By: Mansi Singh
Homicide is the killing of a human being by a human being. It may be lawful or unlawful. Lawful homicide includes General Exception which is mentioned in Chapter IV of The Indian Penal Code, 1860. Unlawful homicide is of 4 kinds:
- Murder (S.302)
- Culpable homicide not amounting to murder (S.304)
- Causing death by negligence (S.304 A); and
- Suicide (S.305 and 306)
THE ELEMENTS OF A CRIME
|ACTUS REUS“THE GUILTY ACT”||+||MENS REA“THE GUILTY MIND”||=||CRIME|
Culpable is derived from the Roman word “CULPE” which means Punishment. Homicide is derived from the Latin word “HOMO + CIDA” which means human being + killing.
Culpable homicide is defined in The Indian Penal Code, 1860 under section 299 “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.”
Explanation 1.—A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2.—where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3.—the causing of the death of a child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child if any part of that child has been brought forth, though the child may not have breathed or been completely born.
INGREDIENTS OF CULPABLE HOMICIDE
The following are the essentials of culpable homicide:-
- Causing of death of a human being;
- Death must be caused by doing an act;
- The act must have be done:
- With the intention of causing death;
- With the intention of causing such body injury as is likely to cause death; or
- With the knowledge that the doer is likely, by such act cause death.
Whoever causes Death
Death means the death of a human being. It does include a death of an unborn child such as a child in the mother womb. But as per explanation 3 of it may amount to culpable homicide if any part of the baby bought forth doesn’t matter that child is not breathing or not completely born.
However, it is not necessary that a person whose death has been caused must be the very person whom the accused intended. The offence of culpable homicide was committed as soon as any person intended to kill any person. Mens Rea is the primary part to perform an action. Actus Rea is secondary.
By doing an act
Death may because in a number of ways like by starving, poisoning, drowning, or communicating some such shocking news, etc. Act also means illegal omission. Illegal omission means an act which a person suppose to do but neglects to do an act which he is bound to perform as it is his duty to perform.
Example: A lifeguard duty is to take care of the people who are around the pool but if he neglects to save the person who is drowning in the pool then it is called an illegal omission and he is liable for punishment and it is an offence under section 299 of IPC.
a) Intention to cause death
Intention means the exception of the consequence in question. When a man is charged with doing an act, of which the probable consequences may be highly injurious, the intention is an inference of law resulting from doing the act. The intention is inferred from the acts of the accused and the circumstances of the case.
b) With the intention of causing such bodily injury as is likely to cause death
The intention of the offender may not be to cause death, it would be sufficient if he intended to cause such bodily injury which was likely to cause death. The connection between “the act and the death caused by the act must be direct and distinct, and though not immediate it must not too remote.
c) With the knowledge that he is likely by such act to cause death
Knowledge is a strong word and imports a certainly and not merely a probability. Here, knowledge means a personal knowledge of the act which he has done. For example, if A, B, C attack D with lathis, the blows if directly given to the head then their intention was to kill D they have that knowledge.
The term “Murder” traces its origin from the Germanic word “morth” which means secret killing. Murder is nothing it is just an aggregative form of culpable homicide. Murder means when one person is killed by another person or a group of persons who have a pre-determined intention to end the life of the former.
An offence will not amount to ‘Murder’ unless it includes an offence that falls under the definition of culpable homicide as per the definition of ‘Murder’ under IPC. All murders are culpable homicide but all homicides are not murders. Section 299 and Section 300 of the Indian Penal Code deal with murder.
MURDER AS PER SECTION 300 OF IPC
Section 300 of the IPC reads as follows:
300. Murder – 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—
(Secondly) —If it is 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—
(Thirdly) —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—
(Fourthly) —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 death or such injury as aforesaid.
Culpable homicide is considered as murder if:
- The act is committed with an intention to cause death.
- The act is done with the intention of causing such bodily injury for which the offender has knowledge that it would result in death.
