Category: Indian Penal Code

The Empress vs Gonesh Dooley And Gopi Dooley 1879 Cal

August 25, 2024August 25, 2024 toahostinger No Comments

The Empress vs Gonesh Dooley And Gopi Dooley 1879 Cal (Snake Charmer’s Case) JUDGMENT by McDonell, J. Case Facts: Gonesh Dooley was accused of causing the death of a boy by placing a snake on him by exhibiting in public a venomous snake, whose fangs he knew had not been extracted, and to show his own skill, but without any intention to cause harm to anyone, placed the snake on the head of one of the spectators. The spectator in trying to push off the snake was bitten, and died in consequence. Issues Involved Prosecution’s Argument: The prosecution argued that Gonesh intentionally caused the boy’s death by placing the snake on him, knowing it was dangerous. They also argued that Gopi abetted Gonesh by encouraging or assisting him in the act. Defense’s Argument: The defense argued that Gonesh did not have the intention to kill the boy. They claimed it was a reckless act without the knowledge that it would result in death. They also argued that Gopi did not actively participate in the act and should not be held responsible. Court’s Reasoning: Courts Analysis: The court found that Gonesh did not intentionally cause the boy’s death. It was determined that he did not know the act was “so imminently dangerous that it must, in all probability, cause death” (the last clause of murder) Comparison with Previous Case: The court compared this case with another case The Queen v. Poonai Fattemah 1869, where the accused had intentionally caused a snake to bite the victim. The court noted that in Gonesh’s case, there was no such clear intention or knowledge of imminent danger. Without intention but knowledge: Court observed that in this case “that Gonesh did not think that the snake would bite the boy. But we think that the act was done with the knowledge that it was likely to cause death, but without the intention of causing death.” Conclusion: Sentencing: The court found that Gonesh did not have the intention to cause death but acted with the knowledge that his actions were likely to cause death. Therefore, he was sentenced under Section 304 Part II. Gonesh Dooley was sentenced to three years of rigorous imprisonment. Gopi Dooley, who abetted Gonesh, was sentenced to one year of rigorous imprisonment under Sections 114 and 304 of the IPC.

