BA.LL.B.

(IV SEMESTER)

LAW OF CRIME-II

(IMPORTANT QUESTIONS)

Question 1: When is Culpable Homicide not murder? Discuss in details?

Question 2: Define Hurt and Grievous Hurt?

Question 3: Define Force, Criminal force and Assault?

Question 4: Defense of death by Negligence?

Question 5: Describe the offence of Criminal force and assault against women?

Question 6: Describe the offences of Voyeurism & Stalking.

Question 7: White short note on Dowry Death.

Question 8: What are the offences relating to marriages?

Question 9: Discuss Section 85 of the Bharatiya Nyaya Sanhita, 2023 and judicial trend to prevent its misuse in the country.
Question 1: When is Culpable Homicide not murder? Discuss in details?

Answer 1: Murder and culpable homicide are two of the most serious offenses under the Bhartiya Nyaya Sanhita. These offenses are
punishable by imprisonment, and in some cases, even by death. In this blog, we will take a closer look at the provisions related to murder
and culpable homicide in the BNS.

CULPABLE HOMICIDE

Culpable Homicide comes under section 100 of the Bhartiya Nyaya Sanhita.

Whoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury which is
likely to cause death or with the knowledge that he is likely by such act to cause death, commits the offence of Culpable Homicide.

ESSENTIALS OF CULPABLE HOMICIDE:

1. There must be intention of causing death of the person.

2. The accused must have intention that such bodily injury is likely to cause death to whom the harm has been made.

3. The accused must have knowledge that such an act would likely to be cause death.

EXPLANATIONS –

1. A person who causes bodily injury to the other person who is suffering from a disease or disorder and thereby accelerates the
death of the person shall be deemed to have caused his death.

o Where death is caused by such bodily harm, the person shall be deemed to have caused death, although proper remedies and
treatments are provided.

o If the death of the child is caused in mother's womb then it will not amount to culpable homicide, until and unless any body
part of the baby is out of the womb and only then death will amount to culpable homicide.

PUNISHMENT FOR CULPABLE HOMICIDE NOT AMOUNTING TO MURDER

1. Punishment of culpable homicide not amounting to murder is provided under sec 104 of BNS. It states that, whoever causes
death with intention or causes such bodily injury as is likely to cause death or with the knowledge that death is likely to be
caused because of the act, shall be liable for life imprisonment or imprisonment of either description for a term which may
extend to ten years, and shall also be liable to fine.

2. Secondly, whoever causes death without the intention of causing death or such bodily injury as is likely to cause death or
doesn't have the knowledge that his act could cause death shall be sentenced to imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

3. If the act which causes death is done without the intention of causing death but with the knowledge that death is likely to be
caused by such act, the person shall be sentenced to imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine.

CASE LAWS RELATED TO CULPABLE HOMICIDE NOT AMOUNTING TO MURDER

1. "Culpable homicide" is the genus, and "murder" is the species. All "murder" are culpable homicide but not vice-versa;
Narasingh Challan v. State of Orissa, (1997) 2 Crimes 78 (Ori).
2. Virsa Singh vs State of Punjab (AIR 1958 SC 465): In this case, the Supreme Court held that there must be a direct
consequence of the injuries inflicted on the deceased. Therefore, intervening causes must not be independent or unconnected
with the injury sustained by the deceased.

3. Joginder Singh vs State of Punjab (AIR 1979 SC 1876): The Supreme Court held that there has to be a proximate causal
link between the two, i.e. death and the act. The death must be a direct consequence of such an act.

EXCEPTIONS TO CULPABLE HOMICIDE NOT AMOUNTING TO MURDER

o Culpable homicide does not amount to murder in case of grave and sudden provocation, the sudden provocation should come
from the other side.
 o Culpable homicide does not amount to murder in cases when a person exceeds his power given by law in order to protect
himself or his property in good faith in the right of private defence and without any intention of doing more harm than is
necessary.

o Culpable homicide does not amount to murder if a public servant or a person aiding a public servant exceeds his power given
to him by law in order to attain public justice, believing that he is doing a lawful act and in a good faith.

o Culpable homicide does not amount to murder when there is a sudden fight and there is no premeditation or intention to cause
bodily injury which may lead to death.

CULPABLE HOMICIDE AMOUNTING TO MURDER

1. Under Section 101 of BNS, except in the cases hereinafter, culpable homicide is murder, if the act by which the death is caused
is done with the intention of causing death, or-

2. Secondly– If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of
the person to whom the harm is caused, or-

3. Thirdly– If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is
sufficient in the ordinary course of nature to cause death, or-

4. Fourthly– If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death
or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing
death or such injury as aforesaid.

ESSENTIALS OF CULPABLE HOMICIDE AMOUNTING TO MURDER

o There must be an intention to cause the death of the person.

o There must be an act or harm caused or cause such bodily injury that is likely to cause the death.

o The act must be done with the sufficient knowledge that the act of one is likely to cause the death of another person.

PUNISHMENT FOR CULPABLE HOMICIDE AMOUNTING TO MURDER

Punishment for culpable homicide amounting to murder is stated under section 103. This section provides punishment for murder which
means the person who has committed murder or culpable homicide amounting to murder shall be liable for either life imprisonment or
death penalty and he/she shall also be liable to pay fine.

