the act.

Section 34 is limited to a situation, where an offense requires a particular criminal intention or knowledge and is committed by more than one person who shares that intention. Each person who participates in the act with such knowledge or intention will be liable in the same way as if it were done by him exclusively with that intention or knowledge. The liability of all the individuals involved in this circumstance is called ‘Joint Liability.’

Joint Liability

Joint liability occurs in the case when there is the existence of common intention in the criminal act done. If it can be shown that it was done by one of the accused persons in furtherance of the common intention of all, then the liability for the act may be imposed on any one of the persons in the same manner as if the act were done by him in his capacity. Court decisions have emphasized on the point that meeting of minds need not be something always very much before the incident, but could be something that may develop on the spot, at the very moment when the crime is being committed.

Proving that every one of the persons was involved in the actual act is irrelevant. The case of Barendra Kumar Ghosh v. King Emperor is one of the most important and earliest cases where the court convicted another person for the act of another done in fulfillment of common intention. A group of armed persons had entered the police station and demanded money from the postmaster, where he was counting it. They fired from the pistol at him, due to which he died on the spot. All of the accused were able to escape without taking money. The Police were able to catch Barendra Kumar Ghosh who was standing outside the post office keeping a check. Barendra on being arrested contended that he was only standing as a guard, but the Calcutta high court convicted him for the murder of the postmaster. His appeal to the Privy Council was also rejected.

There is also a general rule in the criminal jurisprudence that the courts cannot distinguish between the people involved in an activity and it is impossible to see what part is played by whom in the commission of the act, so each person is held jointly liable for the acts of another.

Common intention versus Similar Intention

A common intention can only be said to be formed when the intention of one is known to all others and shared by them. It does not mean the similar intention of several persons formed at the moment. The mere presence of the accused together is not sufficient to form a common intention to commit the offense. It is necessary that the intention of each one of ‘several persons’ be known to each other for constituting common intention; otherwise, it will be a similar intention. Similar intention can happen for several persons at the same time.

The distinction between a common intention and similar intention is a real one and if overlooked by courts, may lead to a miscarriage of justice. Section 34 can be invoked only when the accused shares a common intention and not one a similar intention. Unless the common intention is proved, individuals will be liable for their actions only. If there occurs any doubt, the benefit of the doubt is given to the accused.

Conclusion 

Section 34 does not lay down a separate offense but defines the liabilities. Therefore, it is always read with other sections for framing of charges or while deciding the punishment. The maximum sentence for an offense would depend upon the main offense along with which Section 34 is applied. To bring this section into effect a prior meeting of minds need not necessarily be proved, but it may well develop on the spot as between several persons and could be decided based on the facts and circumstances of each case. There must be an ultimate objective, the fulfillment of which should be the goal of each person involved.

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Ten Difficult Things About Voluntary Causing Hurt : Provision And Punishment

With all the progress we have made as a nation, there is also a big number of crimes happening around us in recent days. And women and children are becoming more part to such kind of crimes, and hence it is essential to be aware of the offenses or wrong which are known as voluntarily causing hurt to someone or anyone and the punishment prescribed for it in the  Indian Penal Code, 1860.

Section 323 of IPC

Section 323 is an essential part mentioned under the chapter 16th of the Indian Penal Code, 1860, titled “Offenses related to the Affecting Human Body.” Section 323 basically deals with the punishment clause for voluntary causing hurt. But before going further first, we need to understand the meaning of some technical terms, like “Hurt (defined under section 319)”, “Grievous Hurt (defined under section 320)”,  “Voluntary causing Hurt (defined under section 321)” and “Voluntary causing Grievous Hurt (which is defined under section 322)”. So basically the present article only has a relation with Section 323 read with section 321, which defines what actually “voluntary causing Hurt” mean. Though we have to discuss only the provision related to section 323, we also need to understand under this, that there is segregation of some technical terms which mentioned above and it is essential to discuss under this.

“Hurt (which is defined under section 319) ” meaning simply that any person who causes bodily pain, disease or infirmity to any other person and if the same does happen where knowledge plays an essential role is to be understood within the meaning of “Voluntary causing Hurt (under section 321)”

“Grievous Hurt (which is defined under section 320)” is to be understood as an extended form of Hurt. Under this, there are some different kind of hurt only, which is designated as “grievous” in nature. They are,

Emasculation,

Permanent privation of the sight of any of the Eye or Ear or Permanent disfigured the face or head,

Privation of any member or joint or permanent impairing of the powers of any joint,

Fracture or Dislocation of bone or tooth

or any other type of Hurt which may endanger life or which the sufferer causes severely bodily pain up to 20 days or more or may not be able to follow their ordinary pursuits.

