Law of Crime

1. Explain in detail the two essential ingredients of crime

2. Give an in-depth analysis of all the ingredients of the offence of kidnapping from
lawful guardianship
3.
4. For the offence of murder death is a pre-requisite. But merely death has been caused it
is not necessarily the offence of murder. Discuss
5. Give an overview of the chapter on offences relation to property
6. Is truth a defense to defamation? What are the defenses available as given in
exceptions to s 499?
7. Write a note on the chapter on offences relating to public health, safety, convenience,
deceny and morals.
8. Give a comparative analysis of retributive and preventive theories of punishment
9. Write a detailed note on Actus Reus and Mens Rea
10. State the various offences relating to marriage
11. Comparative note on Theft, Extortion, Robbery, and Dacoity
12. Explain with the help of example the exceptions of murder
13. Detailed note on right of private defenses under the IPC, 1860
14. Discuss with the help of any one illustration the offences relating to elections under
IPC
15. What do you mean by IPC
16. Discuss with the help of illustration the offences relating to elections under Indian
penal code.
17. What do you mean by bigamy as under IPC
18. What are the elements of an offence of House Breaking
19. Write a short note on kidnapping
20. Write any three types of punishment prescribed under S 53 of Indian penal code,
1860.
21. Explain in brief with the help of an example the concept of vicarious liability
22. Define the term document as per IPC
23. What do you mean by defamation
24. Explain in brief the offence of forgery
25. Write short note on sedition
26. Discus with ex. Various theories of punishment
27. Write a brief note on the chapter of general explanations. Discuss in detail the four
terms defined therein
28. Explain in detail the offence of kidnapping
29. Discuss the various offences relating to marriage
30. Explain the maxim actus non facit reum nisi mens sit rea
31. Explain the pros and cons of death penalty
32. Discuss the offence of rape in detail
33. What is theft and extortion? When do they become robbery?
 General Defences BNS

Section 38

1. Assault that could lead to death

If the assault is such that a reasonable person could fear that death will result from it,
then the right to private defence extends to causing death to the assailant in self-
defence.
Example: If someone attacks you with a deadly weapon (like a knife or a gun), and
you reasonably believe they intend to kill you, you can defend yourself by using lethal
force.

2. Assault that could lead to grievous hurt

If the assault could reasonably result in grievous hurt (serious injury), you can use
force to protect yourself, even if it results in harm to the assailant.
Example: If someone attacks you with the intention of breaking your bones, you can
defend yourself with equal or greater force.

3. Assault with the intention to commit rape

If an attacker assaults you with the intention to commit rape, you are legally allowed
to use force to stop the assault, which can include causing death or serious harm.
Example: If someone tries to rape you, you have the right to use any force necessary
to defend yourself.

4. Assault with the intention to gratify unnatural lust

If someone is attacking you with the intention of gratifying unnatural lust (e.g.,
engaging in unnatural sexual acts against your will), you can defend yourself by using
reasonable or necessary force.

5. Assault with the intention to kidnap or abduct

 If someone assaults you with the intention to kidnap or abduct you, and you fear
that you could be taken away against your will, you are allowed to use reasonable
force to protect yourself, including causing death or grievous harm.
Example: If someone tries to drag you away to kidnap you, you can defend yourself
by using force, even to the point of causing harm to them.

6. Assault with the intention of wrongful confinement

If someone assaults you with the intention of wrongfully confining you (i.e., illegally
imprisoning or restraining you), and you fear that you will not be able to reach the
authorities to escape, you have the right to defend yourself by using necessary force.
Example: If someone locks you in a room without your consent and you fear you
won't be able to escape, you can defend yourself with force.

7. Throwing or administering acid

If someone throws acid at you, or attempts to throw acid at you, and it could
reasonably result in grievous harm, you are entitled to defend yourself by any means
necessary, including causing death or severe harm to the attacker.
Example: If someone tries to throw acid at you, you can use deadly force to prevent
them from causing serious injury to you.

⚖️Key Restrictions (Section 37)

 The right to private defence is subject to reasonable force.
 You can only inflict as much harm as necessary to stop the attack, and you cannot
take excessive action.

Section 43

1. Against Theft:

 Begins: When there is a reasonable fear that the property is in danger of being
stolen.

 Ends: When either:

o The offender retreats with the property (i.e., the theft is complete), or

o Public authorities intervene (e.g., the police are called), or

 o The property is recovered.

Example: If someone tries to steal your phone and you stop them before they manage to
leave with it, you have the right to defend your property until either the thief gets away or
help arrives.

2. Against Robbery:

 Begins: When there is a reasonable fear that a robbery is happening (or being
attempted).

 Ends: The right continues as long as the offender threatens or attempts to cause:

o Death,

o Grievous hurt,

o Wrongful restraint (kidnapping or unlawful detention),

or until the fear of instant harm (death, hurt, or restraint) is over.

Example: If someone tries to rob you at gunpoint, you can defend yourself until they either
stop or are subdued, as long as the danger of harm continues.

3. Against Criminal Trespass or Mischief:

 Begins: When a reasonable fear arises that someone is committing criminal trespass
(entering your property without permission) or mischief (damaging property).

 Ends: The right of private defence continues as long as the trespass or mischief is
being committed.

Example: If someone is breaking into your home or damaging your car, you have the right to
defend your property until they stop their actions.

4. Against House-Breaking (After Sunset and Before Sunrise):

  Begins: If there’s a reasonable fear that a house-breaking crime is taking place,
which typically happens after sunset and before sunrise (when the house is more
vulnerable).

 Ends: The right continues as long as the house-trespass is ongoing due to the break-
in.

Example: If someone tries to break into your house during the night, you can defend your
property and yourself until the break-in is halted.

⚖️Key Points to Remember:

1. Reasonable apprehension: The right to defend property begins when there is a

genuine threat of harm to the property.

2. Use of force: The force used to defend property must be proportionate to the threat.

3. The right continues only as long as the threat exists or until legal help is available.

Culpable Homicide
In the scheme of the code, culpable homicide is the ‘genus’ while murder is the
‘species’. All murders are culpable homicides, but not all culpable homicides are
murders.

