CULPABLE HOMICIDE AND MURDER (individuality, comparison, punishment and attempt)
CULPABLE HOMICIDE
”Culpable homicide” is the legal term for the killing of another individual to which blame can be reasonably assigned to the killer. Culpable homicide is usually “killing someone for a reason”, i.e. because someone has done something or tried to do something, another person killed him or her.
The word homicide is derived from 2 Latin words- ‘homo’ means human and ‘cido’ means killing by a human. “Homicide” means killing of a human being by another human being.
- Homicide could be lawful and unlawful.
- Lawful homicide: Situations where a person who has caused the death of another cannot be blamed for his death. Eg. Private defense, chapter IV, IPC.
- Unlawful homicide: Where the killing of another human is not approved or justified by law.
SECTION 299: CULPABLE HOMICIDE
Committing culpable homicide-
- An act,
- intention of causing, either-
- death or
- such bodily injury, as likely to cause death or
- with knowledge , that he is likely cause death.
[Culpable homicide = death (must be the result of the act) + causes (render the person liable for culpable homicide).
- Causes are (embodies 3 types of mens reas):
- with the intention of causing death (expects death to be the consequence thereof) or
- with the intention of causing bodily injury as is likely to cause death (expects an injury which is likely to cause death) or
- with the knowledge that the doer is likely by such act to cause death (knows that the death is the likely consequence thereof).]
Illustrations-
- A, lays sticks and turf over a pit, with intention to cause death, Z believing ground to be firm, tread on it, falls in and dies. A has committed the offence of culpable homicide.
- A knows Z to be behind a bush, B did not knew, A with intention to cause Z death, induces B to fire at the bush, B fires and kills Z. B may be guilty of no offence, but A has committed the offense of culpable homicide.
- A shooting at a fowl, with intent to kill and steal it, kills B who was behind a bush. Here A may be doing an unlawful act, but not to be held guilty for offence of culpable homicide, as B did not had any intent to cause him death.
Explanations-
- Death has been said to be caused, if bodily injury is caused to someone, who is-
- laboring under a disorder, diseases or bodily infirmity,
- hereby accelerating his death.
- Death bodily injury has been said to be caused, where-
- such bodily injury is considered to have caused death,
- despite of the fact that, such caused death might have been prevented by resorting to-
- proper remedies and
- skillful treatment.
- Culpable homicide amounts to cause death of a living child, if-
- any part of that child has been completely born,
- though child may not have breathed or been completely born,
- except when child is in mother’s womb.
ESSENTIALS FOR COMMITTING THE OFFENCE OF CULPABLE HOMICIDE
I. CAUSES DEATH
- In order to hold a person liable under the impugned section there must be causing of death of a human being as defined under section 46, Indian Penal Code, 1860.
- Causing of death must be of a living human being which means a living man, woman, child and at least partially an infant under delivery or just delivered.
- Exception:
- Explanation 3 under section 299 – Causing of death of a child in the mother’s womb is not culpable homicide.
- Would be punishable for causing miscarriage either under section 312 or 315, IPC but not under section 299.
- As in the clause ‘though it may not breathed’ suggests that:
- a child may be born alive, though it may not breath (respire), or
- it may respire so imperfectly that it may be difficult to obtain clear proof that respiration takes place.
II. INTENTION
i. OF CAUSING DEATH:
- In common parlance, death may be caused by a hundred and one means, such as by poisoning, drowning, striking, beating and so on and so forth.
- Section 32, IPC: The word ‘act’ has been given a wider meaning in the Code in as much as it includes not only:
- an act of commission,
- but illegal omissions as well.
- Section 43, IPC: The word ‘illegal’ is applicable to everything which is prohibited by law, or which is prohibited by law, or which furnishes ground for civil action.
- Therefore, death caused by illegal omission will amount to Culpable Homicide.
ii. OF CAUSING BODILY INJURY AS IS LIKELY TO CAUSE DEATH:
The word ‘intention’ in clause (a) to section 299, IPC has been used in its ordinary sense, i.e. volitional act done without being able to foresee the consequence with certitude.
iii. DEATH CAUSED OTHER THAN AN INTENTION:
- At times, to attract the provision of this section it is sufficient, if the death of a human being is caused whether the person was intended to kill or not.
- Example- B, with the intention of killing A in order to obtain the insured amount gave him some sweets mixed with poison. The intended victim ate some of the sweets and threw the rest away which were picked up by two children who ate them and died of poisoning. It was held that B as liable for murder of eth children though he intended to kill only A.
iv. DEATH CAUSED INADVERTENTLY, WHILE DOING AN UNLAWFUL ACT:
Liability of a person for committing Culpable Homicide, under-
- Indian Penal Code-
- Not be liable, if he causes the death of a person while doing an unlawful act, provided he did not intend to kill or cause death by doing an act that he knew was likely to have that effect.