Death penalty provided under this section is only given under rarest of rare cases.

CASE LAWS RELATED TO CULPABLE HOMICIDE AMOUNTING TO MURDER

In the case of Machhi Singh And Others v. State Of Punjab, the Indian Judiciary stated the grounds on which death penalties were,
they are as follows:

1. When the murder committed is extremely brutal, ridiculous, diabolical, revolting, or reprehensible manner which 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;

3. When death is caused because of the caste and creed of the person;

4. When the motives of the accused were cruelty or 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.

Defenses for Murder and Culpable Homicide

In some cases, the accused may have a defense for murder or culpable homicide. Some of the defenses can include:

o Self-defense – If the accused acted in self-defense and had no other way to protect themselves, it may be a defense.

o Insanity – If the accused was suffering from a mental illness at the time of the offense, it may be a defense.

o Accident – If the death was caused by an accident and not by an intentional act, it may be a defense.
DIFFERENCE BETWEEN CULPABLE HOMICIDE AND MURDER

Key Murder Culpable Homicide Not Amounting to

Differences Murder
Premeditation Murder typically involves malice aforethought, where the It encompasses acts where death is caused
perpetrator consciously plans and executes the act to cause the by negligence, recklessness, or without
death of another person. premeditation, but the act is still
unlawful and results in the death of
another person.
Intention It involves an act done with the clear intention of causing While the act may lead to death, there is
death or with knowledge that the act is likely to cause death. no specific intent to cause death,
distinguishing it from murder.
Degrees of Intent Murder usually requires a higher level of intent, such as Culpable homicide not
premeditation or malice aforethought. amounting to murder may involve a lower
level of intent, such as recklessness or
negligence, but not the level of intent
required for murder.
Sudden In the case of murder, there is often no sudden provocation or Culpable homicide may occur in the heat
Provocation heat of passion involved. The act is deliberate and calculated. of passion or as a result of sudden
quarrels, without the perpetrator having
the clear intention to cause death.
Legal Provisions in Section 101 of BNS defines murder and 103 of BNS covers Section 100 of BNS defines culpable
Bhartiya Nyaya punishment for murder. homicide not amounting to murder
Sanhita, 2023 (BNS) whereas 105 covers its punishment.
Punishment in BN Section 103 of BNS, whoever commits murder shall
be punished with death or imprisonment for life and shall Section 105 of BNS,
also be liable to fine.
If the act by which the death is
caused is done with the intention the
perpetrator shall be punished with
imprisonment for life or imprisonment of
either description for a term not less than
five years but which may extend to ten
years, and shall also be liable to a fine.
If the act is done with the
knowledge that it is likely to cause death
the perpetrator shall be punished with
imprisonment of either description for a
term which may extend to ten years, and
shall also be liable to a fine.

MOB LYNCHING

For the first time, new offences of mob lynching and snatching have been made punishable in section 103 (2) and section 304 of the
Bharatiya Nyaya Sanhita (BNS), 2023. Section 103(2) of BNS provides that 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.

Essentials of Mob Lynching:

1. A group of five or more persons

2. On the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground
3. Offence of murder has been committed.
Question 2: Define Hurt and Grievous Hurt?

Answer 2: Hurt and Grievous Hurt:

Sections 114-125 deal with hurt in various forms. The Bharatiya Nyaya Sanhita has classified hurt on the basis of gravity. The
classification is (a) simple hurt and (b) grievous hurt. Section 114 defines simple 'hurt' and Section 116 defines 'grievous hurt' Section
115(2) provides punishment for voluntarily causing hurt. Section 117(2) provides punishment for voluntarily causing grievous hurt.

Hurt
Section 114 defines hurt. It provides that whoever causes bodily pain, disease or infirmity to any person commits hurt. To cause hurt
there need not be any direct physical contact. If the direct result of an act is the causing of bodily pain it is hurt, whatever be the means
employed to cause it. The expression 'bodily pain' means the pain must be physical pain. Hurt is not caused by mental or emotiional
pain. Bodily pain is necessary to cause hurt. A person communicating a particular disease to another would be guilty of hurt. Infirmity
means a temporary mental impairment, hysteria or terror. The degree or severity of the pain is not a material factor to decides whether
this section will apply or not. The expression 'infirmity' denotes an unsound or unhealthy state of body. Such infirmity may be temporary
or permanent in nature.

Grievous Hurt

Section 116 lays down eight kind of hurt as grievous hurt and provide enhanced punishment for the same. These are:- Bharatiya Nyaya
Sanhita:

1. Emasculation.

2 Permanent deprivation of sight of either eye.

3.Permanent deprivation of hearing of either ear.

4. Deprivation of any member or joint.

5. Destruction or permanent impairing of the powers of any member or joint.

6. Permanent disfiguration of head or face.

7. Fracture or dislocation of a bone or tooth.

Hurt which endangers life or which causes the sufferer to be during the space of fifteen days in severe bodily pain, or unable to follow
his ordinary pursuits.

There is a change in this provision. Section 116 of BNS, 2023 corresponds to Section 320 IPC. Under Section 116(h) days of
suffering has been reduced from 20 days to 15 days.