- The person has the knowledge that his act is dangerous and would cause death or bodily injury but still commits the act, this would amount to murder.
INGREDIENTS OF MURDER
- Causing death: There should be an intention of causing death
- Doing an act: There should be an intention to cause such bodily injury that is likely to cause death or
- The act must be done with the knowledge that the act is likely to cause the death of another.
- A shoots B with an intention of killing him. As a result, B dies, murder is committed by A.
- D intentionally gives a sword-cut to C that is sufficient to cause death of anyone in the ordinary course of nature. As a consequence, C dies. Here, D is guilty of murder though he did not intend to cause C’s death.
Exceptions to Section 300 of IPC
Where Culpable Homicide Is Not Considered As Murder
Clauses 1-4 of Section 300 provide the essential ingredients, wherein culpable homicide amounts to murder. Section 300 after laying down the cases in which culpable homicide becomes murder, states certain exceptional situations under which, if murder is committed, it is reduced to culpable homicide not amounting to murder punishable under section 304, IPC and not under section 302, IPC.
The exceptions are:
- Grave and sudden provocation
- Private defence
- Exercise of legal power
- Without premeditation in sudden fight and
- Consent in case of passive euthanasia
DISTINCTION BETWEEN SECTION 299 AND 300
The difference between culpable homicide and murder is well defined in the case of Reg. v. Govinda ( 1877) ILR 1 Bom 342), the accused had knocked down his wife, kept a knee on her chest and gave two to three violent blows with the closed fist on her face.
This act produced extraversion of blood on her brain and afterwards, the wife died due to this. The act was not committed with the intention of causing death and the bodily injury was not sufficient to cause death in the ordinary course of nature. The accused was liable to culpable homicide not amounting to murder.
The difference between murder and culpable homicide is intention. If the intention is present the crime is said to be committed under Section 300 of IPC. If the intention is absent, then the crime is dealt with under section 304 of IPC.
|Section 299||Section 300|
|A person commits culpable homicide if the act by which death is caused is done||Except in the cases hereinafter expected culpable homicide is murder if the act by which death is caused is done|
|(a) with the intention of causing death;||(1) With the intention of causing death;|
|(b) with the intention of causing such bodily injury as is likely to cause death;||(2) With the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person t whom the harm is caused;|
|(c) The knowledge that he is likely by such an act to cause death.||(3) 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;|
|(4) With the knowledge that the act is so imminently dangerous that it must in all probability cause death or such bodily injury as is likely to cause death.|
In the case of K.M. Nanavati v. The State of Maharashtra, the court held that “The test to determine whether the action of the action of the accused comes within the ambit of provocation or not is to examine whether any reasonable man having the same capacity and belonging to the same class or section of society if placed in the same situation as accused would also be provoked as to lose his self-control.”
Court further observed that the action resulting from sudden and grave provocation should be immediately when the person was provoked but not after the time which was sufficient for one to calm down.
- The test of “sudden and grave provocation” is whether a reasonable man, who belongs to the same society as the accused, is placed in the situation in which the accused was placed would have been so provoked as to lose his self-control.
- Under certain circumstances, words and gestures may also lead to sudden and grave provocation to an accused, so as to bring his act under an exception.
- The mental background of the victim can be taken into consideration, taking account of his previous act to ascertain whether the subsequent act leads to sudden and grave provocation for committing the offence.
- The fatal blow clearly should trace the influence of passion that arises from the sudden and grave provocation. It should not be after the provocation has cooled down due to lapse of time, otherwise, it will give room and scope to the accused for altering the evidence.
