SECTION 354- OUTRAGING MODESTY OF A WOMAN

Nikhilesh Koundinya is a student of Symbiosis Law School, Pune. In this article, he has discussed section 354 which relates to outraging a woman’s modesty and has provided relevant case laws. To conclude he has discussed the amendment to the provision and suggestions to make the provision gender-neutral.

INTRODUCTION- THE PATRIARCHAL SYSTEM EXISTS

In India, since time immemorial there has been a system of patriarchy that has been followed. In fact, in the Manu Smriti which was at a point of time being deliberated to be one of the most important books under religious literature had obscene patriarchal ideas and notions. The book spoke about how women are always supposed to listen to the male members irrespective of what they are saying, they are the father’s responsibility before marriage and after that the husbands. All in all, the book treated a woman less as a human being and more as an object in society. Not only the Manu Smriti but many other books under the Indian literature treated women as objects and always portrayed them to be sub-par as compared to the male gender. The unfortunate result of this was that at a certain level man started believing that he can control women and can take advantage of them however he pleases. This meant that the concept of sexual assault, rape, outraging the modesty of a woman was normalized at a certain point of history where women accepted that they were sub-par as compared to men. Slowly with the rise of feminism women started recognizing that they had been placed below the male gender for far too long and they also needed to be recognized as an equal in society while having the same rights and privileges as men.

This led to major changes in legislation and judiciaries of all countries started passing judgements which opened up an avenue for women to seek relief for a wrong act that had been committed against them. This meant the acts of outraging a women’s modesty, committing the act of rape and many other acts were criminalized under various laws of different countries. In this article, we are mainly going to be focusing on the concept of outraging a woman’s modesty.

SECTION 354 OF THE INDIAN PENAL CODE

Section 349 to 374 of the Indian Penal Code relates to offences which are committed using assault or criminal force. Under this ambit section 354 talks about outraging the modesty of a woman with the use of criminal force or assault. The section under the code reads:

Whoever assaults or uses criminal force on any woman, intending to outrage or knowing it to be likely that he will thereby outrage her modesty, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.[i]

After reading this definition we can make out the three necessary elements which are required to convict a person under this offence which are:

The assault or use of criminal force must be on the women
Use of criminal force or assault
This use of force should be with an intention to outrage the modesty of a woman[ii]

HOW CAN YOU DEFINE MODESTY OF A WOMAN?

The courts have always struggled to give a definition for the word “modesty”. The courts for a very long time after the enactment of this section defined modesty as per the findings of the case. But finally, in the case of State of Punjab v Major Singh,[iii] the courts held that a woman’s modesty is her sex. The court also held that in cases of section 354 the culpable intention of the accused will be looked into. The reaction of the women though very important and pertinent to the case cannot be an aspect on which the court can make a judgement. For example, if the woman is sleeping or has been given a drug dose due to which she is unconscious and a man commits the act under section 354 he will still be liable as the ingredients are being fulfilled. In the case of Ram Kripal v State of Madhya Pradesh,[iv] the facts of the case were that a man pulled a woman’s saree and asked for sexual intercourse. This was classified as an offence under section 354 as this was outraging a woman’s modesty by violating her modesty and asking for sexual intercourse. In R v Court,[v] the court held that an act will be considered to be an indecent assault if the right-minded members of society feel that such an act outrages the modesty of a woman.

CULPABLE INTENTION OF THE ACCUSED

The courts have time and again held that the intention of the accused must be to commit the act of outraging the women’s modesty. The courts have many a time reiterated that merely touching a woman’s body will not amount to outraging her modesty it needs to be added with the intention. In fact, in one of the cases, the court held that merely touching a women’s belly will not amount to outraging her modesty unless it is proven beyond reasonable doubt that the accused had the intention to commit the act. In the case of Divender Singh v Hari Ram,[vi] the court noted that the man had pushed the woman and hence was liable for using criminal force. But in this scenario, the man did not outrage the modesty of the woman and hence the court dropped the respective charges. Thus, this section explains that with the act even the mental elements must be fulfilled as it is important in all crimes under the code.

The courts in many cases have held that if an offence by an individual cannot be classified as rape it can well be placed under section 354 of the code as an act of rape is not proven is still outraging the modesty of a woman as it directly connects to sex. In the case of State v Musa[vii] the prosecution due to lack of evidence couldn’t prove the offence of rape but the court held the accused responsible for outraging the modesty of the woman as the accused had dragged the women in her home to the bedroom. Thus, the job of the prosecution is to prove beyond reasonable doubt that the act and the mindset were present with the accused when he committed the act. The job of the defence in such cases is to prove that the act that was committed was consensual. This essentially means that the consent of the women was taken before committing the act.

AMENDMENT OF SECTION 354 OF THE INDIAN PENAL CODE

Originally under section 354 the punishment for outraging a woman’s modesty was 2 years with a fine which is for the magistrate to decide. But under the recent Criminal Law (Amendment) Act, 2013 the punishment has been made as:

Not less than one year and can be for a maximum period of 5 years inclusive of a fine which can be imposed by the judge’s discretion. The move was taken to act as a deterrence so that people stop committing the act due to fear of the punishment. This will act as a shield for women in society who face offences like this daily.

PROBLEM WITH THE PROVISION

The foremost problem with the provision is that it only applies to females and excludes males. This violates article 14 of the constitution and does not take into consideration the fact that even a man’s modesty can be outraged. Considering the act was drafted in 1860 women were needed to be uplifted and enough provisions were needed to be drafted to protect women from any form of violence. But in the 21^st century, even men face harassment or modesty issues in offices, home etc. so this provision should be made gender-neutral along with all other sexual offence laws which apply only to women.
The second part is extremely important for the male gender. When a woman institutes the case of any sexual act which includes rape, outraging modesty etc. she does it because the man has committed an act which requires him to be punished. But the courts in recent years have seen an increase in the number of fake rapes, dowry deaths or other cases. What we need to understand is that when a woman puts forward a fake case a court may dismiss it after the first hearing claiming it to be a nuisance suit. But the man for the rest of his life will carry around a tag of being a potential threat to women or will be recognized as somebody who the other gender should stay away from. Thus, the final suggestion would be that if courts find women instituting fake cases there should be a provision for granting them a jail sentence for a certain number of years. This will help in three ways:
Men will be exonerated of crime faster as they would be able to proudly say that the case instituted was false and the woman who instituted the suit got what she deserved. It essentially portrays that the man did nothing wrong and the woman out of revenge/ vengeance instituted the suit.
For every real case of sexual assault, there are 4 which are fake. Hence sometimes though the case is true the judiciary has a problem in convicting a person as it may turn out to be false. Also, sometimes as citizens we feel that what the lady did is wrong and the case is fake and hence even the real ones aren’t supported. This will help in bringing out those cases which are true and will advance the cause of justice.
The women will also understand the fact that not all advances or physical assault classify as outraging modesty or sexual assault or rape and also, they will understand that before instituting a suit they should read what the act classifies as. By judging real cases the courts will be able to clarify the ingredients so that women don’t loosely throw terms around on social media or other platforms by being uninformed about the nature of their words.

CONCLUSION

We have seen the nature of section 354 of the Indian Penal Code. It is a section which has been made to protect women in our country by protecting their modesty and punishing accused who attack such women’s modesty. The amendment brought in regarding deterrence has further advanced the cause of justice and is improving in providing better justice to women in our country. The suggestions given are purely for protecting and respecting the dignity of men also. Thus, we can see that as a country we are moving towards a time where a woman need not be afraid to walk in the night or need not be afraid to confront the accused in a court of law.

[i] Section 354 of the Indian Penal Code

[ii] Raju Pandurang Mahale v. State of Maharashtra, AIR 2004 SC 1677

[iii] AIR 1967 SC 63

[iv]AIR 2007 SCW 2198

[v] (1998) 2 ALL ER 221 HL

[vi] 1990 Cr LJ 1845 HP

[vii] 1991 Cr LJ 2168 Orissa 95O

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This article has been written by Yash Dodani, a first-year student at NALSAR University of Law, Hyderabad. He has analysed the theories of Punishments involved and developed from the primitive to modern society.

Abstract

The punishment and the process of the trial had been running since the formation of the societies and the development of crime. The amount of punishment was depending either on the nature of the society or the theories of the punishments set by the people of that society or ultimately the State [if any]. There were many theories which were given by either the law or some power working as law in the society. This paper will deal with elaboration of these theories and the debate around the idea of Capital Punishment and will analyse the shift of giving punishment in primitive societies to modern societies.