Section 116 specifically states the nature of injuries that can be classified as grievous hurt. Other harms outside these categories cannot
be termed as 'grevious hurt'. Supreme Court in Mathai v. State of Kerala, (2005) 3 SCC 260 observed that all these clauses need to be
interpreted strictly.

A simple injury cannot be called grievous simply because it happened to be caused on the vital part of the body, unless in the opinion
of the physician it actually endangers the life of the victim. As far as the last criterion is concerned the mere fact that a person remained
in the hospital for a period of fifteen days is not sufficient to convict the person under grievous hurt. It must be proved that during that
period the victim was unable to follow ordinary pursuits.

In absence of intention to cause death, or knowledge that death is likely to be caused from the harm inflicted, but death is caused, the
accused could be guilty of grievous hurt only, if the injury caused was of a serious nature.

In Shyamlal v. State of Uttar Pradesh, 1971 All LJ 439 the accused caused a puncture wound on the chest of another person resulting
in his death. It was held that since the accused had no intention to cause death or knowledge that the act would cause death, he would
be liable for grievous hurt.

Causing grievous hurt by use of acid

Section 124(1) and Section 124(2) of Bharatiya Nyaya Sanhita provides for the punishment for voluntarily causing grievous hurt by use
of acid and voluntarily throwing or attempting to throw acid respectively. The object of these provisions was to make specific punishment
in case of voluntarily causing grievous hurt by use of acid etc. or voluntarily throwing or attempting to throw acid. Section 124(1)
provides punishment for voluntary causing grievous hurt by use of acid. It provides that whoever causes:-
  permanent or partial damage, or
 deformity to; or
 burns or maims; or
 disfigures or disables, any part or parts of the body of a person; or
 causes grievous hurt by
 throwing acid on; or
 by administering acid to that person; or
 by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt.
causes the person to be in a vegetative state

shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to
imprisonment for life, and with fine. Such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim.
Any fine imposed under this section shall be paid to the victim.

Supreme Court in Laxmi v. Union of India, AIR 2015 SC 3662 held that in case of acid attack minimum compensation of Rs 3 lacs
must be made available to each victim. Supreme Court also held that States/UTs are to ensure that private hospitals do not refuse free
treatment. Free treatment not only means provision of physical treatment to victim of acid attack but also availability of medicines, bed
and food in the hospital

Section 124(2) provides for voluntarily throwing or attempting to throw acid. It provides that whoever.-

 throws or attempts to throw acid on any person; or

 attempts to administer acid to any person; or
 attempts to use any other means, with the intention of causing
 permanent or partial damage; or
 deformity or burns or maiming, or
 disfigurement or disability, or
 grievous hurt to that person,

shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to
seven years, and shall also be liable to fine. Explanation 2 provides that permanent or partial damage or deformity or permanent
vegetative state shall not be required to be irreversible.

There is a change in this provision. In Section 124(2) BNS the expression 'or causes a person to be in a permanent vegetative state' are
added.

Question 3: Define Force, Criminal force and Assault?

Answer 3: Force, Criminal Force and Assault

Bharatiya Nyaya Sanhita provides provisions related to force, criminal force and assault from Sec-tions 128 to 136. Section 128 defines
force, Section 129 defines criminal force and Section 130 defines assault. Sections 132 to 136 deal with aggravated form of assault and
criminal force.

Force [Section 128]

Following are the essential ingredients of force:-

A person is said to use force to another if he

 Causes motion;
 Change of motion, or
 Cessation of motion to that other, or

If he causes to any substance such motion, or change of motion, or cessation of motion as brings that substance into contact with any
part of-

Other's body, or

With anything which that other is wearing or carrying, or

With anything so situated that such contact affects that other's sense of feeling,
The person causing the motion, or change of motion, or cessation of motion, causes that motion, change of motion, or cessation of
motion in one of the three ways hereinafter described:-

First- By his own bodily power.

Secondly-By disposing any substance in such a manner that the motion or change or cessation of motion takes place without any further
act on his part, or on the part of any other person.

Thirdly By inducing any animal to move, to change its motion, or to cease to move.

In Maiku v. State of Uttar Pradesh, AIR 1953 All 749 court held that Section 349 [now Section 128 of BNS] defines force in relation
to a human being and not against an inanimate object.

Criminal force [Section 129]

To designate 'Force' as 'Criminal Force' following are the essential ingredients:-

1. Intentionally using of force to any person;

2. The force is used without the consent of that person;

3. The force should be used-

In order to the committing of an offence, or

(1) With the intention to cause, or knowingly it to be likely that the

Injury;

Fear; or

Annoyance will be caused to the person to whom the force is used.

For example, X intentionally pulls up a woman's veil. Here 'A' intentionally used force to her, and if he does so without her consent,
intending or knowing it to be likely that he may thereby injure, frighten or annoy her, he has used criminal force to her.

'A' incites a dog to spring upon 'Z', without Z's consent. Here, if 'A' intends to cause injury, fear of annoyance to 'Z', he uses criminal
force to 'Z'

In Kalar Din v. Emperor, (1941) 42 Cr LJ 272 court held that criminal force must be directed against a person and not against a thing
Therefore, breaking open a lock is not a use of criminal force.

