When Law Meets Medical Reality: Understanding Permanent Vegetative State in India's New Criminal Code

 Introduction

The Bharatiya Nyaya Sanhita (BNS), India's new criminal code, has introduced significant reforms in addressing heinous crimes that leave victims in devastating conditions. Among these reforms, the legal recognition of "permanent vegetative state" as a consequence equivalent to death marks a watershed moment in Indian jurisprudence. Two key provisions—Section 66 and Section 124—specifically address this condition, reflecting the law's evolving understanding of human suffering and dignity.

The Legal Framework: Two Distinct Approaches

BNS Section 66: When Sexual Violence Turns Fatal

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Whether the court can suspend the sentence of convict if he is ready to pay compensation to victim?

Having observed and held as above, we are deeply peeved on perusing the impugned judgment, for the same reflects only non-application of mind and non-consideration of the relevant factors despite the fact that the case involved an acid attack on a young woman resulting into permanent disfiguration. In the case on hand, a scanning of the impugned order would reveal that what mainly weighed with the Court is the offer made on behalf of the convicts that they would give a payment of Rs. 25 lakhs through demand drafts, taking into account the evidence that the victim had incurred an amount of Rs. 21 lakhs for her treatment. Paragraph 10 of the impugned order would reveal that taking note of the said offer besides the period of incarceration and also the delay likely to occur in the consideration of appeal, sentence imposed was suspended and the private Respondents were enlarged on bail. 

11. We have no hesitation to hold that the impugned order is infected with non-application of mind and non-consideration of the relevant factors required for invocation of power Under Section 389 in the light of the settled position of law. An acid attack may completely strip off the victim of her basic human right to live a decent human life owing to permanent disfiguration. We have no hesitation to hold that in appeals involving such serious offence(s), serious consideration of all parameters should be made. Even a cursory glance of the impugned order would reveal the consideration thereunder was made ineptly. The serious nature of the offence involved was not taken into account besides the other relevant parameters for the exercise of power Under Section 389, Code of Criminal Procedure.

 13. The impugned order passed by the High Court is perused.

Specifically the order dated 21.02.2024 passed in the Correction

Application. The order does not suggest that there was any

consideration of the parameters laid down by this court for grant of bail or suspension of sentence. Instead, the High Court had noticed and directed that the convicts have offered to pay compensation to the victim for grant of suspension of sentence, which when she refused to accept, was directed to be deposited in the court. It was in a way kind of “Blood Money” offered by the convicts to the victim for which there is no acceptability in our criminal justice system.

Reportable

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

Criminal Appeal Nos.1957-1961 of 2024

Shivani Tyagi  Vs  State of U.P. & Anr. 

Citation: MANU/SC/0353/2024, 2024 INSC 343.

Dated: April 5, 2024.

Read full Judgment here: Click here.

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Bombay High Court Allows 2010 Acid Attack Victims To Seek Compensation Despite Lapse Of Limitation Period

The learned counsel for the petitioners fairly submits that insofar as prayer clauses (c) and (c-i) of the writ petition are concerned, the same stand answered by virtue of the aforesaid Scheme of 2022. He submits that the petitioners desire to seek benefit under the said Scheme. However, under Clause 16 thereof, a period of limitation has been prescribed and the claim is required to be made within a period of three years from the date of occurrence of the offence or conclusion of the trial. He submits that in the present case, the incident in question occurred on 4th October 2010 while the trial concluded in the year 2015. He, therefore, submits that the claims sought to be raised by the petitioners be directed to be entertained without being treated as being barred by limitation. {Para 5}

6. We find that under the Proviso to Clause 16, the delay beyond a period of three years can be condoned in deserving cases. We find the present case to be a deserving one for the reason that after being subjected to an acid attack, the petitioners were required to approach this Court in the matter of grant of compensation. During pendency of this writ petition, the Scheme of 2022 came to be implemented. We therefore find that the petitioners can be permitted to move an application seeking compensation in accordance with the Scheme of 2022.