Criminal Law, Indian Penal Code, judiciary, Law

General Exceptions under IPC

November 4, 2023 toahostinger No Comments

General Exceptions under IPC According to the Indian Penal Code, Mens rea and actus reus are the two essential components of the commission of crime. Within this article, I have enumerated Chapter IV of IPC i.e. Exceptions. This article deals with the nature and the categories of the protection given to the criminal to make his offence a non-offence. I have also enumerated several case laws along with a brief explanation of the general defences. Sections 76 to 106 provide for the right of the people to protect their own life and limb and also of others. This provision gives a chance to accuse to prove himself non-guilty. Introduction The general exceptions/defences contained in Section 76-106 make a violation a non-violation. These are the defences which absolve the accused from any violation liability. This part has been framed to remove the repetition of exceptions in every penal clause and the legislature by S.6 IPC, 1860 enacted that all the definitions must be considered because of the exceptions. Application of Exceptions The court shall presume that there is not any presence of chances and it has to be proved by the accused. Because it is given in Section105 of the Indian Evidence Act that when a human has done any kind of violation, the pressure of showing the existence of scenarios of exceptions or within any special exception or proviso is upon him i.e., accused and the court shall assume the absence of such circumstances.[1] Investigation shall not confine merely to the acts done by a person. Depending on the facts and circumstances of each case, many other relevant facts have to be investigated in the light of expressions contained in “General Exceptions”. Then only will be able to confirm whether this act carried out by a human is a violation of law or not. The General Exceptions are discussed below: Mistake of Fact S.76 and 79 are based on the expression that Ignorance of fact is an excuse but ignorance of law is not an excuse. The characteristics are; A crime must be done by a person He must do that act by mistake of fact He must do it in good faith Queen v. Tolson[2] In this case, the petitioner tied the knot of marriage in 1880. In 1881, her husband went missing. Then believing her husband to be dead, she tied the knot of marriage with another male. Now, 11 months later her previous husband turned up and filed a case against her for the violation of bigamy. It was assumed that the belief of the death of her husband was a mistake of fact by the appellant and thus, she would not be charged with an offence of bigamy. Reg v. Fredrick Jones In this case, a loaded gun was not known to be loaded by the person handling it and he pressed a trigger. But, due to a gun being loaded a person died. It was held that it was a mistake of fact that the gun was not in a loaded situation with the knowledge of the person handling it. So, he was not held liable under Section 302 IPC. M.H.George v. State of Maharashtra[3] India recently passed a law prohibiting carrying that much gold through India. He was hiding the gold in his jacket, that too 34 kg of gold. It was held that even if M.H. George didn’t know the law it was no excuse, he was supposed to know it. Ignorance of law is no excuse and he was held liable under the relevant provision. State of Andhra Pradesh v. Venu Gopal[4] In this case, police arrested a person on suspicion that he had received some stolen property and was involved in housebreaking. The prosecution alleged the police for wrongful confinement and torture for taking out a confession by him. The trial court convicted the police. High Court acquitted giving them the defence of Section 79. Supreme Court said that ‘this view of High Court is wholly unwarranted in law’. Beating and torturing have no relation to the process of investigation. S.76 talks about bound by law and Section 79 talks about justified by law. But, in both sections, there must be bonafide intention i.e., good faith. That means, S.76 says about legal compulsion and Section 79 says about legal justification. Good Faith = Due care + attention. Judicial Acts Section 77 provides two types of protection to the judge. First, he is protected if he proceeds irregularly in the exercise of a power which the law gives him. A special immunity is provided to judges for the sake of fearlessness and independence of administration of justice. To avail of this immunity, the act must have been done by a judge in the discharge of his official duty, the deed done must be within his jurisdiction and the act must be performed in good faith. Accident The main objective for providing this defence is that there is no criminal intention (men’s rea) in the Accident if these 5 conditions are fulfilled: The act is done by accident or misfortune (An accident is such an incident that can’t be interpreted by an ordinary prudent man whereas misfortune is such an accident with harmful consequences). Lawful act is to be done Lawful acts must be done in a lawful manner Jageshwar v. Emperor[5] The accused was hitting the victim with his fists but accidentally hit his wife who was holding her 2-month-old child. The blow hit the head of the child which resulted in his death. It was held that even though the child was hit by accident, the act was not lawful. Thus, the accused would not be given protection under Section 80 IPC. Necessity Section 81 IPC is based on the doctrine of jus necessitates. The ingredients of Section 81 are the act must have been done under good faith and there must not be men’s rea. It is to be noted that there is no intention but knowledge and it…

