The academic distinction between ‘murder‘ and ‘culpable homicide not amounting to murder’ has vexed the courts for more than a century.
The confusion is caused if courts losing sight of the true scope and meaning of the terms used by the legislature in these sections allow themselves to be drawn into minute abstractions.
The safest way of approach to the interpretation and application of those provisions seems to be to keep in focus the key words used in the various clauses of Sections 299 and 300. The comparative table has been indicated in answer to the previous question.
Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguished feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the intentional harm caused to him is likely to be fatal, notwithstanding the fact such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the ‘intention to cause death’ is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender’s knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by illustration (b) appended to Section 300.
Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instance of causes falling under clause (2) of Section 300 can be where the assailant causes death by a fist blow intentionally given knowing that the victim is suffering from an enlarged liver or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver or spleen or the failure of the heart, as the case may be.
If the assailant had no such knowledge about the disease or special fragility of the victim or an intention to cause death or bodily injury sufficient in the ordinary course of nature to cause death, the offence will not be murder, even if the injury which caused the death was intentionally given.
In clause (3) of Section 300, instead of the words ‘likely to cause death’ occurring in the corresponding clause (b) of Section 299, the words ‘sufficient in the ordinary course of nature’ has been used.
Obviously, the distinction lies between a bodily injury likely to cause death and a bodily injury sufficient in the ordinary course of nature to cause death. The distinction is fine but real, and, if overlooked, may result in miscarriage of justice.
The difference between clause (b) of Section 299 and clause (3) of Section 300 is one of the degrees of probability of death resulting from the intended bodily injury.
To put it more broadly, it is the degree of probability of death which determines whether a culpable homicide is of the gravest, medium or the lowest degree.
The word ” likely’ in clause (b) of Section 299 conveys the sense of ‘probable’ so distinguished from a mere possibility. The words ‘bodily injury sufficient in the ordinary course of nature to cause death’ means that death will be the ‘most probable’ result of the injury, having regard to the ordinary course of nature.
For cases to fall within clause (3), it is not necessary that the offender intended to cause death, so long as the death ensues from the intentional bodily injury or injuries sufficient to cause death in the ordinary course of nature.
Even if the intention of the accused was limited to the infliction of a bodily injury sufficient to cause death in the ordinary course of nature and did not extend to the intention of causing death the offence would be murder. Illustration (c) appended to Section 300 clearly brings out this point.
Clause (c) of Section 299 and clause (4) of Section 300 both require knowledge of the probability of the act causing death.
Clause (4) of Section 300 would be applicable where the knowledge of the offender as to the probability of death of a person or persons in general as distinguished from a particular person or persons being caused from his imminently dangerous act, approximates to a practical certainty.
Such knowledge on the part of the offender must be of the highest degree of probability, the act having been committed by the offender without any excuse for incurring the risk of causing death or such injury as aforesaid.
From the above conspectus, it emerges that whenever a court is confronted with the question whether the offence is ‘murder’ or ‘culpable homicide not amounts to murder’ on the facts of case, it will be convenient for it to approach the problem in three stages.
The question to be considered at the first stage would be, whether the accused has done an act by doing which he has caused the death of another.
Proof of such causal connection between the act of the accused and the death, leads the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in Section 299.
If the answer to this question is prima facie found in the affirmative, the stage for considering operation of Section 300, Indian Penal Code, is reached.
This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ‘murder’ contained in Section 300.
If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the first or the second part of Section, 304, depending respectively on whether the second or the third clause of Section 299 is applicable.
If this question is found in the positive, but the case comes within any of the Exceptions enumerated in Section 300, the offence would still be ‘culpable homicide not amounting to murder’ punishable under the first part of Section 304, Penal Code.
The above are only broad guidelines and not cast-iron imperatives. In most cases, their observance will facilitate the task of Court. But sometimes the facts are so intertwined and the second and the third stages so telescoped into each other, that it may not be convenient to give a separate treatment to the matters involved in the second and third stages. (State of Andhra Pradesh v. Rayavarapu Punnayya, A.I.R. 1977 S.C. 45).
A. X, a juggler, specialises in dagger tricks and tells his audience that he is immune from injury even if stabbed, and offers his dagger to the people present to stab him if they chose to do so. He then stabs himself in his stomach and is found to be uninjured. Y who watches the show with interest takes his own knife and stabs X in the same place. X dies immediately. For what offence if any is Y liable?
Give reasons for your answer:
Ordinarily Y would have been guilty of murder. But in the circumstances of the case, Y cannot be said to have committed the offence of murder. The reason is that he never intended by his act, to kill the deceased juggler nor did he intend to cause him any bodily injury, nor did he know that his act would, in all probability, cause death, because the juggler himself had demonstrated by his own act that he could not die or be injured by showing a trick with his own dagger.