7. Accordingly, it is directed that if the petitioners seek compensation under the Scheme of 2022 by making an appropriate application within a period of four weeks from today, the application shall be considered on its own merits and in accordance with law. Keeping all grounds for seeking compensation as raised in the writ petition open, it is disposed of in aforesaid terms.

 IN THE HIGH COURT OF JUDICATURE AT BOMBAY

ORDINARY ORIGINAL CIVIL JURISDICTION

WRIT PETITION NO.962 OF 2016

ALONG WITH

INTERIM APPLICATION NO.2022 OF 2020

 Petitioners/  Applicants  Vs 1. State of Maharashtra, 

CORAM : A.S. CHANDURKAR & JITENDRA JAIN, JJ

DATE : 3RD APRIL, 2024.

ORAL JUDGMENT : ( Per A.S. Chandurkar, J. )

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The word acid as used in S 326A of IPC includes all substances which have acidic/corrosive/burning nature and are capable of causing scarring/disfigurement/temporary or permanent disability

 6.4 Notwithstanding the expansion in Section 326A itself of the nature of substance by the use of the phrase “any other means”, the legislature has in fact in a subsequent provision Explanation 1 of Section 326B itself provided meaning to the word “acid” used in Section 326A. “Acid”, as per the said Explanation, includes any substance which has acidic or corrosive character of burning nature capable of causing bodily injury leading to scarce or disfigurement or temporary or permanent disability. Therefore by this provision, it is quite evident that the legislature has included in the meaning of “acid” two clear and categorical aspects: first, any substance with an acidic/corrosive/burning nature; and second, that it has the capability of causing bodily injury leading to scars or disfigurement or temporary or permanent disability. The word “acid” therefore as used in Section 326A is not merely restricted to substances which are classically/scientifically termed as acids but extends and includes all those substances which have acidic/corrosive/burning nature and are capable of causing scarring/disfigurement/temporary or permanent disability. This is notwithstanding the fact that by including “any other means”, the legislature has intended to apply Section 326A to a larger set of substances/methods which may cause such injuries to the person.

 IN THE HIGH COURT OF DELHI AT NEW DELHI

CRL.A. 209/2020

HAKIM & ANR Vs STATE (NCT OF DELHI)

CORAM:

HON'BLE MS. JUSTICE MUKTA GUPTA

HON'BLE MR. JUSTICE ANISH DAYAL

Author: ANISH DAYAL, J.

Pronounced on: 13th October, 2022

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Whether the court should ask questions to accused U/S 313 of CRPC in respect of every piece of prosecution evidence?

We have also perused the questions put Under Section 313 of the Code of Criminal Procedure and answers given by the Accused which are on the record. We do not find that in the present case spirit of Section 313 is forgotten, nor it can be said that the court has not complied with said provision. Sub-section (b) of Section 313 requires the court to question the Accused generally on the case after the prosecution evidence is over. It does not require to re-write hundred pages evidence in another hundred pages to record the statement of the Accused under the Section. It should be borne in mind that entire evidence has been recorded in the presence of the Accused or his counsel, and before he enters into his defence, what is required is that he is generally asked on the case, after the prosecution evidence is over, to explain any circumstances in the evidence against him. It does not require that each and every sentence of the prosecution evidence has to be re-written and read over once again while examining the Accused Under Section 313 of the Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 31 and 32 of 2008

Decided On: 11.08.2017

 Suresh Chandra Jana and Ors. Vs.  The State of West Bengal and Ors.

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Notes on Acid attack under IPC

[326-A. Voluntarily causing grievous hurt by use of acid, etc.—Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine:

Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim:

Provided further that any fine imposed under this section shall be paid to the victim.]

Ins. by Act 13 of 2013, S. 5 (w.r.e.f. 3-2-2013).

326-B. Voluntarily throwing or attempting to throw acid.—Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

Explanation 1.—For the purposes of Section 326-A and this section, “acid” includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability.

Explanation 2.—For the purposes of Section 326-A and this section, permanent or partial damage or deformity shall not be required to be irreversible.]

Ins. by Act 13 of 2013, S. 5 (w.r.e.f. 3-2-2013).