Keywords: theories of punishment, Capital punishment, primitive, modern

INTRODUCTION

Crime is something that cannot be deleted from society, for a simple reason that no society is an ideal society. The sociologists have argued that the crime is normal in society and should happen because society gets a chance to improve laws to atleast control the crimes if not completely abrogate the crime. To punish the person who has committed a crime is one part of improving society. For this reason, the people who were convicted of a crime were punished in different ways. Later these ways were considered to be called ‘Theories of Punishment’. When a person is said to commit a crime, he is not committing it against the person in particular but against the society in large because every other person in the society is shaken by the acts of the criminal. The word ‘crime’ itself is very subjective, for some countries a crime X is a crime but not for other countries which are defined in the statutes itself.

Various theories which were used were based on the thinking of the state as to how they want to see the crime as and how they want to feel the society after the commission of the crime. The theories were in the form of Deterrent theory, Preventive theory, reformative theory and the Retributive theory. The capital punishment is considered under the Deterrent theory which I will discuss in detail in the upcoming sections.

Next section will deal with the theories in brief and I will analyse how effective that theory is in modern times.

The Deterrent Theory

The state used the deterrent theory to give an effect and an example that if the same offence is repeated by others, the consequences will be harsh. The main object of the state here is to bring a feeling of fear in the society and it will help to stop the crime. The punishment given is of rigorous nature. The punishment for any offence which is not so grave was also very harsh. To add an example, the thief’s hands were chopped when he committed an offence of theft. The people who commit a sexual offence had to face an organ cut off as the punishment. This theory believes that the punishment should be grave to inflict the feeling of fear in society. The people will think many times before committing a crime and he will have a fear that “if I commit this crime, I will face these kinds of punishments” and this fear will resist him from committing a crime.

However, the deterrent theory has failed to be applied to those criminals who are stone-hearted people and are accustomed to the punishments but still commit the crime. As far as the people who are not habitual criminals are concerned, the crimes are not always planned and the people who have committed the crime in a flip will also face saviour punishments and this fails the object of the deterrent theory. It is that the deterrence is converted into reformative theory in modern times. In the case of Phul Singh v State of Haryana[i] the Supreme Court said the following lines- “the incriminating company of lifers and others for long may be counterproductive and in perspective, we blend deterrence with correction, and reduce the sentence to rigorous imprisonment for two years.”

The Preventive Theory

If the deterrent theory would not work as we have seen above, the alternate method would be to prevent the criminal from committing the crime again. To achieve the purpose, the criminal is put into imprisonment so that he could not commit the crime, or by ending the means by which that person would commit the crime. This would also solve the purpose of reducing the crime. However, this approach fails because the criminals today have a tendency to commit the crime in jail also and hence would not solve the purpose completely.

The Reformative Theory

The theory assumes that crime is a disease and the reform is a medicine. When a person commits a crime, he is sent to the reform centre and the counsel present there try to change his mind with moral values. By bringing these values, this theory tries to reform the person and that person would stop himself from further commission of that crime. The environment of the prison should be so positive so that it can help in the reformation of the person. But addressing the rising numbers of criminals in India, it is difficult for the authorities to keep prisons in a healthy environment. It has another problem, the poverty in India is much and if the prison is a good place, the people will certainly commit a crime to get shelter and food.

In the case of Sunil Batra v Delhi Administration[ii], the court said the following lines- “ the

rule of law meets with its waterloo when the state‟s minions become law breakers, and so the court as a sentinel of justice and the voice of the Constitution runs down the violators with its writ, and serves compliance with human rights even behind iron bars and by prison wardens.”

The Retributive Theory

This is the most ancient among all theories, which took place in very old times. The feeling of revenge gave birth to this theory. This type of punishment will mean that the person who has committed a crime and has caused harm to a person, he will be subjected to the same harm. The examples will include eye against the eye, blood against blood etc.

A special reference to the Capital punishment

When we look into the past of the punishments, we see in the times of kings, the very preferred mode of punishment which was used is capital punishment or the death penalty. The punishments which were followed were either the retributive theories or the deterrent theory. And in the deterrent theory too, death penalty was prevalent. There are various forms of execution of the death penalty which I will come upon in upcoming parts. Let’s look at the definition first.

Definition of Death penalty

The death penalty is a legal process of taking a life of the criminal as he has committed a crime. The judicial decree which the court pronounces is called the death sentence. The actual killing of the person is called the execution of the sentence. The offences which lead to the death penalty is called as capital offences. In India s368 of the Criminal Procedure Code gives power to the High Court to give the death sentence.

Methods of Execution

There are different methods of execution which are followed to execute the death sentence. Some of them are given below.

Burning: In this type of execution the body of the criminal is burnt completely.
Wheel of Spikes: The wheel full of spikes is thrown towards the criminal which results in his death.
Firing: in this execution, the person is fired with the help of a gunshot. In India recently in Hyderabad, four criminals were encountered by this method.
Headsman’s Axe: the head of the criminal is placed on a wooden block and then an axe cuts down the head of the person.
Guillotining: Another common form of execution seen in the French Revolution. Dr Joseph Guillotine was the person who invented this method whereby the accused person’s head was placed in a round hole on a wooden block and a blade is dropped cutting the person’s head.
Hanging in this process, the person’s neck is tied to a rope tightly and after some time due to no flow of oxygen, the person is dead.
Gas Chambers: this was used in Hitler times where a lot of Jews were kept together in a gas chamber and poisonous gas was spread in the whole room.

The Validity of Death Penalty

The validity of the death penalty was first challenged in the US after which the death penalty was abolished there. Pennsylvania was the first state to abolish the death penalty completely. But even after such decisions on the constitutionality of the death penalty, it is there somewhere in many countries till date.

The Indian practice of the death penalty is the method of hanging by the neck. This method was practised in India from British times. The Indian Penal Code [s53] provides the death sentence power to the courts and s368 of the CrPC provides power to the High Courts to give a death sentence.

The death sentence in India is given by applying the ‘Rarest of the Rare Doctrine’. This means the judiciary gives death penalty to accused in the cases where the collective conscience of society is so shocked that it will demand and expect the judiciary to give the death sentence. Now what facts will be called as rarest of rare will be considered by the Courts and there are a lot of problems when it comes to whether the case comes under the doctrine of Rarest of Rare cases or not.

Delay in the Execution

The delay in the execution of the Death penalty is reasonable. It is because there are some rights of the accused and he has the right to life under Article 21 of the Constitution. This is the reason why the accused has a lot of options before he is hanged. The defence tries to somehow make this death sentence reduced to life imprisonment.

But it is again a problem for the convicts as it poses an ‘inhuman effect’ of the penalty and the punishment has no point. The family of the accused and the accused himself faces a lot of torture if there is a much delay in the execution in the delay.

The main cause for the delay in the sentence is the courts taking a lot of time to confirm the death sentence. This is the most prime reason why the delay happens. Another important cause is the health of the convict. The convict of the death penalty should be mentally and physically fit while the execution of the death sentence.

International views

Capital punishment has not been seen as a good solution to curb crime. It has been criticised on many grounds by the courts of different countries and many organizations. The UNGS said that there should be a very high standard of a fair trial to be followed in cases of capital punishment. Most of the countries in the EU have abolished the death sentence. The institution UNESC has even asked the member states to abolish the death sentence. Many conventions were made to abolish the death sentence.

Internationally, capital punishment is recognized as cruel or inhumane punishment. The Universal Declaration of 1949 states that no one should be subjected to cruel or inhuman punishment. It is argued that the capital punishment is volatile of the human rights of an individual. However, India does not seem in a position to abolish the capital punishment and it is argued by India that capital punishment is only provided in the cases of rarest of rare which speaks that the crime is done with so grave intention and the facts hit the collective conscience of the society.