But it cannot be said that the act of Y was not likely to cause death and Y could not be presumed to have knowledge that by stabbing him in the stomach it was not likely to cause death. Since the act was likely to cause death and Y could be presumed to have knowledge that the act was likely to cause death, Y has committed the offence of culpable homicide under Section 299, I.P.C.
B. A husband, who was himself unfaithful to his wife, had for sometime suspected her of infidelity to him. During a quarrel between them the wife confessed that she was unfaithful to her husband, whereupon he struck upon her head with a hammer used for breaking coal which was close to his hand, and then proceeded to strangle her. She had many bruises on her body, but the Final cause of death was manual strangulation. For what offence can the husband be punished? Decide.
Confession of infidelity on the part of the wife has been held to be a sufficient cause for grave and sudden provocation. On account of this the husband was deprived of self-control and, in the heat of the moment, committed the act which cannot be attributed to his considered judgment or well formed criminal intention. An ordinary husband would, therefore, be guilty of culpable homicide not amounting to murder and the case would fall under Exception 1 to S. 300 I.P.C.
But the husband here is a peculiar husband. He himself is unfaithful to his wife and had also suspected her of infidelity.
Therefore, on discovering the infidelity he could not have been shocked; because it could not be said to have been unexpected.
Further, the character of the husband himself was such as would not and could not give a shock on account of his wife’s infidelity.
Taking into consideration these circumstances it could be said that there was no justification for the hammer-blow and, even conceding that, there was absolutely no justification for subsequently and deliberately strangulating her. The offence committed, therefore, by the husband in this case is murder and he can be punished for it.
C. State the offence, if any, which A or B is guilty of in each of the three cases given below:
(i) A is lawfully arrested by B, a bailiff. A is excited to sudden violent passion by the arrest and kills B.
(ii) B attempts to horsewhip A in such a manner as to cause grievous hurt to A. A, draws out a pistol. B, however, persists in assault. A, believing in good faith, he can by no means prevent himself from being horsewhipped, shoots B dead.
(iii) A under the influence of passion caused by provocation given by B, kills C, son of B, intentionally.
(i) A is guilty of murder:
Being a bailiff B was a public servant. He was acting in the lawful exercise of his powers in trying to arrest A. If the arrest by B gave A, provocation it cannot make the offence one of culpable homicide.
Proviso I to Exception 1 of Section 300 lies down that where provocation is given by anything done in obedience to the law or by a public servant in the lawful exercise of his powers, such a provocation cannot convert an offence of murder into culpable homicide.
(ii) A is not guilty of any offence.
B horsewhips him in such a manner as to cause grievous hurt. A believes in good faith that there is no way out for his escape except by shooting at B.
In these circumstances he must be said to be exercising his right of private defence provided to him by Section 99 of the Indian Penal Code. It cannot be said that he inflicted more harm than was necessary to inflict for the purpose of defence.
The reason is that there was absolutely no way out for A to save himself from being horsewhipped except by shooting at B. The fact that B did not stop horsewhipping even when A had taken out his pistol shows that the former (B) was adamant in his act and A was justified in shooting for his defence.
(iii) A is guilty of murder.
The provocation was given to him by B and not by his (B’s) son C whom A killed. Exception I to S. 300 applies only where the provocation is given by the person who is killed and not where it is given by a third person. There could be absolutely no excuse for A in killing C and the offence committed by him cannot be said to be culpable homicide not amounting to murder.
D. Is a guilty of any offence on the following facts?
A who has been suspecting illicit relations between his wife and B surprises B under compromising circumstances with her?
(i) He thereupon kills B.
(ii) Thinking that killing B outright a mercy to the scoundrel, he determines not to kill him but to cut off his leg so that A may have the satisfaction to see B limp all his lifetime. A cut off his leg at the knee. This produces B’s death.
(iii) A kill’s wife two days later.
(i) A is guilty of culpable homicide not amounting to murder in this case. The case clearly falls under Exception I to Section 300, I.P.C. because the killing of B is due to A’s being deprived of the power of self-control on account of grave and sudden provocation, given to him by discovering his wife under compromising circumstances with B. The provocation was not sought voluntarily by him.
If, however, it could be found that A voluntarily sought the provocation, which on account of his suspicion of the illicit relations, could be avoided by him or at least he could have avoided surprising B under compromising circumstances, it would nonetheless be an offence. A, therefore, cannot escape unscathed—he is guilty of culpable homicide amounting to murder or murder itself, according to the finding arrived at.
(ii) This is clearly an offence of culpable homicide. That A had no intention of causing the death of B is clear. He had caused such bodily injury as was not sufficient in the ordinary course of nature to bring about death and so the case does not fall under Section 300, I.P.C.
