06/05/2018
Culpable Homicide / Murder under IPC
Culpable Homicide / Murder
Meaning:
the word Homicide derived from Latin words Homo and Cido. Homo means human and Cido means killing by a human.
So Homicide means the killing of a human being by a human being.
Culpable means criminal manner or punishable by law.
So in short Culpable homicide means death through human agency punishable by law. or
So culpable homicide means killing a human being by a human being in a criminal manner
Thus, Culpable Homicide means killing of a human being by another human being in a blameworthy or criminal manner.
Chapter xvi sec-299 to 304 of IPC DEALS WITH CULPABLE HOMICIDE AND MURDER
Section 299 and Section 300 Indian Penal Code, 1860, deals with the definition of culpable homicide and murder respectively. Culpable homicide by causing death of person other than person whose death was intended is provided in sec-301 and 302 of the IPC provided punishment of murder, punishment of murder of a life convict is provides in sec-303 and sec-304 provides punishment of culpable homicide not amounting to murder.
EXPLANATORY NOTES ON SEC-299 AND 300 IPC
Homicide means some one is involved the death of other person.
Homicide may be either lawful or unlawful.
Lawful Homicide : In case of lawful homicide, law will set the culprit free. (sec-76-106)
Unlawful Homicide: If death is caused with intention or knowledge to cause death, then homicide is classified as unlawful homicide. These cases are Culpable homicide Under Section 299 of the Indian Penal Code and Murder under Section 300 of I.P.C. (sec-302,304,305,306. Etc
Culpable homicide is the Genus, and murder is the Species
SEC -299 DEFIEN CULPABLE HOMICIDE IN SIMPLE WAY culpable homicide are two kinds
Culpable Homicide Amounting to Murder: It is known as simple murder
Culpable homicide not amounting to Murder:
There is necessarily a criminal or knowledge in both. The difference does not lie in quality, it lies in the quantity or degree of criminality closed by the act
Culpable homicide is the Genus, and murder is the Species. All murder are culpable homicide but not vice-versa, it has be held in Nara Singh Challan v/s Sate of Orissa 1997C.
Sec-300 defines murder. Which means murder is the species of culpable homicide.
it is to be noted that culpable homicide not amounting to murder is not defined separately in IPC it is defined as a part of murder in sec-300 IPC And also say circumstance when culpable homicide turn in to murder.
The main distinction between 'Culpable Homicide' and 'Murder' is that the knowledge of offender as to degree of portability of death. Thus we often say, all murders are culpable homicides, but not vice-versa. .
Whenever the court has find out whether an offence is culpable homicide not amounting to murder or murder it should be followed in three steps -
1. First, a causal connection has to be established between the act of the accused and death caused
2. Once that is proved, the next step is finding out whether the act of the accused is culpable homicide as defined u/s 299 IPC.
3. If answer is affirmative then the court has to be find whether the case come within the ambit any of the four clauses of sec-300. If the answer is negative the offence is culpable homicide not amounting to murder. But if the answer is positive then it is murder And also if the answer is positive but fall within any of the exception u/s-300 then also it will culpable homicide not amounting to murder.
CULPABLE HOMICIDE ON THE BASIS OF DEFINATIONS
COMMON ELEMENT:- When an Act/omission (Actus reous) resulting the death of another human being it would be culpable homicide if any of the mensrea are their
Culpable Homicide (Sec-299)
When Culpable Homicide is murder (sec-300)
When culpable homicide is not murder (5-exception of sec-300)
Intention to cause death
Provocation
Right of private defence
public servant exceeding his power
sudden fight
with consent
Intention to cause death (no extra element necessary)
Intention of such bodily injury as is likely to cause death.
+ (2) knowledge of the offender
+(3)sufficient in ordinary course of nature
With knowledge of possibility of death
+(4) surety of knowledge of death
Correspondence between the three clauses of 299 with four clauses of sec-300
Clause (a) of sec 299 corresponds with clause 1 of sec 300 (both required intention to cause deaths)
Clause (a) of sec 299 corresponds with clause 2 & 3 of sec 300 (both required intention to bodily injury
Degree of probability of deaths
The word likely in conveys Clause (b) of Sec-299 conveys the sense of probability as distinguished from mere possibility. The word bodily injury is sufficient in the ordinary course of nature to cause death mean will be most probable result injury having regard to ordinary course of nature.
