Monthly Archives: August 2010

Examine the rule of strict liability as laid down in the case of Rylands Verses Fletcher. Discuss the applications and limits to this rule. (2017)

Category : Law of torts

Answer. Man performs so many activities which are dangerous to person and property of others. State allow them on the condition that the doers of the activities have to compensate for the damage caused irrespective of any carelessness or fault on their part. The basis of liability is the magnitude of the risk which is foreseeable. The case of Rylands Verses Fletcher which was decided in 1868 for the first time laid down the rule of absolute liability according to which plaintiff is not required to prove negligence, lack of care or wrongful intention on the part of the defendant. Facts, Fletcher was running a coal mine unde’r a lease. On the neighbouring land, Rylands desired to erect a reservoir for storing water and for this purpose he employed a competent independent contractor whose workmen, while excavating the soil, discovered some disused shafts and passages communicating with old working and the mine in adjoining land. The shafts and passages had been filled with loose earth rubbish. The contractor did not take the trouble to pack these shafts and passages with earth so as to bear the pressure of water in the reservoir when filled. Shortly after the construction of the reservoir even when it was partly filled with water, the vertical shafts gave way and burst downwards. The consequence was that the water flooded the old passages and also the plaintiffs mine, so that the mine could not be worked. The plaintiff sued for damages. No negligence on the part of the defendant was proved. The only question was whether the defendant would be liable for the negligence of the independent contractor who was admittedly a competent engineer. It was held that the question of negligence was quite immaterial. The defendant in bringing water into the reservoir was bound to keep it there at his peril and was therefore liable. Rule laid down in the case, Blackburn, J., laid down the following proposition of law, “The true rule of law is, that the person, who for his own purposes, brings on his lands, and collects and keeps there anything likely to do mischief, if it escapes, must keep it in at his peril and if he does not do so, is prima facie answerable for all the damages which is the natural consequence of its escape.” In the House of Lords it was laid down that, “If a person brings or accumulates on his land anything which, if it would escape may cause damage to his neighbours if it does escape and cause damage he is responsible, however, careful he may have been, and whatever precaution he may have undertaken to prevent the damage.” However, in the House of Lords, Lord Cairns added one more element. He said that use of land by the defendant should be non-natural. And he said that in the instant case the defendant was using the land in a non-natural way. The rule in Ry lands Verses Fletcher is the most important of the cases where a man acts at his peril and is the insurer of the safety of his neighbour against accidental harms. Here the duty is not merely the general negative duty to refrain from active injury, but a positive duty to guard and protect one’s neighbours lest they suffer harm by reason of dangerous things artificially brought on one’s land and the duty is absolute because it is independent of any negligence on the part of the defendant or his servants. Applications of the Rule, The above rule, though enunciated in an action of nuisance as between two adjacent land owners, has become in course of time a general principle applicable in all cases where, apart from negligence, the defendant makes hazardous use of his property, and as a result the plaintiff sustains damage. But the rule is confined to dangerous things per se. The rule has now been held to govern the liability for fire. Though the case of Ryland Verses Fletcher was a case of water escaping to adjacent lands, the principle of liability is not confined to the escape of water, but has been extended to anything and everything which has a tendency to escape and cause mischief. As Salmond says, “It is not anything which is likely to do mischief, if it escapes, but rather anything which is likely to escape, and do mischief.” For instance, dangerous animals, petrol, electricity, explosives, poison, fire sewage, in fact, everything that has a tendency to escape and cause mischief may become the subject-matter of the application of the rule in Rylands v.Fletcher. Limit or Conditions of the Rule, Lindley, LJ. in Green Verses Chelsea Waterworks Company, observed, “Since liability under it is imposed without proof of negligence, the Rule is not to be extended beyond the legitimate principle on which the House of Lords decided it. Otherwise it would be a very repressive decision.” It is, therefore, most important to appreciate the limits of its operation. And the best approach to this is to cite from the speech of Viscount Simon in Read Verses Lyon & CompanyLimited, “Now the strict liability recognised by this House in Rylatids Verses Fletcher is conditioned by two elements which I may call the condition of’escape’ from the land of something likely to do mischief if it escapes, and the condition of “non-natural use of the land.” Escape, Liability will only be imposed if there is an “escape” of the object from land of which the defendant is in occupation or control. The essential point is that, starting on the defendant’s land, the thing must do its damage beyond the confines of it, if the damage is within the defendant’s boundaries the Rule cannot apply though of course there may be some other ground of liability, such as, negligence. Another thing which must be proved by the plaintiff is that the damage was the natural consequences of the escape. Things likely to do mischief, Whether a thing which has been brought and kept by the defendant on his land is one which is likely to do mischief if it escapes is a question of fact and it is to be decided in each case. Therefore, one particular thing may come within the rule in one case but not in another. “Non-natural uses”, When the case of Rylands Verses Fletcher came before the House of Lords an important qualification was made to Blackburn, J.S. principle. It was held that the use of the object upon the land must be “non-natural”. Practical difficulty lies in the determination of what is or what is not a “natural” or ordinary use of the land. Thus, Rylands’ case decided that it is not “natural” to construct a reservoir for water for a mill, and it has been held not to be “natural (1) to collect a large heap of colliery spoil upon unstable land, (2) to use blow lamp to thaw frozen pipes in the vicinity of felt lagging, or (3) to accumulate gas in large quantities in pipes, but it has often been held to be “natural”

