Section 339. Wrongful restraint
Whoever voluntarily obstructs any person so as to prevent that person from proceeding in any direction in which that person has right to proceed, is said wrongfully to restrain that person.
Wrongful restraint means preventing a person from going to a place where he has a right to go. In wrongful confinement, a person is kept within certain limits out of which he wishes to go and has a right to go. In wrongful restraint, a person is prevented from proceeding in some particular direction though free to go elsewhere. In wrongful confinement, there is restraint from proceeding in all directions beyond a certain area. One may even be wrongfully confined in one’s own country where by a threat issued to a person prevents him from leaving the shores of his land.
Object – The object of this section is to protect the freedom of a person to utilize his right to pass in his. The slightest unlawful obstruction is deemed as wrongful restraint. Physical obstruction is not necessary always. Even by mere words constitute offence under this section. The main ingredient of this section is that when a person obstructs another by causing it to appear to that other that it is impossible difficult or dangerous to proceeds as well as by causing it actually to be impossible, difficult or dangerous for that to proceeds.
1. An obstruction.
2. Obstruction prevented complainant from proceeding in any direction.
Obstruction:-Obstruction mans physical obstruction, though it may cause by physical force or by the use of menaces or threats. When such obstruction is wrongful it becomes the wrongful restraint. For a wrongful restraint it is necessary that one person must obstruct another voluntarily. In simple word it means keeping a person out of the place where his wishes to, and has a right to be.
This offence is completed if one’s freedom of movement is suspended by an act of another done voluntarily. Restraint necessarily implies abridgment of the liberty of a person against his will.
What is require under this section is obstruction to free movement of a person, the method used for such obstruction is immaterial. Use of physical force for causing such obstruction is not necessary. Normally a verbal prohibition or remonstrance does not amount to obstruction, but in certain circumstances it may be caused by threat or by mere words. Effect of such word upon the mind of the person obstructed is more important than the method.
Obstruction of personal liberty:
Personal liberty of a person must be obstructed. A person means a human being, here the question arises whether a child of a tender age who cannot walk of his own legs could also be the subject of restraint was raised in Mahendra Nath Chakarvarty v. Emperor. It was held that the section is not confined to only such person who can walk on his own legs or can move by physical means within his own power. It was further said that if only those who can move by physical means within their own power are to be treated as person who wishes to proceed then the position would become absurd in case of paralytic or sick who on account of his sickness cannot move.
Another points that needs our attention here is whether obstruction to vehicle seated with passengers would amount to wrongful restraint or not.
An interesting judgment of our Bombay High Court in Emperor v. Ramlala : “Where, therefore a driver of a bus makes his bus stand across a road in such a manner, as to prevent another bus coming from behind to proceed further, he is guilty of an offence under Sec. 341 of the Penal Code of wrongfully restraining the driver and passengers of another bus”.
“It is absurd to say that because the driver and the passengers of the other bus could have got down from that bus and walked away in different directions, or even gone in that bus to different destinations, in reverse directions, there was therefore no wrongful restraint” is the judgment of our High Court which is applicable to our busmen who suddenly park the buses across the roads showing their protest on some issues.
Illustrations- A was on the roof of a house. B removes the ladder and thereby detains A on the roof. II. A and B were co-ower of a well. A prevented B from taking out water from the well .
Section 340. Wrongful confinement.
Whoever wrongfully restrains any person in such a manner as to prevent that person from proceedings beyond certain circumscribing limits, is said “wrongfully to confine” that person.
Object – The object of this section is to protect the freedom of a person where his personal liberty has totally suspended or abolish, by voluntarily act done by another.
1. Wrongful restraint of a person
2. Such restraint must prevent that person from proceeding beyond certain limits.
Prevent from proceedings: Wrongful confinement is a kind of wrongful restraint, in which a person kept within the limits out which he wishes to go, and has right to go. There must be total restraint of a personal liberty, and not merely a partial restraint to constitute confinement. For wrongful confinement proof of actual physical obstruction is not essential.
Wrongful confinement means the notion of restraint within some limits defined by a will or power exterior to our own.
Moral force: Detention through the excise of moral force, without the accomplishment of physical force is sufficient to constituted this section.
Ans- Chapter XVI– section 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.
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.
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.
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.
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:
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.
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.
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.