- English Law-
- Would be liable, if he whilst committing an unlawful act accidently kills another, as for manslaughter or murder according to whether his act constituted a felony or misdemeanor.
III. KNOWLEDGE
- Knowledge is a strong word and imports certainty and not merely a probability.
- Section 80: Accident in doing a lawful act. But, if it is caused in doing an unlawful act, the question arises whether he should be punished for causing it.
- The Code says that when a person engaged in the commission of an offence of Culpable Homicide supposes an intention, or knowledge of likelihood of causing death. In the absence of such intention or knowledge, the offence committed may be grievous hurt or simple hurt.
- Once it is established that an act was a deliberate act and not the result of accident or rashness or negligence, it obvious that the offence would be Culpable Homicide.
SECTION 300: MURDER
Murder is a species of criminal homicide. It is considered the most serious form of homicide, in which one person kills another with the intention to unlawfully cause either death or serious injury. Murder occurs when one human being unlawfully kills another human being.
According to Lord Coke, Murder means such act where a person unlawfully kills any other person with aforethought malice, which may be expressed or implied.
According to the Black’s Law Dictionary, “the crime of murder committed where a person of sound mind and discretion kills any human creature in being (excluding quick but unborn children) and in the peace of the state or nation (including all persons except the military forces of the public enemy in time of war or battle) without any warrant, justification, or excuse in law.”
Culpable homicide, is murder when:
- The act has been caused death, with the intention of causing death or
- Harm done with intention of causing bodily injury, as the offender knows to be likely to cause the death of the person or
- Act, committed with the intent of causing bodily injury (intent to inflict is sufficient in the ordinary course of nature to cause death) or
- The one who is committing the act-
- has the knowledge regarding the act, to be:
- so imminently dangerous, to must cause death in all probability or
- such bodily injury, as likely to cause death and
- without any excuse for incurring the risk of causing death or such injury.
- has the knowledge regarding the act, to be:
Illustrations
- General, intentional killing:
- A, shoots Z with the intention of killing him. Z dies, A commits murder.
- Intent (bodily injury or death) and aggravating circumstances-
- Guilty, whilst less effect caused, knowing that existing circumstance (depicts intent to kill) will aggravate it to cause death, ultimately.
- A, knowing that Z is laboring under such a disease that a blow is likely to cause his death, strikes him with the intention of causing bodily injury, 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 around state of health.
- Not guilty, as unknown of the aggravating fact (depicts intent to cause bodily injury, not death)-
- A, not 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.
- Despite of intending to kill, intends to harm.
- A intentionally gives Z a sword-cut or club-wound, sufficient to cause the death of a man in the ordinary course of nature. Z dies in consequence. Here A is guilty of murder, although he may not have intended to cause Z’s death.
- Without any defense or justification, hitting the crowd-
- A without any excuse fires loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.
Culpable Homicide, not a murder, when:
EXCEPTION 1: GRAVE AND SUDDEN PROVOCATION
(Grave and sudden provocation means that situation where 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 loss his self-control.)
- If offender, causes death by mistake or accident-
- whilst deprived of the power of self-control, by grave and sudden provocation,
- of the:
- one, who is provoking or
- any other person.
- Provocation or voluntarily provocation could not be sought as an excuse for killing or doing harm to any person.
- Provocation should not be given:
- while anything is being done in obedience to the law or
- by a public servant in the lawful exercise of his powers.
- Provocation should not be given:
- while anything is being done in the lawful exercise of the right of private defense.
Explanation: Question of fact: whether the provocation was grave and sudden enough to prevent the offense from amounting to murder?
EXCEPTION 2: PRIVATE DEFENSE
- While exercising 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
- any intention of doing more harm, as necessary for the purpose of such defense.
EXCEPTION 3: PUBLIC SERVANT, ADVANCING PUBLIC JUSTICE
- 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.
EXCEPTION 4: SUDDEN QUARREL
(Sudden Quarrel, is that which is not pre-arranged.
Sudden fight, is that which arises out of chance encounter where passions having been ignited slightest blow results in fight and opposing parties assault each other and basic feature is initial absence of premeditation to cause death.)
- Committing an act, in a sudden fight in the heat of passion,
- upon a sudden quarrel and without:
- premeditation and
- offender’s 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.
EXCEPTION 5: VOLUNTARY CONSENT
- When the person whose death is caused, being above the age of 18 years, with his own consent:
- suffers death or
- takes the risk of death
EVERY MURDER IS CULPABLE HOMICIDE, BUT EVERY CULPABLE HOMICIDE IS NOT MURDER
Culpable Homicide= section 299+ section 300 (murder definition + exceptions to murder)
Murder = section 300, which defines murder as some of the classified culpable homicides.