(1) to keep a domestic water supply for ordinary purposes, (2) to have electric wiring upon premises, (3) to light a fire in a grate, (4) to burn paper in a chiminey to test a flue, (5) to operate an explosive factory in time of war. In T.C. Balkrishna Menon Verses T.R. Subramanian, the court held that the use of explosives in an open field on the occasion of festival is a “non-natural” use of land. If a person stores or marks explosive substances in an open field even on the occasion of celebration of some festival, that would amount ,to non-natural use of land and the rule of Rylands Verses Fletcher would apply in such cases. The retention of water by a person in a portion of his land to prevent its passing on to the other portions of his land is not an act done in the natural and usual course of employment and the person so doing is liable, for danger caused thereby. In State of Punjab Verses Modern Cultivators, damage was caused by overflow of water from a canal, the Apex Court held that use of land for construction of a canal system is a normal use and not a non-natural use. Recently the Karnataka High Court also considered non-natural use of land inMukesh Textile Mills Verses Subramanyam Sastry, here the defendant was the owner of a sugar factory. Adjacent to the sugar factory the plaintiff owned large land. The defendant stored large quantities of molasses which escaped to the neighbour’s land and caused extensive damage to his crop. It was held that it was non-natural use of land and if a person collected such things on his land and escaped to neighbours’ land, he had a liability. Defendant’s responsibility, The rule only applies to a person who “collects and keeps” the object on his land. Thus if the object is on the land and it escapes not by his efforts but in the “ordinary course of nature” he will not be responsible for it, under Rylands Verses Fletcher. When a person constructs a dam on his land which has effect of diverting the water from its natural channel on the land of a neighbour and thereby he causes damage to it, he is liable to his neighbour. “An owner of property has no right to let off water which has naturally accumulated therein even for purpose of its preservation from damage therefrom if this will have the effect of transferring his misfortune to the property of another.” Damages, Although under Rylands Verses Fletcher there is no need for the plaintiff lo prove that his injury was caused by any default or lack of care on the part of the defendant, he must establish “damage as the natural consequence of the escape.”


What do you mean by vicarious liability? Explain with decided cases. (2017)

Category : Law of torts

Vicarious Liability, As a general rule, a man is liable only for his own act but there are certain circumstances in which a person is liable for the wrong committed by others. This is called “vicarious liability”, that is, liability incurred for another. The most common instance is the liability of the master for the wrong committed by his servants. In these cases liability is joint as well as several. The plaintiff can sue the actual wrong-doer himself, be he a servant or agent, as well as his principal. In the words of Salmond, “In general a person is responsible only for his own acts, but there are exceptional cases in which the law imposes on him vicarious responsibility for the acts of another, however, blameless himself.” The doctrine of vicarious liability is based on principles which can be summed up in the following two maxims, (a) Qui facit per alium facit per se, The maxim means, ‘he who acts through another is deemed in law as doing it himself. The master’s responsibility for the servant’s act had also its origin in this principle. The reasoning is that a person who puts another in his place to do a class of acts in his absence, necessarily leaves to determine, according to the circumstances that arise, when an act of that class is to be done and trust him for the manner in which it is done, consequently he is answerable for the wrong of the person so entrusted either in the manner of doing such an act, or in doing such an act under circumstances in which it ought not to have been done, provided what is done is not done from any caprice of the servant but in the course of the employment. (b) Respondeat superior, This maxim means that, the superior must be responsible or let the principal be liable. In such cases not only he who obeys but also he who command becomes equally liable This rule has its origin in the legal presumption that all acts done by the servant in and about his master’s business are done by his master’s express or implied authority and are, in truth, the act of the master. It puts the master in the same position as if he had done the act himself. The master is answerable for every such wrong of the servant as is committed in the course of his service, though no express command or privity is proved. Similarly, a principal and agent are jointly and severally liable as joint wrongdoers for any tort authorised by the former and committed by the latter. Modern View, In recent times, however, the doctrine of vicarious liability is justified on the principle other than that embodied in the above-mentioned maxims. It is now believed that the underlying idea of this doctrine is that of expediency and public policy. Salmond has rightly remarked in this connection that “there is one idea which is found in the judgments from the time of Sir John Holt to that of LordGoddard, namely, public policy.” Modes of vicarious liability, The liability for others wrongful acts or omissions may arise in one of the following three ways, (a) Liability by ratification, Where the defendant has authorised or ratified the particular wrongful act or omission. (b) Liability arising out of special relationship, Where the defendant stands to the wrongdoer in a relation which makes the former answerable for wrongs .committed by the other, though not specifically authorised. This is the most important form of liability. Liability arising out of master and Servant