Position in India

The Indian Courts work on the principle of rarest doctrine. But the courts are itself confused on what will be rare or not. Article 21 confirms that the person has the right to life, except the procedure established by the law. The whole notion of debate around the death penalty in India works on this argument. The cases like Meenka Gandhi v UOI[iii] said that this process should be ‘due process’ and the accused should get complete rights to reduce the punishment from a death sentence to any other form. Although various NGOs are fighting against the death penalty, the Sc came up with the doctrine of ‘rarest of rare’ which itself is against various provisions of the Constitution but the SC has said that death penalty will be given in cases of very grave nature. In the case of Bachan Singh v State of Punjab[iv] Justice Bhagwati in his dissenting opinion stated that the death penalty is necessarily arbitrary, discriminatory and capricious. He further stated that it was indeed the poor who are subjected to the gallows and the rich and the affluent usually escape from its clutches. This is indeed a gross violation of Articles 14 and 16 of the Constitution. In Shashi Nayar vs Union of India (1991), the death penalty was again challenged for the reliance placed in Bachan Singh case in the 35th Law Commission Report but the court turned it down stating that the time was not right for hearing such a plea. Also, the plea to consider hanging till death as barbaric and dehumanizing was rejected.

Conclusion

Hence, we can say that no theory can solely curb the crime but the mix up of these theories is essential to at least reduce the crime. The death penalty is itself an offence against humanity. The government should take steps to abolish the death sentence by looking at the negative aspects of it.

[i] Phul Singh V. State of Haryana [1980. Cri. L. J. 8].

[ii] Sunil Batra II V. Delhi Administration [1980 3 S.C.C. 488]

[iii] 1978 AIR 597.

[iv] AIR 1980 SC 809.

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This article is written by Anurag Maharaj, he is from Bokaro, Jharkhand. He is a student of law at Lloyd Law School, Greater Noida. He has tried to define the word “Proposal” in this article and its real meaning under the law of contract.

INTRODUCTION

The word contract is specified in Section 2(h) of The Indian Contract Act, 1872. A contract is a legally binding document respecting and regulating the rights and duties of the contracting parties. Creating a contract requires the mutual consent of two or more people, one of whom consent of two or more people, one of whom typically makes an offer and another of whom agrees. If one party fails to deliver on the agreement, the other party is entitled to legal recourse.

It is important that one party should have slated its terms to the other party before reaching an agreement, and that the other should have approved those terms. Both these elements are present in a contract, i.e. proposal and approval, even though they are inferred, rather than articulated. The first requirement is a proposal, that is, Section 2(a), Contract Act 1872, a promise where one person demonstrates to another his willingness to do or abstain from doing something to obtain the other person’s consent to such act or abstinence, a proposal shall be made.

The person making the proposal is referred to as the ‘proponent’ or ‘offeror’ or ‘promisor’ and the person to whom the proposal is made is referred to as the ‘proposee’ or ‘offeree’ or ‘promisee.’ For example:- Anurag offered Rs. 5,00,000 to sell his Car to Sanjeev. This is a Proposal. Anurag is the offeror and the offeree is Sanjeev.

Difference between invitation to treat and proposal

A proposal must be distinguished from a pure declaration of intent that is not meant to require approval, the latter can be merely a statement of intention or an invitation to make an offer or to do business if it is not meant to be binding.

The difference between an offer and an invitation to treat depends on the person’s intention to make it the intention that the offeror should be bound no sooner signifies his assent. It needs nothing more than recognition to turn it into a pledge.

It constitutes a final declaration of readiness for such stated terms and conditions to fulfil an obligation leaving the option of acceptance or rejection to the offeror.

As long as one of the parties to the deal is free to withdraw from it at its discretion, there can be no binding or agreed arrangement between the parties despite having a material terms agreement.

A voluntary retirement plan offered by an employer is not a proposal, but the proposal to be approved by the employer is simply an invitation to consider the application made by the employees. (Bank of India v / s OP Swaranakar)

Kinds of proposal

1. General Proposal

When an offer is made to the world at large and which could be embraced by everyone. For example – Rewarding a person who provides information about something very crucial. Although the deal is not concluded with the whole planet. The contract shall be concluded with the individual who comes forward and fulfils the proposal’s condition.

Illustration:- Lal v. Charan Lal, a young man from his father’s horse ran away. The father sent out a poster, promising a reward to anyone who found the boy’s trace and took him home. The plaintiff found the boy, and the reward was claimed. The pamphlet was held to be an offer open to the entire world and worthy of being accepted by any individual, and the acceptor who fulfilled the condition was entitled to recompense. [AIR 1925 A 539]

2. Express offer

An offer can be made by words or through actions. An offer, made by spoken or written words, is called an express offer.

Illustrations:-

An offer to sell his house to B for 20, 00,000 rs. B agrees to pay for the house Rs. 20,00,000. It is also an express proposal.
A tells B he will sell his Piano for Rs. 20,000 This is an express proposal.

3. Implied Proposal

When an offer is made in ways other than words. The promise is “Implied” actions can communicate just as clearly as words. Therefore, the proposal is inferred when the proposal is “expressed by actions’.’

Illustrations:- A coolie on the railways holds a passenger’s luggage without being told to. In these circumstances, one can assume that he is carrying the luggage to earn some salaries. It’s an implicit bid.

4. Cross Offer

Two parties can under some circumstances make a cross-offer. Both of them may make an equal bid. This means both make an identical offer at the same time. However, in any case, such a cross-bid won’t amount to accepting the deal.

Example:- Both A and B send letters to each other offering to sell and buy A’s Motorcycle for Rs 50,000. This is a cross offer, but it will not be considered as acceptable for either of them.

5. Specific proposal

When an offer is made to a specific individual or a certain class of persons, and it is only that particular person or class of persons who can accept the offer.

Illustrations:- A offered to sell his guitar to B for 10,000. This is a specific proposal which can be accepted by B only.

Essential elements of a valid proposal

1. Offer must be communicated to the offeree

An offer is valid only when it is conveyed to the offeree. When an offer is not conveyed to the offeree, it can not be accepted. Acceptance of the offer in ignorance of it does not constitute valid acceptance under the law and does not create any legal obligations.

Illustration:- In Powell v. Lee (1908 24 TLR 606) case the plaintiff Powell applied for a headmaster’s post and the School Board approved his application. Before the formal appointment, Powell had been informed by one of the board members of the decision which was later rescinded by the board. Powell had sued the school for contract violation. The court held that the acceptance was not conveyed by an individual approved by the school board and that no legal contract was signed.

2. The offer must be capable of creating a legal relation

A proposal will only bear fruit in a pledge by approval if it is such that it can fairly be considered as having been produced with a view to creating legal consequences A pure declaration of intention, hope or desire does not constitute a binding commitment, even if it is acted upon by the party to which it is produced.

Where there is no intention of entering into a binding contract or where there are no legal implications envisaged, approval of the agreement does not produce a commitment.

Illustrations:-

(A). A offers to sell his Phone to B for Rs. 2000 and B to buy it at the same price, then there is agreement because the parties wish to create legal relationships here.

(B).But if B is invited to a party by A and B accepts. This establishes no formal partnerships and there is no agreement because there is no legal relationship.

3. Offer must be distinguished from an invitation to offer

If a person communicates something to another person, it is known as an invitation to bid, to encourage him to make an offer. The purpose of the offer’s invitation is to accept people’s offers and negotiate the terms on which the contract will be produced. The person who responds to it makes offers on the invitation.

Examples of invitation to offer are vacancy job advertisements, auction advertisements etc.

4. Proposal must be certain and definite

In order to constitute a legitimate proposal, it is necessary to describe adequately “the terms of the undertaking of the proponent, so that it can be ascertained what the proponent has agreed. A pledge, too abstract to be understood in terms of it, is too abstract to be enforceable. The proposal must specify, with the same degree of certainty, the act or obligation to be given to the proposer by the person to whom the proposal is made in the exchange-A proposal must, with a reasonable degree of certainty, specify the necessary conditions of success on both sides so as to be enforceable.

Illustration:- A has two cars. He offers B to sell at Rs 10,00,000 for one car. B can not implement the deal since that which car A wanted to sell is not clear.

5. There should be no negative terms in the proposal

Proposal does not contain a term in which failure to comply will lead to acceptance. Therefore the offer does not contain a phrase such as “if the acceptance is not conveyed until next Sunday, the offer will be considered as accepted.” An offeror can not guarantee that the offer will be considered to have been accepted if the acceptance is not announced until a certain date. If the offeror refuses to respond, there is no contract because he can not be held to any duty to respond.

Illustration:- A writes to B “I’ll give you my watch for Rs.100. I’ll presume you’ve accepted the offer if I don’t receive a reply. If B does not respond there will be no contract.

