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CHAPTER 1 Nature of Crime
PSA Pillai: Criminal Law,12th Edition
PSA Pillai: Criminal Law,12th Edition > PSA Pillai: Criminal Law,12th Edition
CHAPTER 1 Nature of Crime
INTRODUCTION
Personal safety, particularly security of life, liberty and property, is of utmost importance to any individual. Maintenance of peace and order is essential in any society for human beings to live peacefully and without fear of injury to their lives, limbs, and property. This is possible only in states where the penal law is effective and strong enough to deal with the violators of law. Any state, whatever might be its ideology or form of government, in order to be designated as a state, should certainly have an efficient system of penal laws in order to discharge its primary function of keeping peace in the land by maintaining law and order. The instrument, by which this paramount duty of the government is maintained, is undoubtedly the penal law of the land. Penal law is an instrument of social control. Its approach is condemnatory and it authorises the infliction state punishment. To criminalise a certain kind of conduct is to declare that it should not be done, to institute a threat of punishment in order to supply a pragmatic reason for not doing it, and to censure those who nevertheless do it. Penal law does it by prohibiting ‘undesired’ and ‘harmful’ human conduct and ‘punishing’ the perpetrators thereof or posing threat of punishment to the prospective violators. It, therefore, defines and punishes ‘acts’ or ‘omissions’ that are perceived as:
(1) attacks on public order, internal or external; (2) abuses or obstructions of public authority; (3) acts injurious to the public in general; (4) attacks upon the persons of individuals, or upon rights annexed to their persons; or (5) attacks upon the property of individuals or rights connected with, and similar to, rights of property’.^1
However, criminal law, which ultimately censures publicly an individual by labeling a person a criminal, has to balance between the ‘collective (valued) interests’ and ‘individual interests’. And ‘harmful conduct’ or ‘misconduct’ to be condemned by criminal law needs to be judged in terms of its effect on valued interests, which may be individual interest or some form of collective interest. This essentially involves a few pertinent issues, namely, how the criminal law ought to be shaped, what its social significance should be, and when it should be used and when not. Answers and states’ responses to these questions may not be uniform and precise. Criminal and penal policy of a state, which ostensibly varies from state-to-state and time to time, indeed dictates answers to these questions.
Nevertheless, it will be difficult to deny the great importance of this branch of law for the security of life, property and maintenance of law and order in the state. People in a state can indeed afford to be without a highly developed system of constitutional law, or property law, but they could ill afford to remain even a day without a system of penal law. Professor Wechsler, an eminent American authority on criminal law, has rightly said thus:
Whatever views are held about the penal law, no one will question its importance in society. This is the law on which men place their ultimate reliance for protection against all the deepest injuries that human conduct can inflict on individuals and institutions. By the same token, penal law governs the strongest force that we permit official agencies to bring to bear on individuals. Its promise as an instrument of safety is matched only by its power to destroy. If penal law is weak or ineffective, basic human interests are in jeopardy. If it is harsh or arbitrary in its impact, it works gross injustice to those caught within its coils. The law that carries such responsibilities should surely be as rational and just as law can be.^2
The study of the law of crimes is very interesting and highly beneficial for more reasons than one. It catches the imagination of people on account of its dramatic character. Very often, the incidents which constitute a crime become sensational on account of the vivid and violent nature of the act s—forcible interferences with property and liberty; with persons and life and the penalty imposed on those who commit such acts, naturally attract the attention of all people in a state. Every person in a society is interested in the maintenance of law and order, and is anxious to have security of life and property. Again, persons who may
CHAPTER 1 Nature of Crime
have to discharge the duties as either jurors or assessors, will also gain much by the knowledge of the fundamental principles relating to the administration of criminal justice. The comparatively high degree of importance and gravity of the criminal proceedings against a person, which may end in one’s answering with one’s own life, has naturally led to the high importance of this branch of law than others. The administration of criminal justice has also led people to think of greater problems, social and ethical, which would introduce a golden era in a state, where the law-abiding citizens would voluntarily abstain from crimes.
WHAT IS A CRIME?
It is very difficult to give a correct and precise definition of crime.^3 Glanville Williams, admitting the impossibility of having a workable content based definition of a crime, points out that the definition of crime is one of the thorny intellectual problems of law.^4 Russell also admitted that ‘to define crime is a task which so far has not been satisfactorily accomplished by any wrier’.^5 JW Cecil Turner, who edited Kenny’s Outlines of Criminal Law , in a similar tone, also conceded that ‘the definition of crime has always been regarded as a matter of great difficulty’ and ‘the truth appears to be that no satisfactory definition has yet been achieved, and that it is, indeed, not possible to discover a legal definition of crime’.^6
Such a ‘difficulty’, in ultimate analysis, arises due to the changing nature of ‘crime’, an outcome of the equally dynamic ‘criminal and penal policy’ of a state. A number of social and political forces and factors, individually or cumulatively, play a pivotal role in the formulation of criminal policy of a state. It obviously varies according to cultures, social values and beliefs, and ideology of the ruling social-political power. Only social values and culture in vogue and the existing power structure dictate the ‘values’ and ‘social interests’ that need ‘protection’ by using criminal law ‘sanctions’. ‘In fact criminal offences’, observed by Russell, ‘are basically the creation of the criminal policy adopted from time-to-time by those sections of the community who are powerful or astute enough to safeguard their own security and comfort by causing the sovereign power in the state to repress conduct which they feel may endanger their position’.^7 Professor Kenny, delving into the ‘difficulty’, however was more eloquent, who observed thus:
Any conduct which a sufficiently powerful section of any given community feels to be destructive of its own interests, as endangering its safety, stability or comfort, it usually regards as especially heinous and seeks to repress with corresponding severity; if possible it secures that the forces which the sovereign power in the State can command shall be utilized to prevent the mischief or to punish anyone who is guilty of it. ...Of course a variety of factors may operate at the same time to produce this result, and it is rarely possible to identify them clearly: all that can be said is that an offence may become a crime as a result of the combined effect of a number of different social forces. ...Crimes therefore originate in the government policy of the moment; ....Since that policy is influenced by many considerations it is not easy to discover in any specific case of new law, what exactly and exclusively are the forces which have produced it; nor, of course, is the policy always followed consistently or logically. ...So long as crimes continue ...to be created by government policy the nature of crime will elude true definition.^8
A pattern of human behaviour prohibited by criminal law at a given time in a given society, thus, depends upon the specific features of its organisation. Developments in science, especially in biology and medicine, and changes in the predominant moral and social philosophy also influence the making of penal law.^9 A human conduct that is believed to be inimical to the social interests is labeled as a crime. This explanation also enables us to understand why crimes change from age to age and differ from state to state. Whenever society comes to believe that conduct that was once held to menace any of the consciously recognised interests no longer act ually menaces them, it ceases to be a crime. Whenever society believes that a kind of conduct that was once thought to be indifferent to the welfare of the group actually threatens some of the cherished interests, it applies repressive methods, and that conduct becomes crime. Only political power of the day decides what human conduct deserves to be a crime. ‘The domain of criminal jurisprudence’, observed Lord Atkin, ‘can only be ascertained by examining what acts at any particular period are declared by the State to be crimes, and the only common nature they will be found to possess is that they are prohibited by the State and that those who commit them are punished’.^10 A truth is that a crime is an act or omission in respect of which legal punishment is inflicted on the person who is in default either by act ing or omitting to act and criminal law relates to crimes and their punishment.