Clause (c) of Sec 299 correspondence with clause (4 ) of sec 300 both resulting knowledge of the probability of act causing death
N.B: There are five exception to sec 300 each of which takes away a case from the offence of murder and make it a case of culpable homicide.
ESSENTIAL INGRIEDIENTS OF SEC-299
Cause of a death of a human being
Such death must have been caused by doing an act
With an intention to causing death
With an intention to causing such bodily injury as is likely to cause death.
With knowledge that the doer is likely by such act to cause death.
Illustrations:
A lays sticks and turf over a pit, with the intention of there by causing death, or with the knowledge that death is likely to be thereby caused. Z believing the ground to be firm, treads on it, falls in and is killed. A has committed the offence of Culpable Homicide.
A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z's death, induces B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of Culpable Homicide.
Murder (When Culpable Homicide amounts to Murder)
In the scheme of penal code culpable homicide is genus and murder is its species
All murder is culpable homicide but not vice versa.
Speaking generally culpable homicide sans special characters of murder is culpable homicide not amounting to murder.
Murder is a type of Culpable Homicide where culpability of the accused is quite more than in a mere Culpable Homicide. Section 300, says that Culpable Homicide is Murder if the act by which the death is caused is done
with the intention of causing death
or with an intention of causing such bodily injury as the offender knows to be likely to cause the death of the person,
or with an intention of causing such bodily injury as is sufficient in ordinary course of nature to cause death.
It is also Murder if the person committing the act knows that the act is so dangerous that it will cause death or such injury as is likely to cause death in all probability and he has no valid reason for doing that act.
Illustrations:
A shoots Z with an intention of killing him. Z dies in consequence. A commits Murder.
A intentionally gives Z a sword cut that sufficient in ordinary course of nature to cause death. Z dies because of the cut. A commits Murder even though he had no intention to kill Z.
A without any excuse fires a loaded canon on a crowd. One person dies because of it. A commits Murder even though he had no intention to kill that person.
Situations where Culpable Homicide does not amount to Murder:
Section 300 also specifies certain situations when the Murder is considered as Culpable Homicide not amounting to Murder. These are -
If the offender does an act that causes death because of grave and sudden provocation by the other.
If the offender causes death while exceeding the right to private defense in good faith.
If the offender is a public servant and does an act that he, in good faith, believes to be lawful.
If the act happens in a sudden fight in the heat of passion.
If the deceased is above 18 and the death is caused by his own consent.
Exception 1 to 5 of Sec-300 of IPC defines conditions when culpable Homicide is not amounting to murder:
Provocation.
Right of private defense.
Public servant exceeding his power.
Sudden fight.
Consent.
Essential ingredients of Exception-1:
The deceased must have given provocation to the accused
The provocation must be grave
The provocation must be sudden
The offender by reason of said provocation shall have been deprivation of his power of self control.
The offender must have caused the death of the person who gave the provocation or that of another person by mistake or accident.
The above exception is subject to the following provisions:-
The provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
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.
The provocation is not given by anything done in the lawful exercise of the right of private defense.
lustrations
A, under the influence of passion excited by a provocation given by Z, intentionally kills, Y, Z's child. This is Murder, in as much as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.
Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed Murder, but merely Culpable Homicide.
Provocation must be grave: upheld in Venkatesan v/s State of Tamil Nadu (1997)
The test of grave and sudden provocation is whether a reasonable men 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 loss his self control.
In India words and gestures may also, under certain circumstances, cause grave and sudden provocation.
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.
Illustrations:
Y gives a grave and sudden provocation to A. A on this provocation fires a pistol at Y neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not amounting to murder, but merely culpable homicide.
Exceptions 2. Culpable homicide is not amounting to murder if the offender, in the exercise in good faith of the right of private defense 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 defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense.
Illustration:
Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped shoots z dead. A has not committed murder but only culpable homicide.
Exceptions 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 caused death by doing an act which he , in good faith, believes to be lawful and necessary for the due discharge of this duty as such public servant and without ill will towards the person whose deaths is caused.
Exceptions 4. Culpable homicide is not amounting to 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.
Explanation. it is immaterial in such cases which party offers the provocation or commits the first assault.
Exceptions 5. culpable homicide is not amounting to murder when the murder whose death is caused, being above the age of 18 years, suffers death or take the risk of death with his own consent.
Scope: In Raghunath v/s State of Haryana AIR 2003 SC 165, Sc held that –
It is no well settled principle of law that if two views are possible, one in favor of the accused and the other adversely against it, the view favoring the accused must be accepted.