Assault [Section 130]

Following are the essential ingredients of assault:-

1. Gesture should be given or preparation should be made by a person in the presence of another.

2. The person giving the gesture or doing the preparation should intend or know that by it he is likely to cause the person present to
apprehended that the criminal force will be used against him.

Legally, assault denotes preparatory acts which cause apprehension of use of criminal force against the person. Assault falls short of
actual use of criminal force. Explanation appended to Section 130 states that mere words do not amount to an assault, but with gesture
or preparation they may amount to an assault. For example, 'A' shakes his fist at 'Z', intending or knowing it to be likely that he may
thereby cause 'Z' to believe that 'A' is about to strike "Z". A has committed an assault.

'A' takes up a stick, saying to 'X', "I will give you a beating". Here, though the words used by A could in no case amount to an assault,
and though the mere gesture, unaccompanied by any other circumstances, might not amount to an assault, the gesture explained by the
words may amount to an assault.

To constitute an assault there must be some threatening physical act by which the offender intentionally causes another to apprehend
that criminal force is about to be used against him. The effect which the threat creates in the mind of the victim is the gist of the offence.
The person threatened should be present and near enough to apprehend the danger.
Distinction between assault and battery: An assault is an act which causes another person to apprehend immediate and unlawful violence.
Battery means actual application of unlawful force whether directly or indirectly. In Indian law the difference between assault and
criminal force is same as difference between assault and battery in English law.

Aggravated form of assault or criminal force: Bharatiya Nyaya Sanhita recognizes following aggravated forms of assault or criminal
force:

1. To deter a public servant from discharge of his duty [Section 132 BNS]

2 To outrage modesty of woman [Section 74 BNS]

3. To dishonour a person otherwise than on grave provocation [Section 133 BNS]

4. Assault or criminal force in an attempt to commit theft of property carried by a person (Section 134 BNS]

5. Assault or criminal force in an attempt to wrongfully confine a person [Section 135 BNS]

6. Assault or criminal force on grave provocation [Section 136 BNS]

Question 4: Defense of death by Negligence

Answer 4: Death by negligence

Section 106(1) covers those cases where the death is caused by rash and negligent act without ty intention of causing death or knowledge
that such act will cause death. Section 106 punishes causing death by a rash or negligent act. Following are the essential ingredients of
this section:

1. The death of any person is caused by a rash or negligent act.

2 The act causing death does not amount to culpable homicide.

The punishment provided under Section 106(1) of BNS is imprisonment for either description which may extend to five years and shall
also be liable to fins

This section shall apply where there is neither any intention to cause death nor knowledge that the act would in all probability cause
death. In Shankar Narayan Bhadolkar v. State of Maharashtra, AIR 2004 SC 1966 Supreme Court held that where intention or knowledge
is present, Section 304A [now Section 106(1) of BNS) has no application.

In Kurban Hussain Mohammadelli Bangwalla v. State of Maharashtra, AIR 1965 SC 1616 Supreme Court held that death should
be the direct result of rash and negligent act. The death must be r awens Le. immediate cause.

There is a change in this provision. Section 106 of BNS, 2023 corresponds to Section 304A IPC. Earlier, in IPC the maximum
punishment was two years. In present law, the punishment has been increased to a maximum of five years.

Rashness and negligence

Rashness and negligence is not the same thing. Negligence is the genus and the rashness is the species Rashness conveys the idea of
recklessness or doing an act without due consideration and negligence con-notes want of proper care. It implies an act done with
indifference ass que Negligence is a breach of duty anposed by low Negligroce may be civil ce criminal depending gwn the nature and
gravity of the negligence. Criminal negligence is grout and culpable neglect or failure to rcise ressonable and proper precaution to guard
against any injury Negligence is an ominion to do something which a reasonable man, guided by those considerations which ondinarily
regulate the conduct of human affairs, would do.

Supreme Court in Jacob Mathew v. State of Punjab, (2005) 6 SCC 1, held that the word 'gross' has not been used in Section 304A
[mar Section 106(1) of BNS), but it is settled that in criminal law, negligence of recklessness must be of such high degree as to be 'gross'.
The expression 'rash and negligent act' is to be qualified by the word 'grossly".

Rash or negligent act by doctors (Medical Negligence)

Section 106(1) further provides that if such negligent or rash act is done by medical practitioner while performing a medical procedure,
he shall be punished with imprisonment of either description for a term which may extend to two years and shall also be hable to fine

There is a change in this provision. This is a newly introduced provision in BNS. Earlier there was no specific provision for punishment
in case of medical negligence.
The question of culpable rashness or negligence in medical treatment by doctors has attracted a lot of judicial attention. Courts are of
the consistent view that care should be taken in imputing criminal rashness or negligence in course of professional conduct especially
in case of doctors. Criminality should be imputed only when negligence is of such a nature that it shows a great disregard for life and
safer/[=’//=[nce has been attributed a differ/r==rent standard in case of professionals.

