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Damodaram Sanjivayya National Law University

Visakhapatnam (A.P.)

Law of Crimes

Project Work
Exception 5 to Section 300 of Indian Penal Code, 1860

Submitted to
Dr. Nandini C. P.

Submitted By
Shaitan Singh
3rd Semester, 2nd Year,
B.A. LL.B [Hons.],
Roll No. 2014108

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TABLE OF CONTENTS
Contents

Page Number

Consent as a Defence of Murder.........................................................................3

Suicide law and the Right to Die.......................................................................5
Aruna Ramchandra Shanbaug v. Union of India.............................................9
Brief Facts
Issues
Observation of the Court
Conclusion............................................................................................................11
Dashrath Paswan v. State of Bihar....................................................................12
Brief Facts
Issues
Reasoning of the Court
Prabhat Uppal v. The State................................................................................14
Brief Facts
Issues
Observation of the Court

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Consent as a Defence to Murder

Consent:
Exception 5 of section 300 of Indian Penal Code
Culpable homicide is not murder when the person whose death is caused, being above the
age of eighteen years, suffers death or takes the risk of death with his own consent.
Essentials
The person whose death is caused is
1. Above the age of eighteen years.
2. Suffers death with his own consent.
Consent is one of the five exceptions provided under section 300 of Indian Penal Code. It is
the exception which brings the offence of murder to Culpable Homicide not amounting to
Murder.
Exceptions provided in section 300(1) to section 300(5) are different from that of General
Defences provided under section 76 to section 106. Even after availing this exception, the act
which committed remain as an offence, it does not terminates the blame worthiness of crime
but what it only does is that it only does is that it only reduces the guilt of crime, offender
shall be liable for the punishment but for lesser punishment, for example punishment may be
commuted from death penalty to that of life imprisonment or life imprisonment to 10 years or
15 years or any particular period, dependents on the facts of the crime, manner by which it
committed and also the motive of crime.
The features which bring the case under the benefit of their exception totally based on the
facts and circumstances of the each case.
This exception abrogates the rule of English law that a combatant in a fair dual who kills his
opponent is guilty of murder. Under this Exception the person who killed in a duel suffers or
takes the risk of death by his own choice. In applying the Exception it should first be
considered with reference to the act consented to or authorised, and as to each of those some
degree of particularity at least should appear upon the facts proved before the Exception can
be said to apply. It must be found that the person killed with a full knowledge of the facts,
determined to suffer death, or take the risk of death; and that this determination continued up

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to and existed at the moment of his death.1 The consent must have been given unconditionally
and without any pre-reservation.2
The following reasons are given for not punishing homicide by consent so severely as
murder. In the first place, the motives which prompt men to the commission of this offence
are generally far more respectable than those which prompt men to the commission of
murder. Sometimes it is the effect of a strong sense of religious duty, sometimes of a strong
sense of honour, not infrequently of humanity. The soldier who, at the entreaty of a wounded
comrade, torment of a lingering disease, the freed man who in ancient times held out the
sword that his master might fall on it, the highborn native of India who stabs the females of
his family at their own entreaty in order to save them from the licentiousness of a band of
marauders, would, except in Christian societies, scarcely be thought culpable, and even in
Christian societies would not be retarder by the public, and ought not to be treated by the law,
as assassins.
The last exception to section 300, IPC deals with causing death by consent which is
commonly known as euthanasia (mercy killing). The exception is justified on the ground that
a mans life is not valuable to himself, but also to the family members, state and society. A
man is therefore not entitled to give up his life by consent; though consent has
unquestionably the effect of mitigating the intensity of crime, it can never exonerate the
offender. For instance:
The motives which prompt men to the commission of this offence are generally for more
respectable than those which prompt men to the commission of murder. Sometimes it is the
effect of a strong sense of religious duty, sometimes of a strong sense of honour, not
infrequently of humanity. The soldier, who at the entreaty of a wounded comrade, puts that
comrade out of pain, the friend who supplies laudanum (sedative) to a person suffering the
torment of a lingering disease, the freedman who in ancient times held out the sward that his
master might fall on it, the highborn native of India who stabs the females of his family at
their own entreaty in order to save them from the licentiousness of a band of marauders,
would,... scarcely be though culpable.3

1 Nayamuddin, (1891) 18 Cal 484 (FB).

2 Ambalathil, AIR 1965 Mad 97.

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Suicide law and the Right to Die

