Report on the Indian Penal Code. Art. 64. Art. 3, p. 11. Page 12. See Note to Art. 9, Sec. 2, Art. 2, p. 14. Sec. 2, Art. 6. 2d Report, p. 17 and 18. which is quite new, is strongly objected to by one of the Commissioners, Mr. Starkie. 653. We conceive that the Indian Law Commissioners meant to include "weak"ness of mind," under the general term, "idiotcy." This word is not in Johnson's Dictionary, but the equivalent term "idiotism" is interpreted by him as signifying "natural imbecility of mind." 654. The simple enunciation, in Clause 67 of the Indian Code, that "nothing "is an offence which a person does in consequence of being mad or delirious at "the time of doing it," is in accordance with Mr. Livingstone's Code, and with the Code Penal of France on the same point. In Article 35 of the former, it is declared, that "no act done by a person in a state of insanity can be punished "as an offence." The following is the declaration of the French law: "Il n'y a ni "crime ni délit lorsque le prévenu était en état de démence au tems de l'action." 655. The next article in this section of the Schedule, providing that "no per"son shall be exempted from criminal responsibility by reason of any temporary incapacity, which he shall have wilfully incurred by intoxication or other "means," agrees substantially with Clause 68 of the Indian Code. We would refer here to the remarks we have made in para. 119 of the foregoing Report, on the distinction between delirium in Clause 67, and the temporary incapacity of mind arising from intoxication by the use of narcotic drugs, &c. 656. The article relating to Duress, in the Schedule, differs from that in the Digest, cited in para. 104 of our Report, by the omission of the words, "of grievous bodily harm," thereby limiting the excuse on this ground to cases in which the party acted under a present fear of death as proposed by us in para. 169. 657. The Schedule agrees with the Code in excluding the excuse of marital coercion, in the case of a woman charged with the commission of a criminal act, adverted to in paras. 173 and 174 of our Report. 658. In Article 2, of the 2d section of the same chapter of the Schedule, there is an explanation of the term, " unlawful," which will be found to agree with the explanation of the term " illegal," in Clause 28 of the Code, noticed by us in para. 91 of our Report, in reference to an objection which had been made to the application of it "to every thing which furnishes ground for a civil action." According to the above article, "an omission shall be deemed to be unlawful "whensoever it gives cause for civil action." In explaining their reasons for rendering persons criminally liable for the consequences of omissions which they were bound, by contract, to have avoided, Her Majesty's Commissioners quote the remarks of the Indian Law Commissioners on the subject, in which they express a general concurrence. 659. The word "injury" is used in the Schedule as a general term, in the same way as it is used in the Code, and the definition of it agrees with that given in Clause 29 of the latter. 660. Article 6, of the same section, lays down that "an injury shall be deemed "to be accidentally caused whenever it is neither wilfully nor negligently caused," and that "accidental injuries do not subject the persons causing them to punish"ment," except as elsewhere mentioned in the Act. 661. The Commissioners explain, that they intend here to depart from the principle of the present law, and following the principle advocated by the Indian Law Commissioners, whose arguments they quote at length, as having their general concurrence, to make it the general rule, that "where a person does an unlawful act, and a consequence follows which has no probable connexion with it, and neither be imputed to wilfulness or want of caution, the agent should be dispunishable, except for the unlawful act in which he was engaged." We beg Paras. 310 to 312. to refer to the observations on this head in our Report. 66 66 can 662. With reference to our observations in paras. 176 to 185, upon the provisions of the Code compared with the English law of principal and accessory, we Chapter I. Sec. 3, have now to point out, that in the Schedule under consideration Her Majesty's Commissioners propose to abolish the difference of punishment between principals in the first and second degree and accessories, and the technical distinction between Art. 1. Note (a) p. 19. principals principals in the first and second degrees, and to make the offence of being an Report on the accessory a substantive offence. By the change proposed, the law of England Indian Penal Code. will correspond with the Indian Code on these points. 663. In para. 327 of our Report, it is remarked that there is no limitation of time in the Indian Code, corresponding with that of the English law in respect to the cognizance of homicide. This limitation of time "confining prosecutions "for murder to cases where the party injured dies within a year and a day after "the cause of death," Her Majesty's Commissioners have not inserted in their Schedule. Note (a) Art. 1, p. 21. 664. Referring to the observations in our Report (paras. 242 to 249), upon the definition of "Voluntary Culpable Homicide" in the Code, as including cases in which death is caused by an influence on the mind, and the exception of such cases in the Digest, contained in the seventh Report of the English Criminal Law Commissioners, we have to note that this exception is maintained in the Schedule under consideration, the Commissioners observing that they " do not feel justified Chap. 11. Sec. 1, "in abandoning a principle which has been sanctioned by long usage and high Art. 4. Note (d) p. 22. "authorities," though they "conceive that there is great weight in the reasoning "urged by the Indian Law Commissioners in support of their adoption of a dif"ferent course." Chap. II. Sec. 2, Art. 3. 