The death of B was caused not with the intention to cause death, nor was the injury such as would ordinarily result in death. So A’s offence falls under Section 299, I.P.C., the injury being such as is likely to cause death.
(iii) A is guilty of murder under Section 300, I.P.C. The killing having been committed two days later, it cannot be said that it was due to grave and sudden provocation and that he was deprived of the power of self-control. The act of A must be deemed to be a premeditated one with intent to cause death and after mature consideration after the first excitement had passed away.
In 1938 All 789 where death was caused after the first excitement had passed away, it was held that the case fell under Exception I to Section 300 and was not murder but only culpable homicide not amounting to murder, notwithstanding the interval of time between seeing the act of adultery and killing by the accused, but the facts of that case do not apply to the present case which must be held to be a murder, and not culpable homicide not amounting to murder.
E. Discuss which offences, if any; have been committed in the following cases:
(a) A without any excuse fires loaded cannon into a crowd of persons and kills one of them.
(b) A gives grave and sudden provocation to B. B on this provocation fires a pistol at Y neither intending nor knowing him to be likely to kill Z which is near Y but out of sight. Z is killed by the pistol shot.
(c) A gave three lathi blows to B who was a strong and healthy young man. Two blows fell on the arms and one fell on the head, causing fracture of the skull which caused B’s death.
(a) A is guilty of murder.
Where it is clear that the act by which the death is caused is so imminently dangerous that the accused must be presumed to have known that it would in all probability cause death, or such bodily injury as is likely to cause death, then the accused must be held guilty of the offence of murder. In the present case.
A may not have had premeditated design to kill any particular individual but he is presumed to know the natural consequences of his act of shooting. Therefore, A must be held guilty of murder.
(b) A is guilty of murder, as he has fired a pistol at Y at the provocation given by B. Hence he does not come under the Exception to S. 300, I.P.C., for he has not caused the death of the person who gave the provocation but he intended to kill a third person Y and the shot killed Z.
(c) A is guilty of murder as B’s death was only due to the lathi blows of his. The accused must be presumed to have known that death would be the result of his imminently dangerous act.
F. What offence has been committed to the following case?
A enquired of B and C about his missing crop. B and C unreasonably thinking that they were being suspected for theft, abused A in return and shouted that A should be beaten; B and C at once attacked A with lathis which resulted in the fracture at the skull and death of A.
In consideration of the present case one has to focus his attention on the following points:
(i) Whether the enquiry made by A, amounted to sudden provocation?
(ii) Whether B and C acted as a prudent and ordinary man would do in that circumstances?
(iii) Did the act of B and C amount to murder or not?
The verbal enquiry of A did not amount to sudden provocation. It was not an act on the part of A so as to provoke B and C.
The Cuttack High Court in the case of Vila Mahapatra, (1950) Cuttack 293 had held: “Mere verbal provocation even if it be by threats or gestures or by the use of abusive and insulting language cannot induce a reasonable person, to commit an act of violence.”
In this case the act of B and C was cruel and unusual one. No ordinary prudent man would ever commit such a heinous crime on any enquiry made by a person. It was beyond human reason.
“Where on an exchange of abuse between the deceased and the accused the latter picked up a rice pounder with such force as to cause fracture of his skull and he died a few hours later, it was held that the accused was guilty of murder as he had acted in a cruel and unusual manner.
[See Muni and Sarvai (1944) Madras 818], the act of B and C was that of murder. Both the provocation caused by A was so offensive to lead to murder and the act of B and C could be considered to be acts of any ordinary reasonable and prudent man. It was a clear case of murder.
G. What offence, if any, has A committed in the following case?
There was a fight between P and A. The deceased had no hand in it. He did not even try to separate the assailants. All he did was to ask P to stop fighting and said that he would settle their dispute. A thereupon stabbed the deceased causing injury resulting in death.
On similar facts it has been held in Naryanan Nair Raghavan Nair v. The State of Travancore Cochin, (1966 Cri. Law Journal, 278) by the Supreme Court that A was guilty of an offence under S. 302 Indian Penal Code.
In the present case Exception 5 to S. 300 did not apply, inasmuch as the exception requires that no undue advantage be taken of the other side. It was impossible to say that there was no undue advantage when the accused a stabbed the unarmed person who made no threatening gesture and merely asked the accuser’s opponent to stop fighting. Then also, the fight must be with the person who was killed. Here the fight was between P and the accused. The exception therefore, did not apply.
H. A kills B his concubine, at her own request and instance:
They were on affectionate terms but due to social ostracism in the village they could not find a place to live. In his confession which was believed, A stated that B produced a knife and requested A to kill and go back to his own village. