Legal Reasoning

CRIMINAL LAW

CULPABALE HOMICIDE
Section 299, Culpable Homicide. Whoever causes death by doing an act with the intention of causing death, or with the intention of causingsuch bodily injury as is likely to cause death, orwith the knowledge that he is likely by such actto cause death, commits the offence of culpablehomicide.

Illustrations
(a) A lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be caused. Z believing the ground to be firm, treads on it, falls in and is killed.A has committed the offence of culpable homicide.
(b) A knows Z to be behind a bush. B does notknow it. A, intending to cause, or knowingit to be likely to cause Z's death, induces B to fire at the bush. B fires and kills Z. Here B may be guilty of no offence, butA has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to killand steal it, kills B, who is behind a bush;A not knowing that he was there. Here, although A was doing an unlawful act, hewas not guilty of culpable homicide, as hedid not intend to kill B, or to cause death by doing an act that he knew was likely tocause death.

Explanation 1. A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and therebyaccelerates the death of that other, shall be deemed to have caused his death.

Explanation 2. Where death is caused by bodilyinjury, the person who causes such bodily injuryshall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.

Explanation 3. The causing of the death of a child in the mother's womb is not homicide. But,it may amount to culpable homicide to cause thedeath of a living child, if any part of that child has been brought forth, though the child may nothave breathed or been completely born.

Sections 299 and 300, IPC define culpable homicide, which is of two types:
I. Culpable homicide amounting to murder
2. Culpable homicide not amounting tomurder.
he provisions relating to murder and culpable homicide are probably the mostcomplicated in the IPC, and are so technical that very often theylead to confusion.

A murder is culpable homicide, but every culpable homicide is not murder. Culpable homicide is the genus and murder, its species.
Section 299 defines culpable homicide simpliciter. Section 300 defines murder, which is also a culpable homicide with some special characteristics, which are set out in clauses 1-4 of Section 300, subject to the exceptions given in Section 300, then it will amount to murder. All other instances of culpable homicide, the ones which may fall within the exceptions to Section 300, will all be culpable homicide not amounting to murder.
While Section 299 defines 'culpable ho- micide', it is not an exhaustive definition, It is important to remember that Section 300 also de-fines culpable homicide, but which amounts to murder. Before going into further details about distinctions between Section 299 and Section 300, IPC, it is important to understand the sec- tions.
The following are the essential ingredientsof culpable homicide:
(1) There must be a death of a person
(2) The death should have been caused by theact of another person
(3) The act causing death should have been done
(a) with the intention of causing death;or
(b) with the intention of causing such bodily injury as is likely to cause death; or
(c) with knowledge that such act is likelyto cause death.

The definition itself provides for three circumstances, wherein the presence or absence ofcertain factors in causing death is nevertheless treated as causing culpable homicide. These circumstances are dealt with in explanations 1-3.

Explanation 1. Provides for a situation where theinjured person is suffering from some disorder, disease or bodily infirmity, which quickenedhis death. The fact his death was quickened or hastened by the disorders or disease he was already suffering from, will not reduce the guiltor culpability of the person causing the injury. Inother words, the person who caused the injury cannot escape criminal liability of culpable homicide by stating that if the person injured did not suffer from the said disease, he would not have died.

Explanation 2. Provides for a situation whereina person who has been injured could have recovered and escaped death, ifhe had been given prompt and proper medical treatment. In such situations too, the fact that the injured person died because he could not avail of good medical treatment, cannot be a ground for negating guilt or culpability of the person who inflicted the injury in the first place.

Explanation 3. Is in respect to a slightly different situation. It takes into consideration death caused to a child in the mother's womb.The law states that if the death of the childis caused when still in the mother's womb, it is not culpable homicide.However, if any portion of the child, comesout of the mother's womb, even if it is not fully born, and if death is caused to such child, then itwould amount to culpable homicide.

MURDER

Section 300: Murder
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by whichthe death is caused is done with the intention ofcausing death, or
Secondly, if it is done with the intention ofcausing such bodily injury as the offender knowsto be likely to cause the death of the person to whom the harm is caused, or Thirdly, if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or
Fourthly, if the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring therisk of causing death or such injuryas aforesaid.