Section 300 r/w 301
- Palani Goundan v. Emperor, 1919 ILR 547 (Mad) 1
- In re Thavamani, AIR 1943 Mad 571
- Emperor v. Mushnooru Suryanarayana Murthy (1912) 22 MLJR 333 (Mad.) 10
Comparison of clause (a) of section 299 with clause (1) of section 300
- Rawalpenta Venkalu v. State of Hyderabad, AIR 1956 SC 171
Comparison of clause (b) of section 299 with clause (3) of section 300
- Kapur Singh v. State of Pepsu, AIR 1956 SC 654 26
- Virsa Singh v. State of Punjab, AIR 1958 SC 465 27
- State of Andhra Pradesh v. R. Punnayya, AIR 1977 SC 45 32
- Dhupa Chamar v. State of Bihar (2002) 6 SCC 506 42
- Prahlad Krishant Patil v. State of Maharashtra (2006) 9 SCC 211 51
Comparison of clause (c) of section 299 with clause (4) of section 300
- Emperor v. Mt. Dhirajia, AIR 1940 All. 486 53
- Gyarsibai v. The State, AIR 1953 M.B. 61
The exception I to section 300
- K.M. Nanavati v. State of Maharashtra, AIR 1962 SC 605
Exception IV to section 300
- Ghapoo Yadav v. State of M.P, (2003) 3 SCC 528 79
- Dhirajbhai Gorakhbhai Nayak v. State of Gujarat (2003) 9 SCC 322 82
PUNISHMENT FOR MURDER – SECTION 302, IPC
Whoever commits murder shall be punishable with death or imprisonment for life and shall also be liable to a fine.
PUNISHMENT FOR CULPABLE HOMICIDE – SECTION 304, IPC
Culpable homicide is not murder if it falls under any one of the five exceptions given under Section 300. For culpable homicide not amounting to murder, Section 304 of IPC describes the punishments as:
- Imprisonment for life or
- Imprisonment for either description of a term extending up to ten years and/or
EXCEPTIONS TO SECTION 300
PUNISHMENT FOR MURDER SECTION 302
|PUNISHMENT FOR CULPABLE HOMICIDE NOT AMOUNTING TO MURDER (SECTION 304)|
|1. WITH THE INTENTION OF CAUSING DEATH2. INTENTION OF CAUSING SUCH BODILY INJURY….DEATH3. WITH THE KNOWLEDGE THAT HE IS LIKELY BY SUCH ACT TO CAUSE DEATH||1. WITH THE INTENTION OF CAUSING DEATH2. INTENTION OF CAUSING SUCH BODILY INJURY+THE OFFENDER KNOWS TO BE LIKELY TO CAUSE THE DEATH.3. WITH THE INTENTION OF CAUSING BODILY INJURY ………SUFFICIENT IN THE ORDINARY COURSE OF NATURE TO CAUSE DEATH.4. KNOWS THAT IT IS SO IMMINENTLY DANGEROUS THAT IT MUST, IN ALL PROBABILITY, CAUSE DEATH||1. GRAVE AND SUDDEN PROVOCATION2. EXCEEDING RIGHT OF PRIVATE DEFENCE3. PUBLIC SERVANT PUBLIC JUSTICEEXCEEDS SUCH POWER4. SUDDEN FIGHT IN THE HEAT OF PASSION UPON A SUDDEN QUARREL5. ABOVE THE AGE OF EIGHTEEN YEARS, SUFFERS DEATH OR TAKES THE RISK OF DEATH WITH HIS OWN CONSENT||DEATHORLIFE IMPRISONMENT AND FINE||LIFEIMPRISONMENTORUPTO 10YEARSIMPRISONMENTANDFINEUPTO 10 YEARSIMPRISONMENTORFINEORBOTH|
As discussed above, Murder is nothing it is just an aggregative form of culpable homicide there is a thin line between Murder and Culpable Homicide. The courts have time and again taken efforts to differentiate between the two offences the end result of the two being the same, the intention behind the offence being the important factor of consideration.
It is all about Mens Rea (guilty intention) of a person if a person direct intended to kill an individual then it is murder but, on the other hand, if a person never intended (no guilty mind) to kill an individual or an individual doesn’t have the knowledge it then it is culpable homicide.