Author: Mehrul Arora
INTRODUCTION
Murder as defined in Section 300 of the Indian Penal Code (hereinafter referred to as ‘IPC’) and culpable homicide as defined in Section 299 of the IPC, are the two extensive categories which provide for the crime of killing a human being by another human being wherein murder is the aggravated form of culpable homicide. There have always remained certain perplexities regarding the distinction between these two sections as they have very minute differences between them and even a minor misinterpretation would lead to a grave miscarriage of justice.
DISTINCTION BETWEEN SECTION 299 AND 300
The distinction between culpable homicide and murder has been provided in the case of State of Andhra Pradesh v. RayavarapuPunnayya[1] by Sarkaria, J., as follows –
“In the scheme of the Penal Code, ‘culpable homicide’ is the genus and ‘murder’ is the specie. All ‘murder’ is ‘culpable homicide’ but not vice versa. Speaking generally ‘culpable homicide’ sans ‘special characteristics of murder’ is ‘culpable homicide not amounting to murder’.”
In the case of Reg v. Govinda[2], Melville, J., stated that, “Whether the offence is culpable homicide or murder depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder.”
| Section 299 – Culpable Homicide | Section 300 – Murder |
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| INTENTION | |
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| KNOWLEDGE | |
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In the case of Kesar Singh v. State of Haryana[3], it was observed that knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive whereas intention connotes a conscious state in which mental faculties are roused into activity and summed up into action for the deliberate purpose of being directed towards a particular and specific end which the human mind conceives and perceives before itself.
INTENTION –
Clause (b) of Section 299 is analogous to Clause (2) and (3) of Section 300 and the criminal intent or the mens rea is the distinguishing factor between clause (b) and clause (2) and (3). In clause (b) a person only has an intention of causing such bodily injury as is likely to cause death whereas in clause (2), the offender has the intention coupled with the knowledge that the bodily injury is likely to cause the death of the person to whom harm is caused.
Illustration – A, has the knowledge that B is suffering from enlarged spleen and a blow is likely to cause his death, hits him hard with a stick with the intention of causing bodily injury. B dies in consequence of the blow due to ruptured spleen. A is guilty of murder because he had the intention as well as knowledge that B is suffering from enlarged spleen and yet he gave him the blow which resulted in B’s death although the same blow wouldn’t have resulted in B’s if he was in a physically healthy condition.
The distinction between clause (b) of Section 299 and clause (3) of Section 300 pertains to the degree of probability of death resulting from the intention of cause the bodily injury.While clause (b) talks about bodily injury as is likely to cause death, clause (3) talks aboutbodily injury sufficient in the ordinary course of nature to cause death.In clause (b), the word ‘likely’ means ‘probable’ whereas in clause (3), the words ‘sufficient in the ordinary course of nature’ means ‘most probable’.
KNOWLEDGE-
Clause (c) of Section 299 corresponds to clause (4) of Section 300. In both the clauses there should be knowledge about the act resulting in the death of the person but what makes the offender liable under clause (4) of Section 300 is, that the certainty of the death of the victim is most probable result of the imminently dangerous act done by the offender and such knowledge on part of the offender must be of the highest degree of probability and that there is no excuse for incurring the risk of causing death or injury as is likely to cause death.[4]
SECTION 300 –
WHEN CULPABLE HOMICIDE AMOUNTS TO MURDER-
Clause 1 – ‘Act by which the death is caused is done with the intention of causing death’ This means that the offender should have the intention of doing an act which would lead to the death of a person.In the case of James v. State of Kerala[5], it was observed that the intention to cause death may be revealed by the whole circumstances of the story. Thus, infliction of stab injury on chest with a lethal weapon was held to an evidence of the intention to cause death.[6] Where the accused assaulted the deceased even when he fell down, his intention to kill was clear and his conviction for murder was held to be proper.[7]
Clause 2 – ‘With the intention of causing such bodily injury as the offender knows to be likely to cause the death’
This clause applies wherein the offender has the intention to cause a bodily injury to a person which is likely, that is, probable to cause the death of the person on whom the bodily injury has been inflicted. In the case of A.G. Bhagwat (Dr.) v. U.T. Chandigarh[8] it was observed that “before an intended injury can be said to be ‘likely’ to cause death, it must be an injury which is sufficient in the ordinary course of nature to cause death. An injury “sufficient in the ordinary course of nature to cause death” essentially means that the death will be the most probable result of the injury having regard to the ordinary course of nature. The word ‘likely’ means ‘probably’, and can easily be distinguished from ‘possibly’ :When the chances of a thing happening are very high, we say that it will most probably happen.”