Illustrations
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury. Z dies in consequence of the blow. A is guiltyof murder, although the blow might have been sufficient in the ordinary course of nature to cause the death of a personin a sound state of health. But if A, not knowing that Z is labouring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health. Here A, although he may intend to cause bodily injury, is not guilty of murder, ifhe did notintent to cause death, or such bodily injuryas in the ordinary cause of nature would cause death.
(c) A intentionally gives Z a sword-cut orclub-wound sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here, A is guilty of murder, although he may not have intended to cause Z's death.
(d) A without any excuses fires a loaded cannoninto a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated designto kill any particular individual.

Exception 1. When culpable homicide is not murder.
Culpable homicide is not murder if the offender,whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocationor accident.
The above exception is subject to the following provisions:
Firstly, that the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly, that the provocation is not givenby anything done in obedience to the law, or bya public servant in the lawful exercise of the powers of such public servant.
hirdly, that the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation. Whether the provocation wasgrave and sudden enough to prevent the ojfencefrom amounting to murder is a question of fact.

Illustrations
(a) A, under the influence of passion excited by a provocation given by Z, intentionallykills Y, Z's child. This is murder, inasmuchas the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doingan act caused by a provocation.
(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himselfto be likely to kill Z, who is near him, butout of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.
(c) A is lawfully arrested by Z, a bailiff. Ais excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was givenby a, thing done by a public servant in theexercise of his powers.
(d) A appears as a witness before Z, a Magistrate. Z says that he does not believea word of A's deposition, and that A has perjured himself. A is moved to a sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Z's nose. Z, in theexercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defence.
(f) Z strikes B. Bis by this provocation excited to violent rage. A, a bystander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife intoB's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is a guilty of murder.

Exception 2. Culpable homicide is not murder if the offender, in the exercise in good faith of theright of private defence of person or property, exceeds the power given to him by law andcauses the death of the person against whomhe is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration
Z attempts to horsewhip A, not in such a manneras to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means preventhimself from being horsewhipped, shoots Z dead. A has not committed, murder, but only culpable homicide.

Exception 3. Culpable homicide is not murder if the offender being a public servant or aidinga public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act whichhe, in good faith, believes to be lawful andnecessary for the due discharge of his duty as such public servant and without ill-will towardsthe person whose death is caused.

Exception 4. Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner.

Explanation. It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5. Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death ortakes the risk of death without his consent.

Illustration
A, by instigation, voluntarily causes Z, a personunder eighteen years of age, to commit suicide. Here, on account of Z's youth, he was incapableof giving consent to his own death; A has therefore abetted murder.
Scope of Section 300
Section 300 defines murder with reference to culpable homicide defined in Section299. If thespecial requirements provided in clauses 1-4 ofa Section 300 are fulfilled, culpable homicide will then amount to murder, provided of course, the act does not fall within any of the exception provided in Section 300. If an act which falls within clauses 1-4 of Section 300, also falls within one of the exception, then it will beculpable homicide not amounting to murder.
It would probably have been more simple and less complicated if the Code had first de- fined homicide and then defined separately cul-pable homicide and murder. Since some clausesin Sections 299 and 300 overlap, it has led to a lot of discussions, debates and differences.
The following are the essential ingredientsof Section 300:
Culpable homicide is murder, if it is done with:
(1) Intention to cause death;
(2) Intention to cause bodily injury, knowing that the injury caused, is likely to cause death;
(3) Intention of causing bodily injury sufficient in the ordinary course of nature to cause death;
(4) (a) knowledge that the act is so imminent-ly dangerous that in all probability it will cause death or bodily injury likelyto cause death; and
(b) such act should be without justification.
Culpable homicide will not be murder, if it is:

Exception 1. On grave and sudden provocation;
Explanation:
(a) The provocation should not be voluntarilysought or deliberately caused by the accused;
(b) Should not be a result of act done by publicservant or in obedience to law;
(c) Not be in self-defence.
Whether a particular act is grave and sudden is a question of fact.

Exception 2. In exercise of right of privatedefence or person or property;
(a) And without premeditation and withoutintention.

Exception 3.
(a) An act done by public servant or in aidinga public servant;
(b) Acting in advancement of public justice;
(c) Such act of the public servant is in excessof the powers conferred on him, but exercised in good faith;
(d) And such act is necessary to discharge faith;
(e) And is without ill will.

Exception 4.
(a) A sudden fight without premeditation;
(b) The offender should not take undue ad- vantage or act in a cruel or unusual man- ner.
Explanation. Who started the fight or quarrelis immaterial.

Exception 5. Death caused to a person above 18years of age with his consent. Death by Negligence
Section 304-A: Causing death by negligence Whoever causes the death of anyperson bydoing any rash or negligent act not amountingto culpable homicide, shall be punished withimprisonment of either description for a termwhich may extend to two years, or with fine orwith both.
This section was added by an amendment of the Code 10-years after the IPC was enacted.It does not create a new offence. This section isdirected at offences, which fall outside the rangeof Sections 229 and 300, where neither intentionnor knowledge to cause death is present.
In fact, if this section is also taken into consideration, there are three types of homicidewhich are punishable under the code-culpablehomicide amounting to murder, culpable homi- cide not amounting to murder and the homicideby negligence.
This section deals with homicide by negli-gence and covers that class of offences, where death is caused neither intentionally nor with theknowledge that the act of the offender is likely to cause death, but because of the rash negligentact of the offender. This clause limits itself to rash and negli- gent acts which cause death, but falls short of culpable homicide of either description.

Rash or Negligent Act
The doing of a rash or negligent act which causes death, is the essence of this section. Under Section 32, IPC, the act includes 'illegal omission'. Therefore, if an illegal omission occurs as a result of negligence, which results indeath, then this section will apply
The term 'negligence' as used in this sec- tion does not mean mere carelessness. The rash-ness of negligence must be of such nature so as to be termed as a criminal act of negligence or rashness.
Section 80 of the code provides 'nothingis an offence which is done by accident of mis- fortune and without any criminal knowledge or intention in the doing of a lawful act in a lawfulmanner by a lawful means and with proper careand caution.' It is absence of such proper care and caution, which is required of a reasonable man in doing an act, which is made punishable under this section.
It is the degree of negligence, which re- ally determines whether a particular act would amount to a rash and negligent act is of such a degree that the risk run by the doer of

the act asdefined under this section. It is only when the rash and negligent act is of such a degree that the risk run by the doer of the act is very highor is done with such recklessness and with totaldisregard and indifference to the consequences of this act, the act can be constituted as a rash and negligent act under this section.
Negligence is the gross and culpable neglect or failure to exercise reasonable and proper care, and precaution to guard against, either to the public generally or to an individu-al in particular, which a reasonable man wouldhave adopted.
Attempt to Commit Murder and Culpable Homicide

Section 307: Attempt to murder
Whoever does any act with such intention or knowledge, and under such circumstances that, ifhe by that act caused death, he would be guiltyof murder, shall be punished with imprisonmentof either description for a term which may extendto ten years, and shall also be liable to fine; and,hurt is caused to any person by such act, the offender shall be liable either to imprisonment for life, or to such punishment as is hereinbefore mentioned.

Attempts by Life-Convicts
When any person offending under this section isunder sentence of imprisonment for life, he may,ifhurt is caused, be punished with death.

Scope of Section 307
Section 307 provides that the definition as to what amounts to an attempt to commit murder. In order or constitute an offence under this section, two elements are essential. First, the intention or knowledge to committhe murder.
Second, the actual act of trying to commit the murder. Thus it must have both the neces- sary mensrea and actus reus. In other words, foroffences under this section, all the elements of murder exist, except for the fact that death has not occurred.

Suicide
Section 305: Abetment of suicide of child or insane person
If any person under eighteen years of age, any insane person, any delirious person, any idiot,or any person in a state of intoxication, commitssuicide, whoever abets the commission of such suicide, shall be punished with death or imprisonment for life, or imprisonment for a term not exceeding ten years, and shall also be liable to fine.