W Friedman, approvingly quoting Professor Wechsler, observed: ‘The purpose of criminal law is to express a formal social condemnation of forbidden conduct, buttressed by sanctions calculated to prevent it’. This observation, according to him, poses three important questions ‘to which different societies give very different answers’. They are:
(1) What kind of conduct is ‘forbidden’?
CHAPTER 1 Nature of Crime
Interests in general progress. It includes interests in economic, political and cultural progress.
Interests in the individual life. This interest takes two forms. First, the interests, which demand that ‘individual will’, shall not be subjected arbitrarily to the will of another. Secondly, the interest resulting in the policy that all restraint and legal enforcement of the claims of others shall leave secured to the individual the possibility of human existence.^12
Sociologists claim that these interests are preserved in every society, and any act that threatens or poses threat to their realisation finds place in the criminal law. The following crimes generally known to the human civilisation vis--vis the corresponding social interests listed above exhibit veracity of the claim of sociologists.
Crimes Corresponding Social Interests
1 Crimes against human body and life Out of interests of the community in life and limb of its members.
2 Crimes against property (e.g. theft, robbery, dacoity, etc.) Out of interests of the society in general security. It is also partly out the individual of group interest in the welfare of and partly out of the social interest in the security of social institutions.
3 Crimes against public peace and order (e.g. treason, sedition, disturbance of public peace, etc.)
Developed partly out of demand for general security and partly out of the interest of the group in the stability of the institutions.
4 Crimes against religion Developed out of the interests of the society in religious institutions as social institutions.
5 Crimes against the family (e.g. bigamy, adultery, neglect of children, desertion of family, etc.)
Conduct threatens the stability of the family as a social institution.
6 Crimes against morals of (e.g. cohabitation with a close relative, sodomy, obscenity, corruption of public morals, etc.) family institution.
Developed out of interests in the morals. Developed out of certain sentiments of the society, which feels outraged by such a conduct. Developed out of the interests in the outraged by such a conduct.
7 Crimes against conservation of resources of society (e.g. neglect of children and mentally challenged individuals)
The society not only looks at its own welfare but also welfare of the future generations. It therefore punishes waste of these natural resources.
It is needless to mention that social changes affect criminal law in many ways—through developments in science, especially in biology and medicine; through changes in the predominant moral and social philosophy; through changes in the structure of society, especially in its transition from a rural self-contained and relatively sparsely populated, to a highly urbanised and industrialised pattern. However, criminal offences dealing with the protection of life and liberty have essentially remained unchanged throughout the ages all over the world. But offences against property have undergone more profound changes, mainly as a result of the transformation of a primitive agricultural society into a commercial or industrial one. The original crime of theft has been gradually widened to include embezzlement and fraudulent conversion, so as to protect the owners of commercial property against those entrusted with its handling. The growth of commercial and financial transactions has made the offence of fraud increasingly important in modern commercial society. Whereas theft predominantly penalises the lower classes of society for interference with the property of others, fraud has developed into a ‘white collar crime’. Besides, the transformation in the type of modern privately owned assets has made it necessary to widen the concept of property from a physical thing to a variety of other assets such as electricity, shareholders claims, copyrights, patents, intellectual proprietary and the like.
Professor Andrew Ashworth^13 feels that the decision (of the legislature) whether or not criminalise should be influenced by the seriousness of the wrong rather than to create a formidable impression that certain misconduct has been taken seriously and dealt with appropriately. And criminal law, in principle, should be used against substantial wrongs and should not be used against non-serious wrongs. Criminalisation, which implies a labeling and punishment on conviction, of non-serious wrongs may weaken the significance of the label and the criminal law process. Arguing that without principled approach to criminalisation, criminal law is likely to remain something of a lost cause, he puts forward the following inter-linked four core principles of criminal law. They are:
- The principle that criminal law should be used, and only used, to censure persons for substantial wrong doing.
CHAPTER 1 Nature of Crime
- The principle that criminal laws should be enforced with respect for equal treatment and proportionality.
- The principle that persons accused of substantial wrongdoing ought to be afforded the protection appropriate to those charged with criminal offences.
- The principle that maximum sentences and effective sentence levels should be proportionate to the seriousness of the wrongdoing.^14
Before criminalization of a human conduct, the legislature is expected to convince itself that:
(a) it is absolutely necessary to create an offence; (b) the behaviour in question is sufficiently serious to warrant intervention by the criminal law; (c) the mischief could be dealt with under existing legislation or by using other remedies; (d) the proposed offence is enforceable in practice; (e) the proposed offence is tightly drawn and legally sound; and (f) the proposed penalty is commensurate with the seriousness of the offence.^15
These factors, though indeed stipulate the criteria for the creation of new offences by a state, are hardly followed in practice.
CRIMINAL LAW AND MORALITY
Criminal law is narrower than morality. In no age or nation, has the attempt been made to treat every moral defect as a crime. The idea of crime involves the idea of some definite, gross, undeniable injury to someone, where some definite overt act is necessary. No one is punished for ingratitude, hard-heartedness, absence of natural affection, habitual idleness, avarice, sensuality and pride. Sinful thought and dispositions of mind might be the subject of confession and of penance, but not of criminal proceedings. Criminal law then, must be confined within narrow limits, and can be applied only to definite overt acts or omissions, capable of being distinctly proved, which acts or omissions inflict definite evils, either on specific persons or on the community at large. It is within these limits only, that there can be any relation at all between criminal law and morality.^16 With regard to offences like murder, rape, arson, robbery, theft or the like, there is common hatred towards them both by law and morality. Law and morals powerfully support and greatly intensify each other in this matter. Everything, which is regarded as enhancing the moral guilt of a particular offence, is recognised as a reason for increasing the severity of the punishment awarded to it. According to Sir James Fitzjames Stephen^17 :
The sentence of the law is to the moral sentiment of the public in relation to any offence what a seal is to hot wax. It converts into a permanent final judgment what might otherwise be a transient sentiment. The mere general suspicion or knowledge that a man has done something dishonest may never be brought to a point and the disapprobation excited by it may in time pass away, but the fact that he has been convicted and punished as a thief, stamps a mark upon him for life. In short, the infliction of punishment by law gives definite expression and solemn ratification and justification to the hatred which is excited by the commission of the offence, and which constitutes the moral and popular sanction of morality, which is also sanctioned by criminal law. The criminal law thus proceeds upon the principle that it is morally right to hate criminals, and it confirms and justifies that sentiment by inflicting upon criminals punishments which express it.