In the case of MilmadhubSirchar v. R[9], the accused had kicked the deceased several times after he had fell down senseless after being beaten severely. It was held that the accused was guilty of murder as he must have known that such kicks were likely to cause the death of the deceased.In a case where a man struck another on the head with a stick when he was asleep and fractured his skull, it was held that knowledge of likelihood of causing death must be presumed and that he was guilty of murder. [10]
Clause 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’
The degree of probability of the death of the victim due to the act committed by the offender is the distinguishing factor between clause 2 and clause 3 of Section 300 of IPC. In the case of Virsa Singh v. State of Punjab, “the court said that actual reading of this section infers that it is not enough to prove that the injury found to be present is sufficient to cause death in ordinary course of nature but it must be in addition shown that the injury found to be present was the same injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference or deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.
The court gave a four-point test which prosecution must observe and prove in order to bring the case under this section:
- First, it must establish, quite objectively, that a bodily injury is present;
- Secondly, the nature of the injury must be proved; These are purely objective investigations.
- Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional, or that some other kind of injury was intended. Once these three elements are proved to be present, the enquiry proceeds further and,
- Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.
Once these four elements are established by the prosecution, the offence is murder under s. 300, thirdly.”
Clause 4 – “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 without any excuse or incurring the risk of causing death or such injury as aforesaid.”
In State of Madhya Pradesh v. Ram Prasad[11], the Supreme Court has held that although this clause is usually invoked in those cases where there is no intention to cause the death of any particular person the clause may on its own terms be used in those cases where there is such callousness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death
WHEN CULPABLE HOMICIDE DOES NOT AMOUNT TO MURDER –
Exception 1. – Provocation –
In the case of R v Duffy[12],it was held that,“provocation is some act, or series of acts, done by the deceased to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”
In K.M. Nanavativ. State of Maharashtra[13], appeal was dismissed on the basis that exception 1 is not applicable in case of lapse of sufficient time between act and incident after provocation. Subha Rao, J., held that under this exception culpable homicide is not murder if the following conditions are complied with:
- The deceased must have provoked the accused.
- The provocation must be grave.
- The provocation must be sudden.
- The offender, by reason of the said provocation, shall, have deprived of his power of self-control.
- He should have killed the deceased during the continuance of deprivation of the power of self-control.
- The offender must have caused the death of the person who gave provocation or that of any other person by mistake or accident.
Further, a set of guidelines or principles pertaining to grave and sudden provocation were also provided by the Supreme Court which are as follows –
- The test of ‘grave and sudden’ provocation is whether a reasonable man, 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 lose his self-control.
- Words and gestures may also, under certain circumstances, cause grave and sudden provocation to the accused so as to bring his act within the first exception to s. 300.
- 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.
- The fatal blow should be traced to the influence of passion arising from that provocation and not after the passion had cooled down by lapse of time, or otherwise giving scope for premeditation and calculation.
Exception 2. – Exceeding the right of private defence –
If an offender acting in good faith, exceeds the right of private defence of a person or property conferred to him by law, and thus, causes the death of the person without premeditation or without the intention of doing more harm than it is necessary, the act falls under culpable homicide not amounting to murder.
In the case where the office of the accused was attacked by his disgruntled workers with brickbats causing damage to his property and he fired only one shot from his revolver killing a worker on the spot, it was held that he having exceeded the right of private defence was guilty of an offence under Section 304, Part II, IPC.[14]
Exception 3. – Public servant exceeding his power. –
Culpable homicide does not amount to murder if a public servant or a person aiding a public servant is acting in good faith, for the advancement of public justice, exceeds the powers given to him by law, and causes the death of a person against whom he does not have any ill-will, by doing an act which he believes was necessary for the due discharge of his duty.