665. The Commissioners have given a new definition of "murder" agreeing in principle with that suggested by Mr. Livingstone, and to explain the advantages Art. 2. of it, they submit the observations by which Mr. Livingstone recommended his definition to the legislature of Louisiana. The definition is as follows: "Homi"cide is murder whensoever the killing is wilful, and is neither extenuated within "the provisions of Section 3, nor justifiable within the provisions of Section 5 of "this chapter." Under the explanation before given of the term "wilful," Chap. I. Sec. 2, which agrees substantially with that quoted by us in para. 103 from the Digest, the above definition corresponds very closely to that contained in Clauses 294 and 295 of the Code. "Extenuated homicide," it is to be observed, includes that which is termed "manslaughter," in the Code, and also that which is Chap. II. Sec. 3, designated as " voluntary culpable homicide by concent." Under the head of "justifiable homicide" are contained some provisions similar to those which in "the Code find place in the chapter of "exceptions." Art. 2. Sec. Art. 3. Art. 3. 666. With reference to our observations upon the question of treating a person Paras. 258 to 266. who has caused the death of another by bearing false witness against him before a Court of Justice as guilty of murder, and making him liable to capital punishment, as provided by the Code, we have to mention that the Commissioners have decided to except this offence from the definition of murder in their Schedule, though they observe," the act seems to be attended with many of the bad con- Chap. II. Sec. 2, sequences, and to have the general features of a murder of the most malignant Note (b), p. 5. "description," and though" there appear to be strong grounds for apprehending "that it is murder by the law of England, as it is by several other Codes." They propose to provide for the crime in the chapter relating to offences against the administration of justice, as we have advised in para. 266, in regard to the Indian Code. The terms of the definition of murder plainly embracing this offence, the Commissioners have thought it necessary to declare the exception expressly in a separate article, and perhaps it will be proper to introduce an "explanation" after Clause 294 of the Code, to notify that this offence is to be dealt with under Clause 191 of the chapter of offences against public justice. 667. In para. 269 of our Report we have remarked, that under the English See paras. 268 to law the plea of provocation is not available to reduce homicide from murder to 271. manslaughter, when the provocation has arisen from mere words or gestures, but that there is no such restriction in the Indian Code. Her Majesty's Commissioners Page 25, Note (6), in their present Report observe, that the rules of the existing law of England on this Art. 2, Sec. 2. point "appear to be unreasonable, when the principle is considered upon which "extenuation is admissible; viz., the want of self-control, occasioned by means which, according to the constitution of human nature, ordinarily produce this "effect." They quote at length the remarks of the Indian Law Commissioners on the subject, which, they say, "seem to be very deserving of attention." Their definition of " extenuated homicide," therefore, is not restricted by any such excep- Chap. II. Sec. 3, tion as that which, following the existing law, their predecessors thought them- Art. 2, page 25. selves 19. 0 3 66 selves obliged to introduce into their Digest. It does not, however, exactly agree with the Code on this point, inasmuch as the latter explains "grave provocation" to be "such as would be likely to move a person of ordinary temper to violent " passion;" whereas, by the definition in the Schedule, the gravity of the provocation is left to the judgment of the jury in each case. The Commissioners say, "It has been thought by some jurists that the criterion in these cases ought "to be, what would take away the self-control of a person of ordinary temper. "But we have thought it better to abide by the present law, according to which "the circumstances of the individual accused are relevant to the question of "extenuation." 668. As in the Code, the explanation subjoined to Clause 297, declaring what is meant by "grave provocation," such as will reduce "voluntary culpable homicide" to " manslaughter," has a proviso that such provocation was not given by any thing done in obedience to the law, or by any thing authorized by the law of civil or criminal procedure, or by any thing done by a public servant in the exercise of his lawful powers, so Her Majesty's Commissioners have introduced into their Schedule an article, declaring that homicide is not extenuated on the plea of provocation, where any officer or other person lawfully executing any writ, &c., civil or criminal, or lawfully acting in obedience to the command of a magistrate, or otherwise lawfully acting under authority for the advancement of the law, is wilfully killed. 