So basically, there are eight important types of hurt which are grievous in nature and on another aspect where knowledge gets involves in any of the hurt which is grievous in nature may amount to be “voluntary causing Grievous Hurt (under section 322).

Read Also: Key differences between IPC and CrPC

Section 323 Of Indian Penal Code 

The definition of the provision “voluntary causing hurt” defined under section 321 and their punishment clause in section 323 of the penal code 1862.  Section 321 states that if a person with pure intention is causing Hurt to any other person. And there exists a piece of knowledge that their action may likely cause hurt to another is “Voluntary Causing Hurt.”

Section 323 defines the punishment for the wrong defines under section 321, states that whoever does the same shall be punished with the 1-year imprisonment or fine of 1000 rs.  or both. Also, if a person without any intention has a knowledge that particular action may likely to cause hurt or gives to another person a “voluntary causing hurt” on the grave and sudden provocation (defined under section 334), then, he or she shall be not prosecuted under section 323, there should be applied some facts for exemption under section 323, as follows:-

1. Firstly, there was no sudden or grave provocation exist,
2. Secondly, the offender had the intention of causing hurt;
3. Thirdly, the offender had clear knowledge that his conduct will cause hurt to the other people
4. Lastly, the offender caused any bodily hurt.

So if any of the facts may going to apply, the accused punishment shifted from section 323 to section 334, and under this, the accused shall be punished with the imprisonment for a maximum of 1 month or a fine which exceed up to 500 or with both.

The offense under section 323 of the Indian Penal Code, 1862 is Non- cognizable, Bailable and Triable by any Magistrate Also, Compounded by the person to whom the hurt is caused.

Voluntarily causing hurt by dangerous weapons

 Section 324 of the Indian Penal Code further clarifies the repercussions of “voluntarily causing hurt using any dangerous weapon or instruments” such as shooting, stabbing, or cutting or any other tool which is likely to cause death and the accused has the knowledge of the same, are much severe. Some examples- fire, heated substance, poison, an explosive substance, or any substance which might be dangerous to the human body in the form of consumption.

Punishment– up to 3 years or fine or Both

Voluntarily causing hurt to extort property or to do an illegal act forcefully 

Section 327 of the Indian Penal Code, deals with the offense of “voluntarily causing hurt with the motive or intention to extort the property from the sufferer or any other person” interested in the victim. This may also include constraining the sufferer or any other person interested in the victim to make them do act illegally directly has relation to the commission of the offense.  The said offense is categorized under the meaning of “grave” in nature.

Punishment: – up to 10 years only or with the fine.

Voluntarily causing hurt to deter public servant from their duty

Section 332 of the India Penal Code defines that Any person, who deliberately causes hurt to any public servant in discharge of his duty or causing hurt with the intention of deterring him from discharging his duty is not acceptable by law and amount to some punishment.

Punishment: – up to 3 years only or with the fine.

Voluntarily causing hurt in committing robbery

Robbery (defined under section 390 of the penal code) is considered as a serious crime, and that is why Section 394 of the Indian Penal Code deals with such kind of cases where the voluntary hurt was caused during the conduction (include attempt also) of the crime of robbery. The offender or any person (involvement is necessary, directly or indirectly) jointly responsible for such offense of robbery,

Punishment: – Lifetime Imprisonment or Rigorous Imprisonment up to 10 years, sometimes fine may be included along with the punishment.

Procedure after FIR is lodged and FIR cancellation procedure

Introduction

The first information report is a written report prepared by the police department of the respective police station where the crime  (Cognizable offense) has occurred. This is an essential practice which gives a kickstart to a criminal proceeding in a court. It is prevalent in countries like India, Bangladesh, Pakistan, etc. An FIR is generally logged by the victim of a cognizable offense. However, in the cases where the victim is deceased or is in such a condition as unable to lodge an FIR, someone on his behalf can also lodge an FIR either orally or in writing to the police. FIR is defined under Section 154 of Criminal Procedure Code, 1973.   As the name itself suggests, An Fir must contain all the information which the victim is possessing about the cognizable offense. Also, Fir must be read to the person giving information or lodging complaint to the police and must contain his signature. This prevents cases of fraud FIRs lodged by the police officials if the complainant is illiterate.