What is difference between euthanasia and suicide? This is tough to answer because the two
concepts are very closely interlinked and dividing line between them is very thin. Euthanasia
denoted causing the death of incurable or terminally ill patients and the meaning of suicide is
universally known. It is hard to imagine a legal system where the relatives of the patient in a
vegetative state can decide to end his life while a fully competent adult is not allowed to end
his own.
An attempt to commit suicide is a criminal offence in India, punishable with imprisonment of
upto one year and fine under section 309 of the IPC, 1860. It is a unique offence if you fail,
you are punished, but if you are succeed, you are not- since, of course, a successful suicide
means that there is no one to punish.
Those who abet suicide can be punished; can be imprisonment for upto 10 years and fine
under section 306 of IPC. For a long time, this was the only safeguards against the instigation
of sati4 in India.
The law penalizing suicide attempts has been widely criticized over the last few decades. As
early as 1971, the law commission of India recommended that section 309 if the IPC, a harsh
and unjustifiable provision, should be deleted.5 It has also been constitutionally challenged
several times before high courts and the Supreme Court. The Delhi High Court once observed
that it was a strange paradox that in the age of votaries of euthanasia, suicide should be
criminally punishable.6
In 1985, Maruti Dubal v. State of Maharashtra7(Maruti Dubal), a police constable was so
despondent with the inaction of government authorities that he tried to immolate himself
3 Draft Penal Code, note 4, pp. 145-146.
4 An ancient Hindu Custom according to which a widow was expected to immolate herself at the
funeral prayer of her husband. Although it is now illegal, it is still prevelant in certain parts of India.
5 Law Commission of India, 42nd Report on Indian Penal Code, 1971, p. 244,
6 State vs. Sanjay Kumar Bhatia [(1986) 10 DRJ 31 at pera. 1] (Delhi High Court)
7 (1986) MhLJ 913 (Bombay High Court)

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outside the office of Bombays municipal commissioner. When criminal charges were pressed
against him, he challenged Section 309 of the IPC in the Bombay High Court, saying that it
violates Articles 148 and 219 of the Constitution. The court accepted the challenge and agreed
that there was nothing unnatural about the desire to die. 10 It also said that every man is the
master of his own body and has the right to deal with it as he pleases. A person who attempts
suicide, whether due to mental disorder or physical ailment, needs treatment and care more
than imprisonment. The court concluded that the constitutional right to live includes the right
not to live or the right to end ones life. 11 The Bombay High Court held that Section 309 was
ultra virus or beyond the powers of the Constitution and struck it down. All prosecutions
instituted against the petitioner under Section 309 were quashed.
However, in a case in the following year, the Andhra Pradesh High Court upheld the
constitutionality of Section 309 of the IPC. 12 The court found that a law punishing an attempt
to commit suicide was an important tool in the age of hunger strikes and self-immolation
threats. It also held that not every case under Section 309 would necessarily result in
punishment or imprisonment; the section only defined the upper limits of possible
punishment.
Is it constitutionally permissible to penalize suicide? This question arose in the Supreme
Court in P. Rathinam v. Union of India13 (Rathinam). Hearing the writ petition challenging the
constitutional validity of Section 309, the court rightly held that an attempt to commit suicide
indicated a psychological problem rather than any criminal instinct. After weighing every
possible legal and moral implication of treating a suicide attempt as a criminal offence, the
court struck down Section 309 of the IPC as being void and ineffectual. In fact, the court held
that Section 309 contravened the right to life under Article 21.
8 The right to equality.
9 The right to life and personal liberty.
10 Maruti Dubal at pera. 11.
11 Maruti Dubal at pera. 10.
12 Chenna Jagadeeswar v. State of Andhra Pradesh (1988 Cr.L.J. 549) (Andhra Pradesh High Court)
13 AIR 1994 SC 1844

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The Supreme Courts judgement in Rathinam did not hold for long. In Gian Kaur v. State of
Punjab14 (Gian Kaur), a married couple appealed against their conviction for abetting suicide
under Section 306. They argued that since the right to die fell within the ambit of the right
to life under Article 21 (as the Supreme Court held in Rathinam), a person who helped
another commit suicide would merely be facilitating the enforcement of a fundamental right,
implying that Section 306 of the IPC which penalized abetment of suicide, was also
unconstitutional.
This logic was clearly flawed and the Supreme Court rejected the argument, and rightly so.
However, it also overruled its earlier judgement in Rathinam 15 and ruled afresh that the
constitutional right to life did not include the right to die. So, Section 309 was once again
held to be constitutionally valid and effective. The court asserted:
We find it difficult to construe Article 21 to include within it the right to die as a part of the
fundamental right guaranteed therein. Right to life is a natural right embodied in Article 21,
but suicide is an unnatural termination or extinction of life and, therefore, incompatible and
inconsistent with the concept of right to life.16
The court highlighted the difference between the desirability of a law and the constitutionality
of a law. Although a law may not be desirable, it could be struck down as unconstitutional
only if it infringed on specific provisions of the constitution. Now, since Section 309 did not
actually contravene any constitutional provision, it would stay valid. After the two-year
window during which a suicide attempt was not illegal (from Rathinam to Gian Kaur), the
Supreme Court restored the position that committing and abetting suicide were both
punishable crimes.
The Gian Kaur judgement was interesting for another reason. It opened a window of
opportunity to legalize euthanasia within the existing legal framework. The court held that
though the constitutional right to life did not include the right to die, it did encompass the