Section 306: Abetment of suicide
If any person commits suicide, whoever abets thecommission of such suicide, shall be punished with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.
Suicide has not been declared as a crime by the Code obviously because once a person successfully commits suicide, that person is no longer alive to be prosecuted and the crimeabates with him. However, an attempt to commitsuicide is punishable under Section 309 and an abetment to commit suicide under Sections 305 and 306,
IC
This section is based on a reasonable pub- lie policy to prevent other persons involvement,instigation and aiding in terminating one's life. It takes care of situation and threats imposed bydeath baiters.
To make out a case of abetment, there mustbe instigation by the accused-provoking, incit-ing or encouraging a person to do an act.
he offence of abetment must confirm to the definition of the term given in Section 107 i.e., to say, there must be instigation, coopera- tion or intentional assistance given to the wouldbe suicide. It is not necessary, nor indeed is ita part of the definition, that the suicide should have been committed in consequence of the abetment.
But, in order to render a person liable as anabettor, it is necessary that the abettor should dosomething more than remaining a mute specta- tor.
But, sometimes, it is conceivable that eventhe mere presence as spectator may encourage aperson to do a deed, which she might otherwiserefrain from. In such cases, the question whethermere presence amounted to intentionally aidinganother, will have to be decided.

Section 309: Attempt to commit suicide
Whoever attempts to commit suicide and does any act towards the commission of such offence, shall be punished with simple imprisonment fora term which may extend to one year or with fine, or with both.
Suicide is as such no crime under the Code.However, attempt to commit suicide is made punishable under this section. Mens rea is one of the essential elements of this offence.

Section 319: Hurt
"Whoever causes bodily pain, disease or infir- mity to any person is said to cause hurt".
There is nothing in this section to suggest that the hurt should be caused by direct physicalcontact between the accused and the victim. It may be caused by any means and includes ner- vous shock or mental derangement.
'Bodily pain', except so slight a harm of which no person of ordinary sense or temper would complain of, is covered by the definitionof hurt. Dragging by hair in aggressive manner and fisting in course of attack are not trivial actsand constitute offence of causing hurt.
'Infirmity' has been defined as inability ofan organ to perform its normal function which may either be temporary or permanent. A state of temporary impairment or hysteria or terror would constitute infirmity.

Section 320: Grievous Hurt
"The following kinds of hurt only are designatedas "grievous":
First-Emasculation.
Second-Permanent privation of the sight ofeither eye.
Third-Permanent privation of the hearing ofeither ear.
Fourth-Privation of any member or joint.
Fifth-Destruction or permanent impairing ofthe powers of any member or joint.
Sixth-Permanently disfiguration of the heador face.
Seventh-Fracture or dislocation of a bone ortooth.
Eighth-Any hurt which endangers life or which causes the sufferer to be during the spaceof twenty days in severe bodily pain, or unable to follow his ordinary pursuits.
The mere fact that the injured remained in the hospital for 20 days would not be enough toconclude that he was unable to follow his ordi- nary pursuits during that period.
Continuance of severe bodily pain for 20 days or disability to follow one's avocation for 20 days constitutes grievous hurt; if it continues for a period less than 20 days, it would be an offence of hurt.

Section 321: Voluntarily Causing Hurt
"Whoever does any act with the intention thereby causing hurt to any person, or with the knowledge that he is likely thereby to cause hurtto any person, and does thereby cause hurt to any person, is said "voluntarily to cause hurt".

Section 322: Voluntarily Causing Grievous Hurt
"Whoever voluntarily causes hurt, if the hurtwhich he intends to cause know himself tobe likely to cause is grievous hurt, and if thehurt which he causes is grievous hurt, is said"voluntarily to cause grievous hurt." Explanation. A person is not said voluntarily tocause grievous hurt except when he both causesgrievous hurt and intends or knows himself tobe likely to cause grievous hurt. But he is said voluntarily to cause grievous hurt, if intending orknowing himself to be likely to cause grievoushurt of one kind, he actually causes grievoushurt of another kind.

Section 359: Kidnapping
Kidnapping is of two types: kidnapping from India, and kidnapping from lawful guardianship.
The literal meaning of kidnapping is 'childstealing'. The two forms of kidnapping may overlap each other.

Section 360: Kidnapping from India
Whoever conveys any person beyond the limitsof India without the consent of that person, orof some person legally authorized to consenton behalf of that person, is said to kidnap that person from India.
For an offence under this section, it does not matter that the victim is a major or mmor.

Section 361: Kidnapping from Lawful Guard- ianship
Whoever takes or entices any minor under sixteenyears of age if a male, or under eighteen years ofage if a female, or any person of unsound mind, out of the keeping of the lawful guardian of suchminor or person of unsound mind, without the consent of such guardian, is said to kidnap suchminor or person from lawful guardianship.
Explanation. The word "lawful guardian" in this section include any person lawfully entrusted with the care or custody of such minoror other person.