In order that the master may be held liable for the tort of his servant following conditions should be fulfilled,

(1) Tort is committed by the ‘servant’, and

(2) The servant committed the tort while acting in the course of employment of his master.

Who is servant?, Lord Thankerton has said that there must be contract of service between the master and servant has laid down the following four ingredients.

(1) the master’s power of selection of his servant,

(2) the payment of wages or other remuneration

(3) the master’s right to control the method of doing the work, and

(4) the master’s right of suspension or dismissal.

Thus, a servant may be defined as any person employed by another to do work for him on the terms that he is to be subject to the control and directions of his employer in respect of the manner in which his work is to be done. A servant is thus an agent who works under the supervision and direction of his employer, engaged to obey his employer’s order from time to time. Applying this test, a son is not a servant of his father in the eye of law.

Difference between Servant and Independent Contractor

(1) A servant is an agent who works under the supervision and direction of his employer. Whare as An independent contractor is one who is his own master.

(2) A servant is a person employed to obey his master’s directions from time to time. Whare as An independent contractor is a person engaged to do certain works, but to exercise his own discretion as to the mode and time of doing it!

(3) A servant is bound by the orders of his master but an independent contractor is bound by the terms of his contract. Course of employment,

A servant is said to be acting in the course of employment if,

(1) the wrongful act has been authorised by the master, or

(2) the mode in which the authorised act has been done is wrongful or unauthorised.

It is the general rule that master will be liable not merely for what he has authorised his servant to do but also for the way in which he does that which he has authorised to do. An employee in case of necessity is also considered as acting in the course of employment, if he is performing his employer’s business. For instance, a Government employee was travelling in a jeep to deliver medicines in the course of his duties. He had licence to drive and had also been authorised to drive the Government’s vehicle in the case of necessity. The driver of the jeep suddenly took ill and, therefore, he had to drive, in order to ensure the medicines reaching their destination, While driving the jeep he negligently run over the deceased, It was held that he was acting in the course of employment and thus the Government was liable, The trend of the recent decisions of various High Courts is to allow compensation to the accident victim against the owner of the vehicle and through him, the insurance company. The aspect of the relationship of the independent contractor and employer between the mechanic or the workshop and the owner of the vehicle has been generally ignored, such liability has been recognised on the basis of the law of agency by considering the owners of the workshop or the mechanic as an agent of the owner of vehicle. The recent trend in law to make the master liable for acts which do not strictly fall within the term ‘in course of employment’ as ordinarily understood. The owner is not only liable for the negligence of the driver if that driver is his servant acting in the course of the employment but also when the driver is with the owner’s consent, driving, the car on the owner’s business or for the owner’s purposes. Thus, although the particular act which gives the cause of action may not be authorised, yet, if the act is done in the course of employment which is authorised, the master is liable. In other words, “to hold master liable for the wrongful act of a servant it must be committed in the course of master’s business so as to form part of it, and not merely, coincident in time with it,” but if the torts are committed in any manner beyond the scope of employment the master is liable only if he was expressly authorised or subsequently ratified them. Main incidents of Master’s Liability, There are six principal ways in which a master becomes liable for the wrong done by servants in the course of their employment. 1. The wrong committed by the servant may be the natural consequence of something done by him with ordinary care in execution of his master ‘s specific orders. In

“Indian Insurance Corporation, Association Pool, Bombay Verses Radhabai” the driver of a motor vehicle belonging to the Primary Health Centre of the State was required to bring the ailing children by bus to the Primary Health Centre. The driver in the course of driving gave the control of the steering wheel to an unauthorised person. ’twas an unauthorised mode of doing the act authorised by the master. It was held that in such circumstances, the Government, viz., the owner of the vehicle is vicariously liable for the negligence of the driver in permitting unauthorised person to drive the vehicle. 2. Master will be liable for the negligence of his servant. In Baldeo Raj Verses Deowati, the driver of a Truck sat by the side of the conductor and allowed the conductor to drive. The conductor caused an accident with a rickshaw as a result of which a rikshaw passenger died. It was held that the act of the driver in permitting the conductor to drive the vehicle at the relevant time was a breach of duty by the driver, and that was the direct cause of the accident. For such negligence of the driver his master was held vicariously liable. 3. Servant’s wrong may consist in excess of mistaken execution of lawful authority. Here two things have to be established.