Indian Penal Code

Death penalty abolition or retention

October 16, 2023 toahostinger No Comments

Death penalty abolition or retention For a long time death penalty has been a topic that is surrounded by controversy also the oldest form of punishment for every era death penalty is considered the most strict and the oldest ancient form of punishment. that have existed capital punishment or the death penalty has always been the most relevant and important topic of debate in India and it should be important to come to light in India this penalty is given in the rarest of rare cases whereas if we look at other countries like the UK. has abolished the death penalty last death penalty was practiced in 1964 in the UK it was not easy to abolish the death penalty in the UK but they finally managed to do that whereas in India last execution was performed in 2020 March in the Nirbhaya case. Introduction Society is made of two-component crime and criminals which has resulted in a disturbance in social peace and community is getting disturbed by the crime and criminals to deal with such issue government come with a punishment sentencing that should be in correspondence with the crime done by the individual means the nature of punishment should be equal to nature of the crime. In the case of Suraj Ram versus the state of Rajasthan, the supreme court held that the state should consider the rights of criminals while awarding sentences to be fair but the state should also consider we can to get justice further court elaborated that the purpose of sentences the criminal should never be and unpunished and Victim should never be unsatisfied. The most controversial punishment is the death penalty or capital punishment J.R.R. Tolkien said many that live deserve death and some that die deserve life. Background Death punishment is been practiced over the centuries in the 18th century BC King Hembury of Babylon performed capital punishment for 25 different crimes during the Mughal Era barbeque method also put offenders to death even the British use to used the hanging method to punish the offenders 14th century BC Kohli used this penalty in the 17th century this penalty was made for all kinds of crime by BC decorate Athens. Also, Captain George Candle in the Jameson colony of Virginia in 1608 was first executed for spying on Spain in 1612, the death penalty was given even for minor crimes. Retention versus abolition debate Many people believe that they do not believe in capital punishment as it takes the life of a person which cannot be taken by anyone except God some believe that the penalty is the only solution to teach a lesson to criminals who perform severe crimes there were so many aspects of both abolitions somewhere promoting the moral values and ethics in favor to abolish the capital punishment others were looking in the theory of deterrence to provide justice to society and victims by hanging. Theory of deterrence In the view of abolitionist abolished the person who commits a crime like murder or rape is not in his senses while performing such moment he remains in the inactive state of mind and he is not aware of what he is doing and what could be the consequences while performing such as he is lost in the wave of emotion, giving death penalty cannot do justice to him, moreover it can also not decrease the crime rate death penalty is an unnecessary act. whereas receptionists said that fear of death is a deterrent if a person is in fear of death then he will think twice before committing some serious or any kind of crime, the punishment provides justice to the victims and stops the crimes that could happen in the future. Crime rate Abolitionist argues that the penalty has no direct or indirect connection with crime rates this is just a custom or a procedure that is followed by the government it does not result in a decrease in the crime rate of the country this argument was taken from the study of theologist Stallin he in his study after collecting the data from the United State of America concluded that that penalty is just a custom it has no role in decreasing the crime rate. Retentionists have the opposite view According to them capital punishment or death brings fear in the mind of the person who is thinking of committing any kind of crime does it directly or indirectly reduce the crime rate Professor Isaac in his article pointed out some loopholes in the study of Stalin according to him the work of Stallin’ neither develop nor tell the full range of implication. Society’s rights Abolitionist stated that no one in the society has right to award death to any person the kind of punishment it can only be done through the act of God also Death punishment somewhere harm the human rights of the person whereas retentionist argued that since the right to death is only can be done through the God not through any person but to provide justice to the victims and the society accused must be punished in a fair way and with the fair punishment which is equal to his crime like murder rape terrorist attack cannot be tolerated and accused must be punished to death. Retention in India Dead penalty in India has been practiced for a very long time from the Mughal Era to British rule used to punish with capital punishment British applied the death penalty under the Indian Penal Code 1860 in 1931 on 27 January question of the abolition of capital punishment was raised by the Mr. Gaya Prasad Singh however this motion was rejected later Mr. Mukund Lal Agarwal introduced a bill of the abolition of capital punishment on August 23, 1956, in the first Lok Sabha of the republic of India it was later rejected but the discussion continued and topic of cropping down this punishment continued later in 1962 a resolution was passed…

