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ipc:article:culpable-homicide-and-murder

Culpable homicide and Murder

Killing and culpable homicide refer to acts of causing destruction of lives. In case of killing, action is done upon non-humans. Culpable homicide is an action done upon humans. Suicide is killing of a man by himself whereas Homicide means killing by a man to another man. The word homicide has been derived from the Latin word ‘homo’ which means a man and ‘caedere’ which means to cut or kill. Culpable denotes a ‘blameworthy state of mind’ and Homicide refers to killing a person. Thus culpable homicide refers to taking the life of another person, where the act has been done with criminal intent. Thus, homicide means the killing of a human being. All cases of homicide are not culpable (punishable). Law distinguishes between lawful and unlawful homicide.

Murder and culpable homicide seems to be more similar to each other. They are not synonymous to each other. According to Sir James Stephen, the definition of culpable homicide and murder are the weakest part of the code, as they are defined in forms closely resembling each other and times it becomes difficult to distinguish between the two as the causing of death is common to both. Section 299 of Indian Penal Code defines Culpable homicide. Section 300 of Indian Penal Code deals with concept of Murder. The major difference lies in the fact that in Murder the act is done with an intention of causing any bodily injury which itself is sufficient to cause death of a person. In case of a Culpable homicide, the act is performed with an intention to cause bodily injury which is likely to cause death of a person. The difference lies in the probability of death to occur in both cases. Both murder and culpable homicide is done with intention to cause bodily injury to a person. In India, the heinous offences like killing a person may be termed as Murder, Culpable homicide and Non-Culpable homicide. In America, they are termed in degrees such as First degree Murder, Second degree Murder and Third degree Murder. This is depending upon the severity of the crime being committed. Section 299 of Indian Penal Code and Section 300 of Indian Penal Code deals with the concepts of Culpable homicide which does not amount to Murder. Section 302 of Indian Penal Code deals with punishment for Murder. The convict of a Murder is punished with death or imprisonment of life and shall also be liable to fine. Section 304 of Indian Penal Code says about punishment for Culpable homicide not amounting to Murder. Where punishment for Culpable homicide is imprisonment for life or imprisonment for a period of 10 years and shall also be liable to fine. The common ingredients in murder and culpable homicide are “actus reus” and “mens rea”. The difference lies in the knowledge of outcome of the act he or she does. The word comes from Latin where homo means man and cide means I cut. The homicide means the killing of a man by man. The homicide may be lawful or unlawful. Culpable homicide means death through human agency punishable by law. All murders are culpable homicide but all culpable homicide is not murder. The Supreme Court has expressed its regret that the distinction between murder and culpable homicide not amounting to murder is often lost sight of resulting in undue liberality in favour of undeserving culprits.

Statutory Provisions

Section 299 defines Culpable Homicide.

Whoever causes death by doing an act with

  1. Intention of causing death.
  2. Intentionally causing bodily injury which is likely to cause death.
  3. Doing an act with knowledge that it is likely to cause death.

Section 300 defines Murder.

Whoever causes death by doing an act with

  1. Intention of causing death.
  2. Causing such bodily injury as the offender knows it is likely to cause death of a person.
  3. Intentionally causing bodily injury which is sufficient to cause death.
  4. Doing an act with knowledge that it is so imminently dangerous and in all probability causes death.

Murder: This term traces its origin form the Germanic word “morth‟. It means „secret killing‟. Murder means one person is killed with an intent of another person with any malice or a forethought. An offence will not amount to Murder unless it includes an offence which falls under the definition of culpable homicide. Murder is a species where Culpable homicide is a genus. All murder is culpable homicide but not vice- versa.

Murder consists of four main components. The Culpable homicide amounts to murder except in some cases. wherein the act which caused murder should be done with an intention to cause death or Such intention of causing death should cause a bodily injury to that person or If such intention of causing death causes a bodily injury and that bodily injury must have caused the death of that person or He must have the knowledge that the act he has done is immediately dangerous in all probable sense to cause death or a bodily injury that is likely to cause death of a person. And it is a crime to commit an act, even after knowing that the act he does is a risk of causing death or such injury as discussed above. The distinction between sections 299 and 300 was made clear by Melvil J. in Reg. vs Govinda1). In this case the accused had knocked his wife down, put one knee on her chest, and struck her two or three violent blows on the face with the closed fist, producing extraversion of blood on the brain and she died in consequence, either on the spot, or very shortly afterwards, there being no intention to cause death and the bodily injury not being sufficient in the ordinary course of nature to cause death. The accused was liable for culpable homicide not amounting to murder.

Clauses 1-4 of Section 300 provide the essential ingredients when 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:

  1. Grave and Sudden Provocation;
  2. Private Defence;
  3. Exercise of Legal Power;
  4. Without Premeditation in a sudden fight; and
  5. Consent

Grave and sudden provocation

Exception 1 : Section 302 of The Indian Penal Code – 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. The above exception is subject to the following provisos:—

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.