Definition - notes
Degrees of culpable homicide
Culpable homicide can be divided into three categories on the basis of the graveness
of the conduct and the mens rea involved:
 1st degree– This is the gravest form of culpable homicide, which is defined in Section
101 of BNS, 2023 as murder and is made punishable in Section 103 of BNS, 2023.
 2nd degree– This is the less grave form of culpable homicide not amounting to
murder defined in Section 100 of BNS, 2023 and is made punishable under the first
part of Section 105 BNS, 2023.
 3rd degree– This is the least grave form of culpable homicide. This is also defined
under Section 100 of BNS, 2023 and punishable under the second part of Section 105
of BNS, 2023.
 Culpable homicide not amounting to murder: Section 100 BNS, 2023 (Section
299 of IPC, 1860)
An act can fall under culpable homicide not amounting to murder under two
circumstances:
1. Culpable homicide, which never crossed the threshold to become murder or
2. Culpable homicide, which did cross the threshold of murder but any of the exceptions
provided under Section 101 BNS, 2023, were applicable, thereby diminishing the
offence to culpable homicide not amounting to murder.
Both of these situations are punishable under Section 105 of BNS, 2023.
Section 100 BNS, 2023 consists of three phrases that reflect different mens rea and
different conduct. These are as follows:
1. Intention of causing death
2. Intention of causing such bodily injury as is likely to cause death
3. Knowledge of the act likely to cause death

Part 1: Intention of causing death

Section 100 BNS, 2023 states that where an act is done with the ‘intention to cause
death’. The intention here represents the deep desire to cause a particular
consequence. A person acting with an intention to do something acts with an absolute
desire to achieve the consequence.

The law presumes that an individual intends the natural and inevitable consequences
of their actions; therefore, the accused cannot be allowed to take the defence of ‘lack
of intention’ when his conduct shows otherwise. For instance, if it is demonstrated
that the accused fired a gunshot from close range directly into the victim’s head, it can
be concluded that the sole intention was to cause death and any plea by the accused of
lack of intention cannot be accepted.

In order to satisfy the phrase act done with the ‘intention to cause death’ three
conditions have to be satisfied:
1. Actus reus: By examining the act of the accused we need to ensure that the death of a
human being is caused.
 For example: if the accused fired a shot at the victim, however the shot did not hit him
or only hit his arm resulting in grievous hurt and not death, then this condition cannot
be said to be fulfilled.
2. Mens rea: By examining the conduct of the accused we will have to decipher whether
the accused had the ‘guilty intention’ to cause death. For example: if the accused had
stabbed the victim right in his heart, we can clearly state that he had the intention to
cause death.
In the case of Dipta Dutta vs. State Of West Bengal and another (2023), it was stated
that, ‘Mens rea’ is the state of mind which indicates culpability, which is required by a
statute as an element of crime. Every crime requires a mental element that is some
blameworthy mental condition.
3. Element of causality: The connection between the act of the accused and the death
must be established. In other words the death of the person must be caused by the act
of the accused. This causality is to be proved by the direct and circumstantial evidence
in the trial.
For example: the accused mixed poison in the food of the victim, however the victim
died due to a heart attack before he even touched the food, there is no causality
between the act of the accused and the death of the victim. Thus, this condition is not
fulfilled. However if the victim had eaten the food and died due to poisoning, the
condition would be satisfied.
The element of causality was explored in the case of Moti singh and another vs. State
of Uttar Pradesh (1963). On 9 February 1960, the deceased had received two gunshot
wounds in the abdomen, which were life-threatening. He was later discharged, but
there was no evidence as to whether he had fully recovered. He died on 1 March 1960
and was cremated without a post-mortem. The honourable Supreme Court held that
the mere fact that the gun shots were dangerous to life cannot be held to be sufficient
to hold that the victim’s death which happened after more than three weeks of the
incident was on account of the injuries given to him by the accused. The court further
stated that to prove the charge of murder, it is necessary to be established that the
deceased died on account of injuries given to him by the accused. Since there was no
evidence to establish the cause of death, the accused could not be liable for culpable
homicide.
 Rationale for inclusion of ‘act done with intention to cause death’ in both Section
100 and Section 101(a)
‘act done with the intention to cause death’ is found both in Section 100 as well as
Section 101(a) of BNS. To understand the reasoning of the inclusion, let us recall the
statement that culpable homicide is the genus while murder is the species, therefore,
every act that is a part of the species must also be a part of the genus. Therefore, for
the act intending to cause the death of another person to fall under Section 101, it has
to first fall under Section 100 BNS. As a consequence, every act that is done with the
intention to cause death and does actually cause death will directly fall under the
offence of murder.

Part 2: Intention of causing such bodily injury as is likely to cause death

As per the phrase ‘intention of causing such bodily injury’ the accused must cause a
‘bodily injury’ like a stab from a knife or injuries from an iron rod and this injury
must be ‘likely’ or probable (may or may not) to cause death. The intention is directly
related not with death but with the bodily injury that is likely to cause death.
 Particular injury: For the application of this phrase, the accused must have the
intention to cause a ‘particular’ bodily injury, like a stab in the abdomen, etc. For
example, if A was driving a car and he hit B, here no particular injury was intended.
This act cannot fall within the phrase ‘intention to cause bodily injury likely to cause
death’ as no particular injury was intended.
 Intention to cause the injury which is actually inflicted: Additionally, the accused
must have intended to cause the injury that was actually caused. For example, if a
person only intends to hit another on his arm but the victim moves due to which the
blow lands on the head of the victim. Here, the accused cannot be said to have
intended the injury that was actually caused.
 Intended injury likely to cause death: the likelihood of the injury to cause death is an
objective inquiry according to the medical opinion. Therefore, while the intention to
cause the bodily injury that has actually been caused has to be proved, the knowledge
that such bodily injury is likely to cause the death of the person is not required.
Therefore, the intention to cause the particular body injury that is caused is a
subjective examination and whether the bodily injury intended was likely to cause
death or not is the objective examination.
 Internal injury caused due to external injury: whenever a person has the intention to
cause some external injury, then the intention to cause all the consequent internal
injuries will also be attributed to him. Depending on the nature of the injury, he will
be questioned as to whether such an external and internal injury together was such as
is likely to cause death.
For example, if A punched B in the rib cage area. As a result, ribs broke and punctured
his lung, due to which he died. The intention to cause both external and internal injury
will be imputed upon the accused, and he cannot claim that he did not intend to
puncture the lung of B.

Explanation 1 to Section 100 of BNS, 2023 deals with the act wherein the person
does not directly and independently cause the death of another, but rather accelerates
the death of the other person. In this case, the person whose death is caused is already
suffering from a disorder, disease, or bodily infirmity and the accused’s act accelerates
the death of the victim. It shall be deemed as if he has caused the death of the person
and the plea that it was not his independent act that has caused the death will not be
available to him.
For example, A punched B in the rib cage area, who has a fractured rib, ultimately
leading to the death of B. A is liable for culpable homicide not amounting to murder.
Even if it is proved that had B’s ribs not been broken, he might not have died due to
the punch. In this case, as A has accelerated the death of B, who was already suffering
from an injury, he will be deemed to have caused his death.