6. An offer must not pressurise or put any kind of burden of acceptance on the offeree

The offeree must be free and should not be forced for acceptance. In that case, the proposal will be invalid.

7. The offeror should have the intention to obtain the consent of the offeree

The offer should be in such a way that the offeror must have the intention to get the consent of the offeree.

Example:- One cannot say that If u want to buy my watch for Rs 500 then buy it or get lost. This is an invalid proposal.

8. Mere intention is not enough

A declaration of intent made during a discussion does not constitute a bid, even though the party to whom it is made has acted upon it.

Example:- A man has announced that he will pay Rs 50,000 to a man who is marrying his daughter. The plaintiff married the daughter of the defendant, with the consent of the plaintiff. The defendant later declined to donate money. The court held that this was a pure puff and not to be taken seriously in fact as the words had been spoken to his daughter’s entire suitors.

Conclusion

The usual and important way of deciding if the parties have come to an agreement is to ask if an offer was made by one party. And whether it contains all the elements for a proposal to be valid such as if it bears a contractual meaning and is capable of establishing legal relations or not; whether it is absolute and definite; Whether its object is to obtain the consent of the other or is merely an expression of the intention to offer; and, above all, whether it has been properly communicated; whether it is a full and legitimate offer in every aspect; whether the offeror has the intention to obtain the consent of the offeree; whether the proposal is communicated properly or not.

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This Article is written by Ritesha Das, Symbiosis Law School, Hyderabad. In this article, she has discussed the general defences available under IPC.

The Indian Penal Code, 1872 not only outlines various punishments for the crimes but also provides various defences acting as a weapon of escape from the liabilities. Legal defences are broadly classified under two categories: Excusable defences and Justifiable defences. The term ‘excusable defences’ involves the commitment of a criminal offence by the defendant, but the liabilities are exempted due to the absence of criminal intention (Mens rea). A befitting instance of this defence would be an unsound person committing a crime would not be held liable due to the absence of Mens rea (Criminal Intention). Excusable defences include Mistake of facts, Accident, Infancy, Insanity and Intoxication. Justifiable defences involve the acknowledgement of defendant of committing a criminal offence under the justified circumstances, due to which the liabilities are neutralized. Justifiable defences mainly include Necessity, Consent, Drunkenness, Trifle and Private defence.

MISTAKE OF FACTS

The defence of mistake of facts is covered under section 76 and 79 of IPC. According to the maxim ‘ignorantia facti doth excusat ignorantia juris non-excusat’, a person committing an act will fall under the shadow of an offence under the misconception of facts if it was committed believing in good faith and also backed by the law. The above statement simply means that if the defendant justifies that he does the act due to a mistake of fact or misunderstanding of some fact negating an element of the crime, he is immune from the criminal liabilities to be imposed for the consequences of such acts. But a person can’t eliminate his liability from the intentional mistakes.

Essential elements

The act done must be justified by law.
The act must be done in good faith and good intention.
The degree of mistake should be unintentional.

Relevant case laws

· Keso Sahu v. Saligram Sha [i]

In the above case, the court held that the accused, in false assumptions brought a cart and the cartman to the police station, believing that the plaintiff was indulged in the offence of smuggling rice. The court held that the act was done in a good faith and belief; hence the accused can take the defence of mistake of facts for neutralizing the liabilities to be imposed as the consequences of this act.

· State of Orissa v. Ghora khasi [ii]

In the above case, the accused while guarding his field shot an arrow on the moving object in a good faith believing it to be a bear, but the shot resulted in the death of a person. The court held that he is entitled to get the immunity under the mistake of fact.

ACCIDENT

Generally, the law does not strive at punishing a man for the conduct of actions beyond his control. The maxim ‘Actus non facit reum nisi mens sit rea just’ identifies that criminal law requires a kind of guilty mental element for punishing anyone to inflict justice. This implies that a person when does not intend and cannot even contemplate occurrence of a certain course of events, cannot be held responsible for the happening of that event. The defence of ‘accident ’is defined under section 80 of IPC. The term accident covers all the unforeseen and unanticipated vicissitudes from the ordinary course of elements. The liability of an offence committed by an accident involving a lawful act done in a lawful manner by lawful means exerting due care and caution will be neutralized in the absence of criminal intension.

Essentials elements

The act committed must fall under the purview of ‘lawful acts’ and must be done in a lawfully by lawful means.
The act must be done with due care and caution.
The act should not involve any criminal intention.

Relevant Case laws

In the case of Tunda V. Rex, [iii]The accused and the deceased were engaged in wrestling combat, due to which the deceased was based on the head resulting in his death. The court held that while indulging in wrestling combat, there was implied consent to all the accidental injuries. The death was accidental and the accused did not play foul, hence the benefit of sections 80 and 87 was given to the accused.

· Shankar Narayan Bhadolkar v. State of Maharashtra[iv]

This case clarifies the notion that an act does not benefit from accident unless it is unintentionally done with due precaution and care. For instance, a host loading his pistol with bullets for firing, ending up to fire at someone was not an act exerting proper care and caution.

In another similar case of Bhupendra Sinha Chaudasama v. State of Gujarat [v], the accused shot his colleague at a close range without knowing the identity of the target, reflecting the absence of care and caution. The accused was not entitled to claim the defence of accident.

INFANCY

The defence of insanity is defined under section 82 and 83 of IPC which involves the neutralization of liability for any criminal act committed by a child below 12 years, who is immature enough to rationalize the repercussions of his conduct. The legal maxim ‘Doli Incapax’ is that a child under 7 years of age has no capacity to segregate between rights and wrong, thus the question of mens rea or criminal intention does not arise. For instance, if a child of 9 years stabbed his mother with a knife in the cloud of immaturity, he will be exempted from his liability before attained the age of maturity.

Essential elements

Act is done by a child below 12 years of age.
Has no capacity to discrete between right and wrong.
Cannot rationalize the repercussions of his conduct due to immaturity.

Relevant case laws

· Krishna Bhagwan v. State of Bihar

In the case Krishna Bhagwan v. State of Bihar[vi], the court held that during a trial, an accused child has attaining the age of seven years can also be convicted if he is mature enough to have the basic perception and understanding of the offence committed by him.

· Hirelal Mallick v. State of Bihar

In the case of Hirelal Mallick V. State of Bihar[vii], a child of 12 years was convicted for murder. The 12-year-old had stabbed deceased with a sword and ran away. There was no evidence highlighting the degree of maturity or understanding of the consequences of his act therefore, the conviction under section 326 of IPC was upheld.

INSANITY

The rule of insanity has been used as a weapon for the protection of mentally unstable people against criminal liabilities. Whenever an insane person commits a crime because of the consequence of his insanity, he has no guilty mind to realize that his acts are law-abiding and hence he is immune from his liabilities. The insanity law has proven to be of real significance in recognizing an insane person’s condition and state of mind and has provided an exemption from criminal liability under some appropriate circumstances.

Essential elements

The accused must not be in a state of sound mind at the time of committing the act.
The accused must not able to distinguish the nature of his acts that are contrary to the law.

Relevant case laws:

· Venkatesh v. State of Karnataka

In the case of Venkatesh v. State of Karnataka, [viii]the accused not only sprinkled chilli powder on the victim’s face but also clasped his hair and assaulted him. Ingredients of Section 307[17] were proved. After meticulous scrutiny of pieces of evidence and the victim injured, the other eye-witnesses established the fact that accused had a stable mental condition during the time of the assault and hence, it was held that benefit of Section.84 under Indian Penal Code cannot be extended to him and conviction is not liable to be interfered with.

· Rattan Lal v. State of M.P[ix]

In the above-renowned case, the Court was well aligned that the key point where the dysfunctional mind can be assessed is the moment at which the crime is actually committed, and whether the accused has the right to immunity from section 84 can only be known from the preceding, participating and following circumstances. In other words, it is an antecedent behaviour, an attendant and a follow-up to an event that may be relevant in assessing the mental condition of the accused at the time of the commission of the offence, but not of those remote in time.

· Shrikant Anandrao Bhosale V. State of Maharashtra

In the case of Shrikant Anandrao Bhosale V. State of Maharashtra[x], the husband killed his wife while he was suffering from paranoia schizophrenia. The Court allowed him the defence of insanity as he was not fully aware of his conduct and its consequences.

INTOXICATION

The defence of Intoxication is defined under section 85 and 86 of IPC. It is only allowed in the cases where the defendant could not understand the nature and the degree of consequences of his own act due to intoxication. In simple words, intoxication is regarded as a state of mind in which a person loses his self-control and the ability of assessment. The application of the defence of intoxication has a narrow scope due to its applicability in very limited circumstances depending on the nature of intoxication and the level of intent required by the criminal offence. The term intoxication is further classified into Involuntary and voluntary intoxication. Involuntary intoxication occurs when someone is manipulated or compelled to consume the substance like drugs or alcohol. An allergy to or unintended effects of legally prescribed medications may also lead to involuntary intoxication. Under voluntary intoxication, the defendant voluntary consumes the substances like drugs or alcohol for intoxication. Defending voluntary intoxication is far more complicated and challenging than involuntary intoxication. Under established legal standards, voluntary intoxication is a defence only applicable to certain crimes and even in those scenarios; the court is far less likely to accept the defence of intoxication when the defendant has brought the intoxication on its own.

Essential elements

The incapability of the defendant in understanding the nature and consequences of his own actions due to intoxication.
The absence of Mens rea while committing any act during the state of intoxication due to the inability of the defendant in forming a criminal intention.

Relevant case laws

· Mubarik Hussain V. State of Rajasthan[xi]

In the above case, the Section 85 of the IPC was analyzed by the Supreme Court and it held that the evidence of drunkenness was held to demonstrate that the accused is incapable of having a false intention and that the defendant is bent on committing the crime. This does not protect someone who consumes intoxicants voluntarily as the individual loses his or her mental ability due to his consent, i.e. through self-induced intoxication.

· Basdev v. State of Pepsu

In the case of Basdev v. State of Pepsu, [xii]The intoxicated appellant had been seated next to a child at the wedding meal. He asked the child to switch to a more comfortable sitting spot. On the refusal of the child, he shot him in the abdomen ending with the death of the child. The court, after scrutinizing the circumstances, did not neutralize the liabilities of the defendant on the grounds of intoxication as the absence of Men Rea could not be vindicated.

NECESSITY

The application of defence of necessity involves the criminal conduct of a person to mitigate additional damage during an emergency situation. Such scenarios vindicate the criminal act of the defendant and hence the defendant is immune from the criminal liabilities. Necessity is based on maxim salus populi suprema lex, i.e. ‘the welfare of the people is the supreme law’. It is defined under section 81 of IPC. Necessity is further categorized into Public necessity and private necessity. Public necessity concerns with the need of public authorities or private individuals to avoid a natural tragedy or a public calamity. The action consists of damaging or appropriating the property of another. Private necessity stems from self-interest rather than from society at large. Under private necessity, the defendant intends to safeguard his own interest. Like public necessity, it does not act as an absolute shield.

Essential elements

The defendant must consider his act as a weapon to alleviate the degree of threat requiring immediate action.
There must be no realistic alternative other than the criminal act committed by the defendant.
The degree of damage by the criminal act must not be greater than the damage to be caused if such act was avoided.
The accident or the emergency circumstance must not be a contribution of the defendant.

Relevant case laws

· R V. Willer

R v Willer[xiii], the defendant had driven impudently to avoid a crowd of youths intended to cause physical harm to the passengers in his car. The Court of Appeal held that the context of the circumstance highlights the apparent threat of death. Hence the defendants should be allowed to present the defence of necessity to the jury.

· R v Dudley and Stephens

In the case of R v Dudley and Stephens[xiv], A ship was shipwrecked by a storm as a result of which three adults and one minor were stranded for 18 days. Due to the unavailability of food and water for more than 5 days, one of the adults proposed to sacrifice the minor boy but this proposal was reprimanded by others. One day the boy was killed by one of them as he was near death and had no relatives. The defendant was not granted the defence of necessity and hence was convicted for murder.

CONSENT

The term consent means permission or agreement of doing a particular thing. The defence of consent is elucidated under Section 87 to 91 of IPC. This defence basically involves consenting to a particular act or event despite knowing the repercussions or consenting to any action or conduct done for the benefit of the victim. It arises in non-fatal cases where a criminal act may have been committed. Consent involves awareness, deliberation and full knowledge of the expected consequence. The consent obtained by fraud or misrepresentation or undue influence or coercion or intoxication or minor will not amount to free and valid consent. The consent can be made either impliedly or expressly.

Essential elements

The consent obtained should fall under the ambit of ‘free consent’.
The defendant must have the full knowledge of every possible consequences of the act or event for which the consent was obtained.
The acts involving intentional infliction of harm to the plaintiff will fall under this section if the plaintiff voluntarily consents to such acts.

Relevant case laws

Jakir Ali v. State of Assam[xv]

In the above case, there was no question that the accused had sexual relations with the victim on a false promise of marriage. The High Court of Gauhati held that a woman’s consent through fear and ambiguity of facts could not be considered to constitute consent and the condemnation of individual accused under sections 376 and 417 of the Indian Penal Code was necessary.

· Poonai Fattemah v. Emp

In the case of Poonai Fattemah v. Emp[xvi], the accused who professed to be a snake charmer impelled the deceased to believe that he could protect him from any harm caused by a snake’s morsel. The deceased trusted him, was bitten and died by his snake. The defence of consent was rejected.

DURESS

The defence of duress is the shield covering the victims of insufficient distress under the common law. This defence is defined under section 94 of IPC and is applicable to all crimes except murder. To be immune, the defendant has to show that his criminal actions were an immediate response to the threats of death or serious harm. Though violence can’t be seen as a pretext for a crime, it may serve as an excuse to use physical forces depending on the assessment of the circumstances. It is analogous in some ways to self-defence because it results from the threat and fear of possible death or serious bodily harm, and it allows the criminal to have a rational belief that the threat will be carried out. Moreover, it also requires proving that there was no alternative to commit the crime. There is a fine line between an acceptable and unreasonable strain that has been changing over time.

Essential elements

The criminal act of the defendant must be in response to an immediate constant threat of serious bodily harm.
There must not be an alternative to escape safely, except by committing the unlawful act.
The defendant must consider his act as a weapon to alleviate the degree of threat requiring immediate action.

Relevant case laws

· Antonio v Antonio

In the case of Antonio v Antonio[xvii], The wife surrendered to a long battle of threats of abuse and coercion by her husband and relocated half of the shares to her company and entered into a shareholder arrangement with him, the court found that both the transfer and the deal were due to hardship. The court didn’t even inquire if she had any realistic alternative, such as finding proper redress.

· Astley v. Reynolds

In the case of Astley v. Reynolds, [xviii]the money was paid to the defendant under duress of goods. The availability of an alternative legal remedy did not prevent the court from drawing the conclusion that the payment was caused by illegitimate pressure.

TRIFLES

The defence of trifle is defined under section 95 of IPC. This section is based on the legal maxim, ‘De minimis non curatlex’ which means the law does not take account of the trifles for promoting social harmony and adjustments. The term trifle means ‘less value or importance.’ Under this defence, the defendant can neutralize his liability by proving that the acts committed by him has caused or is likely to cause a negligible degree of damage to which a prudent man would never complain. The application of this defence ranges from accidental to deliberate acts.

Essential elements:

The degree of damage caused by the action of the defendant must be negligible.
The act of the defendant can be unlawful.
The act of the defendant can be deliberate or intentional.

Relevant case laws

· Bichittranand v. State of Orissa

In the case of Bichittranand v. State of Orissa[xix], the accused was involved in the selling of mustard oil which was slightly inferior to the purity standard. The variation was urged to be only slight. The plea was rejected.

· Veeda Menezes v YusufKhan

In the case of Veeda Menezes v Yusuf Khan, [xx]it was held that whether the act is trivial or not, depends upon the nature of the injury and the knowledge of the act and the position of the parties.

PRIVATE DEFENCE

The term private defence simply means to authorize a private person to use a reasonable degree of force to protect himself or others against any immediate threat. Section 96 to 106 of the Indian Penal Code defines the provisions related to the right of private defence of person and property. The provisions under these sections grant a green signal to a person for using the requisite force against an intruder or a wrongdoer in order to defend his own body and property, as well as someone else’s body and property in the cases where immediate assistance from the state apparatus is not readily available and hence those acts are justified under the law. Self-help is a crucial aspect of criminal law. The right of private defence is absolutely necessary for the protection against the natural privileges of one’s life, dignity, liberty and property. But the nature and the degree of force is regulated by law. A rational fear can only be justified if the victim has a genuine perception that there is a risk and that such a perception is fairly supported by the actions of the aggressor and the circumstances around it. But this defence can’t be granted against the acts of a public servant or against those acting under their authority.