Exception. This section does not extend to the act of any person who in good faith believes himself to be the father of an illegitimate child, or who in good faith believes himself to beentitled to the lawful custody of such child,unless such act is committed for an immoral or unlawful purpose.
Besides the four essential ingredients of this offence mentioned in Section 361, the courts have formulated certain other guidingprinciples:
(i) In the case of minor girls this section is attracted irrespective of the question whether she is married or unmarried.
(ii) The consent of the minor is immaterial.
(iii) The motive or intention of the kidnapper is also immaterial.
(iv) If the kidnapped girl turns out to be under18 years of age, the kidnapper must take the consequences, even though the bona- fide believed and had reasonable ground for believing that she was over eighteen.
(v) The defence that the girl was of easy virtuewould not be sufficient to make accused not liable.

Section 362: Abduction
"Whoever by force compels, or by any deceitfulmeans induces, any person to go from any place,is said to abduct that person."

The expression 'deceitful means' includes a misleading statement. It is really speaking a matter of intention. The intention of the accusedis the basis and the gravity of the offence. The volition, the intention and the conduct of the woman do not determine the offence. The of- fence of abduction is complete if the accused has taken the women away by deceitful means intending to seduce her to sexual intercourse to marry her or arrange for her marriage.
Where a girl was unwilling to follow the accused and accused compelled her by forceto follow, he would be guilty of abduction. But where the accused entered a girl's house and lifted her up in order to carry her away but on raising of alarm by her, they dropped her and ran away, the offence of abduction was not com-mitted because the girl was not compelled to gofrom her place. The accused were guilty of at- tempting to abduct under Sections 366 and 511.
On being persuaded by the accused thevictim when inside his house and came properlydressed to accompany the accused. This will notamount to 'abduction' within the meaning of Section 362 as there was neither force nor deceit which compelled the victim to go with the accused.

Where the mother had assigned by a willto R the guardianship of her minor daughter andthe duty of marrying her, and a parental relativeof the daughter removed her by fraud and force for the purpose of getting her married to a per­ son other than the one selected by R, it was heldthat such relative was guilty of kidnapping as well as abduction.

DISTINCTION BETWEEN KIDNAPPING AND ABDUCTION

Whereas a girl of 18 years of age or over can only be abducted and not kidnapped, a girl below 18 years of age can be kidnapped (ifunder a lawful guardian) as well as abducted (ifwith or without a guardian and use of force or deceitful means) provided the other statutory conditions are satisfied. The differences in detailare as follows:

Section 375: Rape
Section 375, IPC lays down that the sexual intercourse must be under circumstances fallingunder any of the six clauses. A man is said to commit 'rape' who has sexual intercourse with a women:
(i) against her will; or
(ii) without her consent; or
(iii) with her consent by putting her in fear of death or of hurt; or
(iv) with her consent, when the man knows that he is not her husband and that her consent is given because she believes thathe is another man to whom she is lawfullymarried; or
(v) with her consent, when, at the time ofsuch consent, by reason of unsoundness ofmind or intoxication or the administrationby him personally or through another of any stupefying or unwholesome substanceshe is unable to understand the nature andconsequences of that to which she gives consent; or
(vi) with or without her consent when she is under 16 years of age.
Explanation. Penetration is sufficient to consti-tute sexual intercourse.

Exception. Sexual intercourse by a man with his own wife is not rape, if the wife is above l 5years of age.
It may be noted that if the woman is under16 years of age, it is immaterial that the act bedone with her consent or even at the invitation of woman herself (or that she had sex experi- ence already), for the policy of the law is to protect children of such immature age against sexual intercourse. This is also known as 'statutory rape'.
A 'man' is defined by Section 10 of the codeas a male human being of any age. Thus, a boy above 12 years of age is capable of committing rape under this section, whereas a boy below 12but above 7 years of age enjoys a qualified immunity.