Explanation 2
Explanation 2 to Section 100 of BNS, 2023 states that if the accused caused the initial
bodily injury that led to the victim’s death, the accused cannot claim that the victim
would have survived with proper medical treatment and care.
Here the ‘causa sine qua non’ which means the initial cause will be seen. For
example, A stabs X in the abdomen. B carries X on his shoulder to the hospital but
accidentally drops him. When they arrive, C, a compounder, performs the operation,
but X dies. In this case, A cannot argue that X would have been saved if proper
treatment had been given.
This basically refers to cases where the primary cause is set in motion by the accused,
but the death occurs due to some ensuing cause. For example, if A caused a minor
injury to B, but B died due to gangrene, A would be liable as the primary cause was
initiated by A, which resulted in gangrene.

Part 3: Act done with the knowledge that he is likely by such act to cause death
The third phrase of Section 100 states that ‘culpable homicide is an act done with the
knowledge that such an act is likely to cause death’. This phrase deals with the
element of knowledge. Here, “knowledge” refers to an individual’s awareness or
understanding of facts and circumstances. The accused must know that the act that he
is committing is one that is likely to cause death.
In the landmark case of Basdev vs. State of Pepsu (1956) the honourable Supreme
Court, distinguished between intention and knowledge. In this case, the accused shot a
16 year old boy during a marriage feast in a highly drunken condition. He claimed
that he was so drunk that he did not have either the intention or the knowledge to kill
the boy. The court stated that, “knowledge is an awareness of the consequences of the
act. In many cases, intention and knowledge merged into each other and mean the
same thing, more or less and intention can be presumed from knowledge. The
demarcating line between knowledge and intention is no doubt thin, but it is not
difficult to perceive that they are different things.”
The word ‘likely’ means probably and it is distinguished from ‘definitely’. When the
chances of happening are equal or greater than the chances of it not happening, we
may say that the thing is ‘likely’ to happen. In reaching the conclusion as to whether
the accused had the knowledge of his act being likely to cause death, the examination
has to be from the point of view of a reasonable person. If a reasonable man would
have been in the position of the accused would he have known about the likelihood of
causing death? If yes, then the same knowledge would be imputed on the accused.
For example: if in a small room, 10 people are present and the accused fired a shot
towards the roof, here any reasonable man would have the knowledge that his act is
likely to cause death.
Explanation 3
Explanation 3 to Section 100 BNS, 2023 states that wherein by an act, a person causes
the death of a child who is still in the mother’s womb, the act would not be considered
to be culpable homicide. If the ingredients of the section are satisfied.
If any part of the child has been brought forth, though the child may not have been
completely born, then if the death of the child is caused, that would be covered under
 culpable homicide. However, if the child is completely in the womb, that would not
be covered under culpable homicide.

Punishment for culpable homicide not amounting to murder under Section 105
BNS, 2023
Section 105 of BNS, 2023 (previously Section 304 of IPC, 1860) provides
punishment for culpable homicide not amounting to murder as defined under Section
100 BNS, 2023.
Section 105 BNS, 2023 states that if the act of the accused falls within the first or
second part of Section 100 BNS, 2023, which deals with the intention to cause death
or intention to cause bodily injury as is likely to cause death, the accused can be
punished with life imprisonment or for a minimum term of 5 years extendable up to
10 years and a fine.
The second part deals with the punishment in case the act of the accused falls within
the third part of Section 100 of BNS, 2023, which deals with the knowledge on the
part of the accused that his act is likely to cause death. In this case, a maximum
punishment of 10 years imprisonment has been provided along with a fine.
In this case, Anbazhagan vs. State Represented by the Inspector of Police (2023)
both the accused and the deceased were farmers with adjoining fields and had a long-
standing dispute over a common pathway. One day, a quarrel broke out, and in a fit of
anger, the accused struck the deceased on the head with a hoe (a farming tool),
causing his immediate death. The main issue before the court was whether the
accused should be punished for murder under Section 302 IPC (now Section 103 of
the BNS, 2023).
The Supreme Court held that although the blow caused death, there was no clear
intention to kill. The accused may not have aimed to cause death, but he should have
known that hitting someone on the head with such a weapon could likely result in
death. Therefore, the act did not amount to murder but fell under culpable homicide
not amounting to murder.
The court further explained that:
 If there is intention to cause death or such bodily injury that is likely to cause death, it
falls under Section 304 Part 1 (105 BNS, para 1).
 If there is only knowledge that death may result, but no intention, it falls under
Section 105 BNS, para 2.
Thus, the accused was held guilty under Part 2 of Section 304 IPC (second
paragraph of Section 105 BNS, 2023).

Culpable homicide amounting to murder under Section 101 of BNS, 2023

(Section 300 of IPC, 1860)
The Section states that culpable homicide is murder; this is reflective of the fact that
for an act to be murder, it has to first be culpable homicide, that is, without first
amounting to culpable homicide. It cannot be murder and therefore it is implicit that
culpable homicide is the genus and murder is the species.
Section 101 of BNS, 2023, begins with the words that ‘except in cases hereinafter
excepted’, culpable homicide is murder. This clearly manifests that if any of the five
exceptions to Section 101 is applicable, then culpable homicide will not be murder.
Therefore, in order for an act of culpable homicide to amount to murder, either of the
subsequent parts has to be applied and none of the exceptions should apply.
Intention of causing death
Section 101(a) is identical to the first part of Section 100, which deals with an act
which is done with the intention of causing death. In order to justify the statement
‘culpable homicide is murder’, the act first has to fall under the definition of culpable
homicide. Therefore, we find the first part under Section 100 to be identical to Section
101(a). In effect, every intentional causation of death has to fall under murder under
Section 101, anything which falls under the first part of Section will automatically fall
under Section 101(a) directly. The implication and ambit of both provisions are the
same. The intention cannot be of a lesser or higher degree and therefore the same
degree of intention is found within both Sections.
Intention means the desire to produce a consequence; no casual conduct can be seen,
rather, a certain pinpointed conduct is required for this Section. For example, a shot
with a gun from a close range on the middle of the forehead of a person clearly
manifests the intention of the accused to cause death.
Intention is always a state of mind and can only be proved by its external
manifestations. Where the injuries are impacted in the vital parts of the body with
sharp instruments, then the intention to kill can be attributed to the offender.
In the case of Vasanth vs. State of Maharashtra (1983), the accused and the deceased
had some previous enmity and had a brief grappling, which was pacified by
bystanders. The accused then went to his jeep and drove it on the wrong side towards
 the deceased at high speed and knocked him down leading to his death. It was proved
that there was no reason for the accused having driven the jeep in the wrong direction.
Therefore, the honourable Supreme Court held that his act clearly manifested his
intention to cause death of the deceased.
The intention to cause death has to be examined. It has to be seen that the accused
does the act with a greater degree of certainty to ensure the production of the
consequence with certainty.
The intention of the person is examined by the conduct of the person. How did he do
the act? The conduct is established on the basis of the evidence and the same conduct
will be then examined to decipher his intention as per a reasonable person.
For example, if A hits on the head of a grown-up man with a stick once, the act does
not manifest his intention to cause death. However, if he gives a single blow with the
same stick on the head of a two-month-old child, then it might manifest the intention
to cause death.
Intention of causing such bodily injury as the offender knows to be likely to
cause the death
Section 101(b) states that when an act is done with the intention of causing such
bodily injury as the offender knows is likely to cause the death of the person to whom
the harm is caused, it would amount to murder.

The essential elements of Section 100 (b) are as follows-

1. A bodily injury is caused
2. The offender has the subjective knowledge that the specific bodily injury is likely to
cause the death of the specific person to whom it is caused
3. The requirement of knowledge of the peculiar circumstance is the extra element in
culpable homicide amounting to murder.
While the intention to cause a specific bodily injury and the fact that that particular
bodily injury is likely to cause death is common in Section 100 and Section 101, in
the latter the additional element of specific knowledge of the accused that the bodily
injuries likely to cause death of that particular victim is required.
This clause contemplates a situation where the offender has special knowledge about
the peculiar situation or a health condition of the particular victim due to which his
intentional bodily injuries were likely to be fatal as stated inAnda and others v The
State of Rajasthan (1966).
 For example, if the victim has a swollen spleen and the accused has this particular
knowledge, then if he hits the victim on that particular spot resulting in the death of
the victim, then for the purpose of second part of Section 100, he intended to cause
that injury and as per the doctor’s opinion that particular injury was likely to cause
death. However, to bring his act under Section 101, the additional requirement that the
offender must have specific knowledge about the swollen spleen is required which is
present here and thus, it would bring the act under Section 101 which is murder.
Intention of causing bodily injury sufficient in the ordinary course of nature to
cause death
As per Section 101(c), the accused must have the intention to cause a bodily injury
and the bodily injury that is intended to be inflicted must be “sufficient in the ordinary
course of nature to cause death”.
Section 101(c) is the aggravated form of the phrase ‘bodily injury likely to cause
death’ found under Section 100. For an act to fall under Section 101(c), it must be
sufficient to cause death in the ordinary cause of nature. There is a difference in the
degree of probability of death between Section 100 and Section 101(c).
A two-step examination is envisaged by Section 101 (b)-
1. The intention of causing bodily injury means that the bodily injury which is caused
was exactly the injury that the accused intended to cause. This is the subjective test of
the accused’s mind
2. The intended bodily injury must be sufficient in the ordinary cause of nature to cause
death. This is the objective text, which is based on the opinion of the doctors. To
prove this element, the mind of the accused is not to be examined.

Exception 1
As per exception one to Section 101, the offence of murder will diminish to culpable
homicide not amounting to murder if the following conditions are satisfied:
1. If the offender was deprived of the power of self-control
2. The loss of self-control was due to a grave and sudden provocation
3. While deprived of self-control, he causes the death of the person, giving the
provocation or death of another person by mistake or accident
4. However, the provocation must not be
 sought or voluntarily provoked by the offender as an excuse for killing
 provocation must not be due to an act done in obedience to law or by a public servant
in the exercise of his lawful powers
 By an act done in the lawful exercise of the right of private defence
It is a question, of fact, whether a particular provocation was grave and sudden
enough to be covered within the exception.
In the case of R vs. Duffy (1949), Goddard, CJ defines provocation as “Provocation is
some act or a series of acts which done by the dead man to the accused would cause in
any reasonable person and actually cause the accused, a sudden and temporary loss of
self-control which would render the accuse so subject to passion as to make him for
the moment, not master of his mind”.

Exception 2
As per exception 2 to Section 101, the act of murder would diminish to culpable
homicide, not amounting to murder if:
1. The offender was exercising his right to private defence in good faith
2. He exceeded his right to private defence
3. He caused the death of another person against whom he was exercising his right of
defence
4. Such death must be caused without remediation and without the intention of doing
more harm than necessary
Wherein the accused caused the death of another while he was exercising his right of
private defence as provided under Section 34-44 BNS, 2023 (Section 96–106 of IPC)
in good faith. However, he exceeded his right and caused death. The death must not
be caused by any premeditation. Further, he should not be acting with an intention to
cause more harm than necessary for defence.
In the case of Katta Surendra vs. State of Andhra Pradesh (2008), the honourable
Supreme Court distinguished between the situation of ‘exceeding the right to private
defence’ and ‘acting after the right to private defence has ceased’. In the latter case,
the exception would not apply since the accused no longer had the right to private
defence and thereby could not have exceeded it.

Exception 3
As per exception, 3 to Section 101, the offence of murder would diminished to
culpable homicide, not amounting to murder if
1. The offender was a public servant or a person aiding a public servant in advancing
public justice
2. He exceeded the power conferred upon him by law
3. He caused the death of the person while acting in good faith
4. His act must be without any malice towards the person and must be lawful and
necessary for the discharge of his duty as a public servant
In the case of Dakhi Singh vs. State (1955), the police officer had arrested a thief and
was taking him in a train. However, the thief escaped from the running train and the
police officer tried to pursue him. When the police officer was not in a position to
catch him, he fired a gun shot at him, but inadvertently that gunshot hit the fireman
and killed him. The honourable Supreme Court held that the case was covered by
Exception 3.