Where death was caused by a constable under orders of a superior, it being found that neither he nor his superior believed that it was necessary for public security to disperse certain reapers by firing on them, it was held that he was guilty of murder since he was “not protected in that he obeyed the orders of his superior officer.”[15]
Exception 4. – Death caused in a sudden fight. –
Culpable homicide is not murder if an act is committed in a sudden fight without any premeditation and it was done in a heat of passion wherein the assailant did not take any undue advantage or acted in a cruel manner. It has further been provided in the explanation to this exception that it is immaterial in such type of cases as to which party offers the provocation or which party commits the first assault.
In the case of Suresh Kumar v. State of H.P.[16], the Supreme Court observed that the weapon used or the manner of attack is out of all proportion, that fact must be taken into consideration for deciding whether undue advantage was taken.
Exception 5. – Death caused of a person consenting to it. –
Culpable homicide does not amount to murder if a person whose death is caused suffers death or takes the risk of death with his own consent provided that he is above eighteen years of age. This consent must have been given unconditionally and without any pre – reservation.[17]
PUNISHMENT FOR MURDER –
In Ajit Singh v. State of Punjab[18], it was held that “In order to hold whether an offence would fall under Section 302 or Section 304 Part I of the Code, the courts have to be extremely cautious in examining whether the same falls under Section 300 of the Code which states whether a culpable homicide is murder, or would it fall under its five exceptions which lay down when culpable homicide is not murder.”
Section 302 of IPC provides for the punishment of murder that whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
In the case of Bachan Singh v. State of Punjab[19], the Supreme Court expressed that “in settling thelevel of discipline or settling on the decision of sentence for different offences,including one under Section 302 of Indian Penal Code, the court ought not bind itsthought “chiefly” or just to the circumstances associated with the specificwrongdoing, additionally give due attention to the circumstances of the criminal”
In the case of Rabindra Kumar Pal v. Republic of India[20], it was held that whether a case falls within the rarest of rare case or not, has to be examined with reference to the facts and circumstances of each case and the court has to take note of the aggravating as well as mitigating circumstances and conclude whether there was something uncommon about the crime which renders the sentence of imprisonment for life inadequate and calls for death sentence.
CONCLUSION
Thus, the mere difference between culpable homicide and murder is based upon the degree of probability of death as derived from the intention and knowledge of the accused which can be established using the evidences as procured in a particular case and it should be proved beyond reasonable doubt that an offence committed by the accused falls into the category of murder and not culpable homicide in order to convict him under Section 302 of IPC wherein due attention has to be given towards the rareness of the crime as well as to the circumstances of the criminal before deciding the punishment under this section.
[1] 1977 Cr LJ 1 : AIR 1977 SC 45; Kalaguru Padma Rao v. State of A.P., (2007) 12 SCC 48 : AIR 2007 SC 1299; Sunder Lal v. State of Rajasthan, (2007) 10 SCC 371.
[2](1876) ILR 1 Bom 342.
[3] 2008 15 SCC 753.
[4] Augustine Saldanha v. Sate of Karnataka 2003 (10) SCC 472; Laxminath v. Sate of Chattisgarh, AIR 2009 SC 1383 : (2009) 3 SCC 519.
[5] (1995) 1 Cr LJ 55 (Ker).
[6]Sellamuthu v. State of Tamil Nadu, 1995 Cr LJ 2143.
[7]Labhu Ram v. State of Punjab , 1996 Cr LJ 399.
[8] 1989 Cr LJ 214 (P&H).
[9](1885) 3 WR(Cr) 22
[10]Sheik Choollye v. R (1865) 4 WR(Cr) 35.
[11] AIR 1968 SC 881.
[12][1949] 1 All ER 932.
[13] AIR 1962 SC 605 : 1962 Cr LJ 521 (SC).
[14]Mohinder Pal Jolly v. State of Punjab, AIR 1979 SC 577.
[15] Queen – Empress v. Subba Naik, (1898) ILR 21 Mad 249.
[16] AIR 2008 SC 1973.
[17]Ambalathil, AIR 1956 Mad 97.
[18] (2011) 9 SCC 462.
[19](2009) 6 SCC 498.
[20] AIR 2011 SC 1436.
About the Author: Mehrul is a 2015-20 Batch law student at Law College Dehradun, Uttrakhand University.
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