Culpable homicide amounting to murder
Section 300 also defines the circumstance when culpable homicide turn into murder which is punishes u/s 302. Under following 4 circumstances:
Intention to causing death-
Culpable homicide turn into murder if the act by which the deaths is caused is done with the Intention of Causing death or
If an act 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
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
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 deaths or such injury as aforesaid.
Illustration
A, knows that Z is suffering such a disease that a blow is likely to cause his death, strike him with the intention of causing bodily injuries. Z dies in consequence of the blow. A is guilty of murder, although the blow might not have been sufficient in the ordinary course of nature to cause the death of a person in a sound state of health.
But if A, knowing that Z is laboring under any disease, gives him such a blow as would not in the ordinary course of nature kill a person in a sound state of health, here A although he may intend to cause bodily injury, is not guilty of murder, if he did not intend to cause death, or such bodily injury as in the ordinary course of nature would cause death.
A without any excuse fires loaded cannon into a crowd of person and kills one of them. A is guild of murder, although he may not have had a premeditated design to kill any particular individual.
In State of Rajashtan v/s Dhool Singh AIR 2004 SC 1264. SC held that - Culpable homicide becomes murder if the attacker cause an injury which he knows is likely to cause death and, of course, consequent to such injury the victim should die.
Conclusion-
The main element which is distinguish between murder and culpable homicide is Intention or in presence of a special mens rea. If death is the most likely result of an act, it will be murder. If death is the likely result of an act, it will be culpable homicide not amounting to murder.
Leading case laws
Reg. V/s. Govinda 1876 (Bom): In this case the accused kicked his wife who was 15 years old and gave her a few blow on the body with the result she fell down on the ground. Then he put one knee on her chest and struck her a few more blow resulting in her death. The lower court convicted him of murder. There were different opinions amongst the two judges of the High Court and consequently the matter was referred to a third Judge, Justice Melvil, who held the accused guilty under clause (2) of sec.299 for culpable homicide and sentenced him u/s 304 part I on the grounds that the death was caused with the intention on the part of the accused to cause such bodily injury as was likely to cause death
Sarabjeet Singh V/s St ate 1994. The accused did not have good relation with complainant on account of sale transaction of piece of land. He went to the house and assaulted the complainant and his wife. He also picked up the infant child of the complainant and threw him down on the ground with force as a result of which the child died some time later. The accused was held guilty under sec. 304 Part-II.
NANABATI VS STATE OF MAHARASTRA
After the confess of the wife of Nanabati about the illicit intimacy with Ahuja, Nanabati went directly to the residence of Ahuja with loaded revolver enter his bed room and shoot him.
The court held that it is murder. The act is not attract of provision of five exception of Sec-300
Ajit Singh v/s State l991: In this case the accused found his wife and a neighbours in a compromising position and shot both of them dead. It was held that he was acting under provocation and is liable for sudden provocation.
THREE TYPES OF PUNISHMENT FOR CULPABLE HOMICIDE
For the purpose of fixing of punishment, the code practically recognised three degree of culpable homicide
The first is what may be called culpable homicide of the first degree . this is greatest form of culpable homicide which is defined in sec-300 IPC
The second may be termed as culpable homicide of second degree. This is punishment under the first part of sec -304
Than there is culpable homicide of third degree .this is lowest type of culpable homicide and the punishment provided for it is, also lowest among the punishment provided for these three grades. Culpable homicide of the degree is punishable under the second part of sec-304
The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in numerous decision
Lets Differentiate between Murder and culpable homicide in a very simplistic way-
The basic difference between both are as follows-
Culpable homicide is 'genus', whereas Murder is 'its specie'
All Murder are Culpable Homicide, but Not Vice versa.
A person commits Culpable homicide, if the act by which the death is caused, whereas, subjected to certain exceptions Culpable homicide is murder, if the act by which the death is done. It means, culpable homicide will be murder when subjected to exceptions provided.
Murder, a person has a positive intention of killing someone, whereas in Culpable homicide, the intention are generally not clear. It may be positive or negative.
Degree of Probabilities of death is higher in Murder, comparable to Culpable Homicide.
Section 299 sub clause (b) does not postulate any KNOWLEDGE on the part of offender, but Clause(b)of Section 300 does.
Lastly, it is 'degree of probability 'which determines whether culpable homicide is Gravest, medium or lowest Degree.