Amendments in Law of Rape
The Parliament in 1983 extensively amended thelaw of rape so as to make the law more realisticand to safeguard the rights of innocent victims. Besides substantive law (I.P.C.), procedural provisions under Evidence Act and Criminal Procedure code were also added to strengthen the law. Some of the important changes broughtabout by the Criminal Law (Amendment) Act, 1983 are:
(i) Consent of a woman of unsound mind, etc.A new clause 'fifthly' added to Section 375, IPC, negatives the consent of thewomen for the purpose of the offence of rape, if the woman is of unsound mind, oris under the influence of intoxication at therelevant time.
(ii) Minimum punishment for rape: Section376, IPC has provided for a minimum of 7years of imprisonment under cl. (1) and 1Oyears under cl. (2).
(iii) Intercourse with wife during judicialseparation without her consent prohibited:Section 376 A, IPC, added.
(iv) Custodial rape: Section 376 B to Section 376D, IPC provided for a new categoryof offence, known as custodial rape. Suchcases do not amount to rape because the victim's consent is obtained under the compelling circumstances. The offenders occupy supervisory positions and take undue advantage of their authority.
(v) Burden of proof of innocence of accused: Section 114A inserted in Evidence Act, 1872, provides for a conclusive presumption as to the absencer of consent of the woman under Section 376 (2) viz. custo- dial rape, rape on pregnant women and gang rape.
This has at least partially removed the infirmity from the evidence of a victim of rape that was hitherto unjustly attached to her testimony without taking note of the fact that in India a disclosure of this nature is likely to ruin the prospectof the girl's rehabilitation in society forall times to come and unless her storywas painfully true she would not havetaken such a grave risk merely to malign the accurse. Moreover, in cases of rape, particularly custodial rape it is almost impossible to get any other independent evidence to corroborate the testimony of the prosecutrix.
(vi) Prohibition of disclosure of identity of thevictim in rape cases: Section 228A (1), IPC, added.
(vii) Trial in camera: Section 327, Cr.P.C, whichconfers the right of an open court trial hasbeen amended making the provisions for trial of rape in camera and prohibition of publication of trial proceedings in such cases without the prior approvalofthecourt.
Section 228A, IPC, and Section 327, Cr.P.C. not only protect the honour ofsexually victimized women but also makeit possible for them to depose in court without any fear of social ostracism.
Character assassination of prosecutrixprohibited: A 'proviso clause' to Section 146 Evidence Act, inserted via 2003 amendment Act, has disallowed to put questions about prosecutrix character in cross-examination.

Section 378: Theft
Whoever, intending to take dishonestly any movable property out of the possession of any person without that person's consent, movesthat property in order to such taking, is said to commit theft.

Explanation 1. A thing so long as it is attachedto the earth, not being movable property, is not the subject to theft; but it becomes capable of being the subject of theft as soon as it is severedfrom the earth.

Explanation 2. A moving effected by the sameact which effects the severance may be a theft.

Explanation 3. A person is said to cause athing to move by removing an obstacle whichprevented it from moving or by separating itfrom any other thing, as well as by actuallymoving it.

Explanation 4. A person, who by any means causes an animal to move, is said to move that animal, and to move everything which, in consequence of the motion so caused, is caused,is moved by that animal.

Explanation 5. The consent mentioned in the definition may be express or implied, and may be given either by the person in possession, or by any person having for that purpose authorityeither express or implied.