Read important judgments on Acid attack: Click here

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Additional guidelines of Supreme Court on Acid attack

 The Guidelines issued by orders in the Laxmi's case are proper, except with respect to the compensation amount. We just need to ensure that these guidelines are implemented properly. Keeping in view the impact of acid attack on the victim on his social, economical and personal life, we need to enhance the amount of compensation. We cannot be oblivious of the fact that the victim of acid attack requires permanent treatment for the damaged skin. The mere amount of Rs. 3 lakhs will not be of any help to such a victim. We are conscious of the fact that enhancement of the compensation amount will be an additional burden on the State. But prevention of such a crime is the responsibility of the State and the liability to pay the enhanced compensation will be of the State. The enhancement of the Compensation will act in two ways:

1. It will help the victim in rehabilitation;

2. It will also make the State to implement the guidelines properly as the State will try to comply with it in its true sprit so that the crime of acid attack can be prevented in future.

IN THE SUPREME COURT OF INDIA

Writ Petition (Civil) No. 867 of 2013 

Decided On: 07.12.2015

 Parivartan Kendra Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

M. Yusuf Eqbal and C. Nagappan, JJ.

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Supreme Court Guidelines on Acid Attack

 We, therefore, issue a direction that the State Governments/Union Territories should seriously discuss and take up the matter with all the private hospitals in their respective State/Union Territory to the effect that the private hospitals should not refuse treatment to victims of acid attack and that full treatment should be provided to such victims including medicines, food, bedding and reconstructive surgeries.

18. We also issue a direction that the hospital, where the victim of an acid attack is first treated, should give a certificate that the individual is a victim of an acid attack. This certificate may be utilized by the victim for treatment and reconstructive surgeries or any other scheme that the victim may be entitled to with the State Government or the Union Territory, as the case may be.

19. In the event of any specific complaint against any private hospital or government hospital, the acid attack victim will, of course, be at liberty to take further action.

20. With regard to the banning of sale of acid across the counter, we direct the Secretary in the Ministry of Home Affairs and Secretary in the Ministry of Health and Family Welfare to take up the matter with the State Governments/Union Territories to ensure that an appropriate notification to this effect is issued within a period of three months from today. It appears that some States/Union Territories have already issued such a notification, but, in our opinion, all States and Union Territories must issue such a notification at the earliest.

21. The final issue is with regard to the setting up of a Criminal Injuries Compensation Board. In the meeting held on 14.03.2015, the unanimous view was that since the District Legal Services Authority is already constituted in every district and is involved in providing appropriate assistance relating to acid attack victims, perhaps it may not be necessary to set up a separate Criminal Injuries Compensation Board. In other words, a multiplicity of authorities need not be created.

22. In our opinion, this view is quite reasonable. Therefore, in case of any compensation claim made by any acid attack victim, the matter will be taken up by the District Legal Services Authority, which will include the District Judge and such other co-opted persons who the District Judge feels will be of assistance, particularly the District Magistrate, the Superintendent of Police and the Civil Surgeon or the Chief Medical Officer of that District or their nominee. This body will function as the Criminal Injuries Compensation Board for all purposes.

IN THE SUPREME COURT OF INDIA

Writ Petition (C) No. 129 of 2006

Decided On: 10.04.2015

Laxmi Vs.  Union of India (UOI) and Ors.

Hon'ble Judges/Coram:

Madan B. Lokur and U.U. Lalit, JJ.

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Whether offence of acid attack U/S 326A of IPC is made out even if injury caused is not grievous?

In an acid attack, if the injury is simple, whether an offence Under Section 326A of the Indian Penal Code (hereinafter referred to as 'IPC') is attracted, is the main question for consideration in this case. And if the injury is only simple, whether charge can be framed Under Section 326B is the incidental issue.

Injuries caused or attempted to be caused by use of acid, have been, under the amendment, categorized differently as separate or special offences Under Sections 326A and 326B of Indian Penal Code:

326A. Voluntarily causing grievous hurt by use of acid, etc.-Whoever causes permanent or partial damage or deformity to, or burns or maims or disfigures or disables, any part or parts of the body of a person or causes grievous hurt by throwing acid on or by administering acid to that person, or by using any other means with the intention of causing or with the knowledge that he is likely to cause such injury or hurt, shall be punished with imprisonment of either description for a term which shall not be less than ten years but which may extend to imprisonment for life, and with fine;

Provided that such fine shall be just and reasonable to meet the medical expenses of the treatment of the victim;

Provided further that any fine imposed under this Section shall be paid to the victim.