14 AIR 1996 SC 1257

15 The decision in Rathinam was pronounced by a bench of two Supreme Court judges whereas the
decision in Gian Kaur was pronounced by a bench of five Supreme Court judges.
16 Gian Kaur at pera. 22.

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right to die with dignity. 17 However, the right to die with dignity was not to be confused
with the right to die an unnatural death, one which cut short the natural span of life. In the
cases of persons who were terminally ill or in a vegetative state, the process of natural death
had already commenced, and so it was possible to reason that accelerating that process would
be consistent with the right to life as enshrined in the Constitution.
And then, in 2000, two remarkable suicide petitions were filed in the Kerala High Court. 18 A
retired octogenarian teacher felt that he had led a satisfactory life, having fulfilled all his
duties and obligations, such as ensuring that his children were settled and happy. He wished
to quit the world, but not commit suicidea fact he acknowledged was against the law and
distinguishable from his desire for a voluntary death. He wanted to end his life legally by
donating his organs. He wanted to highlight the difference between voluntary death and
suicide, based on motives. In fact, he suggested that voluntary death clinics be set up in
every district of Kerala to assist others who felt the same. Encouraged by this, another sixtynine-year-old school principal made a similar plea before the high court.
The Kerala High Court rejected both petitions, affirming that suicide was suicide, regardless
of the motives. As its grounds for refusing the two pleas, the court said that not only would
the death of a healthy person cause a loss to society, but there was also the possibility that this
right to die be misused in the future.

17 Gian Kaur at pera. 24.

18 C.A. Thomas Master v. Union of India (2000 Cr.L.J. 3729) (Kerala High Court)

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Aruna Ramachandra Shanbaug

v.
Union of India19
Brief Facts: Aruna Shanbaug was a nurse at King Edward Memorial (KEM) Hospital,
Mumbai (then Bombay). On the evening of 27 November 1973, Aruna, then 25, was
changing her clothes in a room meant for experimental surgeries on dogs, 18 when a hospital
sweeper assaulted her. Intending to rape her, he immobilized Aruna by twisting a dog chain
around her neck; but when he discovered that she was menstruating, he sodomized her
instead. She was found nearly twelve hours later, unconscious.
Aruna suffered acute brain damage because the oxygen supply to her brain had been blocked
for a long period of time. She never recovered from the attack and was relegated to the status
of a helpless patient for the rest of her life. Today, forty years later, Aruna is still in a
vegetative state, a lifelong patient. In 2009, journalist Pinki Viraniwho had followed
Arunas life closely and also written Arunas Story, a book on her lifemoved the Supreme
Court, seeking a direction for KEM Hospital to stop feeding Aruna Shanbaug in order that
she may exercise her right to die in peace and dignity.
Virani alleged that Aruna was a featherweight; her bones were brittle; her skin was like papier
mach, her teeth were decayed. She had lost the ability to see and hear, as well as her
complete awareness. She was fed a diet of mashed food which she could not consciously
swallow. Aruna had no quality of life; she expressed no human emotions and there was little
hope of her ever recovering.
The Mumbai Municipal Corporation and the dean of KEM Hospital filed a counter-affidavit
stating that Aruna accepted food normally and responded via facial expressions or
intermittent sounds. The Supreme Court set up a team of three doctors to objectively report to
it on Arunas physical and mental state. The court also allowed a video recording of Arunas
condition to be screened in the courtroom. Interestingly, the court found support for
conducting a screening in a courtroom from the Nuremberg trials 20 in Germany, though it is
19 AIR 2011 SC 1290
20 Trials conducted after World War II for the prosecution of prominent members of the political,
military and economic leadership of defeated Nazi Germany.