Illustrations
(a) A cuts down a tree on Z's ground, with the intention of dishonestly taking the treeout of Z's possession without Z's consent.Here, as soon as A has severed the tree in order to such taking, he has committed theft.
(b) A puts a bait for dogs in his pockets, and thus induces Z's dog to follow it. Here, if A's intention be dishonestly to take the dog out of Z's possession without Z'sconsent, A has committed theft as soon asZ's dog has begun to follow A.
(c) A meets a bullock carrying a box of treasure. He drives the bullock in a certaindirection, in order that he may dishonestlytake the treasure. As soon as the bullock begins to move, A has committed theft of the treasure.
(d) A being Z's servant, and entrusted by Z with the care of Z's plate, dishonestly runsaway with the plate, without Z's consent. A has committed theft.
(e) Z, going on a joumey, entrusts his plate toA, the keeper of a warehouse, till Z shall return. A carries the plate to a goldsmith and sells it. Here, the plate was not inZ's possession. It could not therefore be taken out of Z's possession, and A hasnot committed theft, though he may have committed criminal breach of trust.
(f) A finds a ring belonging to Z on a table inthe house which Z occupies. Here, the ringis in Z's possession, and if a dishonestly removed it, A commits theft.
(g) A finds a ring lying on the highroad, not in the possession of any person. A, by taking it, commits no theft, though he may commit criminal misappropriation ofproperty.
(h) A sees a ring belonging to Z lying on a table in Z's house. Not venturing to mis- appropriate the ring immediately for fear of search and detection, A hides the ring in a place where it is highly improbable that it will ever be found by Z, with the in-tention of taking the ring from the hiding place and selling it when the loss is forgotten. Here A, at the time of first moving the ring, commits theft.
(i) A delivers his watch to Z, a jeweller, to beregulated. Z carries it to his shop. A, not owing to the jeweller any debt for which the jeweller might lawfully detain the watch as a security, enters the shop openly,takes his watch by force out of Z's hand, and carried it away. Here A, though he may have committed criminal trespass andassault, has not committed theft, inasmuchas what he did was not done dishonestly.
(j) If A owes money to Z for repairing the watch, and if Z retains the watch lawfullyas a security for the debt, and A takesthe watch out of Z's possession, with the intention of depriving Z of the property asa security for his debt, he commits theft, inasmuch as he takes it dishonestly.
(k) Again, if A, having pawned his watch to Z,takes it out of Z's possession without Z's consent, not having paid what he borrowedon the watch, he commits theft, though thewatch is his own property inasmuch as hetakes it dishonestly.
(l) A takes an article belonging to Z out of Z's possession, without Z's consent, with the intention of keeping it until he obtains money from Z as a reward for its restoration. Here A takes dishonestly; A has therefore committed theft.
(m) A, being on friendly terms with Z, goes into Z's library in Z's absence, and takes away a book without Z's express consent for the purpose merely of regarding it, andwith the intention of returning it. Here, it is probable that A may have conceived that he has Z's implied consent to use Z'sbook. If this was A's impression, A has not committed theft.
(n) A asks charity from Z's wife. She givesA money, food and clothes, which A knows to belong to Z, her husband. Here it is probable that A may conceive that Z's wife is authorized to give away alms. If this was A's impression, A has not committed theft.
(o) A is the paramour of Z's wife. She givesa valuable property, which A knows to belong to her husband Z, and to be such property as she has not authority from Z togive. If A takes the property dishonestly, he commits theft.
(p) A, in good faith believing belonging to Z to be A's own property, takes that propertyout of B's possession. Here, as A doesnot take dishonestly, he does not commit theft.

Section 383:
ExtortionWhoever, intentionally puts any person in fear of any injury to that person, or to any other, andthereby dishonestly induces the person so putin fear to deliver to any person any property of valuable security, or anything signed or sealed which may be converted into a valuable security,commits "extortion".
Illustrations
(a) A threatens to publish a defamatory libel concerning Z unless Z gives him money. He thus induces Z to give him money. A committed extortion.
(b) A threatens Z that he will keep Z' s child inwronglful confinement unless Zwill sign and deliver to A a promissory note bindingZ to pay certain money toA. Z signsand delivers the note. A has committed extortion.
(c) A threatens to send club-men to ploughup Z's field unless Z will sign and deliverto B a bond binding Z under a penalty to deliver certain produce to B, and thereby induces Z to sign and deliver the bond. A has committed extortion.
(d) A, by putting Z in fear of grievous hurt, dishonestly induces Z to sign or affix his seal to a blank paper and deliver it to A.Z signs and delivers the paper to A. Here,as the paper so signed may be converted into a valuable security, A has committed extortion.

CRIMINAL MISAPPROPRIATION AND CRIMINAL BREACH OF TRUST

Section 403: Dishonest Misappropriation of Property
Whoever dishonestly misappropriates or con- verts to his own use any movable property, shall be punished with imprisonment of either description for a term which may extend to twoyears, or with fine, or with both.

Illustrations
(a) A takes property belonging to Z out of Z'spossession, in good faith believing, at the time when he takes it, that the property belongs to himself. A is not guilty of theft; but if A, after discovering his mistake, dishonestly appropriates the property to his own use, he is guilty of an offence under this section.
(b) A, being on friendly terms with Z, goes into Z's library, in Z's absence, and takesaway a book without Z's implied consentto take the book for thepurpose of readingit, A has not committed theft. But, if A afterwards sells the book for his own benefit, he is guilty of an offence under this section.
(c) A and B, being joint owners of a horse,A takes the horse out of B's possession, intending to use it. Here, as A has a right to use the horse, he does not dishonestly misappropriate it. But, if A sells the horseand appropriates the whole proceeds to hisown use, he is guilty of an offence under this section.