Case: State, represented by the Solicitor to the Government of the People’s Republic of Bangladesh V Ashraf Ali and others (46 DLR ( AD) 241)
When death is probable it is culpable homicide and when death is most probable it is murder. Mere killing of a person is not murder or culpable homicide, but it is so when caused with certain guilty intention.
DIFFERENCE BETWEEN CULPABLE HOMICIDE AND MURDER
Case 1: Reg v Govinda 1876 Bom.
Fact:
The accused knocked his wife down, pit one knee on her chest, and struck her two or three violent blows on her face with the closed fist, producing extravasations of blood on the brain and she died in consequence.
Court observation:
The Court held that there being no intention to cause death and the bodily injury not being sufficient in the ordinary course of nature to cause death, the offence committed was not murder but culpable homicide.
In this case, the Hon’ble Justice Melvill set forth the distinction between culpable homicide and murder, as back as in 1876 which is still now being followed. Hon’ble Justice said, “For convenience of comparison, the provisions of section 299 and 300 may be stated thus-
CULPABLE HOMICIDE- A person commits culpable homicide if the act by which death is caused is done, with:
i. Intention-
- intention of causing death, or
- an intention to cause such bodily injury as is likely to cause death, or
ii. Knowledge-
- the knowledge that such an act is likely to cause death.
MURDER- A person commits murder if the act by which death is caused ids done, with:
i. Intention-
- the intention of causing death, or
- an intention to cause such bodily injury-
- as the offender knows to be likely to cause death of the person to whom the harm is caused.
- to any person and the bodily injury to be inflicted is sufficient in ordinary course of nature to cause death,
ii. Knowledge-
- the knowledge that the act is so imminently dangerous that it must in high probability cause death.
Case 2: Makbul Hossain V State (22 DLR 269)
The first clause of section 300 is obviously reliable to the first clause of section 299, its section and third clauses to the second clause of section 299, and its fourth clause to the last clause o section 299. It is evident that simply by reason of an offence being covered by any of eth clauses of section 299 which would no doubt make it culpable homicide, the offence will not be ‘murder’ unless the ingredients of one of the 4 clauses of section 300 are attracted.
SECTION 301: CULPABLE HOMICIDE BY CAUSING DEATH OF PERSON OTHER THAN PERSON WHOSE DEATH WAS INTENDED
Situation:
- If a person, by doing anything which he intends or knows to be likely to cause death,
- commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause.
Consequence:
The culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause.
SECTION 302: PUNISHMENT FOR MURDER
The one, who commits murder, should be punished with:
- Death or imprisonment for life and
- Fine
SECTION 303: PUNISHMENT FOR MURDER BY LIFE-CONVICT
Situation: Being under sentence of imprisonment for life, commits murder.
Punishment: Death
SECTION 304: PUNISHMENT FOR CULPABLE HOMICIDE NOT AMOUNTING TO MURDER
Situation 1: Committing culpable homicide not amounting murder, if the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as likely to cause death.
Punishment:
- imprisonment for life, or imprisonment which may extend to 10 years and
- fine
Situation 2: Committing culpable homicide not amounting murder, 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.
Punishment:
- Imprisonment, which may extend to 10 years or
- fine or
- both
SECTION 307: ATTEMPT TO MURDER
Situation 1: He would be guilty of murder, whoever causes death by any act, which would have been committed with such intention or knowledge and under such circumstances.
Punishment:
- imprisonment which may extend to 10 years, and
- fine
Situation 2: He would be guilty of murder, whoever causes hurt to any person by such act, which would have been committed with such intention or knowledge and under such circumstances.
Punishment:
- imprisonment for life, or
- imprisonment which may extend to 10 years, and fine.
Situation 3: Attempts by life-convicts- When any person causes hurt, while offending under this section is under sentence of imprisonment for life.
Punishment: Death
SECTION 308: ATTEMPT TO COMMIT CULPABLE HOMICIDE
Situation 1: He would be guilty of culpable homicide not amounting to murder, whoever causes death by any act, which would have been committed with such intention or knowledge and under such circumstances.
Punishment:
- imprisonment which may extend to 3 years or
- fine or
- both
Situation 2: He would be guilty of culpable homicide not amounting to murder, whoever causes hurt to any person by any act, which would have been committed with such intention or knowledge and under such circumstances.
Punishment:
- imprisonment which may extend to 7 years or
- fine or
- both.
BIBLIOGRAPHY
Murder and culpable homicide by Md. Salauddin Saimum
Q. 5 What do you understand by Culpable Homicide? In what circumstances Culpable Homicide does not amount to Murder? What are those exceptions when Culpable Homicide does not amount to Murder? By Ritwiz Rishabh
Farheen Dhanjal 