669. Again, they have an article declaring that homicide is not extenuated in such a case, although the writ, &c. be not sufficient in law, or the command be unlawful, or the officer have no authority, or the manner of executing the writ, &c., be unlawful, provided the officer believed himself to be acting lawfully as aforesaid, and provided the party killing had notice that the officer proposed to act under such writ, &c. 670. As we understand the last article, it appears to us that the effect of it, for the declared object of protecting officers of justice in the execution of their duty, will be much the same as that of the proviso to Clause 297 of the Code just adverted to, construed with reference to the declaration in Clause 75, that there is no right of private defence against an act done by a public servant, who is legally competent as such public servant to do that act, though that act may be an offence in that public servant, &c. The reasons which induced Her Majesty's Commissioners to frame the article in question, as it stands in their Schedule, are stated in pages 27 and 28 of their Report. 671. After stating those reasons, the Commissioners add, that they “also think "that where an officer believing that he is executing legal process, commits "homicide, such homicide should, notwithstanding the process is erroneous in the "frame of it, be extenuated." "In such case," they observe, "he will still "remain liable to severe punishment." A provision to this effect is inserted accordingly in Article 8. 672. By Clause 62 of the Indian Code, as we have interpreted it, an officer committing homicide in executing what he believes in good faith to be legal process, but which is not so, being led to the belief of its legality by a misconception of facts, would be wholly excused. The words of the clause, indeed, as we have observed, admit of a wider construction, and have been understood to excuse an officer acting under an erroneous impression of his duty, arising from a misconception of the law, under such circumstances as would extenuate the offence under the article of the Schedule which we are now considering; as, for example, an officer acting for the advancement of the law, erroneously believing himself to have authority by law so to act, and in that belief, and in prosecution of that object, committing homicide. We have advised that qualifying words be introduced into Clause 62, to prevent the wide construction here adverted to, of which some have thought it susceptible. 673. Though we are not prepared to agree to such a latitude of indulgence to officers acting bonâ fide for the advancement of the law, as to excuse them entirely from penal responsibility for homicide committed, under such circumstances as are described in Article 8 of the Schedule, when they have erred from a misconception of the law; yet we think that such circumstances ought to be regarded as extenuating the homicide. Sometimes the incidents of the case may bring homi Report on the cide so committed under the provisions for "voluntary culpable homicide in "defence," in Clause 299 of the Code. But this will not be generally applicable, Indian Penal Code. and we are inclined to recommend the introduction of a new provision to correspond with the said article. 674. It appears to us to be advisable to add to Clause 75, and to the explana tion annexed to Clause 297 of the Code, a proviso corresponding with that contained in the articles of the Schedule we have just been considering, requiring it to be notified that the officer is acting under a writ, or in obedience to command, or otherwise for the advancement of the law. 675. We have observed, that under the head of "extenuated homicide" in the Schedule is included what is designated in the Code as "voluntary culpable "homicide by consent." In support of the provision which distinguishes such homicide from murder, the Commissioners cite the observations of the Indian Law Art. 14, page 29. Commissioners on the subject, which, they say, " appear to them to have great weight." Further, they distinctly provide for homicide in duelling as "exte- Art. 16, page 30. "nuated homicide," and vindicate the provision upon grounds similar to those Report, para. 290. upon which we have advocated the dealing with this offence as "voluntary cul"pable homicide by consent" under Clause 298 of the Code, as we believe was intended by its authors. In the Schedule is a separate article declaring that Art. 17. 676. The Schedule provides specially for "negligent homicide," the definition of which in Article 2, Section 4, Chapter II., together with that in Article 5, Section 2, Chapter I., therein referred to, agrees essentially with Clause 304 of the Code. The punishment is imprisonment not exceeding three years by the former, not exceeding two years by the latter. 677. The Schedule in many cases treats as "justifiable homicide" what, under Chap. II. Sec. 5 the chapter of Exceptions in the Code, is held to be no offence, as when the Compare Art. 1 to homicide is committed by a person acting lawfully under a lawful authority, in 11 with Clauses 62 various ways, for the advancement of the law, and giving notice of the authority and 63 of the Code. under which he acts. We think it advisable to add the proviso regarding notice to Clauses 62 and 63 of the Code, as well as to Clause 75, and to the explanation annexed to Clause 297, as above recommended. Particulars, it is to be observed, are given in the articles of the Schedules here referred to, which the framers of the Code left to be specified under the head of procedure, to which they appear more properly to belong. Her Majesty's Commissioners, it appears, contemplate 2d Report, page 7. a revision of their work when the whole Digest is completed, with a view to generalization and the systematical adjustment of the several portions, and probably there will then be a more distinct separation of the provisions which belong to procedure. 