Supreme Court in Dr. Suresh Gupta v. Govt. of National Capital Territory of Delhi, AIR 2004 SC 4091 held that for fixing criminal
liability of a doctor, the standard of negligence should not merely be lack of necessary care, attention or skill. The standard of negligence
required to be proved should be so high as can be described as 'gross negligence' or 'gross recklessness'. It can be treated as criminal
only when the doctor exhibits a gross lack of competence or inaction and wanton indifference to his patient's safety and which is found
to have arisen from gross ignorance or gross negligence. If death occurs merely from error of judgment or an accident, no criminal
liability should be attached.

Supreme Court in Jacob Mathew State of Punjab, (2005) 6 SCC 1 approved the ratio of De Suresh Gupta's case and also held that
negligence in context of medical profession necessarily calls fo different treatment. Court held that a professional may be held liable for
negligence on two findings (1) has not possessed the requisite skill which he professed to have possessed or (2) he did not exercise teave
able competence in the given case.

Supreme Court in Kusum Sharma Batra Hospital and Medical Research Center, 2010 SCC 480 laid down set of guidelines for
deciding whether medical professional is guilty of medical ne gence or not. Following are the guidelines:-

1. Negligence to be established by the prosecution must be culpable or gross and not the negligen based upon the error of judgment.

2. A medical practitioner would be liable only where his conduct will fall below that of standards of a reasonably competent practitioner
in his field.

3. A doctor is not merely liable because his opinion is different from other doctor. In the realm of diagnosis and treatment there is scope
for genuine differences.

4 Negligence cannot be attributed to a doctor so long as he performs his duties with reasonable skill and competence. Merely because a
doctor choses one course of action over other will not make him negligent.

Hit and run cases

Section 106(2) is a newly introduced provision. It provides that whoever causes death of any person by rash and negligent driving of
vehicle not amounting to culpable homicide, and escapes without reporting it to a police officer or a Magistrate soon after the incident,
shall be punished with imprisonment of tithit description of a term which may extend to ten years, and shall also be liable to fine. (Note:
This provision ba not been enforced from 1st July 2024).

This is a newly introduced provision in BNS. Earlier there was no specific provision for hit and run cases in IPC.

Question 5: Describe the offence of Criminal force and assault against women?

Answer 5: The definition of modesty of woman is not given in Bharatiya Njan Sanhita. It depends on the facts and circumstances of
the case taking into consideration the moral, social and legal ethos prevalent in the society. In State of Punjab v. Major Singh, AIR 1967
SC 63 it was observed that there is no abstract conception of modesty that can be applied to all cases.

Section 74 of BNS provides punishment for using assault or criminal force with intent to outrage modesty of woman. The punishment
in such cases shall be not less than one year which may extend to five years and shall also be liable to fine.

It has been held in Girdhar Gopal v. State, AIR 1958 MB 147 that this section has been enacted with a view to protect woman from
indecent assault as well as to safeguard public morality. Following are the ingredients of the offence:

(a) Assault or use of criminal force on any woman.

(b) Intention to outrage her modesty or with knowledge that modesty will be outraged

In Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677 Supreme Court held that essence of woman's modesty is her sex.
Modesty is the virtue which attaches to a female owing to her sex. Culpable intention of the accused in the gist of the offence. In Rupan
Deol Bajaj v. KPS Gill, AIR 1996 SC 309 Supreme Court held that slapping woman on her posterior amounted to outraging her
modesty within the meaning of Section 354 and 509 of Indian Penal Code (now Section 74 and 79 of BNS).

Insulting the modesty of a woman

Section 79 of BNS provides that whoever, intending t to insult the modesty of any woman, utters any words, makes any sound or gesture,
or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen, by such woman, or
intrudes upon the privacy of such woman, shall be punished. The essential element of this section are as follows:

(a) Intention to insult the modesty of a woman

(b) The insult:

① Must be caused by uttering any word or making any sound or gesture or exhibiting any object intending that such word or sound
shall be heard or that gesture or object shall be seen by such woman; or

(ii) Must be caused by intruding upon the privacy of such woman.

If a person with an object to insult the modesty of a woman exposes private part of his body or uses obscene words or exhibits obscene
drawings, he commits an offence under Section 79.

In outraging modesty of woman, assault or use of criminal force is required while in insulting modesty of woman, uttering of any word,
sound, gesture, exhibiting object is required. The latter does not require assault or use of criminal force.

In Emperor v. Tarak Das Gupta, (1925) 28 Bom. L.R. 90, the accused was a graduate of a university. He wrote a letter to an English
nurse containing indecent proposals and sent it to her in an envelope. It was held that the accused had outraged her modesty.

Question 6: Describe the offences of Voyeurism & Stalking.

Answer 6: Section 77 provides for the offence of voyeurism and Section 78 provides for the offence of stalking.

Voyeurism

Section 77 provides that whoever watches, captures the image, disseminates the image of a woman engaging in a private act in
circumstances where she would usually have the expectation of not being observed either by the perpetrator or by any other person at
the behest of the perpetrator shall be punished on first conviction with imprisonment for a term which shall not be less than one year,
but which may extend to three years, and shall also be liable to fine, and on a second or subsequent conviction, with imprisonment for
a term which shall not be less than three years, but which may extend to seven years, and shall also be liable to fine.