Exception 4
As per exception 4 to Section 101, the offence of murder will be diminished to
culpable homicide, not amounting to murder, where:
1. Death is caused by a sudden fight in the heat of passion
2. The fight must succeed a sudden quarrel
3. The accused must act without premeditation, without taking undue advantage and
without acting in a cruel or unusual manner.
It is immaterial to check whether it was the accused or the victim who offered the first
provocation or assault. The existence of a fight is a prerequisite, where there is no
fight at all the exception is not attracted.
The word ‘fight’ conveys something more than a verbal quarrel, it demands an
exchange of blows as stated in Kesar Singh vs. State of Haryana (2008).
A fight implies an attack by both the parties and an attack by one party and the retreat
by another does not constitute a fight, as stated in Mohammad Mythen Shahul Hamid
vs. State of Kerala (1980).
Exception 5
As per Exception 5 to Section 101, the offence of murder will be diminished to
culpable homicide not amounting to murder, where the victim is a major and has
consented to suffer death or the risk of death. In the case of Dasrath Pawan vs. State
of Bihar (1957), the accused was a student in 10th class who had failed thrice in his
exams. Frustrated by his failures he decided to end his life. His wife asked him to kill
her first, and then kill himself. In pursuance of the agreement, the accused killed his
wife, but before he could end his life, he was arrested. The accused was given the
benefit of Exception 5 by the Patna High Court.
Punishment for murder under Section 103 BNS, 2023
For the offence of murder, two options for punishment are provided. First being death
and second being life imprisonment. In addition to these sentences, the accused would
also be liable to pay a fine.
The Bharatiya Nyaya Sanhita, 2023, added a new subsection for the punishment of
murder.
Section 103(2): “When a group of five or more persons acting in concert commits
murder on the ground of race, caste or community, sex, place of birth, language,
personal belief or any other similar ground each member of such group shall be
punished with death or with imprisonment for life, and shall also be liable to fine.”
The newly added sub-section, in effect, seeks to discourage an unlawful group of
people from committing an offence of murder in concert. This is the
acknowledgement of the fact that a person would be more likely to commit an offence
when supported by other people than he is of doing it alone. Further, factors like race,
caste, community sex, place of birth, language, and personal belief act as important
identity markers that have the potential to group people together. Therefore, 5 or more
under this Section acting together, commit the offence of murder on the grounds
mentioned above, the severest punishment of death or, in alternative, life
imprisonment, has been prescribed for each member of the group. This liability would
be fastened irrespective of the individual contribution of each member.
This can be seen as an offshoot of the principles of common intention found under
Section 3(5) of the Sanhita. It states that when an act which is criminal is done by
multiple people in ‘furtherance of the common intention of all’ the liability of each
person is fastened as if he did the act alone. The liability is irrespective of the
particular contribution of each, provided each had the same common intention and did
some act in furtherance of it.

Death penalty under Section 103 BNS of 2023

The growing importance being attached to a person’s life and liberty not only in
Indian jurisprudence but also globally has led to a raising of questions on the
constitutionality of the death penalty as a punishment for certain crimes.
 A retentionist versus. abolitionist debate has emerged, where the former argue that for
some heinous offences, the punishment of the death penalty must be retained. While
the abolitionist argues that in the age of primacy to human rights, the death penalty
has no place. The positions are based on different theories of penology. The
retentionists believe in the theory of deterrence and retribution, while the abolitionists
believe in the theory of rehabilitation and reformation.
In India, both the Indian Penal Code (IPC) of 1860 and the Bharatiya Nyaya Sanhita
(BNS) of 2023 maintain the provision for the death penalty as a form of punishment
for a few very heinous offences, one of them being murder. On the question of
decision upon inflicting the punishment of death or life imprisonment in every case
Section 393(3) BNSS has to be considered. The section enjoins upon the court the
duty to record reason for awarding the particular sentence and further, special reasons
have to be recorded in case death penalty is awarded.
Until the year 1980, there was a sort of vacuum as to which matters shall fall under
the domain of capital punishment and which shall not but now the doctrine of
exceptional and rarest of rare cases has set some guidelines for the same. This
doctrine was developed by the Apex Court in the case of Bachan Singh vs. State of
Punjab (1980). It was stated that the court must not confine its consideration
principally to the crime, but due consideration must also be given to the circumstances
of the criminal. It is only when the culpability assumes the proportion of extreme
depravity that special reasons can legitimately be said to exist. The judges must not be
bloodthirsty. Some of the guidelines that can be inferred from the case are as follows:
1. Extreme penalty of death may not be inflicted, except in grave cases of extreme
culpability
2. Before opting for the death penalty, the circumstances of the offender also need to be
considered along with the circumstances of the crime
3. Life imprisonment is the rule, while the death penalty is an exception and should only
be awarded when life imprisonment seems to be inadequate in regard to the
circumstances of the crime and the criminal
4. A balance sheet of aggravating and mitigating circumstances must be drawn.
Further, the court must also form two questions which must be answered in deciding
the sentence
 Next in the case of Machhi Singh And Others vs. State Of Punjab (1983), the
honourable Supreme Court laid down various situations by way of examples, which
will fall under the rarest of the rare cases. These are as follows:
1. When the murder committed is extremely brutal, ridiculous, diabolical, revolting, or
reprehensible, it awakens intense and extreme indignation of the community. For
instance, setting someone’s house on fire with the intention to burn them alive;
2. The magnitude of the crime is at a large scale, which means causing multiple deaths;
or where there are large-scale massacres, the killing of people of one community, etc
3. When death is caused because of the caste and creed of the person;
4. When the motives of the accused were cruel or indicated total depravity; and
5. When the murder victim is an innocent child, a helpless woman or person (due to old
age or infirmity), a public figure, etc. in a brutal manner.
6. Killing of a person who stored a lot of trust in the murderers
As a matter of proposition of law, it would be difficult to come to the agreement that
where the death penalty should be awarded and where not, it is a matter to be decided
on the facts and circumstances of each case and no straight jacket formula can be laid
down as no two crimes are the same. It is still subjective to determine what is rarest of
the rare and what is not. Hence it leaves an ambiguity as to in what cases the death
penalty can be applied.

The most recent case where the accused of the crime were given the death penalty is
the case of Mukesh & Anr vs. State For Nct Of Delhi & Ors (2017) (Nirbhaya case),
where all the accused, except one who was a juvenile, were sentenced to death penalty
and the sentence was finally executed in 2020. This execution made the issue of the
death penalty the epicentre of several heated debates across the country. The major
question raised is, like other countries, should India also abolish the death penalty
when there is a recourse like life imprisonment present with the judiciary?
After the hangings in the nirbhaya rape case, verious arguments were put forth by the
public on the issue of death penalty. The group which supports the retention of death
penalty arguments like those who commit murder, because they have taken the life of
another, have forfeited their own right to life or that by executing convicted
murderers, we will deter would-be murderers from killing people. On the other hand,
with the increased importance given to Article 21 and human life, the voices for the
abolition of the death penalty are louder than ever. They argue that retribution and the
idea of an eye for an eye must give way to the idea of reformation and rehabilitation.
Further, they contend that the deterrent effect of the death penalty is not established
by any evidence.

