Author: Divya Sharma.

Introduction:

Chapter XVI (which covers sections 299 to 377) of the Code exclusively talks about the protection of the most precious right of the human i.e., Right to life and personal liberty, as guaranteed under Article 21 of the Indian Constitution. The said chapter covers an array of offences and culpable homicide is one of them. This research paper discusses the meaning, essential elements of culpable homicide as defined under section 299 and its difference of thin line with the offence of murder as mentioned in section 300 of the Code.

Homicide:

The word homicide is derived from the two latin words; “homo” which means “man” and “cidi” which means “I cut”. So, it can be understood as the act of killing of a human being by a human being.[1] It covers any kind of volitional act by some person which results in the death of another even in the absence of intention. But there are cases where law does not consider a homicide as a culpable one. For instance, where a person kills another in his self defence, where a homicide takes place by reason of a mistake of fact, where someone dies because of some accident or misfortune etc. In these above mentioned cases killing is not legally justified and the culprit will be excused from criminal liability. So, it can be concluded that homicide can be of two types:

  1. Lawful Homicide, where culprit will be excused from the criminal liability
  2. Unlawful Homicide, where culprit will be held responsible for his act.

Lawful Homicide may further be classified into two:

  1. Excusable Homicide
  2. Justifiable Homicide

Further, Unlawful Homicide may be classified into different categories as per the nature and gravity of the offence committed:

  1. Culpable Homicide[2]
  2. Murder[3]
  3. Culpable Homicide not amounting to murder[4]
  4. Death by negligence[5]
  5. Dowry Death[6]
  6. Abetment of Suicide and attempt to commit suicide[7]
  7. Attempt to murder and attempt to commit culpable homicide[8]
  8. Attempt to suicide[9]

Culpable Homicide under Indian Law:

Culpable homicide is an unlawful homicide for which the law treats culprit as guilty. Such homicides have some distinguishing features like the degree of intention, knowledge or recklessness with which the particular homicide has been committed. The element of mens rea makes it unlawful for which culprit shall not be excused from any criminal liability. Indian Penal Code, 1860 classifies culpable homicide into two; culpable homicide amounting to murder and culpable homicide not amounting to murder. Section 299 of the Code explains its meaning as:

“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 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.”

Essential Ingredients:

To invoke section 299 of the Code, there are certain essentials which need to be satisfied:

  • There must be a death of a human being.
  • Death must be done by doing of an act by the culprit.
  • The act of causing death must be done:
  1. With the intention of causing death,
  2. With the intention of causing such bodily injury as is likely to cause death, or
  3. With the knowledge that such act is likely to cause death.

So, these conditions must be fulfilled to invoke section 299. In Behari v. State of Uttar Pradesh,[10] Court observed that though an act may cause death but it will not amount to culpable homicide unless all the above mentioned essentials are satisfied. These essentials make very clear that the said section demands for both physical and mental elements to constitute the crime.

  • Causing of Death:

In order to hold a person liable under the offence of culpable homicide, there must be a death[11] of a living human being. By the word human being, it means either a living man, woman, child or an infant. Explanation 3 of the section says that the causing of the death of child in the mother’s womb would not be considered as a homicide. But there is a case where it may amount to culpable homicide, where their death of the child took place and some part of the child has been brought forth, though the child may not have breathed or been completely born. In such case it would amount to culpable homicide. Also, death must be caused by doing some act by the culprit.

  • By Doing an Act:

Death must be followed by some kind of act by the culprit. Like, it may be caused due to poisoning, beating, drowning, by an act of illegal omission, by neglect of duty etc. An act must be of certain gravity which must results in death or put someone’s life to such an extent that the person would definitely die. Basically act should contain a high degree of violence against the deceased. Further, there are situations in which death might be caused by effect of words, in that case also it will be included under an act. Liability will be equal as same as in the case of physical assault. For instance, there is a sick person ‘A’ but his neighbor ‘B’ makes loud noises daily with the bad intention which wake him up, when sleep gives him a chance to life. B will be held guilty for culpable homicide even he did not do any physical assault on ‘A’. In Bhupinder Singh v. State of Punjab,[12] Court observed that “the view has been approved by the framers of the Code who said that the willful doing of that which is known to be likely to produce evil, manifests the mens rea essential to criminal responsibility; the evil produced is death; the efficient cause, the words spoken. ”[13]

  • Intention of Causing Death:

In order to attract the offence of culpable homicide, one of the most important mental element is intention. There must be a desire of the accused that by doing an act, death shall follow from it. Person behind the guilt must have intention to cause some other person’s death by doing an act or a bodily injury which is likely to cause the death, i.e., without guilty mind there shall be the no offence of culpable homicide. In day to day life, people perform so many dangerous or unlawful acts where there can be found a risk of death but Code has made this clear with the help of illustration (c) of section 299 of the Code that a person will not be found guilty for the offence of culpable homicide if by that unlawful act he caused someone’s death but did not intend to do the same. For instance, ‘A’ pushes ‘B’ in a joke and ‘B’ fall down and dies. A caused death of ‘B’ but he had no intention or guilty mind to do the same. So, intention is the soul of culpable homicide. Without intention, culprit will not be held liable. So, it would be right to say that when a person is engaged in the commission of any offence and causes the death of another person through accident, in that case he shall be liable for the punishment of his offence only and no addition of further punishment on account of that accidental death shall be made. On the other hand, English law has different approach and it says that if a person causes death accidentally during the commission of any unlawful act, then in such case he shall be liable for manslaughter or murder as per the case. Also, as a general rule, every sane person is ‘presumed to intend’ the necessary and probable consequences of his act; and this presumption of law will prevail unless from consideration of all the evidence the court entertains a reasonable doubt as to whether such intention existed.[14] Further, to prove intention is a question of fact and depends to case to case. In Moti Singh v. State of Uttar Pradesh, Court opined that to prove the intention is a difficult task so, it can be determined through motive, conduct etc.

  • Knowledge:

The next important element is knowledge, where offender knows that he is likely by such act can cause the death of some person. In this case, maybe he does not have intention but he must have clear knowledge that the commission of this act can cause the death of another person. For example, during a surgery, doctor uses an infected syringe knowingly on his patient which results a life risking disease on the patient. So, in this case doctor had knowledge that by this act he will cause someone’s death. Here, he shall be liable for the offence of culpable homicide.

In Rajpal v. State of Haryana,[15] it was held that the word ‘likely’ used in section 299 denotes the sense of probability which is distinguished from merely possibly or probability.

In Mohammed Arif v. State of Uttaranchal,[16] Court observed that if a person during the performance of some act expects a death to be its consequence, or a bodily injury which is likely to cause death or knows that death is likely consequences of his act and in each case if death happens, then it shall be a case of culpable homicide.

Culpable Homicide not Amounting to Murder:

Section 300, exceptions 1 to 5 deals with culpable homicide not amounting to murder. There are situations where murder is reduced to culpable homicide not amounting to murder for the reason of reduction in the impact of gravity of the offence. In such cases, general principle i.e. “burden of proof always lies on the prosecution” changes. The onus of proving the guilt shifts upon the accused to bring his case under any of the exception as mentioned under section 300 (exceptions 1 to 5).

  • Grave and Sudden Provocation:

Exception 1- When culpable homicide is not murder– Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.[17]

First exception mentioned under section 300 of the Code is ‘Grave and Sudden Provocation’ which is subject to three provisos i.e.,

First- That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly- That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly– That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation– Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

This exception provides for certain elements which has to be present in order to reduce the offence of murder into culpable homicide due to the reason of grave and sudden provocation which are;

  1. There has to be a grave and sudden provocation by the deceased to the accused.
  2. By the reason of said provocation, the offender must lose his power of self-control.
  3. There has to be a death caused by the accused during the continuance of the deprivation of the power of self- control.
  4. The offender must have caused the death of the person who gave him such grave and sudden provocation or that of any other person by the reason of mistake or accident.

In presence of these essentials, accused can plead for reduction of offence into culpable homicide. But this defence is further limited by some reasons as already mentioned in provisos. Like, in a case where accused himself provoked and uses it as an excuse to assault other; or where the death has caused by some public servant in the lawful exercise of his powers; or where death has been caused in order to exercise the right of private defence.

  • Private Defence:

Exception 2- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

This is the case where offender does not have intention but instead of that he causes death due to the reason of exceeding of the right of private defence. In Ram Dahin Singh v. State of Bihar,[18] Court observed that in a situation where death has been caused without premeditation and with no intention of causing more harm than was necessary, basically in good faith than in that case the offence will be reduced into culpable homicide. But before take this exception as a defence, it must be necessary that the accused must be free from any type of guilt. In a case where accused does not come with pure and guilty free hands, in that case he cannot take the help of this exception.

  • Public Servant Exceeding his Powers:

Exception 3- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Next situation where offence of murder can be reduced to culpable homicide is where public servant exceeds his powers given to him by law and believes his act to be lawful and necessary.

  • Sudden Fight:

Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

To invoke this exception certain elements has to be fulfilled necessarily:

  1. There has to be a sudden fight.
  2. In the heat of passion without premediation, arising out of sudden quarrel.
  3. Offender must not take any undue advantage of the fight.
  4. The offender must not act in cruel or unusual manner.
  5. The sudden fight must take place between the offender and the deceased.