LAW AND ETHICS
Law is concerned with relationships between individuals, rather than with the individual excellence of their characters. Ethics is a study of the supreme good, which concentrates on an individual. Law comes in only when ethics and morality fail. Ethics deal with absolute ideal, whereas positive morality deals with current public opinion.
CHAPTER 1 Nature of Crime
wretch who snatches and devours the rice; yet we punish the latter for theft, and we do not punish the former for hard-heartedness.^22
Further, defining crime on the basis of purported immorality encounters with a problem having no convincing answer, i.e. whose morality should form the benchmark for criminalization? The issue of (de)criminalisation of consensual homosexuality, for example, has evoked different responses and answers by the liberal, the paternalist, and by the legal moralist. Criminalisation of an act simply on the ground of its immoral nature has been the subject of vigorous debate.^23
Another important distinction between crimes and civil wrongs is said to lie in the different types of proceedings followed separately for each. The object of criminal procedure is always punishment, i.e. the convicted offender is made to suffer the punishment, which is inflicted on him not for the sake of redressal, but for the sake of example. The inevitability of punishment is its indelible imprint. The object of civil proceedings, on the other hand, is compensation or reparation. Restitution in integrum (restoration to the original position) is one of the basic principles of compensation in civil suits for damages. But it should be remembered that there are certain types of civil act ions in which exemplary damages are awarded against wrongdoers by courts by way of punishment.
A peculiar type of proceeding known as penal action, which formerly prevailed in England, belonged to the civil procedure, although its avowed object was punishment of the wrongdoer. Under this early system, pecuniary penalties can be recovered in some cases by any person who sues the doers of various prohibited act s. Although this practice was called penal action, for it was against persons who had committed certain specified criminal act s, it was essentially of a civil nature, for the action was for the recovery of money from the wrong doer by way of penalty.
The attempted distinction drawn between civil and criminal proceedings on the ground that the former enrich the individual, is also not true in all cases. In certain exclusively coercive civil act ions for the recovery of debts, debtors are imprisoned, although, it will not enrich the plaintiffs.
However, the difference between civil and criminal proceedings lie in the respective degrees of control exercised over them by the sovereign authority in the state, not so much in respect of their commencement as at their termination. In criminal prosecutions, the state is the controlling authority. The sovereign authority in the state alone exercises the high prerogative of giving pardon to the criminal. The sanctions of criminal law, such as punishments, are remissible by the Crown in England and by the President of India in the Republic of India.^24 Punishments are not remissible by private persons. Compromise is possible in civil suits, whereas in a criminal procedure, the wrongdoer can escape his liability only by suffering. Probably influenced by the degree of interference by the state in civil and criminal proceedings, some jurists defined crimes in terms of nature of the proceedings involved therein. John Austin, for example, said:
A wrong which is pursued by the sovereign or his subordinates is a crime. A wrong which is pursued at the discretion of the injured party and his representatives is a civil injury.^25
It is obvious that this definition is not of substance but of procedure. Further, it does not explain a number of crimes known to criminal law that allow the prosecution to initiate cases only at the instance of the injured party as in torts. No court, for example, will take cognisance of the offence of adultery and of criminal elopement, contrary to ss 497 and 498 of the Indian Penal Code (IPC), except upon a complaint made by the husband of the woman.
Professor Kenny, plausibly with a view to overcoming the lacuna, modified the Austinian perception of crime and stated: ‘Crimes are wrongs whose sanction is punitive and is in no way remissible by any private person, but is remissible by the Crown alone, if remissible at all’. But even this definition of Kenny, which was till recently considered as a very good definition, has been criticised as highly technical, being based on mere procedure. Winfield thought it led to a vicious circle: ‘What is a crime? Something that the Crown alone can pardon. What is that the Crown alone can pardon? A crime.’^26 It has been pointed out that if in a democratic state, like England or India, the Parliament takes away the powers of the Crown or of the Head of the State to give pardons, the definition loses its ground. It also fails when it is applied to the IPC which has incorporated a number of offences that are remissible by individuals without even the intervention of the court. Obviously, in such offences, private individuals, and not the state, are allowed to remit the punishment. However, the controlling power of the state with regard to the criminal prosecutions is an undeniable fact.
Other noteworthy modern definitions of a crime are discussed below.
According to Prof Paton: ‘In crime we find that the normal marks are that the State has power to control the procedure to remit the penalty or to inflict punishment’. Similarly, Prof SW Keeton has stated that: ‘A crime today would seem to be any undesirable act, which the state finds most convenient to correct by the institution of proceedings for the infliction of a penalty,
CHAPTER 1 Nature of Crime
instead of leaving the remedy to the discretion of some injured person’. Crime is any form of conduct which is forbidden by law under pain of punishment.
Section 40 of the rightly states that ‘an offence denotes a thing made punishable by the Code’. An existing offence in the IPC will cease to exist, the moment the state repeals or invalidates it.
Professor Goodhart has defined crime as any act which is punished by the state. It is still the protection of the public welfare rather than the support of private interests, which is the dominant purpose of this branch of the law.
In Halsbury’s Laws of England , crime is defined as follows: ‘A crime is an unlawful act or default which is an offence against the public and renders the person guilty of the act or default liable to legal punishment’.^27
Crime is a serious anti-social action to which the state reacts consciously by inflicting pain (either punishment or correctional measures).^28 Michael and Adler state that: ‘the most precise and least ambiguous definition of crime is that which defines it as behaviour which is prohibited by the criminal code’.^29
BA Wrotley combines moral and legal element in his definition of crime: ‘A crime is an offence against the law, and is usually an offence against morality, against a man’s social duty to his fellow members of society; it renders the offender liable to punishment’.