Criminal Law, Indian Constitution, Indian Penal Code, Law

Offences Against Women’s Modesty in India

September 30, 2023 toahostinger No Comments

Offence Of Outraging The Modesty Of Women In India Abstract As we know, In India the offences against women are increasing day by day. We constantly observe crime against women when we open the news. Various forms of crimes are committed against women such as ‘rape’, ‘murder’, ‘dowry death’, ‘abduction’, ‘threat’ etc. There are multitudinous legislative laws in India to control these types of offences. These legislative laws sanction crimes against women. However, even in the existence of these legislative provisions, crimes against women are not controlled. In this composition, I’ll discuss “The offence of outraging the modesty of women in India”. This content can be understood through the introduction, where we can comprehend the conception of modesty, women’s modesty, essential constituents etc. using several cases, also we can look into the vittles about these offences as sections 10, 354, 354A, 354B, 354C, 354D, and 509 under the Indian Penal Code, 1860. Also, we gain a better understanding of this conception through corner cases. At last, finish the composition with a conclusion. Introduction In general, the term “modesty” means a woman’s sexual dignity, which she acquires from birth. The term “outrage” suggests a physical act. Modesty is that shy sensation you get when someone compliments you on how terrific you are, or when you have to take your shirt off to go swimming and revealing flesh makes you squirm. It refers to the virtue that connects to a female due to her gender and is an attribute linked with females in general when it comes to outraging a woman’s modesty. Demands for her to disrobe, defamatory statements, dragging her to commit sexual assault and voyeurism are all examples of activities that might be considered outraging a female’s modesty. Women’s modesty might be violated by touching her on any private region of her body i.e. which she finds unacceptable without her consent. Section 354 of the Indian Penal Code,1860 defines the scope of modesty outrage, which includes the following factors:- An assault or use of criminal force is required. There must be an intent or understanding that modesty outrage is Outraging a woman’s modesty involves not just physical acts of assault, but also any verbal or nonverbal action that is intended to degrade her. By nature, this offence is considered cognizable, non-bailable, and non-compoundable. Provisions Concerning The Outrage Of Women’s Modesty Provisions regarding the violation of women’s modesty are given under the Indian Penal Code, 1860 which are sec. 10, sec. 354, sec. 354A, sec. 354B, sec. 354C, sec. 354D, and sec. 509. Section 10 of the Indian Penal Code, 1860 In this section, the definition of woman and man has been given. A male human being of any age is called a “man”. A female human being of any age is called a ” woman”. Section 354 of IPC, 1860 Section 354 stipulates that anyone who assaults or uses unlawful force on any woman intending to insult her modesty or knowing it is likely to outrage her modesty is punishable under this provision. The penalty is imprisonment for any length of time, with a minimum of one year and a maximum of five years. In addition, a fine will be imposed. As a result, depending on the judge’s discretion, the punishment can range from light jail to hard imprisonment. a fine will be imposed in addition to the sentence, indicating that the offence is not compoundable. Section 354 contains certain crucial components:- There should be assault or criminal The woman must be assaulted or subjected to criminal Assault or use criminal force on a woman to offend her This is a punishable offence with no bail. It is compoundable, but only with the court’s approval. Any magistrate with jurisdiction over the case can hear it. Section 354A of the Indian Penal Code, 1860 According to this section, a male is deemed to have committed sexual harassment towards a woman when: direct physical touch and approaches with explicit sexual gestures: or, demand or proposal for sexual favours; or showing pornography against a woman’s will; or A sign that makes sexually coloured remarks. If a man commits the first three offences specified in the preceding bullets, he will face harsh imprisonment for a term of up to three years, a fine, or both under Section 354A of the IPC. if a man commits the offence of the final bullet, he shall be punished by imprisonment for a term of up to one year, a fine, or both. A Section 354A offence is cognizable, bailable, and can be tried by a magistrate. Section 354B of the Indian Penal Code, 1860 This section addresses the protection of women against men who assault or use illegal force against any woman, or incite such an act, to disrobe or force her to be naked. If a man commits such an offence, he will be sentenced to three years in prison, which can be increased to seven years, as well as a fine. Section 354B offences are cognizable, non-bailable, and can be tried by any magistrate. Section 354C of the Indian Penal Code, 1860 This section is about a woman’s privacy. Voyeurism is an act done when a male observes or photographs a woman doing a private act without her knowledge. If a man commits such an offence, he faces a minimum of one year in prison, which can be increased to three years, as well as a fine on his first conviction. In the event of a second or subsequent conviction, he will be imprisoned for a least three years, which might be increased to seven years, as well as fined. This clause punishes a male who purposefully captures photographs of a woman or watches her do a private act. if a woman consents to having her photos taken or permits for any activity but does not consent to the image or act being disseminated to a third party, and such image or act is disseminated by another person, he will be held accountable under…

Criminal Law, Indian Penal Code

Prostitution – Should Be Legalised In India ?