Essential elements

There must be an immediate threat to life or property.
A reasonable degree of force, depending upon the nature and circumstances of an act or event, should be exerted.
There must be insufficient time for informing the public authorities

The defendant must consider his act as a weapon to alleviate the degree of threat requiring immediate action.

There must not be any reasonable alternative way to escape other than the criminal act committed by the defendant.

Relevant case laws

· Kamparsare vs Putappa

In the above case, the boy was raising a cloud of dust on the street due to which he was beaten by a passer-by. It was held that the passer-by committed no offence. His act was done in exercise of the right of private defence.

· Parichhat vs State of M.P[xxi]

In the above case, the accused gave a blow with a Ballan on the deceased’s chest as the deceased hit the father of the accused with a stick. The court ruled that the accused has exceeded his right of private defence.

· Mohinder Pal Jolly v. State of Punjab[xxii]

In the above case, the workers of a factory threw brickbats. The factory owner shot a fire with his revolver which resulted in the death of a worker. It was held that this section did not protect him as there was no apprehension of death or grievous hurt.

[i] Keso sahu v. Saligram Sha, 1977 CLT 615

[ii] State of Orissa v. Ghora khasi, 1978 CriLJ 1305

[iii] Tunda v. Rex, AIR 1950 All 95

[iv] Shankar Narayan Bhadolkar v. State of Maharashtra, AIR 2004 SC 1966

v Bhupendra Sinha Chaudasama v. State of Gujarat, 1998 Cri.LJ 57

[vi] Krishna Bhagwan Roy And Ors. vs State of BiharJT 2002 (6) SC 523

[vii] Hirelal Mallick V. State of Bihar AIR 1977 SC 2236

[viii] Venkatesh v. State of Karnataka, AIR 1992 SC 674

[ix] Rattan Lal v. State of M.P JT 2002 (7) SC 627

[x] Shrikant Anandrao Bhosale V. State of Maharashtra, (2002) 7 SCC 748

[xi] Mubarik Hussain V. State of Rajasthan (2006) 13 SCC 116

[xii] Basdev v. State of Pepsu, AIR 1956 SC 588

[xiii] R v Willer (1986) 83 Cr App R 225

[xiv] R v Dudley and Stephens (1884) 14 QBD 273

[xv] Jakir Ali v. State of Assam, 2007 (3) GLT 497

[xvi] Poonai Fattemah v. Emp (1869) 12 WR (Cr) 7

[xvii] Antonio v Antonio [2010] EWHC 1199

[xviii] Astley v. Reynolds, 1731 2 Str 915

[xix] Bichittranand v. State of Orissa, 2001 II OLR 205

[xx] Veeda Menezes v Yusuf Khan, 1966 SCR 123

[xxi] Parichhat vs State of M.P AIR 1972 SC 535

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This article is written by Nikhilesh Koundinya, Symbiosis Law School, Pune. In this article he has discussed about the admissibility of dying declaration.

Dying declaration refers to a statement made by a victim regarding the causes of his death or circumstances that lead to his death eventually. To put into simpler words, it refers to a situation where the person is about to die or will eventually die due to his condition. A statement made by the victim acts as a great evidentiary value in the eyes of law. The concept of dying declaration is based on the maxim of “Nemo moriturus praesumitur mentire” which essentially means that a person will not meet his maker with a lie in his mouth. It is believed in the legal world that a person who is going to die will not lie or seldom lies. Under Indian law, the dying declaration is recognised under section 32 (1) of the Indian Evidence Act.

Under Indian law dying declaration is used by courts for necessity. This is because sometimes the only eye witness in the case is the victim. If the victim’s statement is not taken it would lead to defeating the purpose of the law which is to provide justice to the person who has suffered the harm. Section 32 of the Indian Evidence Act deals with cases where a person is dead or not to be found. A dying declaration can also be referred to as “Leterm Mortem” which means words said before death. A dying declaration is accepted as evidence even though there is no oath administered and no cross-examination is allowed against a declaration. The principle of hearsay is put aside when we talk about dying declaration because the court believes that a dying victim would not lie about the incident or circumstances. Even then the law prescribes that recording of a dying declaration is a very important step under collecting evidence. Thus, collection of a declaration should be done by proper authority and the victim should be able to communicate the circumstances and the acts that happened which lead to the circumstances of his death. A dying declaration in court is normally entered by the prosecution, though in exceptional cases even the defence is allowed to enter a declaration.

Though many legal practitioners have questioned the validity of a dying declaration the court under the case of P.V Radhakrishna v State of Karnataka [i]held that in certain cases the victim is the exclusive eye witness and hence the dying declaration cannot be excluded. There are many circumstances in which such a declaration becomes important but, in this article, we are mainly focusing on when circumstances lead to a person’s death. In light of the previous sentence we will observe clause (1) of section 32 of the Indian Evidence Act:

When it relates to cause of death- when the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person’s death comes into question. Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question[ii]. This definition was further enumerated in the case of Ulka Ram v State of Rajasthan.[iii]

To explain this clause further we must take an example. In a particular case, the court is asking the question whether A was raped by B. In the following case a statement made by A as a dying declaration would be of great evidentiary value for family members of A to institute a case against B. The difference between the principle of dying declaration in India and England is that in India dying declaration applies to both civil and criminal law whereas in England it applies only to cases of homicide. Thus, there is an added responsibility on the Indian courts to closely observe the declaration for its authenticity and further understand the pros and cons of the declaration to observe its impact on the victim’s case.

CORROBORATION OF DYING DECLARATION

The law with relation to corroboration of the declaration has been examined in various cases. This particular principle has evolved over the years. We will be observing the various case laws about corroboration:

In the case of Ram Nath v State of Madhya Pradesh,[iv]the court held that merely convicting the accused based on the dying declaration is against the principle of justice and good conscience. This is because as stated before in case of a declaration the court does to administer an oath on the person and neither is the person cross-questioned. Hence the court in this particular case held that merely having a declaration won’t make somebody liable. There should be some form of corroboration to this document. But in the case of Khushal Rao v State of Bombay,[v] the court held that in many cases if there is only a dying declaration it can be held as enough evidence to convict the person. The need for corroboration does not apply compulsorily to cases. Finally, in the case of U.P v Ram Sagar Yadav[vi], the court held that the primary purpose of the court is to find out whether the declaration is true. If the court concludes that the declaration is true then there is no need for corroboration of evidence. If the court’s confidence is not raised even after the declaration and the court isn’t clear regarding the circumstances and the declaration then the court may ask for certain evidence which may corroborate the declaration at hand.

CONDITIONS OF DYING DECLARATION

The person giving the declaration must die. Thus, we can establish that death is a must for recording of dying declaration. It has been held by the courts that this death need not be immediate but has to occur during the trial. In the case of Ram Prasad v State of Maharashtra,the court held that if the person survives his statement will not be recorded under section 32 of the Indian Evidence Act but will be recorded under section 164 of the criminal procedure code which talks about the recording of confession by a magistrate.

The victim when recording the declaration must be doing so voluntarily and there should be no external force used on him/her to make a declaration. Pre-requisites of a declaration include circumstances of the case, the crime committed etc. These must be defined by the victim under the declaration otherwise it becomes an unreliable document. The victim while making the declaration must be conscious and must be a coherent state of mind where he/she can understand the nature of what they are stating in the document.

METHODS OF RECORDING DYING DECLARATION

The law does not administer a particular way of recording a dying declaration. But in the declaration certain important points regarding the crime must be recorded. The points may revolve around:

Where the instance occurred
If at all a weapon was used, what weapon it was?
The name of the accused or the appearance of the accused

This list is not exhaustive and merely indicates the points which will strengthen the case of the victim. There are various ways of recording a declaration:

Written form
Verbal form
Gestures and sign form

The best way of recording a dying declaration is by the way of questions and answers. The main emphasis to be laid down by the court here is to closely observe the questions asked and the answers given. But if the victim is unable to understand the questions and narrates the incident the court will still accept it as a declaration. Sometimes a declaration is incomplete and the court must observe as to what aspect of the declaration is incomplete. If the main facts of the case such as the circumstances and the motive of the crime are missing the declaration itself becomes unreliable. But if some details which are not that important are left out the court may still rely on the document and hold up the importance of the dying declaration.