Punishment for murder by life-convict Section 102 of BNS, 2023 (Section 303 of
IPC, 1860 )
As per Section 102 of BNS, 2023, which corresponds to Section 303 of the IPC, 1860,
dealt with the punishment for murder in a special case. Wherein a person who is
already undergoing a sentence of life imprisonment and while that sentence is in
effect commits murder shall be punished with death or, in the alternative, with life
imprisonment, which is stated to mean for the rest of his natural life.
Section 303 IPC, 1860 was held to be unconstitutional by the Apex Court in the case
of Mithu vs. State of Punjab (1983). A five-judge bench of the honourable Supreme
Court held that the Section is unconstitutional and void as it violates the guarantee of
equality as provided under Article 14 of the Indian Constitution along with the right
under Article 21, which prohibits the deprivation of a person’s life or private liberty,
except as per the procedure established by law The court stated that there is an
absence of reasonable rational justification for making a distinction in the matter of
punishment between the persons who commit murder while under sentence of life of
imprisonment and the person who commit murder while they’re not under such
sentence.
The element of unconstitutionality was due to the fact that only the punishment of
death was prescribed in the case of such an offender. However, now under the BNS,
2023 choice has been provided between death and life imprisonment. Thereby the
element of unconstitutionality has been remedied.

Doctrine of transfer of malice under Section 102 of BNS, 2023

The notion of ‘culpable homicide by causing the death of a person other than the
person whose death was intended’ is enshrined in Section 102 of BNS, 2023 (Section
301 of IPC, 1860) which states that:
Culpable homicide occurs when a person, intending or knowing that their actions are
likely to cause death, inadvertently causes the death of someone other than the person
they intended to kill or knew was likely to be killed. In such a case, culpable homicide
 is classified the same as if the person had caused the death of their intended or
expected victim.
In other words, whatever malice he had towards B transferred to C. The same
intention or knowledge which they had towards B would be transferred to his act that
killed C.
1. Only the amount of mens rea that the accused initially possessed will be transferred.
2. For the transfer of malice, it is essential that the effect caused must be in the
continuity of the transaction.
3. This doctrine of the transfer of malice is applicable to all offences and is not limited to
Section 102 of BNS.
This is also known as the “doctrine of transferred malice’ or ‘transmigration of
motive’ or ‘transferred intention’ in English law. Mens rea is generally an essential
element of proof of crime. It cannot be used as a plea to escape the punishment when,
due to the act of the accused due to fortuitous circumstances, it brings a result not
foreseen by the criminal.
For instance, A shoots at B with the intention of killing him, but B ducks and the
bullet kills C. Here C died as a result of the shot by A; he would not have died if he
had not shot B with the intention to kill him, therefore, the malice towards B is said to
have been transferred to C. However, this doctrine has only one caveat, which is
‘Cum grano salis’ which means that the act in men must be of the same crime
This means if A shoots B, who is a human being and B ducks, thereby the bullet
hitting C, A would be liable for culpable homicide.
However, if A shoots at B, who is a dog and misses, and the bullet instead kills C,
who is a human being, he would not be liable as he had the mens rea to kill a dog and
not a human being.

Conclusion
The primary distinction between murder and culpable homicide is that murder
represents a more aggravated form of culpable homicide. In murder, there is no
ambiguity about whether the act will result in death, whereas culpable homicide
involves some uncertainty. According to Section 100 of BNS, 2023 (Section 299 of
IPC), culpable homicide occurs when an act is done with the intention of causing
death or causing bodily injury likely to cause death, or with knowledge that the act is
likely to cause death. The repeated use of the term “likely” in this Section indicates an
element of uncertainty about whether the act will definitely cause death. In contrast,
murder is defined under Section 101 BNS, 2023 (Section 300 IPC, 1860).
Here, the term “sufficient” is used instead of “likely,” which eliminates ambiguity.
This indicates that the accused’s actions are certain to result in death. To summarise,
while both culpable homicide and murder involve causing death, the distinction lies in
the degree of intention and certainty. Murder represents a more aggravated offence
with a clearer intent to cause death.
 The word “kidnapping” is defined neither in the IPC nor in the BNS. Kidnapping
literally means “child stealing,” but the crime was not limited strictly to the taking of
babies. It is an aggravated form of improper confinement. In common parlance,
kidnapping is the unlawful removal or transfer of an entity and the unjust confinement
of the person against his or her will. Although the word “kidnapping” is not defined in
the BNS, it provides essential ingredients by which an act would constitute the
offence of “kidnapping” of various forms.
Clause (1) of Section 137 of the BNS (Section 359 of the IPC) deals with the kinds of
Kidnapping. It says the offence of kidnapping is of two kinds, namely,
1. Kidnapping from India, and
2. Kidnapping from lawful guardianship.

Kidnapping from India

As per sub-clause (a) of Section 137(1) of the BNS (Section 360 of the IPC), an act
constitutes the offence of kidnapping from India when it fulfils the following
essentials.
1. A person shall be transmitted from India. Such a person may be a major or a minor.
2. Such transmission shall be beyond the boundaries of India;
3. Such transmission shall be without the consent of that person or of any person legally
authorised to consent to such transmission.
Clause (2) of Section 137 of the BNS (Section 363 of the IPC) provides for
punishment for kidnapping from India. The punishment is the same as that of the
offence of kidnapping from lawful guardianship.

Kidnapping from lawful guardianship

According to sub-clause (b) of Section 137 of the BNS (Section 361 of the IPC), the
offence of kidnapping from lawful guardianship is said to be committed when the
following essentials are satisfied.
1. Taking or enticing away a person;
2. Such a person shall be a child or an unsound person;
3. Such taking or enticing shall be out of the keeping of the lawful guardian of that
person; and
4. Such taking or enticing shall be without the guardian’s consent.
The purpose of this section is to protect minors and persons with unsoundness of mind
from being exploited and to protect the rights of guardians to have their wards’ lawful
charge or custody.