August 25, 2023 toahostinger No Comments

ABSTRACT of Prostitution – Should Be Legalised In India? Prostitution has been a part of Indian society since marriages came into existence. Prostitution has taken equal steps and position with discrimination and exploitation and there are no results for it. No attention is paid to this. It has been long since we saw prostitution exist in our society but it has not gone from our society. So, for that society and law should look into the possible and favourable effects of the legalisation and regulation of prostitution on the exploitation and assault of sex workers. Introduction Earlier it was believed that prostitution is a non-selective sex work which is done for money and other valuable assets. If we go to the history of Rig Veda also, we will study prostitution and how women. Earlier, the Tawaifs were used to dance and entertain the public for money and other valuable assets but later on, it changed into sexual favours. This is known as Prostitution in the present world. In so many countries like Australia, Brazil etc. Prostitution has been declared legal but in India still, it is not legally entirely regulated. Prostitution includes so many problems like unwanted pregnancies and HIV/AIDS etc. What is Prostitution? Prostitution is the act of having sexual contact with a person who is not a wife or close friend, in exchange for cash or other assets that are paid immediately. Although prostitution can involve heterosexual, homosexual, or transgender behaviour, the majority of prostitutes have been women, and the majority of clients have been males but now there is nothing which can tell us the probability. Prostitution – Should Be Legalised In India? No, at present in India prostitution is not entirely illegal though pronounced to be unethical by the court, certain illegal acts, like being a person into prostitution, human trafficking of children and women for prostitution etc. The Indian Penal Code 1860, also deals with prostitution but it is only limited to child prostitution not to women. Here are some reasons why prostitution should be legalised: The legalisation of prostitution will protect the child under 18 from being unguarded with sexual exploitation. There are many children who are into prostitution, all over the world. Child prostitution is a harsh reality in almost all countries but in Asia and South America, the situation is difficult. Strict provisions in the industry can satisfy the prohibition of those under 18. Regular health checkups of the sex workers will ensure the emergence of sexually transmitted diseases especially, AIDS which are very common among sex workers. Contraceptives will satisfy unwanted pregnancies and cover up other health hazards. Regular health checkups and treatments advised by doctors will satisfy the clean and hygienic working conditions. A compulsory provision of safe condoms will also, be beneficial for the sex workers and the customers as well. Legalisation of the prostitution will enhance and update it. There will be a removal of agents and retreat from the system the sex workers will have more daily earnings and the criminal and exploitative factors will be reduced to negligible. To get rid of sexual violence, rape and other sexual assaults people will resort to legal and an easier alternative to satisfy their sexual urges. Punishments and Penalties for illegal activities under Prostitution. Even if it is the first time, such criminal conduct can result in harsh penalties and long-term period prison sentences. Maintaining a minimum sentence of one year of imprisonment and a maximum of three years of imprisonment, as well as a fine of at least Rs. Two hundred rupees. For procuring a girl child into prostitution, rigorous and harsh punishments for not less than seven years of imprisonment may extend to life. As per Section 2(f) of The Immoral Trafficking Act (1956) states “prostitution” as sexual exploitation or misuse of any persons for any business purpose. Section 372 and 373 of the Indian Penal Code 1860 also deal with prostitution but it is restricted to child prostitution only, not to women. Pros And Cons of Prostitution – Should Be Legalised In India ?: If Prostitution is legalized then it will be the responsibility of the state to manage brothels. It is the responsibility of the state that certain remuneration and medical and educational benefits should also be given to prostitutes. On the other side, if the legalization of prostitution is done, then it will be easy for women to earn money through prostitution. Section 4 of the act penalises any person who is living on the earnings of This section also involves the family members. Section 5 of the act penalises the procuring, inducing or taking person for the sake of Section 7 of the act penalises prostitution when it is carried out in or in the locality of public places including any densely populated area, hostel, public religious worship, educational institution, hospital, nursing home or any other place which is notified by Commissioner of Police, Magistrate and the state government. Area refers to as two hundred meters. Section 8 of the act penalises the sex worker for seducing or requesting a person for a purpose According to this section a sex worker cannot do any gestures or actions to invite someone for prostitution. This section is discriminatory as it prescribes different punishments for the same offence to the man, as the punishment is half of what is prescribed for the female. CONCLUSION: In the end, it can be concluded that for an issue like prostitution, it is very difficult to say that the legalization of prostitution bears both positive as well as negative effects. If the legalisation of prostitution is done, then there should be proper rules and regulations for it. As legalisation of prostitution will help to protect the sex workers and their children from exploitation Not just this it will also satisfy the protection of the health of the sex workers and the society at huge. Therefore, a set of rules and regulations should be established to regulate Prostitution. Written By…