In the first place, it must be shown that the servant intended to do on behalf of his master something which he was, in fact, authorised to do. Secondly, it has to be proted that the act if done in a proper manner, would have been lawful. 4. Wrong’ may be a wilful wrong but doing on the master’s behalf and with the intention of serving his purpose. If a servant performs some act which indicates recklessness in his conduct but which is within the course of his employment and calculated to serve the interest of the master, then the latter will be saddled with the responsibility for it. 5. Wrong may be due to the servant’s fraudulent act. A master is liable also for the wrongful acts of his servants done fraudulently. It is immaterial that the servant’s fraud was for his own benefit. The master is liable if the servant was having the authority to do the act, that is, the act must be comprehended within his ostensible authority. The underlying principle is that on account of the fraudulent act of the servant, the master is deemed to extend a tacit invitation to others to enter into dealings or transactions with him. Therefore, the master’s liability for the fraudulent acts of his servants is limited to cases where the plaintiff has been invited by the defendant to enter into some sort of relationship with a wrong doer. Consequently, where there is no invitation, express or implied, the acts will be treated as the independent acts of his servant himself, and outside the scope of his employment, 6. Wrong may be due to the Servant’s Criminal Act. Though there is no such thing as vicarious liability in criminal proceedings, yet in a civil action, a master is liable in respect of the criminal acts of a servant, provided they are committed in the course of his employment


Negligence in Tort (2017)

Category : Law of torts

Negligence
A tort that concerns with breach of a legal duty to take care, and because of that breach, damage is caused to the claimant/ plaintiff. The claimant is usually compensated if he or she suffers damage as a result of the defedant’s damage.
Most torts normally protect specific interests of the claimant. Eg; the tort of nuisance protects against interference with the claimant’s use and enjoyment of land. The tort of battery (tresspass to the person) protects the claimant’s peson. Defamation protects against damage to reputation.
Negligence is much wider than other types of torts. It protects against three different types of harm;
• personal injury

• damage to property

• economic loss

Similar to other types of torts, there are 3 elements before a defendant can be held liable for negligence;
• the defendant must owe the claimant a duty of care

• the defendant must breach that duty of care

• damage is caused to the claimant because the defendant’s breach of duty of care
If any of these elements are missing, a defendant will not be liable for negligence. Eg; a driver might be driving recklessly, but as long as he does not cause any damage to anyone, he cannot be liable for negligence.
Duty of care is a legal concept which dictates the circumstances in which a person will be liable to another in negligence. This means that if a person is negligent, and causes damage to others, he/ she cannot be liable if he/ she does not owe the claimant a duty of care; eventhough the claimant suffered a very serious damage.
The purpose of this concept is to restrict the circumstances when where a defendant will be held liable for negligence. Without this concept, it will be very difficult to control the number of negligence cases.
The origin of duty of care can be traced back to the case of Donoghue v Stevenson (1932). In fact, this case is the main case that created the modern tort of negligence.
– Mrs Donoghue and her friend went into a cafe for a drink. She asked for a ginger beer, and her friend bought it. The ginger beer was in an opaque
bottle. Mrs Donoghue drank some of it, and when she poured the remaining contents, a decomposing snail fell out of the bottle. Mrs Donoghue became ill, and she sued the manufacturer.
Donoghue had not ordered or paid for the drink herself, so there was no contractual relationship between Donoghue and the cafe owner. Tort law at this time did not allow Donoghue to sue the cafe owner. There was a contractual relationship between the cafe owner nad the friend, but the friend had not drank the ginger beer. Ginger beer was not a dangerous product, and the manufacturer had not fraudulently misrepresented it. At that time, those were the only two grounds for claiming negligence against a manufacturer. On the face of it, the law did not provide a remedy for Donoghue.
However, she sued the manufacturer claiming that he owed her a duty to take reasonable care that ginger beer he manufactured, bottked, labeled and sealed and invited her to buy, did not contain substances likely to cause her injury. She also claimed damages.
The House of Lords agreec that the manufacturers owed a duty of care to the end consumer of their products. The ginger beer manufacturers had breached that duty, causing harm to Mrs Donoghue, and she was entitled to claim damages.
For the benefit of future cases, their Lordships attempted to lay down general criteria for when a duty of care would exist. Lord Atkin came up with the neighbour principle. According to him, ‘You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour.’ ‘Neighbour’ in this sense does not mean person who lives next door. According to LordAtkin, our neighbours are those ‘person who are so closely and directly affected by my act that I ought to have them in contemplation as being so affected when Iam directing my mind to the acts or omissions which are calle in question.’
In other words, if a person will be directly affected by our acts or omissions, they are considered as our neighbours, and we owe them a duty of care. We must keep them in mind when we are doing something.
In the case of Caparo Industries plc v Dickman (1990), the House of Lords stated that there were now 3 questions to be asked in deciding whehter a duty of care was owed by the defendant to the claimant. They are:
a) was the damage to the claimant reasonably foreseeable? (commonly referred to as reasonable foreseeability)
b) was the relationship between the claimant and the defendant sufficiently proximate? (commonly referred to as proximity of relationship, or simply proximity)
c) is it just and reasonable to impose a duty of care? (commonly referred to

1. REASONABLE FORESEEABILITY
2. PROXIMITY
3. JUSTICE AND REASONABLENESS
as justice and reasonableness)
Foreseeable means predictable. Reasonable foreseeability of damage means that a reasonable person (an ordinary person or an average person) can predict that damage might happen due to a certain negligent act. Eg; if a driver does not turn on the headlights during the night, he can reasonably predict that other cars might not see him, and might hit him.
In Langley v Dray (1998), the defendant was driving a stolen car. He was chased by the claimant (who was a policeman). As a result of the chase, the claimant crashed his car and he was injured. He sued the defendant for negligence.
The Court of Appeal held that the defendant knew, or ought to have known, that he was being chased by te claimant. Therefore, when he increased his speed, he knew or should have known that the claimant wil also increase his speed and so risk injury. The defendant had a duty of care not ot create such risks,and by driving fast, he was in breach of that duty.
In addition, the defendant has to be able to identify a particular individual who might foreseeably be affected by their actions; as in the case i of Haley v London Electricity Board [1965] AC 778.
Proximity means closeness. If the claimant and the defendant are close – whether physically or legally speaking – a duty of care can rise. The concept of proximity of relationship can be traced back to the neighbour principle. If a person is directly affected by our acts, he/ she is considered as having a proximate relationship with us.
In Watson v British Boxing Board of Control (2000), the claimant was the famous professional boxer Michael Watson. He suffered severe brain damage after being injuredduring a match. He sued the Board because they were in charge of safety arrangements at professional boxing matches, and evidence showed that if they had made immediate medical attention available at the ringside, his injuries would have been less severe.
The Court of Appeal held that there was sufficient proximity between the Board and Watson. The Board were the only body in UK which could license professional boxing matches, and therefore, it had complete control of, and responsibikity for a situation which couold clearly result in harm to Watson if the Board did not exercise reasonable care.
Normally, the courts only determine whether it is just and reasonale to impose a duty of careif a case meets the requirements of foreseeability and proximity, but the courts believe that there is a sound public policy reason for denying the claim.

DAMAGE
In MacFarlene v Tayside Health Board (1999), the claimant became pregnant after her partner’s vasectomy failed (the vasectomy was performed in the defendant’s hospital). She claimed for the costs of bringing up the child. The courts denied her claim on the basis that it was not just and reasonable to award compensation for the birth of a healthy child. In fact, most people would consider a healthy child a blesssing.
In negligence, the courts expect the defendant to act in a manner in the same way an average person would act in a particular situation. For instance, a reasonable average driver will drive within the speed limit, give a signal before making a turn, and so on. This means that every activity, there is a ‘standard behaviour’ which is expected by the courts.
Breach of duty of care means that the defendant has fallen below the standard of behaviour expected in someone undertaking the activity concerned.
In Vaughan v Menlove (1837), the defendant constructed a hayrick, or a stack of hay, near the border of the property he rented from the plaintiff. The defendant was repeatedly warned that the hayrick was in danger of catching fire over the courseof five weeks. Despite the warnings, defendant said that ‘he would chance it.’ The hay eventually caught fire, burning down both defendant’s bulidings and the cottages of the plaintiff on a neghbouring parcel of land.
It was held that the defendant was liable for negligence. According to the court, even though it was not the defendant who caused the fire, it was well known that hay would catch fire if npot properly stacked. A reasonable person would have stacked the hay properly, and because the defendant did not act like a reasonable person, he has fallen below the expected standard, and therefore, he has breached his duty of care.
The negligent act of the defendant must cause damage. However, there are cases where the claimant thinks that the defendant’s negligence has caused the damages, but at the same time, the law does not see it that way.
For example, in the case of Hunter v Canary Wharf Ltd and London Docklands Development Corporation (1997), there was a construction of a big tower block (a large business and shopping developmnet) known as Canary Wharf in East London. Because of this construction, there was excessive dust in the area. The local residents sued the defendant, and one of the issues was whether excessive dust could be considered as damage to property. The Court of Appeal concludede that the mere deposit of excessive dust was not damage because dust is an unavoidable incident in urban life. There must some physical chance to property due to the dust before it can be considered as damage (for eg, dust causing damage to electrical equipment).


Discuss the conditions where culpable homicide does not amount to murder. (2017)

Ans- Chapter XVIsection 299 to 304 dealt with culpable homicide and murder.

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

Ingredients of S.299

1. With the Intention to causing death.

2. With the intention of causing such bodily injury as is likely to cause death.

3. With the knowledge that the offence likely by such act to cause death.

Section 299 defined Culpable Homicide in simple way. Culpable homicide are of two kinds:

I. Culpable homicide amounting to murder.

II. Culpable homicide not amounting to murder.

Culpable homicide is the Genus, and murder is the Species. All murder are culpable homicide but not vice-versa, it has be held in Nara singh Challan v/s Sate of Orrisa (1997). Section 299 cannot be taken to be definition of culpable homicide not amounting to murder. Culpable homicide is the genus, section 300 defines murder which means murder is the species of culpable homicide. It is to be noted here that culpable homicide not amounting to murder is not defined separately in IPC, it is defined as part of Murder in the section 300 of IPC.

Section 300 – Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or Culpable Homicide is not amounting to murder:

Exception 1 to 5 of s300 of IPC defines conditions when culpable Homicide is not amounting to murder: I. Provocation. II. Right of private defense. III. Public servant exceeding his power. IV. Sudden fight. V. Consent.

Exception-1-culpable homicide is not amounting to murder if the offender, whilst deprive of self control by grave and sudden provocation, caused the death of the person who gave the provocation or causes the death of any person by mistake or accident. The above exception is subject to the following provisions:- 1. The provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. 2. The provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. 3. The provocation is not given by anything done in the lawful exercise of the right of private defense.

Provocation must be grave: upheld in Venkatesan v/s State of Tamil Nadu (1997)

1. The test of grave and sudden provocation is whether a reasonable men belonging to the same class of society as the accused, placed in the situation in which the accused was placed would be so provoked as to loss his self control. 2. In India words and gestures may also, under certain circumstances, cause grave and sudden provocation. 3. The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence.

Illustrations:

1. Y” gives a grave and sudden provocation to A. A on this provocation fires a pistol at Y” neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not amounting to murder, but merely culpable homicide. 2. A attempts to pull Z’s nose, in the exercise of private defense, lays hold of A to prevent him from doing so. A is moved to sudden and violent passing in consequence kills Z. this is murder, in as much as the provocation was given by a thin done in exercise of the right of private defense.

Exceptions-2- Culpable homicide is not amounting to murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense.

Illustration- Z attempts to horsewhip A, not in such a manner as 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 prevent himself from being horsewhipped shoots z dead. A has not committed murder but only culpable homicide.

Exceptions 3.- Culpable homicide is not murder if the offender, being a public servant, or aiding a public servant acting for the advancement of public justice exceeds the powers given to him by law, and caused death by doing an act which he , in good faith, believes to be lawful and necessary for the due discharge of this duty as such public servant and without ill will towards the person whose deaths is caused.

Exceptions 4- Culpable homicide is not amounting to murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender 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.

Exceptions- 5- culpable homicide is not amounting to murder when the murder whose death is caused, being above the age of 18 years, suffers death or take the risk of death with his own consent.

Scope – In Raghunath v/s State of Haryana AIR 2003 SC 165, Sc held that – It is no well settled principle of law that if two views are possible, one in favor of the accused and the other adversely against it, the view favoring the accused must be Culpable homicide amounting to murder

Section 300 also defines the circumstance when culpable homicide turn into murder which is punishes u/s 302. Under following 4 circumstances:

Intention to causing death- I. Culpable homicide turn into murder if the act by which the deaths is caused is done with the Intention of Causing death or II. If an act done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or III. 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 IV. If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing deaths or such injury as aforesaid.

Illustration

A, knows that Z is suffering such a disease that a blow is likely to cause his death, strike him with the intention of causing bodily injuries. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health. But if A, knowing that Z is laboring 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, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.

A without any excuse fires loaded cannon into a crowd of person and kills one of them. A is guild of murder, although he may not have had a premeditated design to kill any particular individual.

In State of Rajashtan v/s Dhool Singh AIR 2004 SC 1264. SC held that – Culpable homocide becomes murder if the attacker cause an injury which he knows is likely to cause death and, of course, consequent to such injury the victim should die.

Conclusion
The main element which is distinguish between murder and culpable homicide is Intention or in presence of a special mens rea. If death is the most likely result of an act, it will be murder. If death is the likely result of an act, it will be culpable homicide not amounting to murder.


What is abetment? What are various methods by which abetment is possible? (2017)

Ans- Chapter V, section S 107 to 120, relating with Abetment. When several persons take part in the commission of an offence, each one of them may contribute in a manner and degree different from the others to the commission of it. The offence may be committed by the hands of one person at the instigation of another person, while some other may only be present for offering help at the time of commission of it, and still others may help the principal culprit in procuring the tolls. It is necessary, therefore, to mark the nature and degree of participation of each of the persons to determine their degree of culpability. However several gradations of action do not necessarily imply different measures of guilt with a view to distinctions in punishment.

In English Law, differently treat the principle offender who may be of first degree and accessories who may be second degree.

IPC- The Indian penal code makes a brad distinction between principals and abettors but does not recognize the accessory after the fact except that offenders has been made a substantive offence in some cases.

Under IPC abetment is constituted in the following ways:

1. Instigating.

2. Engaging

3. Aiding.

Instigating– Means the act of inciting another to do a wrongful act. One may abet the commission of an offence by counseling, suggestions, encouraging, pouring or commanding another to do an act. In order to constitute abetment by instigation some active proceeding towards the preparation of the crime is necessary. To instigate means to actively suggest or stimulate by any means or language, direct or indirect, whether it take the form of express solicitation or of hints, insinuation or encouragement, or to provoke, incite, urge or encourage to do an act. Any form of language may be used but there must be reasonable certainty in regard to the meaning of the words which an inciter may use.

Illus-

A and B discovering that C intended to commit theft in Z’s house. Arrange together to persuade him to steal there from certain articles form them. Here A and B will be liable for abetment and C for theft.

Mere acquiescence, silent assent or verbal permission would not constitute instigation.

A tells B that he intends to murder C,B says do as you like, A kills C, here B cannot be said to have instigated. Reason- it was meant actively to suggest or stimulate the commission of an offence.

Willful misrepresentation or Concealment: Explanation I of section 107 of IPC says that instigation may be constituted of willful misrepresentation or willful concealment of a material fact by one who is bound to disclose it.

Instigation by Letter: Instigation may be direct or it may be by a letter. Where A writes a letter to B instigating thereby to murder C, the offence of abetment by instigation is completed as soon as the contents of the letter become know to B. if the letter never reaches B, it is only an attempt to abet but not abetment.

Abetment by Engaging

Abetment by conspiracy: abetment of conspiracy consist when two or more person engage in a conspiracy for doing a thing which is illegal thing or act or illegal omission. Thus in order to constituted abetment by conspiracy following conditions must be there: 1. A conspiracy between two or more person. 2. An act or illegal omission may take place of that conspiracy.

Conspiracy means an agreement between two or more persons: To do an illegal act or To do an act which is not illegal by illegal means.

Thus clause II of section 107 of IPC, is a mere combination of person or agreement is not enough , an act or illegal omission must also take place in pursuance of the conspiracy and the act or illegal omission must also be in order to the doing of the thing agreed upon between them.

But for an offence u/s 120A a mere agreement is enough, if the agreement is to commit an offence.

Clause 2 has to be read together with Explanation 5 of section 108, which provides that it is not necessary to the commission of the offence of abetment by conspiracy that the abettor should concert the offence with the person who commit it. It would be sufficient if he engages in the conspiracy in pursuance of which the offence is committed.

Conviction for conspiracy- No person can be convicted for conspiracy, if the charge against all other conspirators has failed, or if other alleged conspirators are acquitted.

Abetment by Aid-
A person abets the doing of a thing who intentionally aids, by any act or illegal omission, the doing of that thing. It would be clear if we read clause 3 of s107 with explanation 2, that a person cannot be held guilty of aiding the doing of an act when the act has not been done at all. Mere intention to facilitate, is not sufficient to constitute abetment, unless the act which it is intended to facilitate actually take place.

Illustration- A servant keeps open the gate of his master’s house, so that thieves may come, and thieves do not come. But the servant intended and informed thieves the door is open and they can come, he would be held liable for abetment.

Mere giving of aid- A mere giving of help is not amount of abetment, until the person who provides the aid does not know that an offence was being committed or constituted.

Illustration-
A wanted to kill B, he perused C to call B, C calls B and B is murdered, here C provide the aid, but he did not know that A wanted to kill B. So he would not be held liable for abetment.

Mere presence does not amount to aiding

Mere presence at the commission of an office done not amount to intentional aid, unless it was intended to have that effect., and the present aware that an offence is about to be committed an office, or he actively support or present hold some position, authority, or rank in committing the offence.

Aid by illegal omission-

When law impose a duty on someone and he intentionally for adding some one in an illegal, failed to discharge his duty he shall be liable for abetment.


Equality before Law and equal protection of law explain both the term under Art 14

Art 14 Declares “the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.
Thus Art 14 used the two expression

“equality before the Law” and

“equal protection of the law”

As such this right was considered generally a negative right of an individual not to be discriminate in access to public offices or places or in public matter generally. It did not take account of existing inequalities arising even from the public policies with that kind of undertaking of the right to equality.
This first expression equality before the law, is a somewhat negative concept which is said to be have taken from English common law, is a declaration of equality of all person within the territory of India, implying there by the absence of any special privilege in favor of any individual. Ever person whatever be his rank or position is subject to the jurisdiction of the ordinary court. Prof. Dicey, explain the concept of equality as it operated in England said “ with us every official from the PM down to a constable or collector of taxes is under the same responsibility for every act done without any legal justification as any other citizen.
The second expression the equal protection of the law which is rather a corollary of the first and is to be taken from US, it is a more positive concept implying equality or treatment in equal circumstances.

These two expression under this article to make the concept of equal treatment a binding principle of State action . The word Law in the former expression is used in a generic sense a philosophical sense, whereas the word Laws in the latter expression denotes specific laws. It has not explained this statement any further, but it means that equality for all is the law or standard norm of the land.
Equal protection of the laws is now being read as a positive obligation on the State to ensure equal protection of the Laws by bringing in necessary social and economic changes so that every one may enjoy equal protection of the laws and nobody is denied such protections.
Underlying Principle
As no human being are equal in all respect the same treatment to them in every respect would result in unequal treatment. For example the same treatment to a child as to an adult or to a physically challenge or healthy person, will result in unequal treatment.
Therefore the underlying principle of equality is: not the uniformity of treatment to all in all respect, but rather equal must be treated equally while unequal must be treated differently.
But this does not mean the unequal treatment for all, while the later Article of this part ( Part III) especially Art 15 and 16, equality not only prohibited unequal treatment but it also demands equal treatment. Therefore state must not only treat people unequally but it must also take positive steps to remove existing inequalities, especially those inequalities which treat human being less then human being.
Test of Valid Classification
This article forbids the legislature classification, but it does not forbid reasonable classification of person, objects and transactions by the legislature for the purpose of achieving specific ends. And differentia must have a rational relation to the object sought to be achieved by the Act.
There must be an nexus between the basis of classification and the object of the Act which makes the classification.
In Kedar Nath Bajoria V/s State of WB
It said
The equal protection of the Laws guaranteed by the Article 14 of the Constitution does not mean that all the Laws must be general in character and universal in application and that the State is no longer to have the power of distinguishing and classifying persons or things for the purpose of legislation.

In E.P Yoyappa v/s State of TN
Propounded a new approach to Article 14 in the following words:
Equality is a dynamic concept with many aspects and dimensions and it is cannot be cribbed, cabined and confined within traditional and doctrinaire limits. For a positive point of view equality is antithetic to arbitrariness.
In Maneka Gandhi v/s Union of India
Article 14 strikes at arbitrariness in state action and ensure fairness and equality of treatment, the principle of reasonableness, which logically as well as philosophically is an essential element of equality or non arbitrariness pervades Article 14 like a brooding omnipresence.

 


The preamble of constitution sets out the main objectives, which the constitution makers wanted to achieve. Discuss this statement. Can preamble be amended under Art 368 of the constitution?

Preamble useful to interpretation the constitution.
The principle generally sets the ideas and goal of constitution maker which then intended to achieve through that constitution. In Golaknath v.s State of Punjab court held that- the Preamble contained in nutshell the idea and aspiration of the constitution.
In Berubari Union and Exchange of Enclaves- it was held that – the constitution is the key to open the mind of the constitution makers. And it is not the part of the constitution.
Preamble also a legitimate aid in the interpretation of the constitution.
In Keshvanad Bharti v.s State of Kerala it was held that-
Constitution is extremely important and it should be read and interpretive in the light of the grand and noble vision of preamble. And preamble is the part of the constitution.
The purpose serve by preamble.
WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSCTICE, social, economic, political;
LIBERTY of thought ,expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of individual and the unity of the nation.
It indicate the following purpose-
1. Source of constitution.- the source of the constitution is the people of India
which denote form the word in the preamble – We the People of India no
subordinate or external source of power other than people of India.
2. Enacting clause -which brings into force the constitution- having solemnly
resolved India Into- which shows the enactment clause of constitution.
3 Right and freedom of the people, type of Government and polity- to secure every citizen justice, liberty, and equality and fraternity right. And there would be sovereign, socialist and democratic ( head of the State is elected, direct and indirect democracy.)nature of government.
Objective of Preamble-
JUSCTICE, social, economic, political;
LIBERTY of thought ,expression, belief, faith and worship;
EQUALITY of status and of opportunity;
And to promote among them all
FRATERNITY assuring the dignity of individual and the unity of the nation
Amendment of Preamble- controversy in this point, some are agree and other are not agree. But the evidence shows that it can be amended which has been shown in 42ed Amendment of Constitution which add –Secularism, Socialism, and integrity.


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