Russell in his classic work On Crimes , has said that crime is the result of human conduct which the penal policy of the state seeks to prevent.^30
It is evident from these definitions of crime that it is difficult to have a precise definition of ‘crime’ that embraces the many acts and omissions which are criminal in nature and which at the same time excludes all those acts and omissions that are not. An act or omission, no matter what the degree of immorality, reprehensibility, or indecency, does not amount to a crime unless it is prohibited by penal law. Ordinarily, a crime is a wrong which affects the security and well-being of the public generally so that the public has an interest in its suppression. It, however, needs to stress that there cannot be a straightforward or determinate checklist of criteria for either identifying or defining the concept of ‘crime’ in universal terms. ‘We’, a scholar of repute advises, ‘should resist the desire to find some single concept or value that will capture the essence of crime or the essential characteristic in virtue of which crimes are properly punished—in favour of a pluralism that recognises a diversity of reasons for criminalisation, matching the diversity of kinds of wrong which can legitimately be the criminal law’s business’.^31
Nevertheless, these definitions enable us to describe ‘crime’ and to identify its prominent characteristics, and thereby to understand nature of crime. JW Cecil Turner has given the following description of a crime:
...[I]t is a broadly accurate description to say that nearly every instance of crime presents all of the three following characteristics: (1) that it is a harm, brought about by human conduct, which the sovereign power in the State desires to prevent; (2) that among the measures of prevention selected is the threat of punishment; (3) that legal proceedings of a special kind are employed to decide whether the person accused did in fact cause the harm, and is, according to law, to be held legally punishable for doing so.^32
An extensive and thorough analysis of crimes, according to Jerome Hall, leads to a description of the following seven interrelated and overlapping differentiae of crime. These are:
(1) There must be some external consequences or ‘harm’ to ‘social interests’. (2) The harm must be ‘prohibited’ by penal law. (3) There must be ‘conduct’, i.e. intentional or reckless action or inaction that brings the prohibited ‘harm’. (4) There must be ‘mens rea’ or ‘criminal intent’. (5) There must be ‘concurrence’ of mens rea and conduct. (6) There must be a ‘causal’ relation between the legally prohibited harm and the voluntary misconduct. (7) There must be legally prescribed ‘punishment’ or threat of punishment.^33
These definitions, nevertheless, afford us an adequate basis for a proper study of the subject.
CHAPTER 1 Nature of Crime
28 WA Bonger, Introduction to Criminology. 29 Michael and Adler, Criminal Law and Social Science , 1933. 30 Russell on Crime , JW Cecil Turner (ed), vol 1, 12th edn, Stevens & Sons, London, p 39. 31 RA Duff, Answering for Crime: Responsibility and Liability in Criminal Law , 2007, p 139. 32 Kenny’s Outlines of Criminal Law , JW Cecil Turner (ed), 18th edn., Cambridge, 1962, p 5. 33 For details see, Jerome Hall, General Principles of Criminal Law , second edn., Bobbs-Merrill, New York, 1960, pp 8-18. Also see Edwin Sutherland and Donald Cressey, Principles of Criminology , JB Lippincott, sixth edn, New York, 1960, pp 11-14.
End of Document
CHAPTER 2 Penal Law in India
PSA Pillai: Criminal Law,12th Edition
PSA Pillai: Criminal Law,12th Edition > PSA Pillai: Criminal Law,12th Edition
CHAPTER 2 Penal Law in India
CRIMINAL LAW OF THE HINDU SYSTEM
Arthasastra , Manu Smriti and Yajnavalkya Smriti are the three leading law codes of ancient India. However, it is Manu Smriti or the Code of Manu,^1 which has made a lasting impact on human behavior in India. It contains ordinances relating to law. It is a complete digest of the then prevailing religion, philosophy, custom and usages observed by the people in India. It lists the duties of the kings and rules, based on Dharma , of administration of justice by them.
In Manu Smriti , law was discussed under 18 principal heads,^2 covering both modern civil and criminal branches of law, which fell under heads such as gifts, sales without ownership, rescission of sale and purchase, partition, bailment, non-payment of debt, loans, wages or hire, breaches of agreements and contract, disputes between partners and between master and servant, boundary disputes, assault and slander, defamation, trespass of cattle, damage to goods and bodily injuries in general. It specifically recognised assault, defamation, theft, robbery, violence to body, adultery, altercation between husband and wife, and gambling; as crimes.^3 Later on, Manu added cheating, trespass or transgression and fornication to the list of offences.^4 These offences were subject to punishment such as censure, rebuke, fine, forfeiture of property, and corporal punishment including imprisonment, banishment, mutilation and death. The quantification of these punishments by the King was regulated by a set of principles laid down, and the factors indicated, in the Code itself. Yajnavalkya , following Manu, lays down that the King should inflict punishment upon those who deserve it after taking into consideration the nature of the offence, the time and place of occurrence of the offence, and the strength, age, avocation and wealth of the accused. As in other ancient communities, the practice of paying money compensation was also prevalent in ancient India. However, the Hindu law of punishment occupied a more prominent place than compensation.
However, Manu Smriti practiced distinction between the higher and lower castes in the matter of giving punishments. Brahmins , persons belonging to highest caste of the Indian society, and women were exempt from the death sentence. Instead of capital punishment, a Brahmin was to be banished, as it was considered a greater punishment for him than even the death penalty. He was to be given lesser punishment in some offences, even a quarter of the prescribed punishment for others. Till recently, this was the provision of the former Travancore State Penal Code. If a man belonging to a lower caste, i.e. if an avarna man committed adultery with a Savarna’s wife, say a Namboodiri woman, the man would be awarded the death penalty. If a higher caste woman, i.e. savarna committed adultery with a lower caste man, she would be publicly humiliated or cast out of the house and city, or thrown to the dogs, and in some cases, burnt alive. Various tariffs of damages were provided for different types of assaults and defamation. These practices were common in Malabar until the Indian Penal Code 1860 came into force.
Hence, Manu Smriti was criticised for its unequal punishment and treating Brahmins above the law. However, a scholar of criminal law,^5 appreciating the scientific basis of this unequal punishment and its underlying basis, justifies such an unequal punishment treating Brahmins above the law.
A Hindu Code was compiled by the Pandits of Benaras at the instance of Warren Hastings, when the latter was the Governor- General of India. It was called the Gentoo Code. It provided death penalty for murder. Theft was divided into open theft and concealed theft, and different punishments were prescribed as in Roman law. The former was punished by fine and the latter by the most cruel punishment of cutting off the hand or foot at the discretion of the judge. Housebreaking and highway robbery were punished with the death sentence.