Essentials of First Exception

The following conditions must be complied with in order to invoke the benefits of first clause:-

  1. The deceased must have given provocation to the accused.
  2. The provocation must be grave.
  3. The provocation must be sudden.
  4. The offender, by reason of the said provocation, should have been deprived of his power of self-control.
  5. The accused killed the deceased during the continuance of the deprivation of the power of self-control.
  6. The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.

The Supreme Court in K.M. Nanavati vs State of Maharashtra2) has extensively discussed the law relating to provocation in India. It is observed that :

  • The test of “grave and sudden” provocation is whether a reasonable man, belonging to the same class to society as 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 an accused so as to bring his act under exception.
  • 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; and
  • The fatal blow should be clearly traced to the influence of passion arising from the provocation and not after the passion has cooled down by lapse of time, or otherwise giving the accused room and scope for premeditation and calculation.

The Supreme Court in Muthu vs State of Tamil Nadu3) held that constant harassment may lead to deprivation of the power of self-control amounting to a grave and sudden provocation.

Exceeding the Right of Private Defence

Exception II : It deals with those cases wherein a person exceeds the right of private defence. If the excess is intentional, the offence is murder. If unintentional, it is culpable homicide not amounting to murder. 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.

In Nathan vs State of Madras4) the landlord tried to evict the accused forcefully. The accused in exercise of his right of private defence killed the deceased. The deceased party was not armed with any deadly weapons. So there couldn’t have been any fear of death or grievous hurt on the part of the accused. The right of accused was limited to cause any harm other than death. There was no intention to cause death. It was held that the accused exceeded his right of private defence. The case would fall under Exception 2 to Section 300. The offence committed by the accused was held to be culpable homicide not amounting to murder.

Public servants exceeding his powers

Exception III : This exception has been provided to protect a public servant or a person aiding a public servant if either of them exceeds the power given for the advancement of public justice. The exception clause will not apply if the act is illegal or against public policy and not authorised by law, or the person glaringly exceeds the power given to him by law. 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.

In Dukhi Singh vs State5) the appellant a constable of the RFF (Railway Protection Force), while on duty killed a fireman unintentionally. He fired the bullet shots in order to catch the escaping thief. The constable was entitled to the benefit of this section.

Sudden Fight

Exception IV : This exception applies to cases wherein death is caused in a sudden fight without premeditation in the heat of passion in a sudden quarrel. So long as the fight is unpremeditated and sudden, the accused, irrespective of his conduct before the quarrel, earns the mitigation provided for in Exception 4 to Section 300, IPC. There is a condition that he did not in the course of fight take undue advantage of or act in a cruel or unusual manner.6) 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 offenders having taken undue advantage or acted in a cruel or unusual manner. It is immaterial in such cases which party offers the provocation or commits the first assault.

Essential Ingredients

To invoke the benefits of this clause, death must be caused:

  1. In a sudden fight;
  2. In the heat of passion without premeditation, arising out of sudden quarrel;
  3. Without the offenders having taken undue advantage;
  4. The offender should not act in a cruel or unusual manner; and
  5. The fight must have been with the person killed.

Narayanan Nair vs State of Travancore7)

Exception V : It deals with causing death by consent. It is commonly known as euthanasia (mercy killing). The exception is justified on the grounds that a man’s life is not only valuable to himself, but also to the family members, state, and society. A man is therefore not entitled to give up his life by consent; though consent has unquestionably the effect of mitigating the intensity of crime, it cannot exonerate the offender. 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.

Essential ingredients of this exception are:-

  1. Consent;
  2. By person above age of eighteen years, and
  3. Consent must be free and voluntary.

Consent should be unconditional and without any reservation. And it must be unequivocal. Where the accused killed his stepfather who was an infirm, old and invalid man, with the latter’s consent. It was held that the offense was covered by the Exception 5 to Section 300 and punishable under the first part of Section 304

Conclusion

  • The true difference between culpable homicide and murder is only the difference in degrees of intention and knowledge.
  • A greater the degree of intention and knowledge, the case would fall under murder. A lesser degree of intention or knowledge, the case would fall under culpable homicide.
  • However, it is difficult to arrive at any categorical demarcations or strait jacket difference between culpable homicide and murder.

About the Author

© C.R Nanda Academy is an initiative by Adv. Chittaranjan Nanda to spread legal awareness among Indian Citizens.

1)
1876 ILR Bom 342
2)
AIR 1962 SC 605
3)
AIR 2008 SC 1
4)
AIR 1973 SC 665
5)
AIR 1955 All 379
6)
Public Prosecutor vs Soma Sundaram, AIR 1959 Mad 323
7)
AIR 1956 SC 99


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