Taking or enticing away a person

Either the act of taking or enticing away a person by the accused is one of the
essential ingredients to constitute the offence of kidnapping from lawful guardianship.
The legal meaning of the said words is different from the literal meaning. It is
necessary to understand those words and look into the interpretation given by the
judiciary on the said words.
Interpretation of the word “taking”
Although the act of “taking” is essential to constitute an offence of kidnapping from
lawful guardianship, this word was not defined or explained in the Penal Code. The
term “takes” means causing, with or without the use of force to move, escort or fall
into possession. Taking does not need to consist of a single act. A whole series of acts
could together constitute the act of taking.
Furthermore, it is not necessary to carry out actual physical removal of a person, of
minor age or having unsoundness of mind; it is sufficient if the offender persuades a
minor or person of unsound mind so as to create willingness in that person to leave
his/her house, where he/she was in the custody of the guardian. This was decided by
the Supreme Court in the Prakash vs. State of Haryana (2004) , where it was stated
that the elements of force or fraud are not necessary while the act of taking or enticing
is being committed, and persuasion is enough to constitute the act of taking as the
offence of kidnapping.
The act is complete only when the minor is out of the legal possession of his/her
guardians. When the accused takes the minor away with him, the act of taking is
complete, whether he is willing to do so or not. Furthermore, it is not a continuing
offence so long as the minor came out of the keeping of his/her guardian.
The distance to which the minor is being taken is also immaterial. The Punjab and
Haryana High Court, in the case of Chhajju Ram Maru Ram and Anr. vs. State of
Punjab (1968), stated that it is not necessary to consider the distance to which the
minor was taken by the courts while deciding whether the accused took away the
minor from the keeping of the guardian.
Interpretation of the word “enticing”
The word “entice” involves an idea of inducement or allurement in another through
exciting hopes or desires. It means the child is seduced or attracted to follow or go
with the offender. The minor’s mental attitude is relevant to the enticement. There is
no fixed formula to be followed so as to deem that the accused enticed a person.
Enticement can be of various kinds and whether an accused’s act amounts to
‘enticing’ is to be decided by the court considering the particular facts of that case.
When the accused promised a minor girl that he would marry her so that she would
leave her house, the Supreme Court regarded this promise as an act of “enticing”, in
the case of Moniram Hazarika vs. State of Assam (2004), and, thus, convicted him
under Section 361 of the IPC.

In Jai Narain vs. State of Haryana 71 Punj LR 688, the person taken on her own free
will left her guardian’s house at midnight and the same was not caused by the
accused; he neither enticed her to leave the house nor went to her house and brought
her from there. Thus, the Punjab and Haryana High Court acquitted the accused of the
charges under Section 363 of the IPC.
Thus, the accused will not be liable if he/she did not take any steps, not even
persuasion, and it is that minor or unsound person, who, on his/her own free will,
came out of the keeping of his/her guardian.

Such a person shall be a child or person of unsound mind

The person who was kidnapped by the offender must be a child or a person of
unsound mind. Here, whether the accused has knowledge that the aggrieved person is
a child or is an unsound person is immaterial.
Also, the accused will not be liable for the offence of kidnapping if he takes away a
person, who is major and is normally of sound mind during a state of unconsciousness
that was caused by the accused or otherwise.
Therefore, taking or enticing a person, who is major and has no unsoundness in mind,
out of the keeping of the guardian without the consent of such guardian will not fall
under the category of kidnapping from lawful guardianship.
Who is a child
Section 137(2) of the BNS defines the word “child” as a person who is under 18 years
of age.
 Previously, since 1949, the IPC, under Section 361, specified the age limit to call a
person a minor. It says, in case such a person is a boy, then his age shall be less than
sixteen years of age to be called a minor person; if such a person’s gender is female,
she is minor until she becomes eighteen years old. Here, there is no one fixed age
limit for both genders. However, in BNS, as it simply mentions “child”, we can tell
there is no difference between genders.
The accused in the Biswanath case believed a girl to be major by her appearance and
took her away from her house. In the trial, he pleaded ignorance of her age. The
Orissa High Court denied his plea, held that no knowledge about the minority of age
is not a defence and convicted him for the offence of kidnapping.
The Gauhati High Court, in Taimus Ali vs. State of Assam, 1977 CrLJ (NOC) 243
(Gau), mentioned the following reports as methods to determine the age of the person
in question:
1. Bone ossification tests, by which the age of the bone can be found;
2. Tests on teeth;
3. Tests on height and weight; and
4. Miscellaneous signs.
The Gauhati High Court then observed that “when (the following reports) considered
individually, little reliance is to be placed on each individual test; but when taken
together, they may offer a fairly reliable means to ascertain the age.”

Out of keeping of the lawful guardian

Here, we can observe that there are two expressions, namely, “keeping” and “lawful
guardian”, i.e., Section 137 of the BNS -
What is “keeping”
The word “keeping” means within the guardian’s protection or care. The minor need
not be in the guardian’s physical custody. It connotes the idea of charge and
safeguard, whether real or constructive. A child may not always be in the guardian‘s
real keeping, i.e., direct physical custody; as long as the child’s whereabouts are
known and the child’s movement is controlled, the child is said to be in the guardian’s
keeping. The latter case is the case of constructive keeping. The child is said to be
kidnapped when a child is taken to an area outside the circle where the guardian no
longer knows the child’s whereabouts nor has any control over the movement of the
child.
The Supreme Court, in the case of State of Haryana vs. Rajaram (1973), stated “the
use of the word ‘keeping’ in the context connotes the idea of charge, protection,
maintenance and control.” Also, the Court noted that the concept of a guardian’s
custody appears as if the minor has freedom over his actions and movements;
however, the guardian will gain control over the minor if the necessity arises. For
example, in the case of Bhagban Panigrahi vs. State of Orissa (1989), the girl, who
was kidnapped from a hostel room where the father visited her once, is said to be
under the keeping of her father, though the room was rented for the purpose of
examination.
An orphan is under whose keeping
Unfortunately, a few children have no guardians to take care of them. Technically,
they are under no one’s custody or keeping. Here, it is important to reiterate the object
and aim of the provision of Section 137(1)(b) of the BNS, i.e., not just to protect the
rights of the minor persons, but also to protect the rights and privileges of their
guardians. Therefore, the kidnapping of orphans is also a punishable act under Section
137(2) of the BNS.
In Thakorlal D. Vadgama vs. State of Gujarat (1973), the Supreme Court addressed
the question of whether the independent movements of a child are incompatible with
the control of the guardian while considering the concept of “keeping”. The Court
held that both are compatible with each other. The Court highlighted that ours is a
country where many children are subjected to the drudgery of service or slavery and
are sent to other states by their parents. Keeping this in mind, if the argument of the
accused persons that the movements of these children are not under the control of the
guardian is accepted by the courts, then offenders would walk free without being
punished for their criminal acts, which would cause grave injustice to those innocent
children and their lawful guardians.