MOHAMMEDAN CRIMINAL LAW
CHAPTER 2 Penal Law in India
DEVELOPMENT OF CRIMINAL LAW IN INDIA UNDER THE BRITISH RULE
Before the advent of the British, as stated above, the penal law prevailing in India for the most part was the Mohammedan Law.^6 With necessary modifications, it continued to govern the people of India for a considerable period of the East India Company’s administration, as the latter did not interfere with the thitherto-prevailing penal law of the country. Provisions of the Mohammedan law, however, were superseded only in cases where the regulations^7 and the Mohammedan law prescribed distinct penalties for the same offence.^8
The first major attempt to reform the criminal justice was made after passing of the Regulating Act 1773, under which new courts were set up. In each district, a criminal court, Foujdaree Adalat , was set up. It composed of Mohammedan officers, a kazi , a mufti and two maulvis , to try criminal cases in presence of a Collector, a European supervisor, whose duty was to see that the trial was fairly conducted according to the law by which it professed to be guided. A superior court of revision, Nizamat Sadar Adalat , was set up at Moorshedabad. It was composed of a daroga , the chief kazi , the chief mufti and three maulvis. It formed a court of revision as to the proceedings of the Foujdaree Adalat , and in capital cases signified their approval or disapproval of convictions. In 1793, another reform, in pursuance of the Lord Cornwallis’s Judicial Regulations, was made. In each district or zilla , a court, composed of a European judge assisted by a Hindu law expert and a Mohammedan law expert, was set up. Four appellate courts, comprising three judges and three native experts of Hindu and Mohammedan law, namely a kazi , a mufti and a pandit , were set up at Calcutta, Dacca, Patna and Moorshedabad. All these courts were subject to the Suddar Nizamat Adalat or Supreme Criminal Court at Calcutta, which consisted of the Governor-General and his council, with principal native law officers. Thus, this was the first criminal court presided over by a English judge established under the authority of the Company for the administration of criminal justice to the natives of India. However, subsequently, the constitution of the Suddar Nizamat Adalat was completely changed. Instead of consisting of the Governor-General-in-Council, it was composed of civilian judges, and the district or zilla judges were empowered to act as criminal courts. During the same time, magistrates, who were also collectors, were authorised to hear and determine petty offences such as assaults, and to punish them with imprisonment up to fifteen days or fifteen strokes of rattan , subject or not to an appeal to the sessions judge.
Thus, the final form of the criminal courts of the East India Company was Suddar Nizamat Adalat , the sessions judges, and the magistrates.
These courts had jurisdiction over the native Indians only. Alongside this, existed a system designed for the double purpose of administering English law to the Europeans in India and of serving as a counterpoise in their interest to the great powers vested in the Governor-General and his council. These institutions were the Supreme Courts and Justices of the Peace.
The Regulating Act of 1773 authorised the Crown to establish a Supreme Court at Calcutta, consisting of a Chief Justice and three puisne judges. The court was to have power to hear and determine all complaints against any British subjects residing in Bengal, Bihar and Orissa for any ‘crimes, misdemeanors, or oppressions committed’ by them. The Charter granted under this Act gave to the Supreme Court within its limits all the authority of the Court of King’s Bench in England. It also provided in reference to criminal justice that it should be administered ‘in such or the like manner, and form, or as nearly as the condition and circumstances of the place and the persons will admit of as our courts of oyer and terminer and gaol delivery do or may in that part of Great Britain called England’. Supreme Courts similar in all respects to the Supreme Court of Calcutta were established in Madras in 1800 and in Bombay in 1823.
However, this reform in the administration of criminal justice led to a problem. The Britishers on these courts began gradually to refer to, and rely upon, the English law of crimes, while the criminal courts in the Presidency towns were obliged to follow their own system of law. Such a practice, obviously, resulted into a non-uniform law of crimes.
The Bombay Province was the first province in India to enact in 1827 a brief penal code, the Bombay Regulation of 1827 (the Bombay Code or the Elphinstone Code),^9 for the mofussil. The Bombay Regulation, incorporating almost all the penal law of the Bombay Presidency, issued by Mountstuart Elphinstone, the then Governor of Bombay, superseded the Mohammedan penal law. The Bombay Code, which was extremely simple, short and written more in the style of treatise than in that of a law, remained in force until it was superseded by the Indian Penal Code 1860 (IPC).
In 1849, when Punjab was annexed to the British Empire by Lord Dalhousie on 29 March, a short Code was drawn up by the then Governor-General for the Punjab Province as, the Mohammedan penal law, which was in force in Bengal, was not recognised in the Punjab province.^10 The penal law of the Madras, Bengal, Bihar and Orissa provinces and of other territories acquired by the British, then known as North-West Provinces, was constituted by regulations.
Such was the position of criminal law in the most important parts of India when the government was taken over by the Crown
CHAPTER 2 Penal Law in India
from the East India Company in 1858. However, one needs to go back to the Charter Act of 1833 to trace and appreciate the development of penal law by the new government.
MAKING OF THE INDIAN PENAL CODE—HISTORICAL BACKGROUND^11
The Charter Act of 1833, plausibly to achieve uniformity of laws and judicial systems in all the parts of British India, introduced a single legislature for the whole of British India. It made the Governor-General of India, for the first time, solely responsible for promulgating laws for all persons and the Presidency towns as well as for the mofussil.^12 This ‘legislature’ was authorised to enact all laws, whether of provincial^13 or all-India application. The Governor-General was assisted by an Executive Council. The Charter Act of 1833, however, provided for the appointment of a ‘law member’ to the Council of the Governor-General, who was only allowed to sit and vote ‘at meetings for making laws and regulations’.^14 Thomas Babington Macaulay,^15 who had a firm conviction that India’s salvation lay in her complete anglicisation, was appointed as the first law member on the Council. He assumed charge of his office on 27 June 1834.
The Charter Act of 1833 also provided for the appointment of a ‘Law Commission’^16 for inquiring fully into, and reporting on, the state of laws in force in British India and the administration of justice.^17 Accordingly, in 1834, the First Indian Law Commission comprising Thomas Babington Macaulay, Sir John Macpherson Macleod, George William Anderson and F Millett as Commissioners was constituted. During 1834-36, the Law Commission, under TB Macaulay’s supervision, prepared the Draft Penal Code.^18 In pursuance of orders of the Government of 15 June 1835, the Commission on 2 May 1837, submitted the Draft Penal Code to the Governor-General-in-Council, who on 5 June 1837 returned it to the Law Commission with an order to get it printed under its superintendence.^19 The Commission printed the Draft under its supervision. The Commission also carefully revised and corrected the Code, along with the Notes,^20 while it was in the press.