The next question which arises is why are then gestures accepted as dying declaration? The reason for this was recorded in the case of Queen Empress v Abdullah[vii]. In this case, the accused cut the throat of the girl. Thus, she couldn’t speak and stated the name of the accused by hand gestures. The Allahabad court held that in a case where the victim cannot speak, he/she can indicate the circumstances through hand gestures or nodding. The court while evaluating this evidence regarding gestures will observe regarding what gestures were made, what were the questions asked for the victim to make those gestures or nod. In fact, under the Nirbhaya case, the third dying declaration which was recorded by the magistrate was mostly hand gestures. The court relied on the above case while stating that this will be accepted as a dying declaration as gestures were indicative of the circumstances and the crime.

The main question that might arise in the minds of the readers must be of who can record a dying declaration? the answer to this question is pretty simple. Anybody can record a dying declaration. The recording is not limited to only a magistrate/ police officer or doctor. The only condition to be followed while recording the statement is whether the victim is in a mental condition to give the statement or not. It would also be beneficial if the person recording the declaration and the people who have seen the person record the declaration sign the document as witnesses.

EVIDENTIARY VALUE OF DYING DECLARATION

As stated above, the dying declaration is of great evidentiary value. The courts have held that once they observe the evidence on record and concur that this evidence is honest and has been taken without pressurising the victim, the evidence in itself is enough to convict the accused under the offence stated by the victim. The same was held in the case of K.R. Reddy v Public Prosecutor[viii]

In the case of Panneerselvam v State of Tamil Nadu, the courts held that a dying declaration need not be corroborated if the steps mentioned above are followed. The courts also held that the dying declaration should be treated like any other evidence in a court of law and differ from case to case. If a dying declaration is recorded by a magistrate in a question-answer format it will hold greater evidentiary value as compared to a declaration recorded in the form of oral evidence by a common person.

In the case of State of UP v Madan Mohan,[ix] the court held that the dying declaration must inspire the confidence of the courts. The magistrate should also note that there was no prompting or forcing the victim to give a declaration. The doctor must give a medical certificate to state that the victim was in a fit state of mind to give the dying declaration.

LENGTH OF DYING DECLARATION

Sometimes the value of a dying declaration is questioned due to its length. The courts have held that the shorter the dying declaration the better as it proves the exact happening of events thus helping in convicting the accused. In the case of Surajdeo Ojha v State of Bihar,[x] the court held that merely because a statement is brief it cannot be discarded, the brief nature of a declaration shows that it is the truth.

In State of UP v Madan Mohan,[xi] the court held that if the prosecution story is different as compared to the dying declaration then the declaration cannot be acted upon as it would alone not raise the confidence of the court.

EXCEPTIONS TO DYING DECLARATION

If the victim of the crime in the dying declaration makes statements about various things but misses to point out the crime committed or the circumstances of the crime then the dying declaration though made cannot be relied upon.
The accused should be in an able state of mind to give statements for a dying declaration. The courts have thus held that a child cannot give a dying declaration. In fact, in the case of Amar Singh v State of Madhya Pradesh,[xii] the court held without proof of mental or physical fitness the dying declaration would not be admissible.
If somewhere the declaration is untrue the court has the power to omit that part of the dying declaration while accepting the rest of it.
If the victim makes more than one declaration and all of them contradict each other in some way then the court can disregard all of them.

CONCLUSION

LORD LUSH, L.J., Quoted that, “A dying declaration is admitted in evidence because it is presumed that no person who is immediately going into the presence of his Maker, will do so with a lie on his lips. But the person making the declaration must entertain a settled hopeless expectation of immediate death. If he thinks he will die tomorrow it will not do.”

LORD EYRE, C.B., also held that “The principle on which this species of evidence is admitted is, that they are made in extremity when the party is at the point of death, and when every hope of the world is gone, when every motive to falsehood is silenced, and the mind is induced by the most powerful considerations to speak the truth. A situation so solemn and awful is considered by the law as creating an obligation equal to that which is imposed by the law as creating an obligation equal to that which is imposed by a positive oath administered in the court of justice.” Thus, we can conclude by saying that the dying declaration is one of the most important pieces of evidence under the law and courts must be very careful while recording this piece of evidence.

[i] Criminal Appeal No. 1018/2002

[ii] Section 32, clause (1), Evidence Act, 1872

[iii] Criminal Appeal No. 149/2000

[iv] AIR 1953 SC 420

[v] 1958 SCR 552

[vi] 1985 AIR 416

[vii] 1885 ILR 7 ALL 385

[viii] 1976 (3) SCC 618

[ix] AIR 1989 SC 1519

[x] 1980 Supp SCC 769

[xi] (1989) 3 SCC 390

[xii] 1996 Cr LJ (MP) 1582

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LAW AUDIENCE JOURNAL: VOLUME 2 & ISSUE 2 JUNE 2020:

EVENT: E-Conference
ORGANISER: Geeta Institute of Law, KUK
ELIGIBILITY: Academicians, Legal Scholars, Professionals and Students
THEME: Contemporary Issues in Indian Legal System
SUB – THEMES:
•Recent developments in Indian Constitutional Law
•Indian Citizenship Law
•Constitutional Morality and Indian Constitution
•Hate Speech Laws in India
•Death Penalty and Women’s Safety
•Increasing Crime in Society and Absence of Timely Response
•Need to revisit rights of Victims
•Human Rights of Victims & Accused
•Increasing Communal Violence and State
•Tribal Rights in Modern India
•Cybersecurity and Globalization
• Industrial and Environmental Issues
•Emerging Issues in Intellectual Property Rights in India

IMPORTANT DATES:

Submission of Abstract: 15th May 2020
Confirmation of Abstract: 18th May 2020
Last date of Registration & Fees: 25th May 2020
Submission of Full Paper: 20th June 2020
International E-Conference/Online Presentation: 25th June 2020

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This Article is written by Yash Dodani, NALSAR University Hyderabad. He has provided a detailed analysis of the topic.

Introduction

The basic notion of the tort law in India is based on the tort presidents developed in the English Common Law. The laws in English Courts are based on the notions of justice, equity and good conscience. Derived from the Latin term ‘negligentia’ which means ‘failing to picl up’. The term in its general sense means to be careless while performing any activity/work, but in a legal sense, the term means that a person has failed to take standard care while performing their work which a reasonable man should have kept in mind. The concept of Negligence in English law was developed in the 18^th century as an independent cause of action in the courts. However, in India, there was no concept of Negligence until 1870 when the colonial government amended the Indian Penal Code and brought section 304A which deals with death by Negligence. Until then there was no concept of negligence in Indian Law.

Definition

According to Winfield and Jolowicz, Negligence is the breach of a legal duty of care by the plaintiff which results in undesired damage to the plaintiff. It was further given shape in Blyth v Birmingham Water Works Co.[i] negligence was defined as an omission to do something which a reasonable man would do in the condition or doing something which a reasonable man would not do had he been in the same situation.

The concept of Negligence can be classified into three broad categories given under;

Nonfeasance: it literally means that a person has failed to do something which he should have done in a particular situation and in the demand of time. For example, a contractor has not done repairs on a particular building and because of that reason, the people are injured due to falling down of some parts of the building.

Misfeasance: it includes doing a thing which should be done but not doing it in a proper way. Taking the same example as above, now the contractor has started to do the repairs in a building but using a poor quality of material to do the repairs and hence bringing a danger of collapse of the building.

Malfeasance: it refers to the very act which should not be done in the first place in the course of any work which he is doing. Again, taking the same example, if now the contractor is using the material which is not allowed by the law to carry out repairs of any building will attract negligence.