Who is a lawful guardian

The legislature’s use of the term “lawful” instead of “legal” indicates an intent to give
the term broader scope. While all legal guardians are lawful, not all lawful guardians
are legal. This ensures wider protection under kidnapping laws by covering more
guardian-child relationships. It says that the expression “lawful guardian” also
includes persons lawfully entrusted with the duty of taking care of or keeping custody
 of such minors or unsound persons. The following are, thus, said to be the requisites
to be satisfied in order to deem a person a lawful guardian of a minor.
1. The said person has the custody of a minor or an unsound person.
2. Such custody was acquired by the said person due to the lawful entrustment. Here,
lawful entrustment means that the person was entrusted with such custody by the legal
guardian, normally the parents of the minor or a person of unsound mind, or persons
who are declared as a legal guardian by a competent court. Such entrustment may be
expressly conferred, whether written or oral; there can also be implied entrustment.
For example, if a father of a girl asks his friend or a servant to drop the girl off at
school, the friend or the servant is said to be a lawful guardian, though not a legal
guardian, for the said period and for the said purpose as he was lawfully entrusted by
the father with such duty as to the girl.

What is “out of the keeping”

From the above-provided explanations, it now understands what keeping means and
who is the lawful guardian. We know that the lawful guardian has charge or control
over their wards. If such a child came out of such charge or control by the act of the
accused, it is said that the accused took the child out of the custody of the lawful
guardian. In Arathan Sadasivan vs. State of Kerala (1966), the Kerala High Court
stated that the prosecution must provide some evidence proving that the accused
committed some positive act that caused the girl to go out of the custody of the lawful
guardian.

Without the consent of the lawful guardian

The child’s consent is completely irrelevant and it is the guardian’s consent alone that
is taken into consideration because the child is deemed unable to give valid consent.
This was held by the Supreme Court in the case of State of Haryana vs. Rajaram
(1973).
It is important to note that, if consent by the guardian is given under fraud or
misrepresentation, it is said that the consent is not free and, hence, is not a valid
consent in the eyes of the law. The convicted party shall also be responsible for the
crime, even if the guardian consents after the crime is committed.

Intention and motive are not required

 The intention and motive of the accused for the commission of the offence are not
essential ingredients to establish the case of kidnapping from lawful guardianship by
the accused and the prosecution has no burden to prove the same. This implies that,
even if the accused took a minor out of the guardian’s keeping for a good cause, he is
still liable for the kidnapping offence. Thus, it should be noted that kidnapping is a
strict liability offence, i.e., the accused’s intention is immaterial.
Good faith
If the accused, charged under Section 137(2) of the BNS, took the child in good faith,
believing he/she was entitled to do so, then the accused person is exempted from the
criminal liability as provided under the exception clause of the said provision.
To avail of the above-said exemption, the following facts have to be proved by the
defence counsel representing the accused.
1. The accused acted in good faith.
2. The accused believed either of the following facts. That he is the father of an
illegitimate child; or That he is entitled to the lawful custody of such a child.
3. The accused took such a child out of the keeping of the guardian without his consent
for a purpose, which was not immoral or unlawful. If the act of the accused is
committed for some immoral or unlawful purpose, then this exemption will not be
applied, and the accused will be held liable for his acts.
Because the definition of “lawful guardian” is made wider, it is possible to have more
than one person as a lawful guardian for any particular child, unless he or she is an
orphan.
For example, the father and mother are natural guardians as per the personal laws.
There may be persons, other than the parents, who are lawfully entrusted with the
custody of the child. Hence, here, lawful guardians are more than one person. Thus, if
a natural guardian takes or attempts to take away a minor from the custody of such
a de facto guardian, there is no offence. In this regard, the following are a few
precedents.
1. In Khyali Ram & Ors. vs. State of Uttar Pradesh & Anr. (1971), the mother was
entitled to the custody of her child below seven years old. The accused, i.e., the father
of that child, took the child from the mother’s custody without her consent. The
Allahabad High Court acquitted the accused of the charges under Section 363 of the
IPC.
Mere unconsciousness does not constitute unsoundness of mind
It was already mentioned before that the aggrieved party, a party who was kidnapped,
must either be a child or a person of unsound mind, as provided under Section 137(1)
(b) of the BNS. However, the state of unconsciousness in the mind of a person cannot
be considered a state of unsoundness of mind in the eyes of the law, especially if such
a person is usually of sound mind. For example, a patient who was made unconscious
under an anaesthetic given by the doctors for the purpose of performing an operation
on him will not be regarded as a person of unsound mind by the courts just because he
became unconscious.
In the case of Din Mohammad 1939 20 Lah 517, it was held that the girl, who was
made unconscious by the accused by use of datura poisoning, could not be treated as
a person of unsound mind and the accused was not convicted for the offence of
kidnapping from lawful guardianship under Section 361 of the IPC for taking that girl
away from her guardians.
The accused had no ill intention
The provision of Section 137(1)(b) of the BNS clearly says that the intention of the
accused is not required to be convicted for the offence of kidnapping from the lawful
guardianship and the same was reiterated by many courts in various cases. Thus,
pleading that the accused has no intention to kidnap the person taken will go in vain
and the conviction will still be upheld, provided all the necessary aspects and
essentials are established by the prosecution.
Consent by the victim
It was already mentioned before that whether the victim, whether a child or an
unsound person, consented to such kidnapping is immaterial and the same was
affirmed by the Supreme Court in various cases. In the Varadarajan case, the
Supreme Court clearly stated that, even if the victim is of such age as less than
eighteen years old and is mature enough to have consented to the contemplated act of
the accused, i.e., taking his/her person out of the keeping of the lawful guardian, such
consent is immaterial for the court to decide the conviction under Section 137(2) of
the BNS.
Possibility to escape
It would be a bad defence if the accused pleaded that the victim has the possibility,
chance or opportunity to escape from such taking away by the accused during or after
the incident. This was observed by the Kerala High Court in the case of Dharmarajan
vs. State of Kerala represented by the Public Prosecutor (2014).
The aggravated forms of kidnapping are provided under different provisions and
prescribed with different punishments because those are not just cases of kidnapping,
but also include immoral and unlawful purposes. The table below shows the
aggravated forms of kidnapping, their essential ingredients and punishments as
provided under the BNS.