326B. Voluntarily throwing or attempting to throw acid.-Whoever throws or attempts to throw acid on any person or attempts to administer acid to any person, or attempts to use any other means, with the intention of causing permanent or partial damage or deformity or burns or maiming or disfigurement or disability or grievous hurt to that person, shall be punished with imprisonment of either description for a term which shall not be less than five years but which may extend to seven years, and shall also be liable to fine.

Explanation I.--For the purposes of Section 326A and this section, "acid" includes any substance which has acidic or corrosive character or burning nature, that is capable of causing bodily injury leading to scars or disfigurement or temporary or permanent disability.

Explanation 2.-- For the purposes of Section 326A and this section, permanent or partial damage or deformity shall not be required to be irreversible.

6. Section 326A carries title of "voluntarily causing grievous hurt by use of acid" whereas Section 326B does not carry any such indication in the title regarding the nature of injury as grievous. But on closer analysis, it can be seen that both the Sections provide for eight types of injuries-(i) permanent damage, (ii) partial damage, (iii) deformity, (iv) burns, (v) maiming, (vi) disfigurement, (vii) disability or (viii) grievous hurt.

7. The first seven of the injuries referred to in the Sections are classified based on the normal aftereffect of acid attack whereas the eighth one is on the gravity of the effect. Under Sections 326A and 326B, grievous hurt is only one among the eight injuries. In view of the explanation Under Section 326B, the resultant damage or deformity under 326A or 326B is not required to be irreversible. The other seven injuries may be either simple or grievous. The nature of injury being simple or grievous, is irrelevant for distinguishing between Section 323 and Section 326A of Indian Penal Code or between Section 326A and Section 326B of Indian Penal Code. If the injury referred to Under Section 326A or 326B is one among the specified eight injuries, whether the seven of them be simple or grievous, the special provisions are attracted.

8. The basic difference between Sections 326A and 326B of Indian Penal Code is the presence of actual injury Under Section 326A. The resultant injury has made the offence more serious with a mandatory minimum punishment of ten years which may extend to imprisonment for life and, in either case, with a fine. 

9. Thus, merely because the title to Section 326A of Indian Penal Code speaks about grievous hurt by use of acid, it is not a requirement under the Section that the injuries caused should be invariably grievous. Even if the seven injuries are simple, Section 326A, and Under Section 326B the mere act of throwing or attempt, as indicated in the Section, would attract the offence.

 As we have already discussed above, it is not the percentage or gravity of injury, which makes the difference. Be it simple or grievous, if the injury falls under the specified types Under Section 326A on account of use of acid, the offence Under Section 326A is attracted. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 1143 of 2018 (Arising out of S.L.P. (Criminal) No. 7158 of 2018)

Decided On: 07.09.2018

Appellants: Maqbool
Vs.
Respondent: The State of Uttar Pradesh and Ors.

Hon'ble Judges/Coram:Kurian Joseph and Sanjay Kishan Kaul, JJ.

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Whether accused can be given benefit of error in framing of charge?

So far as variation in time mentioned in the charge framed is concerned, we are of the view that it is only when prejudice is caused to the Accused in defending himself, the benefit of such defect can be given to the Accused. Section 215 of the Code of Criminal Procedure provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence of those particulars shall be regarded at any stage of the case as material unless the Accused was in fact misled by such error or omission and it has occasioned a failure of justice. The High Court appears to have taken a view which is contrary to the provision contained in Section 215 read with illustration (d) of that Section and Section 464 of the Code of Criminal Procedure.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 31 and 32 of 2008

Decided On: 11.08.2017

 Suresh Chandra Jana and Ors. Vs.  The State of West Bengal and Ors.

Hon'ble Judges/Coram:

N.V. Ramana and Prafulla C. Pant, JJ.

Citation: 2017(16) SCC 466

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