It is pertinent to note that the Law Commission did not base its Draft Penal Code on either the then penal law prevailing in different provinces or the penal law system premised on the Mohammedan or Hindu law. The Commission reasoned:
The criminal law of the Hindus was long ago superseded...by that of the Mohammedans...The Mohammedan criminal law has in its turn been superseded, to a great extent, by the Regulations. Indeed, in the Territories subject to the Presidencies of Bombay, the criminal law of the Mohammedans, as well as that of the Hindus, has been altogether discarded, except in one particular class of cases; and even in such cases, it is not imperative on the Judge to pay any attention to it. The British Regulations, having been made by three different legislatures, contain, as might be expected, very different provisions.
‘It appears to us’, wrote the Commissioners to Lord Auckland on 14 October 1837, ‘that none of the systems of penal law established in British India has any claim to our attention except what it may derive from its own internal excellence’. The Commission also did not think it fit to use the Bombay Code, owing to lack of its ‘superiority’ over the penal law of the Bengal and of the Madras Presidencies. Justifying its stand and disclosing its sources in preparing the Draft Code, the Commission observed:
...[W]e have not thought it desirable to take as groundwork of the Code any of [these] systems of law now in force in any part of India. We have, indeed, to the best of our ability compared the Code with all those systems, and we have taken suggestions from all; but we have not adopted a single provision merely because it formed a part of any of those systems. We have also compared our work with most celebrated systems of Western jurisprudence, as far as the very scanty means of information which were accessible to us in this country enabled us to do. We have derived much valuable assistance from the French Code,^21 and from decisions of the French Courts of Justice on questions touching the construction of that Code. We have derived assistance still more valuable from the Code of Louisiana^22 prepared by the late Mr. Livingston. We are the more desirous to acknowledge our obligation to that eminent jurist, because we have found ourselves under the necessity of combating his opinions on some important questions.^23
On 14 October 1837, the Law Commission submitted the printed Draft Penal Code, along with Notes, to Lord Auckland, the then Governor-General-in-Council.^24 The Governor-General-in-Council, who had a strong desire to take some steps to revise the Draft Penal Code, referred to the Law Commission opinions received from Presidencies for its careful consideration. The Draft Code was revised clause by clause by the Commissioners, Charles Hay Cameron and D Elliot, who submitted their first report on 23 July 1846. These Commissioners submitted their second and concluding report on 24 June 1847. The Draft Penal Code was then in 1851 referred to the judges of the Supreme Court of the three presidencies, the Advocate-General of Madras and other judges and jurists for their opinion. Meanwhile, the Court of Directors in London, which was anxious to see the Penal
CHAPTER 2 Penal Law in India
comprehensive and distinct knowledge of the criminal law of England as average Indian civilians have of the Penal Code. It is hardly an exaggeration to say that they know it by heart. Nor has all the ingenuity of commentators been able to introduce any serious difficulty into the subject. After twenty years’ use it is still true that anyone who wants to know what the criminal law of India is has only to read the Penal Code with a common use of memory and attention.^39
It is pertinent to note that the Indian Penal Code 1860, which has been amended only sparingly since its enactment in the post- British era, is in operation as a major substantive penal law of India since more than 150 years. Only three chapters, namely, offences relating to criminal conspiracy, election and cruelty to married women, have been added to its original 23 chapters.
Thematically, the Code may broadly be divided into four segments. Chapters I to V contain general matters relating to the extent, definitions, punishment, general exceptions, and principles of liability. Chapters VI to XV deal with public matters between individuals and the state. Chapters XVI to XXII are primarily concerned with offences committed by individuals against individuals or legal persons other than the state. The last chapter, ch XXIII, is residuary in nature, laying down the principle of punishment for attempt to commit an offence if no specific provision has been made therefor.
1 Its date according to Sir William Jones is 800 BC, while others place it at about 150 BC. 2 Manu , ch VIII, verse 1. Cited in RC Nigam, Law of Crimes in India , Asia, London, 1965, p 16. 3 Yajnavalkya and Nilkanta also recognised these crimes. Mayukha law that prevailed in Bombay also contains punishments for assault, theft, violence and adultery. 4 RC Nigam, Law of Crimes in India , Asia, London, 1965, p 16. 5 RC Nigam, Law of Crimes in India , Asia, London, 1965, p 18. 6 Mohammedan law, however, did not generally prevail in the Presidency of Bombay. Hindus were governed by their own criminal laws. Parsis and Christians were governed by English law. See, Herbert Cowell, History and Constitution of the Courts and Legislative Authorities in India, sixth edn, 1966, p 199. 7 Before 1833, in each of the three Presidencies—Bengal, Madras and Bombay—the Governor-General exercised legislative powers under authority from Acts of Parliament. Their enactments were called ‘Regulations’. 8 Regulation VI of 1832 (art 5) absolved the people of Bengal, Bihar and Orissa not professing Mohammedan faith from the operation of the Mohammedan penal law. 9 Bombay Regulation XIV of 1827. 10 For details see Sir James Fitzjames Stephen, A History of the Criminal Law of England, vol III, Burt Franklin, New York, 1883, pp 295-297. 11 Heavily relied upon: Sir James Fitzjames Stephen, A History of the Criminal Law of England , Burt Franklin, New York, 1883 ch XXXIII; AC Patra, ‘Historical Introduction to the Indian Penal Code,’ in Indian Law Institute, Essays on the Indian Penal Code, Indian Law Institute, New Delhi, 2005, pp 33-44, and RC Nigam, Law of Crimes in India, Asia , London, 1965, pp 20-24. 12 Charter Act of 1833, s 39. 13 The local governments either themselves sent legislative proposals to the Centre or, after 1854, got them introduced there through their sitting representatives. This state of things continued until 1861 when legislative power was restored to the Governments of Bombay, Madras and Bengal. [See Preamble to, and s 44 of, the Indian Councils Act 1861]. 14 Charter Act 1833, s 40. Two decades after the Charter of 1833, a sort of Legislative Council, comprising members of the Supreme Council, one representative each from the local governments and two judges of the Supreme Court of Calcutta, was established to assist the Governor-General in discharging his legislative function [vide s 22 of the Charter Act of 1853]. 15 It was initially offered to Sir James Stephen. 16 Charter Act of 1833, s 40. 17 By virtue of the Charters of 1833 and of 1853, Law Commissions were appointed in 1834, 1853, 1861 and 1879. Of these four Law Commissions, the first and the last worked in India while the second and the third had their sittings in England. No Indians were appointed as commissioners, and the law of England was used as a basis. The British Indian civil and criminal statutes, in consonance with this policy, had been enacted without owing to their origin to the institutions, texts or their commentaries of the pre-British India texts of Hindu or Mohammedan law. The Law Commissioners, though theoretically conscious of the importance of the relation of the Indian customs, usages, laws and institutions to the new laws to be enacted for the governance of the people in India, did not attach importance to the ancient customs, usages and laws in India while formulating new laws. See generally, BK Acharyya, ‘Codification in British India’, in Physiognomy of the History of Codification in British India , 1914, p 40.