After lodging an FIR

Once the FIR is lodged, the police can start the investigation work. The investigation includes collecting evidence, questioning witnesses, inspecting the crime scene, forensic testing, recording statements of the witnesses. It is always said that, after experiencing a cognizable offense, the first thing a victim should do, is to lodge an FIR. The reason for the same is attributed to the fact that, if there will be a considerable amount of time duration between the commission of a crime and lodging an FIR, this will give an opportunity to the offender to manipulate the shreds of evidence, eye-witness or any such material which can turn the judgment of the bench. For example, in rape cases, certain medical tests are to be conducted within a span of 2 days. Otherwise, there will be no evidence left in the victim’s body.

Once the stage of investigation is completed, the police may form a Charge Sheet often called as Challan and record their findings in it. If it is deemed that there is enough proof in the charge sheet, the case reaches the court.

Also, if after the completion of the investigation, the police concludes that there is not enough evidence, so as to establish the crime, they may close the case. Reason for closing the case must be backed by a rational in the competent court of jurisdiction.

When authorities refuse to lodge an FIR

Remember, that no police station can deny for lodging an FIR and they have to do this free of cost.

1. You can contact Superintendent of Police or any other high officials and bring to their notice the complaint filed by you.
2. You can contact such high officials by sending the complaint to them in writing. If they are satisfied by your complaint, they may order for the investigation of the case of may investigate the case himself.
3. A private complaint can be lodged in the court of competent jurisdiction.
4. You approach the authorities such as the State Human Rights Commission or the National Human Rights Commission.

Filing a Criminal Complaint accompanied by Vakalatnama and Court Fees

This is a petition which is submitted by the complainant authorizing an advocate to plead the case. This contains written allegations of the complainant, the summary of the happening of offense and the complaint prays for the relief he seeks for the same.

Criminal Complaint must be accompanied by a Vakalatnama. It gives the advocate (Who will be representing you in the court) the authorization to fight for justice, appear on his behalf, and handle all the court procedure. The lawyer who has signed the Vakalatnama is bonded by all the duties of an advocate, such as Attorney-Client Privilege. All such terms and conditions are explicitly mentioned in Vakalatnama.

Plaints are also required to be accompanied by court fees to be paid to the court. The amount of court fees is governed by the rules an regulations embodied in the Court Fees Stamp Act. Court fees are usually a nominal percentage to the suit value, and it differs from case to case.

Cancellation of FIR

Once the Fir is registered, FIR cannot be canceled. Even when the complainants urge for the same. It can be disposed of only as per the manner prescribed under the Criminal Procedure Code.

FIR is disposed of in the following circumstances-

1. When the Offender cannot be traced even after making all possible efforts, and there are no changes for finding him in the future.
2. When the Complainant has registered a false complaint.
3. The accused person dies before filing the charge sheet against him in the court.
4. When the complaint withdraws the case or requests the court to refer the case to Lok Adalat/ National Lok Adalat. So that the case can have a lead towards settlement.

In addition to the aforementioned circumstances, the government has the power to withdraw prosecution of a criminal case against him in the court. This power is conferred under Section 321 of the Criminal Procedure Code.

Conclusion

All citizens should get to know about their rights to filing FIRs. At the same time, they must be aware of the steps that they can take if the police refuse to register their complaints. In some cases, it is best to file a complaint petition before the judicial magistrate instead of registering an FIR.

Ten Bounced Cheque Cases In Online Banking Era That Had Gone Way Too Far

Introduction To Negotiable Instrument

  

A negotiable instrument is a transferable signed document that promises to pay the bearer a sum of money at a future date or on demand. Negotiable Instrument is a general term, and as per section 13 of Negotiable Instruments Act, there are three kinds of negotiable tools, it includes a promissory note[1], bill of exchange[2] or cheque [3] payable moreover to order to bearer.

The Negotiable Instruments Act came into force in the year 1881. Before this legislation was brought into force, laws relating to negotiable instruments were governed by English laws. Later the Act operates on the subject provision of Section 31 and 32 of the Reserve Bank of India Act 1934.

A Cheque is said to be bounced or dishonored when the bank can not clear it for want of sufficient funds in the account or various other reasons, some of it can be overwritten on the cheque, payment stopped by the account holder, signature mismatch, etc.

Dishonor of a negotiable instrument can be broadly committed in two ways, Dishonour by non-acceptance[4] and non-payment[5]. As per Section 138 of the Act, the disgrace of a cheque is a crime and is disciplinary by custody up to two years or with financial forfeit or with both.

The recipient must show the sign to the drawer with 30 days from the date of in receipt of “Cheque Return Memo” from the bank. The notice must be positioning that the cheque sum must be rewarded to the recipient within 15 days from the date of receiving of the notice by the drawer. After in receipt of the notice, if the drawer doesn’t make the sum within 15 days from the day of in receipt of the notice, then he has committed a wrong under Section 138 of the Negotiable Instruments Act.