Explanation 1 appended to the Section provides that for the purpose of this section, "private act" includes an act of watching carried out
in a place which, in the circumstances, would reasonably be expected to provide privacy and where the victim's genitals, posterior or
breasts are exposed or covered only in underwear; or the victim is using a lavatory; or the victim is doing a sexual act that is not of a
kind ordinarily done in public. 1

Explanation 2 appended to the Section provides that where the victim consents to the capture of the images or any act, but not to their
dissemination to third persons and where such image or act is disseminated, such dissemination shall be considered an offence under
this section.

Stalking
Section 78 provides that any man who follows a woman and contacts, or attempts to contact such woman to foster personal interaction
repeatedly despite a alear indication of disinterest by such woman; or monitors the use by a woman of the interner, email or any other
form of electronic communication, commits the offence of stalking

Such conduct shall not amount to stalking if the man who pursued it proves that,

(a) It was pursued for the purpose of preventing or detecting crime and the man accused of stalking had been entrusted with the
responsibility of prevention and detection of crime by the State; or

(b) It was pursued under any law or to comply with any condition or r requirement imposed by any person under any law; or

(c) In the particular circumstances such conduct was reasonable and justified.

Offence of stalking is punishable with imprisonment of either description for a term which may extend to three years and also fine on
first conviction and on subsequent conviction, with imprisonment of either description for a term which may extend to five years and
shall also be liable to fine.
Question 7: White short note on Dowry Death.

Answer 7: Section 80 of BNS deals with dowry death. It is a very stringent provision. The offence is cognizable, non-bailable and
triable by Court of Session. Section 80 defines dowry death and provides punishment for it. Following are the essential elements of
dowry death:

(a) The death of a woman should be caused by burns or fatal injury or otherwise than under normal circumstances.

(b) Death should have occurred within seven years of her marriage.

(C) She must have been subjected to cruelty or harassment by her husband or any relative of her husband soon before her death.

(d) Such cruelty or harassment should be for in connection with demand for dowry.

The Supreme Court in Kaliyaperumal v. State of Tamil Nadu, AIR 2003 SC 3828 held that With respect to the presumption under
Section 304B of IPC (0) Section 80 of BNS), following ingredients must be satisfied:

(a) Whether the accused has committed the dowry death of a woman.

(b) The woman was subjected to cruelty or harassment by her husband or his relatives.

(c) Such cruelty or harassment was for, or in connection with, any demand for dowry.

(d) Such cruelty or harassment was 'soon before her death'.

This provision has to be read with Section 118 of Bharatiya Sakshya Adhiniyam, 2023. Section 118 provides for presumption of
dowry death. It provides that when the question is whether a person has committed the dowry death of a woman and it is shown that
soon before her death such woman has been subjected by such person to cruelty or harassment for, or in connection with, any demand
for dowry, the court shall presume that such person had caused the dowry death.

In Satbir Singh v. State of Haryana, AIR 2005 SC 3546, Supreme Court held that once the prosecution is able to establish the
ingredients of dowry death under Section 304B of IPC (now Section 80 of BNS), the burden of proof of innocence shifts to accused in
light of presumption under Section 113B of IEA (now Section 118 of the BSA)

In Maya Devi v. State of Haryana, (2015) 17 SCC 405 Supreme Court observed that Section 304B of IPC (now Section 80 of BNS)
does not classify death as homicidal, accidental or suicidal. Death caused by burns or other fatal injury can be homicidal, accidental or
suicidal. However, if all other ingredients of Section 304B of IPC (now Section 80 of BNS) are met and the death happens under
'otherwise than normal circumstances' then it will be called 'dowry death' irrespective of the fact that it was homicidal, accidental or
suicidal.

1. Dowry

The term 'Dowry' has not been defined in Bharatiya Nyaya Sanhita. Explanation appended to Section 80 provides that for the purpose
of this section the term 'dowry' shall have the same meaning as defined in the Dowry Prohibition Act, 1961. Section 2(1) of the Dowry
Prohibition Act, 1961 states that 'dowry' means any property or valuable security given or agreed to be given either directly or indirectly:

a. by one party to a marriage to the other party to the marriage;

b. by the parent of either party to a marriage or by any other person, to the either party to the marriage or to any other person at or before
or any time after the marriage in connection with the marriage of the said parties, but does not include dower or mahar in the case of
persons to whom the Muslim Personal Law (Shariat) applies.

2. Cruelty

The meaning of cruelty has not been defined in Section 80. The meaning of cruelty has to be gathered from Section 86 of Bharatiya
Nyaya Sanhita. Supreme Court in Shanti v. State of Haryana, AIR 1991 SC 1226 held that Sections 304B and 498A of IPC (now Section
80 and 85 of BNS) are not mutually exclusive. Meaning of cruelty given under Section 498A of IPC (now Section 86 of BNS) can be
applied to Section 304B (now Section 80 of BNS

In a nutshell, the Explanation appended to Section 85 of Bharatiya Nyam Sanhita provides that cruelty means any wilful conduct which
is of such nature a likely to drive the woman to commit suicide or to cause grave injury or danger to he etc., or harassment to coerce her
or any other person related to her to meet demand of dowry.