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questionable whether the court should have compared the examination of Arunas condition
with Nazi atrocities during World War II! Screening the video in open court could have been
avoided and the result was ironicthough the court ruled that Aruna was still alive and that
hers was not a case fit for euthanasia, the bench itself treated her as an inanimate object of
examination. Essentially, the Supreme Court overlooked Arunas right to privacy.
Issue: Whether mercy petition should be allowed or not to the petitioner?
Observation of Supreme Court:
In its judgement, the Supreme Court endorsed the recommendation of the team of
doctors that the dean was best placed to decide on the euthanasia plea as Arunas next
friend

21

since the KEM Hospital staff had taken care of her for three decades when

her family abandoned her. The court believed that Pinki Virani could not claim the
level of attachment or bonding with Aruna that the hospital authorities could and
did.22

21 Next Friend refers to a person for the legal benefit of someone not legally comptent to act for
himself or herself.
22 In the courts words: However much her [Pinki Viranis] interest in Aruna Shanbaug may be, it
cannot match he involvement of the KEM hospital staff who have been taking care of Aruna day and
night for 38 years.

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Conclusion
Exceptions provided in section 300(1) to section 300(5) are different from that of General
Defences provided under section 76 to section 106. Even after availing this exception, the act
which committed remain as an offence, it does not terminates the blame worthiness of crime
but what it only does is that it only does is that it only reduces the guilt of crime, offender
shall be liable for the punishment but for lesser punishment, for example punishment may be
commuted from death penalty to that of life imprisonment or life imprisonment to 10 years or
15 years or any particular period, dependents on the facts of the crime, manner by which it
committed and also the motive of crime.
The features which bring the case under the benefit of their exception totally based on the
facts and circumstances of the each case.

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Dashrath Paswan v. State of Bihar, A.I.R. 1958 Pat. 190

Death by Consent
Section 300, Exception 5
The consent contemplated by the exception must be unconditional, without any reservation
and must be unequivocal, that is, there must be no choice of alternatives to which the person
taking the life more or less has driven the person. Therefore, where a wife flatly refused to go
back to her mother and said that if her husband insisted upon her doing so she would rather
be killed, the consent was not the kind envisageed here and the husband was guilty of murder
in killing her.23
Brief Facts: In Dashrath Paswan v. State of Bihar 24, the appellant was a student of class X.
His academic record in school was unsatisfactory. He has failed at the annual examination for
three years in succession. The deceased, his wife, was aged about 19 years. She was a literate
woman. The appellant was very much upset at these failures. He took his last failure so much
to heart that he left home and remained away from the village for about a week prior to
occurrence. On return home after a week he told his wife that he had decided to end his life.
His wife told him in reply that he should first kill her and then kill himself. In accordance
with pact, about an hour later, the wife spread a mat on the floor in one of the rooms in the
house and lay down quietly. The appellant at first struck her with a bhala causing a minor
injury on her chest. Then he took up a sharp cutting hasuli and gave her three violent blows
on neck killing her on the spot.
He then ran out of the house with his blood-stained clothes in order to end his own life. P.W.
-7 chased the appellant and brought him under arrest to his house.
Judgement of Trial Court:- The appellant was convicted for the murder of his wife and
sentenced to transportation for life. Held, confession made by Appellant before Magistrate
was voluntary and true - Time given by Magistrate to Appellant for reflection was adequate Appellant made confession when he was completely freed from any possible influence of
police and he made the statement in an atmosphere of freedom from fear.
23 Ambalathil Assainar, In re, (1955) M. W. N. 605(2)
24 AIR 1958 Pat 190

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Issues raised:

Mr. J.N. Varma appearing on behalf of the appellant has attacked the confession on
two grounds. He has urged that the Magistrate who recorded it did not give appellant
sufficient time for reflection. It was submitted that more time should have been given
to the appellant for this purpose, especially because the appellant is stated to have
insisted upon making a confession. In this connection learned counsel has referred to
the following observations of the Supreme Court in Sarwan Singh v. State of
Punjab25
"However, speaking generally, it would, we think, be reasonable to insist upon giving
an accused person at least 24 hours to decide whether or not he should make a
confession. Where there may be reason to suspect that the accused has been persuaded
or coerced to make a confession, even longer period may have to be given to him
before his statement is recorded".