Explanation 1. A dishonest misappropriation for a time only is a misappropriation within the meaning of this section.

Illustration
A finds a Government promissory note belonging to Z, bearing a blank endorsement. A, knowingthat the note belongs to Z, pledges it with a banker as a security for a loan, intending at a future time to restore it to Z. A has committed an offence under this section.
Explanation 2. A person who finds property not in the possession of any other person, and takes such property for the purpose of protectingit for, or of restoring it to, the owner, does not take or misappropriate it dishonestly, and isnot guilty of an offence; but he is guilty of the offence above defined, if he appropriates it to his own use, when he knows or has the means of discovering the owner, or before he has usedreasonable means to discover and give notice tothe owner and has kept the property a reasonable time to enable the owner to claim it.
What are the reasonable means or what is reasonable time in such a case is a question of fact.
It is not necessary that the finder should know who is the owner of the property, or that any particular person is the owner of it: it is sufficient if, at the time of appropriating it, he does not believe it to be his own property, or in good faith believes that the real owner cannot be found.
Illustrations
(a) A finds a rupee on the high-road, not knowing to whom the rupee belongs. A picks up the rupee. Here, A has not committed the offence defined in this section.
(b) A finds a letter on the road containing a bank note. From the direction and contentsof the letter he learns to whom the note belongs. He appropriates the note. He is guilty of an offence under this section.
(c) A finds a cheque payable to bearer. He can form no conjecture as to the person who has lost the cheque. But the name of the person, who has drawn the cheque, appears. A knows that this person can direct him to the person in whose favour the cheque was drawn. A appropriates thecheque without attempting to discover theowner. He is guilty of an offence under this section.
(d) A sees Z drop his purse with money in it. A picks up the purse with the intention of restoring it to Z, but afterwards appropri- ates it to his own use. A has committed anoffence under this section.
(e) A finds a purse with money, not knowing to whom it belongs; he afterwards discoverthat it belongs to Z, and appropriates itto his own use. A is guilty of an offence under this section.
(f) A finds a valuable ring, not knowing to whom it belongs. A sells it immediately without attempting to discover the owner.A is guilty of an offence under this section.

ESSENTIALS INGREDIENTS OF CRIMINAL MISAPPROPRIATION

The offence of criminal misappropriation consists in dishonest misappropriation or conversion to his own use any movable property.
It takes place when the possession has beeninnocently come by, but where, asubsequent change of intention, or from the knowledge of some new fact with which the party was not previously acquainted, the retaining becomeswrongful and fraudulent.
The two essential ingredients of this sec- tion are:
(a)the accused misappropriated or converted to his own use another's movable property,and,
(b)the accused did so dishonestly.
To 'misappropriate' means 'improperly setting apart for one's use to the exclusion of the owner'. 'Converts' means appropriation anddealing with property of another without right as if it is his own property. The accused is not guilty when he merely retains or possesses suchproperty. He is guilty only when he appropriatesor converts to his own use such property. Fur- ther, the property must be a movable property.
A man is said to do a thing "dishonestly" when he does it with the intention of causing wrongful gain to one person or wrongful lossto another person. It follows that a mere misap-propriation or conversion to one's use is not suf-ficient for the completion of an offence, but thatthe element of dishonesty is essential, and dis- honesty comes into existence as soon as there isan intention of causing, wrongful gain or loss.
Where a person found a purse and put itin his pocket, but was immediately afterwards arrested, he was not guilty of criminal misap- propriation for it could not be assumed that by the mere act of picking up the purse or putting itin his pocket he intended to appropriate its con-tents to his own use. Mere retention of money would not warrant a conviction under Section 403 unless there is evidence that the accused used the money.
Misappropriation or conversion need not be permanent, it may be for a time. The accused,a government servant, on duty received certain money in his possession for several months,but fearing detection, had paid them into the treasury, making a false entry at the time in his books. He was held guilty of criminal misappro-priation. Similar would be the case where a ser-vant, authorized to collect money on behalf of his master, retained money on account of non- payment of wages by his master.
The accused would not be guilty of the of-fence, where there was no information as to thecircumstances under which the things were lostand the probability was that property was aban-doned by the original