3. 'Soon before death'

In Mustafa Shahdal Shaikh v. State of Maharashtra, AIR 2013 SC 851, Supreme Court interpreted the expression 'soon before death'
and held that there must be existence of proximate and live link between the effect of cruelty based on dowry demand and the concerned
death. In Maya Devi v. State of Haryana, AIR 2016 SC 125 Supreme Court held that the expression soon before death' in Section 304B
of Indian Penal Code (now Section 80 of BNS) and Section 113B of Indian Evidence Act (now Section 118 of BSA) incorporates the
idea of proximity test. The expression implies that the interval should not be much between the cruelty or harassment concerned and the
death in question.

In Girish Singh v. State of Uttarakhand (2019), Supreme Court held that conviction under Section 304B of IPC (now Section 80 of
BNS) can be made only if the woman was subjected to cruelty or harassment by her husband or his relatives which must be for or in
connection with any demand for dowry, soon before her death. Cruelty must be in connection with, demand for dowry.

Question 8: What are the offences relating to marriages?

Answer 8: Sections 80 to 87 of BNS deal with offences related to marriage. Following is the classification of these offences:

Dowry Death

Section 80(1) of BNS defines dowry death as the death of a woman caused by any burns or bodily injury or occurs otherwise than under
normal circumstances within seven years of her marriage and it is shown that soon before her death she was subjected to cruelty or
harassment by her husband or any relative of her husband for, or in connection with, any demand for dowry. It provides that and such
husband or relative shall be deemed to have caused her death

Section 80(2) provides that whoever commits dowry death shall be punished with imprisonment for a term which shall not be less than
seven years but which may extend to imprisonment for life.

Cohabitation caused by a man deceitfully inducing a belief of lawful marriage

Section 81 of BNS provides that every man who by deceit causes any woman who is not lawfully married to him to believe that she is
lawfully married to him and to cohabit or have sexual intercourse with him in that belief, shall be punished with imprisonment for a
term which may extend to ten years, and shall also be liable to fine. This section does not criminalize mere sexual intercourse or
cohabitation with a woman who is not lawfully married to the person. It envisages the following:

(a) Deceitfully inducing a woman to believe that she is lawfully married to him.

(b) Cohabitation with that woman under that belief.

The gist of the section is the deception caused by man on a woman in consequence of which she is led to believe that she is lawfully
married to him. In order to prove deception, it must be proved that person has dishonestly or fraudulently concealed certain facts or
made certain statements knowing it to be false.

Marrying again during lifetime of husband or wife

Section 82(1) of BNS provides that whoever, having a husband or wife living marries in any case in which such marriage is void by
reason of its taking place dunng the life of such husband or wife, shall be punished with imprisonment of either description for a term
which may extend to seven years, and shall also be liable to fine The scope of this section is wide enough to include both male and
female within its fold. It is equally applicable to all religions except Muslim males. In case of Muslim males, distinction is drawn
between males and females because under Muslim personal law polygamy for males, up to 4 wives, is allowed. However, it must be
noted that this exception available to Muslim male is only applicable if he marries within the ambit of personal laws. If the marriage is
contracted under the Special Marriage Act, 1954, then the offence of bigamy will be attracted.

The first condition for the application of this section is that the first husband or wife must be alive at the time of second marriage and
the first marriage must be valid If the first marriage is not valid then the offence of bigamy in case of second marriage will not be
attracted.

Supreme Court in Gopal Lal v. State of Rajasthan, AIR 1979 SC 713 held that the second marriage should also be properly solemnized.
Therefore, both the first and second marriage should be valid marriage in the eyes of law. In Bhaurao Shankar Lokhande v. State of
Maharashtra, AIR 1965 SC 1564, Supreme Court held that in order to constitute an offence of bigamy, marriage must be celebrated with
proper ceremonies and in due form. Merely going through ceremonies with the intention that the parties be taken to be married will not
affect the marriage.

The Supreme Court in Sarla Mudgal v. Union of India, AIR 1995 SC 1531 held that the change of religion cannot defeat the provisions
of law. It does not give the license to permit bigamy. Where one spouse changes the religion in order to marry again during the lifetime
of former spouse then the provisions of Section 494 of IPC (now Section 82(1) of BNS) are attracted. The court held that marriage
solemnized under one personal law cannot be automatically dissolved on conversion to another religion. Supreme Court reiterated its
stand in Lily Thomas v. Union of India, AIR 2000 SC 1650 and held that change of religion does not automatically dissolve the
marriage

It also does not extend to any person who contracts a marriage during the life of a former husband or wife, if such husband or wife, at
the time of the subsequent seven mariage, shall have been continually absent from such person for the space of gue years, and shall not
have been heard of by such person as being alive within that time. Under Section 105 of Bharatiya Sakshya Adhiniyam when it is proved
that a person has not been heard of for more than seven years by those who would naturally have heard of him if he had been alive, there
is a presumption that he is dead. The burden of proving that he is alive is on the person who wants to establish the same. Second
exception to Section 82(1) is a recognition to this principle.

Section 82(2) of BNS provides that whoever commits the offence of bigamy having concealed from the person with whom the
subsequent marriage is contracted, the fact of the former marriage, shall be punished with imprisonment of either description for a term
which may extend to ten years, and shall also be liable to fine.