As soon as all these elements are present, the offender can take the advantage of this exception. In Jaman v. State of Punjab,[19] the court observed that in a case where there is a mutual conflict and it can’t be find that how the fight was started? Such situation shall come under the exception of sudden fight.

  • Consent:

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.

This is the last exception which deals with the idea commonly known as euthanasia. It says that in a situation where a major person with his own consent puts his life to the risk of death or suffers death, then in that case it shall be the case of culpable homicide not amounting to murder.

So, these are the total five situations in which culpable homicide is not murder and the offence shall be reduced to culpable homicide.

Punishment:

Section 304 of the Code prescribes the punishment for culpable homicide not amounting to murder and it reads as follows:

“Whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.”

Above section prescribes two different punishments in two different situations. First it talks about a case where the offender has intended and caused the death or where offender has intention of causing such bodily injury which is likely to cause the death. in this case offender shall be liable either for life imprisonment, or imprisonment which may extend to ten years and with a fine.

Second situation talks about a case where there is no intention but the act has been done with such knowledge that it is likely to cause death. So, in this case culprit shall be liable either for the imprisonment which may extend to ten years or with fine or both.

In state of Andra Pradesh v. Rayavarapu Pannayya[20], the Supreme Court observed three degrees of culpable homicide such as;

  1. Culpable homicide of the lowest degree which prescribes for the punishment of fine only or with imprisonment which may extend to ten years or with both.
  2. Culpable homicide of second degree, which prescribes for the punishment of imprisonment which may extend to ten years, or with imprisonment of life, to either of which fine may be added.
  3. Culpable homicide of the highest degree or murder which is made punishable with death or imprisonment for life to either of which fine may be added.

Conclusion:

Under Indian law, relevant sections which deals with the offence of culpable homicide are 299 and 300. Intention and knowledge are the essence for the offence of culpable homicide. It will not be wrong to say that the presence of these positive mental elements are a necessary condition to take this section into account. First part of the section 300 deals with murder which has a thin line of difference with culpable homicide in a sense of gravity of offence. Act of a nature of highest degree of gravity shall be covered under the offence of murder and the lesser degree offence will be covered by the offence of culpable homicide. The Supreme Court in plethora of cases gave the ruling that the culpable homicide is the murder and murder is species. Basically, it can be concluded that all the murders are culpable homicide but vice versa is not true. Second part i.e., exceptions given under section 300 of the Code talks about situation where culpable homicide does not amount to murder and the offender shall be liable under section 304. Further, section 304 categorized the punishment for two situations where act has been done with the intention and in second situation where act has been done with knowledge but without intention.

At last, researcher would like to conclude that murder and culpable homicide are not properly defined under the Indian Penal Code, 1860. Even the 42nd Law Commission Report had recommended to redefine sections 299 and 300 which is still yet to be done by the legislatures. Also, the Code has failed in giving the straight jacket difference between the two offences. Only through the difference in degree of intention and knowledge, Court has to make the judgement that whether the case falls into the category of murder or culpable homicide. Lastly a diagram has been given for the clear understanding of the classification which is relevant here.

[1] Stephen A History of the Criminal Law of England, (1883), Vol. III, p.1; Turner, J.W.C. Russell on Crime, 12th Edn., (1964), pp. 399-464.

[2] Sections 299, 301, the Indian Penal Code, 1860

[3] Section 300, the Indian Penal Code, 1860.

[4] Section 300, Exceptions 1 to 5, the Indian Penal Code, 1860.

[5] Section 304A, the Indian Penal Code, 1860.

[6] Section 304B, the Indian Penal Code, 1860.

[7] Sections 305, 306 and 309, the Indian Penal Code, 1860.

[8] Sections 307 and 308, the Indian Penal Code, 1860.

[9] Section 309, the Indian Penal Code, 1860.

[10] AIR 1953 ALL 203.

[11] Section 46, the Indian Penal Code, 1860.

[12] 1988 CrLJ 1097 SC.

[13] Ibid.

[14] Gaur K.D., “Textbook on The Indian Penal Code”, 4th Ed., Universal Law Publishing Co. Pvt. Ltd., p.443.

[15] (2006) 9 SCC 678.

[16] (2009) 11 SCC 497.

[17] Exception 1, Section 300 of the Indian Penal Code, 1860.

[18] 1970 SCC (Cr) 376.

[19] AIR 1957 SC 469.

[20] AIR 1977 SC 45.

About the Author: Divya is a fifth-year law student at National Law University and judicial Academy, Assam.

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