Difference between Criminal and Civil Negligence

Criminal Negligence	Civil Negligence
Criminal negligence occurs when the person has departed a lot from the point of view of a reasonable man acting in a similar situation or circumstance.	Civil negligence comes into picture when the departure is not extreme from the point of view of a reasonable person. The question that what is extreme or not can be answered from the facts of each case.
It is attracted when the departure is of extreme and rash nature and causes some extraordinary results which might not be seen in civil negligence.	It is considered when the departure is of ordinary nature.
The burden of proof in criminal negligence is very high. The plaintiff has to prove his case to the court ‘beyond a reasonable doubt’. The court should not be in any doubt in giving punishment. The punishment is higher in criminal negligence.	The burden of proof in civil negligence is much lesser than what it is in criminal negligence. The plaintiff has to only prove that there is a negligent behaviour by the defendant and that has caused damage.
For example, if a person is driving his motorcycle while he is drunk and causes the death of an individual, the person is said to commit criminal negligence. The person may be subjected to imprisonment or fine or both whatever the court feels best for the punishment.	For example, if a person has kept a dog in the house and has not put any warning outside the house and due to the negligent behaviour of the person, an individual is harmed by the dog, it will amount to civil negligence and the person is only subjected to pay compensation.

Essentials of Negligence

To say that something is negligence, there must be some essentials which need to be looked into by the courts while ascertaining that something is negligence. There are as many as 6 essentials which need to be satisfied in order to bring the case of negligence. All the 6 essentials are explained below.

Duty of care:

Every person has to take care of another person while they are performing any work. This condition is very essential. The duty in negligence which a person has against another should be legal and can’t be attracted if the duty is arising out of moral, religious or ethical. If the plaintiff is not able to prove this condition, there is no case of negligence because if there is no duty to the plaintiff, there can’t be any case of damage. This condition is explained in the following cases.

In the case of Stansbele v Troman[ii], a decorator was engaged by the owner of the house to decorate the house for a particular function. The decorator took up the work and completed it. However, he forgot to lock the doors of the house and a thief entered the house and stole some things from the house. The owner filed a case in the court claiming the value of the stolen materials. The court held the decorator liable as he owed a duty of care in this case.

Similarly in the case of Grant v Australian Knitting Mills Ltd[iii] the plaintiff purchased woollen underwear and after wearing the same, he suffers from a skin disease. On enquiry, it was seen that the manufacturers have not washed the underwear properly and thus caused the disease. The court held the manufacturers liable saying that the manufacturers have duty of care to their customers.

2. Duty towards the plaintiff

As said above the duty of care must be legal [recognized by the law]. The duty should recognize a certain relationship between the plaintiff and the defendant. It governs how the defendant should act in a certain manner towards the plaintiff. It must be established that the defendant owes a duty of care to the plaintiff. There are very landmark judgments on this front, one such most celebrated case on this front is the case of Donoghue v Stevenson[iv]where the court held that every person has a duty of care towards the neighbour. Who is a neighbour? The neighbour was defined by the courts in the same case as the people who might be affected by the actions of the defendant. If that neighbour is affected by the actions of the defendant, they can file a case in the courts for the damages they have suffered. Similarly another case came in the name of Bourhill v Young[v] where a fishwife heard the voice of an accident between the motor cyclist and a car. After sometimes she went to the same road and saw some blood shades of the dead body left on the road and suffered a saviour nervous shock and thereafter sued the representatives for the damages which she suffered. But the court here ruled in the favour of the defendant saying that the defendant does not owe duty of care to a person who is hearing the sound of the crash and then viewing the shades of the blood on the road. [also see Alcock v Chief Constable of South Yorkshire Police[vi]].

3. Breach of that very Duty to take care

The plaintiff doesn’t only need to prove that a person has some sort of duty of care towards them but they also need to establish and prove in the court that there is a breach of that very duty due to which the damages are being sought. In other words, it means that there was a standard of care which the defendant needs to take but they have breached that duty.

An Indian case on this front was the case of Municipal Corporation of Delhi v Subhagvanti[vii] where a clock tower collapsed in a very busy area of Delhi named Chandni Chowk resulting in the death of several persons. It was estimated by the experts that the normal lifespan of such towers is 40-50 years but the said tower was 80 years old, and the corporation has not conducted any kind of repairs in the tower. The court held that the corporation owed a duty of care and breached that duty and hence was made to pay the damages.

Similarly in the case of Ramesh Kumar Nayak v Union of India[viii] The post authorities were held liable by the court when the post authorities failed to maintain/repair the wall of a post office, the collapse of which caused injuries to the plaintiff. The court said that there was a duty of the post authorities to maintain the wall and there was breach of that duty.

4. Actual cause

The criteria of ‘actual cause’ means that the plaintiff has to prove that because the defendant has failed to achieve reasonable care and this was the actual cause of the damages which the plaintiff has actually suffered. If he fails to prove that the actions of the defendant were the actual reason, then the courts may rule in the favour of the defendant. The tests which were given by the English courts include the test of ‘but for’, meaning, but for the actions of the defendant, the plaintiff would not have suffered the harm. Other tests include the test of ‘chain of causation’ meaning that if the chain of causation is broken by some intervening cause, the defendant is not liable for further harm.

5. Direct Cause

It can also be termed as ‘proximate cause’. It may not be the very first act of the defendant which caused the injury nor it may be the last act before such injury. It is any act which has reasonable consequences and which are direct in nature.

In the case of Palsgraf v Long Island Railroad Co[ix] where a person was trying to catch a running train. When it was seen by the employees of the company, they tried to help him. He had a packet of firecrackers which slipped from his hand and burst on the rail line. They injured a person on another platform and that person sued the railway company for damages. However the court here held that the railway company is not liable for any damages caused because there was no direct cause of action.

6. Harm to the plaintiff

This is the last condition that needs to be proved by the plaintiff in the cases of negligence. The plaintiff needs to prove that there is an injury to him because of the breach by the defendant. The harm can come under the following headings:

Harm to the body
Harm to the reputation of the plaintiff
Harm to the property of the plaintiff
Mental problem including nervous shock
Financial loss to the plaintiff

If the above six conditions are proved in the court, the defendant is bound to compensate the plaintiff for the damages caused.

Let’s now look at a condition where the plaintiff does not even need to prove the above conditions. The things or the facts speak itself.

Res ipsa Loquitur

Latin word which literally means ‘the things speak for itself’.

This is a situation where the plaintiff need not prove this above conditions to bring the liability of negligence to the defendant, instead they need to prove some circumstantial evidences and the facts of such nature that the plaintiff ought to get the compensation [see the case of Municipal Corporation of Delhi v Subhagwanti]. And then the burden of proof shifts on the defendant to prove that there was no negligence. The doctrine of ‘Res Ipsa Loquitur’ came up in the case of Byrne v Boadler[x].

The conditions which needs to be proven are as under-

There must not be any actual cause of the negligence.

The negligence would not happen but for the negligence.

It must be under the control of the defendant or anyone appointed by him for that work.

Defences against the negligence

Contributory Negligence

The defence means that the plaintiff has written his own story of causing damages to himself. It means that the plaintiff has also done some wrong and cannot ask for the whole amount of damages from the defendant. The defendant must prove any one of the conditions stated below in order to bring the defence of contributory negligence.

The plaintiff has not taken reasonable actions to avoid the negligence of the defendant where he had a chance to do so.
Because of the negligence of the plaintiff, he has suffered the damages.

The burden of proof lies on the defendant to prove the same, as he is the one taking the defence and not the plaintiff.

2 Act of God

The Act of God is a force that is exerted by nature upon the earth and it is something which cannot be foreseen, and even if it can be foreseen it can’t be resisted by the humans. Any event or negligence caused in the time of the Act of God cannot be considered as negligence because of the very basic reason that the defendant could not have done anything to stop that event from happening.

3 Inevitable Accident

The defence of inevitable accident is taken where there is no way to stop the accident from happening. This is not the Act of God because that is a super force but here it can be said that the person was unable to take reasonable care in that short span of time when the accident took place.

Conclusion

The tort of negligence was developed in the English courts in many cases and is also considered as a very important tort in the Indian jurisdiction. To prove the negligence the plaintiff needs to prove all the conditions stated above namely duty of care, breach, damages and cause of action. The defence of the negligence is available to the defendant in case if he is innocent.

[i] Blyth v Birmingham Water Works Co 11 Exch. 781.

[ii] [1948] 2 KB 48.

[iii] Grant v Australian Knitting Mills Ltd, 1935 AC 85.

[iv] [1932] UKHL 100.

[v] [1943] AC 92.

[vi] [1992] 1 AC 310.

[vii] AIR 2966 SC 1750.

[viii] 1995 ACJ 443.

[ix] [1928] 248 NY 339.

[x] 2 H. & C. 722, 159 Eng. Rep. 299 (Exch] 1863.

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