CHAPTER 2 Penal Law in India
18 Without injustice to any of colleagues of TB Macaulay on the Indian Law Commission, the Draft Penal Code may be attributed to Macaulay. ‘The illness of two of the three colleagues threw the work entirely on me’, wrote Macaulay on 15 June 1837. See Lady Trevelyan, Miscellaneous Work of Lord Macaulay , vol 1, Harper, 1880, p 417.
19 Officiating Secretary JP Grant’s letter dated 5 June 1837 to the Law Commission, National Archives of India, Legislative Department Act of 1860, No. XLV, Part I.
20 Notes (lettered ‘A’ to ‘R’)—each itself an essay—appended to the Draft Penal Code explained and defended every
21 French Code 1810.
22 Code of Louisiana 1821.
23 Cited from AC Patra, ‘Historical Introduction to the Indian Penal Code’, in Essays on the Indian Penal Code , Indian Law Institute, New Delhi, 2005, p 33, at p 37. Sir George C Rankin supported the Commission’s wisdom of taking the English law as a basis of the Penal Code on the ground that since the time of Cornwallis it had been chose jugee that the criminal jurisdiction could not be exercised without regard to British notions of justice, whether in substance or in method, and the Regulations had in fact introduced much law upon that footing—apart altogether from the fact that the Presidency towns had worked with English law since 1726. ‘What profit was to be expected from going to other systems for a model?’, he quipped. See GC Rankin, ‘The Indian Penal Code’, vol 60, Law Quarterly Review , 1944, p 37, at p 43.
24 Macaulay, Macleod, Anderson and Millett, A Penal Code prepared by the Indian Law Commissioners and Published by Command of the Governor General of India , Pelham Richardson, 1838.
25 Letter-Legislative Department no 15 of 1854 dated 5 April 1854 addressed to the Governor-General-in-Council.chapter of the Draft Code.
26 National Archives of India, Legislative Department, Act No. XLV of 1860.
27 Supplement to the Calcutta Gazette, dated 28 January 1857.
28 Section 1 of the Penal Code originally enacted stood as: ‘This Act shall be called the Indian Penal Code and shall take effect on and from the first day of May, 1861, throughout the whole of the territories which are or may become vested in Her Majesty by the Statutes 21 and 22 Victoria, Chapter 106, entitled ‘An Act for the better government of India,’ except the Settlement of Prince of Wales’ Island, Singapore and Malacca.’
29 Act no. XLV of 1860. The Draft Penal Code remained as a draft for no less than 22 years probably due to the ‘extreme aversion to any changes which boldly and definitely replaced native by European institutions’. The great mutiny and unsettled conditions that prevailed in India also contributed to the delay. The end of the mutiny and the transfer of the government from the company to the Crown gave an extraordinary impetus to legislation. As a result of that impetus, amongst other measures, the Penal Code was passed and was brought into force from the 1 January 1862. The Penal Code did not become the law precisely in the shape in which it was drawn as it was subsequently revised by the Legislative Council and by law commissioners. For details see Sir James Fitzjames Stephen, A History of the Criminal Law of England , Burt Franklin, New York, 1883, pp 299-300.
30 The Indian Penal Code’, observed by Sir James Fitzjames Stephen, ‘may be described as the criminal law of England freed from all technicalities and superfluities, systematically arranged and modified in some few particulars (they are surprisingly few) to suit the circumstances of British India’. See Sir James Fitzjames Stephen, A History of the Criminal Law of England , vol III, Burt Franklin, New York, 1883, p 300. Whitley Stokes also opined that the Code’s ‘basis is the law of England, stripped of technicality and local peculiarities, shortened, simplified, made intelligible and precise’. See, Whitley Stokes, Studies , vol 1, p 126; see also GC Rankin, ‘The Indian Penal Code’, vol 60, Law Quarterly Review , 1944, p 37.
31 Sir James Fitzjames Stephen, A History of the Criminal Law of England , vol III, Burt Franklin, New York, 1883, at 299.
32 Lady Trevelyan, Miscellaneous Work of Lord Macaulay , vol 1, Harper, 1880, p 417.
33 Sir Henry Maine, Village Communities in the East and West , 1871, p. 115. Cited in GC Rankin, ‘The Indian Penal Code, vol 60, Law Quarterly Review , 1944, p 37, at p 47.
34 See Banga Darshan , Pous, 1279 BS, December-January, 1872-73.
35 Hari Singh Gour, Penal Law of British India , vol 1, fourth edn, Introduction, at p CLXXXVIII.
36 Madras Law Journal, vol 57, p 60. Cited in GC Rankin, ‘The Indian Penal Code’, vol 60, Law Quarterly Review , 1944, pp 49-50.
37 However, referring to Note ‘A’ to the Draft Penal Code wherein the commissioners in 1837 hinted that sentences might be decreased if prisons were better managed and expressed the hope that it would be shortly found practicable to reduce the terms of proposed imprisonment, Sir George C Rankin has not taken the criticism. Further, he reminded that the Code when prescribes punishments prescribes maximum amounts and that no court is in general obliged to pass any higher sentence than it thinks sufficient. Ibid, p 50.
38 Hindu Patriot, 29 January 1857. Cited in RC Nigam, Law of Crimes in India , Asia, London, 1965, p 24.
39 Sir James Fitzjames Stephen, A History of the Criminal Law of England , vol III, Burt Franklin, New York, 1883, p 322.
CHAPTER 3 Constituent Elements of Crime
PSA Pillai: Criminal Law,12th Edition
PSA Pillai: Criminal Law,12th Edition > PSA Pillai: Criminal Law,12th Edition
CHAPTER 3 Constituent Elements of Crime
INTRODUCTION
The fundamental principle of criminal liability is that there must be a wrongful act —actus reus,^1 combined with a wrongful intention—mens rea. This principle is embodied in the maxim, actus non facit reum nisi mens sit rea , meaning ‘an act does not make one guilty unless the mind is also legally blameworthy’. A mere criminal intention not followed by a prohibited act cannot constitute a crime. Similarly, mere actus reus ceases to be a crime as it lacks mens rea. No act is per se criminal; it becomes criminal only when the actor does it with guilty mind. No external conduct, howsoever serious in its consequences, is generally punished unless the prohibited consequence is produced by some wrongful intent, fault or mens rea.^2 In juristic concept, act us reus represents the physical aspect of crime and mens rea, its mental aspect, which must be criminal and cooperate with the former.