Marriage ceremony fraudulently gone through without lawful marriage

Section 83 of BNS provides that whoever dishonestly or with fraudulent intention goes through the ceremony of being married knowing
that he is not thereby legally married shall be punished with imprisonment of either description for a term which may extend to seven
years and shall also be liable to fine. This section punishes mock marriage. It must be proved that accused knew that there is no marriage
but still goes on to show that the marriage is legally conducted with an ulterior motive.

Criminal elopement
Section 84 of BNS provides that whoever takes or entices away any woman who is and whom he knows or has reason to believe to be
the wife of any other mas with intent that she may have illicit intercourse with any person, or conceals or desi with that intent any such
woman, shall be punished with imprisonment of eithe description for a term which may extend to two years, or with fine, or with both
Tha section is intended to protect the rights of the husband and not that of wife.

The Supreme Court in Alamgir v. State of Bihar, AIR 1959 SC 436, held that the offence under this section prevents the deprivation of
the husband of his custody and control over his wife with the object of the accused having illicit sexual intercourse with any person. It
follows that if the woman cannot be deemed to be under the protection of her husband or of any person on his behalf, the accused cannot
be held guilty under this section. It is also necessary that the marriage of the woman must be proved i.e. proved to be solemnized
according to the requirements of law.

Cruelty by husband and his relative on the woman

Section 85 of BNS provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman to cruelty
shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

Section 86 of BNS defines cruelty as

(a) any wilful conduct which is of such a nature as is likely to drive the woman to commit suicide or to cause grave injury or danger to
life, limb or health (whether mental or physical) of the woman; or

(b) harassment of the woman where such harassment is with a view to coercing her or any person related to her to meet any unlawful
demand for any property or valuable security or is on account of failure by her or any person related to her to meet such demand

Kidnapping, abducting or inducing woman to compel her marriage etc.

Section 87

7 of BNS provides that whoever kidnaps or abducts any woman with intent that she may be compelled, or knowing it to be likely that
she will be compelled, to marry any person against her will, or in order that she may be forced or seduced to hat intercourse, or knowing
it to be likely that she will be forced or seduced to illicit intercourse, shall be punished with imprisonment of either description for a
term which may extend to ten years, and shall also be liable to fine; and whoever, by means of criminal intimidation as defined in this
Sanhita or of abuse of authority or any other method of compulsion, induces any woman to go from any place with intent that she may
be, or knowing that it is likely that she will be, forced or seduced to illicit intercourse with another person shall also be punishable as
aforesaid.
Question 9: Discuss Section 85 of the Bharatiya Nyaya Sanhita, 2023 and judicial trend to prevent its misuse in the country.

Answer 9: Section 85 of BNS provides that whoever, being the husband or the relative of the husband of a woman, subjects such woman
to cruelty shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine.

The object behind punishing this offence in Bharatiya Nyaya Saanhita is to punish husband and his relatives who torture and harass the
wife with a view to coerce her or any person related to her to meet any unlawful demand or drive her to commit suicide.

The offence under Section 85 of BNS is a continuing offence and on each occasion on which the respondent which was subjected to
cruelty, she would have a new starting point of limitation. Supreme Court in Arun Vyas v. Anita Vyas, AIR 1999 SC 2071 held that
cruelty is a continuing offence. Every act of cruelty is a new starting point of limitation under Code of Criminal Procedure (now
Bharatiya Nagarik Suraksha Sanhita, 2023).

In Nitika v. Yadwinder Singh (2019), Supreme Court reiterated that the at the place where the wife takes shelter after leaving or driven
away from the matrimonial home on account of acts of cruelty also have jurisdiction to entertain complaint alleging commission of
offences under Section 498A of the Indian Pen Code (now Section 85 of BNS).

In Rashmi Chopra v. State of U.P. (2019), Supreme Court held that Secti 498A of IPC (now Section 85 of BNS) does not contemplate
that complaint for offte under Section 498A of IPC (now Section 85 of BNS) should be filed only by women, who is subjected to cruelty
by husband or his relative.

Section 85 is distinguishable from Section 4 of the Dowry Prohibition An because in the latter mere demand of dowry is punishable and
existence of elements of cruelty is not necessary, whereas Section 85 deals with aggravated form of the offence. A person can be
prosecuted in respect of both the offences punishable under Section 4 of the Dowry Prohibition Act and Section 85.

In order to prevent the misuse of Section 85 of BNS (earlier Section 498A IPC), the Supreme Court in Arnesh Kumar v. State of
Bihar, (2014) 8 SCC 273 gave important guidelines with respect to power of the police officer to arrest without warrant. It was held
that an arrest should not be made for the sole reason that the offence is non-bailable and cognizable and that it is lawful for the police
officer to do so. The existence of the power to arrest and the justification for its exercise are two very different things. The police officers
must be able to justify the reasons for the exercise of such power. No arrest can be made in a routine manner on a mere allegation of
commission of an offence made against a person. The court also held that before an arrest is done by a police officer, he should have
reason to believe based on information and material that the accused has committed the offence and the police officer has to be satisfied
that the arrest is necessary for one or the more under sub-clauses (a) to (e) of clause (1) of Section 41 of the Code of Criminal Procedure,
1973 (now Section 35(1)(a) to (f) of Bharatiya Nagarik Suraksha Sanhita,