It has been urged that the time given by the Magistrate to the appellant for reflection in the
present case was less than 24 hours. It would naturally be difficult to lay down any hard and
fast rule as to the time which should be allowed to an accused person in any given case. It
was of the utmost importance that the mind of the accused person should be completely freed
from any possible influence of the police and the effective way of securing such freedom
from fear to the accused person is to send him to jail custody and give him adequate time to
consider whether he should make a confession at all.
In the reported case the evidence showed that the accused person had been produced before
the Magistrate directly from police custody. Further the accused in that case was in police
custody for full 5 days without any ostensible explanation or justification before he was
produced before the Magistrate. After he was produced he was given only half an hour to
think about the statement which he was going to make. The evidence further showed that the
Police Sub-Inspector who had taken the accused to the Magistrate was standing in the
verandah outside in the Magistrate's office.
Reasoning of the Court:

25

AIR 1957 SC 637

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The learned Sessions Judge should have held that the section applicable was the first part of
section 304 of the Indian Penal Code. In support of this contention learned counsel has relied
upon Exception 5 of section 300 of the Indian Penal Code.
Having regard to the extraordinary nature of this case the question arises what sentence
should be imposed upon the appellant. Without attempting to minimise the gravity of the
offence I feel that there are circumstances in this case which should go into the scales in
favour of a moderate sentence. The appellant, an immature young man, was suffering from
inferiority complex, the central idea of which was disbelief in himself. His morbid mind was
equalled only by the sentimentalism of his young wife. The loss of a devoted wife has already
been a great punishment to him. I, therefore, take a lenient view of the case and sentence the
appellant to 5 years' rigorous imprisonment.

Prabhat Uppal v. The State

Brief facts of the case: A woman, who slept at night, was found dead in a house No.9- A/17,
W.E.A. Karol Bagh, DD No. 16-A was recorded. Thereupon, SI Ashok Kumar along with Ct.
Jagdish reached the place of incident. Insp. Rajinder Prasad Gautam also reached there in his
official vehicle. They found the dead-body of Shama Uppal, w/o Prabhat Uppal @ Sunny
lying on double-bed in a room. The inner bolt (chitkani) of the door was found broken.
Prabhat Uppal had already been removed to hospital. The place was got photographed. On
searching the room one brief-case lying near the bed was found from which a hand written
note of Prabhat Uppal in Hindi was recovered wherein it was mentioned, Dr. Mamma and
Papa, pairi pauna. After giving you trouble I am killing myself with Shama of my own.
Actually, initially I tried to kill myself alone but do not know how I escape. Then I realise as
to what would happen to Shama. I did not want that Shama should suffer like Deepa. So, I am
killing Shama and then killing myself. I am really sorry that your life and that of your
daughter's has been spoiled by me. Believe me, I did not spoil the life of you people
intentionally. I have always respect for both of you from the core of my heart. I do not know
as to why I am so frustrated from my life and now while not troubling you again and again
would trouble you only once. You try to forget me. Excuse me for my this mistake. Your son(Initials of Sunny) Along with this note two more notes in English language were found.
Some froth was noticed from the nose of Smt. Shama, the deceased. Some marks of abrasion
were found on her neck. Two empty Tik-20 bottles and their covers were also found there.
From the inspection of the place and the contents of the notes it was revealed that Smt.

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Shama was murdered. And as such offence under Section 302/309 IPC was made out.
Accordingly, case was got registered and the investigation was taken up by the Inspector.
Issues:
It is argued before us by learned Sr.Counsel Shri Arun Bhardwaj that the accused
cannot be held guilty of having committed murder of his wife since the accused did
not have any mensrea to do so.
Observation of the Court:
In these facts, to hold that the offence is 'murder' would be doing violence to the definition of
'culpable homicide amounting to murder'. The case would, at the highest, fall under Section
304 IPC. We are of the view that exception 5 to Section 300 IPC is attracted which reads as
follows :- Exception 5 Culpable homicide is not murder when the person whose death is
caused, being above the age of eighteen years, suffers death or takes the risk of death with his
own consent.
The deceased was indisputably over the age of 18 years. When the appellant told his wife, the
deceased, that he wanted to put an end to his life she also volunteered to do that. Then the
deceased consumed Tik-20 and tablets of Calmpose. The appellant consumed 15 tablets of
Calmpose. When the deceased felt suffocated the appellant put his hand on her mouth
resulted in her death. From this it is clear that Shama suffered death at the hands of the
appellant with her own consent. PW-8 Dr. Parmod Kumar Sharma who had accompanied the
parents of the deceased to her house on getting the information of the incident and had found
her lying dead and accused lying unconscious does not claim to have noticed anything
suggesting that the deceased had resisted strangulation. That circumstance also shows that she
had consented to the act of her husband.
In the result, we allow this appeal to the extent that the conviction of the appellant is altered
from Section 302 IPC to Section 304 (Part I) IPC. Further, considering the circumstances in
which the deceased lost her life and the mental state of the appellant, the sentence of
imprisonment for life awarded to the appellant is reduced to the period already undergone.

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