Actus reus has been defined as ‘such result of human conduct as the law seeks to prevent’. Mens rea, which is a technical term generally taken to mean some blameworthy mental condition or ‘mind at fault’, covers a wide range of mental states and conditions, the existence of which would give a criminal hue to actus reus.
The Penal Code has incorporated in it the maxim actus non facit reum nisi mens sit rea in two primary ways: (i) by express inclusion of the requisite mens rea in the definition of an offence, and (ii) through ‘General Exceptions,’ enumerated in ch IV of the Code, some of which, such as mistake of fact, accident, infancy, and insanity, deny the existence of mens rea.
General
From the maxim actus non facit reum nisi mens sit rea it is clear that there are two constituent elements of crime—actus reus and mens rea.^3 Actus reus connotes an overt act, the physical result of human conduct. It is an event that is distinguished from the conduct which produced the result. For instance, in a murder case, the victim’s death is the event which is the actus reus. The death or the act us reus was probably caused by the firing of a gun, which is the conduct which produced the result. In other words, the crime is constituted by the event and not by the activity which caused the event. The vicious intention to cause the act us reus, i.e., death, is called mens rea. Every crime, which is legally specified and defined, generally involves the combined presence of both, actus reus and mens rea. To illustrate this further, let us take an instance of A firing a gun to kill B. While shooting, A holds the gun, places his finger on the trigger and pulls the trigger, as a consequence of which the bullet leaves the gun. In order to constitute an actus reus, there must be the further consequence of the bullet entering B ’s body and thereby causing his death.
Act to be Voluntary
Act means a conscious or willed movement. It is a conduct, which results from the operation of the will. According to Austin, any movement of the body, which is not in consequence of the determination of the will, is not a voluntary act. It is only a voluntary act that amounts to an offence. Taking the earlier analogy of A pulling the trigger of a gun, as a result of which a bullet is lodged in B ’s body causing his death, A is guilty only if the act of pulling the trigger was a voluntary and conscious act. If the gun had been triggered by mistake or accidentally, then it is not an offence and A is not guilty of murder. If a person is compelled by force of circumstances to perform an act forbidden by law, he cannot be said to do it voluntarily, and therefore, he will not be held liable for the consequences of that act. An act on the part of the accused is involuntary where it is beyond his control or beyond the control of his mind. The situation is known as automatism. Common examples of automatism are:^4 reflective movements of an external origin, somnambulism, epilepsy, hypnosis, and hypoglycemia.
In IPC, ss 32 and 33 define the term ‘act’. S 32 provides that in every part of the Code (except where a contrary intention appears from the context), words, which refer to ‘acts done extend to illegal omissions’. S 33 provides that the word ‘act’
CHAPTER 3 Constituent Elements of Crime
includes ‘a series of act s’ and the word ‘omission’ denotes ‘a series of omissions as a single omission’. A combined effect of ss 32 and 33 is that the term ‘act’ takes into its fold one or more acts or one or more illegal omissions. The IPC makes punishable omissions, provided they are illegal^5 and have caused, intended to cause, or likely to cause, like act s, an actus reus.^6 Death of a newly born child, for example, may be caused by a deliberate refusal to feed the baby. Here, the unlawful homicide—an act us reus—is caused not by any positive act (a deed of commission) but a negative act (an act of omission). It warrants criminal act ion as ‘event’ of the human conduct is not different from that caused by shooting. However, an act of omission attracts criminal liability only when a person is placed under duty to act recognised by the criminal law and he, with the requisite blameworthy mind, failed to fulfill it.^7 Such legal duties to act might arise out of relationship or contracts,^8 or might be imposed by statutes.^9
In Om Prakash v State of Punjab ,^10 the Supreme Court was called upon to adjudge the propriety of conviction of the husband for attempting to kill his wife by deliberately failing to give her food. The accused, whose relations with his wife were strained, deliberately and systematically starved his wife and denied her food, for days together. With the help of his relatives, he also prevented her from leaving the house. Owing to continuous undernourishment and starvation, she was reduced to a mere skeleton. One day, however, she managed to escape from the house as her husband forgot to lock her room before leaving the house. She got herself admitted to a hospital. The doctor, who found her seriously ill, informed the police. After prolonged treatment and blood transfusion, she recovered. The police registered a case under s 307, IPC. The sessions court convicted him for the offence contrary to s 307 of the IPC. The Punjab High Court, confirming the conviction, observed:
The food...was willfully and intentionally withheld to shorten the remaining span of her life. Law does not require an intention to cause death then and there. It is enough if the facts show that by withholding food to her, death would have resulted surely though gradually.^11
The Supreme Court, appreciating the high court’s reasoning, confirmed the conviction of Om Prakash on the ground of his illegal omission.
S 36, IPC stipulates that where an act or an omission constitutes an offence, the committing of the offence partly by an act and partly by an omission, would also constitute the same offence. Illustration to s 36 throws some light on the provision. A intentionally causes Z’s death, partly by illegally omitting to give Z food, and partly by beating Z. A has committed murder.
The term ‘voluntarily’ is defined in s 39, IPC. It runs as under:
Section 39. "Voluntarily".— A person is said to cause an effect "voluntarily" when he causes it by means whereby he intended to cause it, or by means which, at the time of employing those means, he knew or had reason to believe to be likely to cause it.
Illustration
A sets fire, by night, to an inhabited house in a large town, for the purpose of facilitating a robbery and thus causes the death of a person. Here, A may not have intended to cause death; and may even be sorry that death has been caused by his act; yet, if he knew that he was likely to cause death, he has caused death voluntarily.
The term ‘voluntarily’ as defined in this section shows that a person need not intend to cause the act ual effect caused, in order to be held to have voluntarily caused such an effect. If the effect is the probable consequence of the act done by him, then he is said to have caused it voluntarily. It, thus, makes no distinction between cases in which a person causes an effect designedly and cases in which he causes it knowingly or having reason to believe that he is likely to cause it.^12 Further, if a particular effect could have been avoided by due exercise of reasonable care and caution, then the effect of such negligent act is also said to have been ‘voluntarily’ caused.^13 The question whether the effect of a particular act was caused voluntarily, is a question of fact, to be determined on the basis of the facts and circumstances of each case. Some of the factors that may be taken into consideration are: the nature of injury caused; the weapon used; force used; the part of the victim’s body affected etc.^14
CONCOMITANT CIRCUMSTANCES
Act to be Prohibited by Law