The grievance should be listed in a judge’s court within a month of the termination of the notice period. It is vital in this case to refer an attorney who is well experienced and accomplished in this area of practice to proceed additional in the stuff.

On 18^th of February 2019, in the case of Sri Santhosh J v. Sri V Narasimha Murthy, High Court of Karnataka at Bangalore; proposed to amend the said act to address the issue of delay in the final resolution of cheque dishonor cases to provide relief to payees of the dishonored cheque. In addition to this, it will also discourage frivolous and unnecessary litigations and save the time of the Court.

After this proposal, certain amendments which are to be brought in the legislature were drafted in the form of The Negotiable Instruments (Amendment) Bill, 2017. After being passed by the Lok Sabha, the said Act is a step closer to becoming a law. In the age of net banking, businesses across India use cheques, including post-dated ones, to make and receive payments from vendors, suppliers, and customers.

The Rajya Sabha passes proposed amendments to be brought after this bill-

1. It aims to bring the provision enforce, under which the drawer of the cheque that has been dishonored to pay interim compensation to the complainant.
2. The Interim compensation that is to be provided shall not exceed the 20% of the amount of the cheque that was dishonored.
3. The interim compensation is to be paid by the drawer of the dishonored cheque in a summary trial or a summons case. The same is applicable even if he pleads not guilty to the charge made in the complaint.
4. The drawer of the cheque has to pay interim compensation within 60 days of the date of order. However, it is at the discretion of the bench to give an extension of further 30 days but not beyond that.
5. In the case when the drawer of the cheque is acquitted in the case, the complainant has to repay the drawer the interim compensation with interest. The repayment has to made within 60 days from the date of the order of the court.
6. An additional 20 percent compensation will have to be paid if the drawer goes for an appeal. This amount would be over the Interim compensation amount paid during the initial period of the suit. This clause aims to deter appeals.

Cutting across the party line, members of opposition parties including Congress supported the bill but suggested that the punishment must be more stringent to curb cheque payments defaults. Another view in the opposition of bill was that there is a presupposition that drawee is wrong and the payee is right, which is right, which is not good. In some instances, the payee is also a culprit.

During the debate on the bill, the Congress Leader Madhusudan Mistry said the penalty proposed was not enough to curb the fraudulent practices. They said the government should come out with laws in parallel with France and UAE, wherein the person who has committed default in the payment of cheque shall be barred from issuing a cheque for five years. This has proved to be an effective deterrence strategy, for that of an experimental law like this.

[1] Section 4 NI Act

[2] Section 5 NI Act

[3] Section 6 NI Act

[4] Section 91 NI Act

[5] Section 92 NI Act

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10 Facts That Nobody Told You About Type Of Privacy Torts

There are laws in each state which balances the Right to Privacy of every individual. Even if any media or newspaper seeks the privacy of anyone’s life, then they will be the charge for the invasion of privacy.

There are four types of Privacy Torts

1. Intrusion

This is the first type of Invasion of Privacy. This occurs when someone enters or spreads into another person’s private life. This includes a person recording the private conversation of another person’s that too without his/her knowledge, trespassing to another person’s property and taking photographs without his/her consent, and this counts as violating someone’s Right to Solitude. Even, news sources like Media have to be careful about the privacy of another person. If they intrude to the private life of public figures then they will be sued for invasion of privacy.

Read Also – New laws in India

2. Public Disclosure

It is the second type of Private Torts. This occurs when a person publishes embarrassing, hurtful, and offensive facts about another person’s life. If the media brings the private facts of the high-profile person to know of the public, then that person may sue them for the invasion of privacy. The media source may find guilty by the Court for Invasion of Privacy depending upon how they (Media) have obtained the information.

3. False Light

It is the third type of Private Torts. This occurs when a person produces the false statement or depicts the things in a false manner about another person. For Example, A writer distorts, embellishes or fictionalizes a story; he can characterize some random person in a way that perverts the truth. Defamation and false light publication are two completely different things. A person can fictionalize some random person or a known person in a story but without any malicious intention.

See more: Right to privacy

4. Appropriation

It is the fourth and last type of Private Torts. This occurs when someone uses the person’s image or name for the unauthorized commercial use that too without his/her consent, knowledge, and approval. For Example, A company cannot use the name or image of the celebrity for endorsement of a product without his/her consent. Photographs and images used in a news channel or newspaper, images and pictures of any incidental references used in the books and films, the Court will not consider them an appropriation. But if the media is using a person’s name, even only the part of his name without his/her approval and consent, then he/she may sue the media for invasion of privacy.