678. Again, homicide is treated as "justifiable," in the Schedule, when it Chap. II. Sec. 5. is committed in the lawful defence of person or property, the provisions not ma- Art. 12 to 18. terially differing from those under the head of the "right of private defence," Cl. 74 to 84. in the chapter of Exceptions in the Code, which are, however, much more full and explicit. 679. The last article in the Schedule, under the head of " Justifiable Homicide," Art. 19. appears to correspond with Clauses 70 and 72 of the Code, except that the consent of the sufferer is not required by the former, as it is by Clause 70, when the party is able to signify consent. 680. Her Majesty's Commissioners agreeing to the sentiments expressed by Page 36. the Indian Law Commissioners in Note B. quoted in para. 166 of our Report, vide paras. 165 to have resolved to omit any provision "justificatory of the homicide of an offend- 168. ing party committed in order to save the life of the accused, or rather because "the accused reasonably thought that the homicide was indispensable for preserving his own life." 19. 04 681. The Report on the Indian Penal Code. Chap. II. Sec. 6, Chap. II. Sec. 7, 3. 2. 4. Clause 308. 309. Chap. II. Sec. 7. l'age 39, Note (e). 681. The offence of aiding in or abetting the commission of self-murder, which, by the present law of England, is murder, the Commissioners propose to make punishable with transportation for life, or for not less than seven years, which is the punishment they provide for homicide by consent. By Clause 307 of the Code, also, this offence is punishable with the penalty therein provided for homicide by consent, viz., imprisonment for 14 years, or not less than two years, except (Clause 306) the person who commits suicide is a child, or of unsound mind, &c., when the punishment may be death, or transportation, or imprisonment for life. 682. The Schedule provides that attempts to commit murder by poisoning, or by any means causing bodily harm, or by setting fire to, or casting away, a ship, &c., shall be punishable capitally, (the Commissioners, however, expressing a wish to reconsider their recommendation on this point when they present a general chapter on the subject of punishments), and that attempts to commit murder otherwise than by poisoning, although no bodily harm shall be caused, shall be punished with transportation for life, or for any term not less than seven years, or with imprisonment not exceeding three years. Again, the maliciously putting the life of any person in danger, by any means not before specified, is punishable with imprisonment, not exceeding three years, or fine, or both. 683. Attempts to commit murder are by the Code liable to be punished with transportation for life; attempts to commit homicide which under the circumstances would be culpable homicide less than murder, with imprisonment which may extend to three years. 684. The term "grievous bodily harm" is used in the Schedule to designate "all the serious personal injuries, short of death, the commission of which and "the attempting to commit which should be visited with severer punishment than "other personal injuries." Upon the definition of this term the Commissioners say "they have endeavoured to include within its meaning the more serious kinds "of personal injury, without reference to pugnacity or other principle than the damage and suffering occasioned." They appear to have aimed at giving in a condensed form the substance of the detailed definiton of the kinds of "hurt" designated as "grievous" in the Indian Code, which, with the remarks of the Indian Law Commissioners, they cite at length in their note. "The limitation of "20 days," in their definition, they observe, "is taken from the French Code, "and was adopted from that Code by the Indian Law Commissioners." Upon Report, paras. 356 this subject we would refer to the observations in our Report, and particularly to to 386. the observations in para. 374 on the point last mentioned. We observe that Mr. Starkie objects, as we do, to the limitation of 20 days in the definition of grievous bodily harm" or "grievous hurt." Clause 314. Clause 319. Chap. II. Sec. 7, Art. 7. Chap. II. Sec. 7, Art. 38, page 43. Art. 40, page 45. Art. 43, page 45. Clause 341. 685. The punishment proposed for "grievous bodily harm" in the Schedule is transportation for life, or for a term not less than seven years, or imprisonmeut not exceeding three years, nor less than one year. By the Code the maximum punishment for "grievous hurt" simply is imprisonment for ten years, to which fine may be added; the minimum is imprisonment for six months. Attempts to cause "grievous bodily harm" are punishable by the Schedule in the same manner as the completed offence, except that there is no minimum limit to the imprisonment. The punishment for an attempt, by the Code, is half of that which may be inflicted for the completed offence. 686. A subsequent article of the Schedule in the same section, but separated from that relating to grievous bodily harm," provides for other "bodily "harm" (answering to simple "hurt" in the Code) or "violence," caused or done "maliciously or negligently." The punishment is the same as is prescribed by the Code for "hurt," imprisonment not exceeding one year, or fine, or both, except that in the Code the fine is limited to rupees 1,000. 687. Article 40 of the same Section contains a provision corresponding to that of Clause 70 of the Code, justifying any harm arising from any thing not intended to cause death, which was done with the consent of the party suffering. 688. The definition of assault in the Schedule differs from that contained in the Digest and quoted in our Report, by the addition of the words "or menace by gestures," by which it is made to comprehend what in the Code is designated as "show of assault." ་ 689. The |