Indian Constitution, Indian Penal Code

Human Trafficking in India

May 24, 2023 toahostinger No Comments

Human Trafficking in India Introduction: The illegal transport of human beings for commercial sex, forced labor, domestic services, manual labor, begging, etc. is known as human trafficking. In earlier times, people sold their women or children to protect themselves from debts or just for the sake of some amount of money. In today’s world, still people sold their women and children in some backward areas. Only women and children are not victims of human trafficking but men as well. Women are mostly trafficked for commercial sex and domestic services and children for begging. Types of human trafficking: There are so many kinds of the human trafficking but mainly it can be divided into four categories- Forced labor – people are trafficked to other countries with the promises of good jobs but after reaching their passports have been taken away from them and they are forced to work with low wages and more working hours. Debt bondage – this type of trafficking is common in people belonging to poor families, they took heavy loans, and when they fail to repay their lenders forced them to work until their debt is clear. Sex trafficking – women and children are also the victims of this type of trafficking. They are transported to different countries where they are used for commercial sex. Organ trafficking – it is also a type of human trafficking where people sold the body organs for the sake of money. Causes: The main reason for the human trafficking is poverty and lack of education. Due to poverty, people take loans, and when they fail to repay they are forced to do debt bondage for the recovery of the debt, or people sell their children or females for the money. Lack of education is also a major cause because they are unaware of their rights, and it is easy to exploit them. Children who run away from their homes for any reason and are caught by child smugglers become a victim of human trafficking, they use them for begging and also sold their body parts. The young girls caught in the trap of love and elope from home, are sold by their lovers for prostitution, they are the biggest victim of sex trafficking. As per the report published by the National Crime Report Bureau of 2019, a total of 6616 people were trafficked in India of which 2914 were below the age of eighteen years and 3702 were adults including both men and women. According to a survey in 2020 more than 900 cases of human trafficking have been reported across the India with over 150 cases only in Maharashtra. Online trafficking: During the pandemic, the trafficking moves to the online platform. Adults and children everyone was trying to find some source of income, to earn a little money through work from home. And women were concerned for their hair and skincare. People were trafficked with fake job opportunities and women with spurious parlors and spas. According to a report, in 2020 and 2021, 200 cases of trafficking were taken into effect in the guise of spas and parlors. Other than the pandemic, folks are trafficked on normal days. The prime platform for online trafficking is social media. The actual reason for online trafficking might be that people on social media want to create a community with new individuals without knowing to whom they are going to connect. Laws for human trafficking: India has many laws for human trafficking in the constitution. Article 23 of the Constitution of India prohibits the human trafficking and forced labor. Article 24 of the Constitution of India prohibits the employment of children below the age of fourteen in any hazardous place. Trafficking and its punishments are described under Section 370 of the Indian Penal Code, 1860. Apart from these India have many acts for the protection from trafficking which are the Immoral Traffic (Prevention) Act, 1956 the offender shall be punished with a maximum of two years of punishment or a fine of two thousand rupees on first conviction and with rigorous imprisonment of maximum five years with fine on subsequent conviction. The Bonded Labour System (Abolition) Act, 1976 whoever enforces bonded labor shall be punished with three years of imprisonment or with a fine of two thousand rupees. The Child Labour (Prohibition and Regulation) Act, 1986 provides the punishment which may extend to two years or a fine of a maximum of fifty thousand rupees or both. Seven years imprisonment will be awarded by the Prevention of Children from Sexual Offences Act, 2012 (POCSO). Juvenile Justice Act, 2005 provides punishment for the trafficking of children. Suggestions: Despite having so many laws to prevent the human trafficking, cases are increasing day by day. Perhaps the laws that we have are not sufficient, there need to be more stringent and the authorities are required to take strict actions. The government has to organize awareness and volunteering programs . NGOs are working their best to decrease the human trafficking rate and help the victims to recover from the state they are in, either physically or mentally. Conclusion: Not only India, but the whole world is suffering from the human trafficking in so many ways, but such most common ways are also sex trafficking, bonded labor, debt bondage, and organ trafficking and in the modern world it increases one new form of the human trafficking which is online trafficking. We usually say that women and children are the victims of human trafficking however the reality is completely different, the men are also victims of human trafficking in large numbers. India has several laws to prevent the human trafficking but still, the data on victims is high. References: Constitution of India, 1949 Indian Penal Code, 1860 Immoral Traffic (Prevention) Act, 1956 Bonded Labour System (Abolition) Act, 1976 Child Labour (Prohibition and Regulation) Act, 1986 Prevention of Children from Sexual Offences Act, 2012 Written by Risha Fatema, student of LL.B. second year at Dr. K. N. Modi University,…

Immoral Traffic, Indian Constitution, Indian Penal Code

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Category: Indian Penal Code

The Empress vs Gonesh Dooley And Gopi Dooley 1879 Cal

General Exceptions under IPC

Death penalty abolition or retention

Offences Against Women’s Modesty in India

Human Trafficking in India

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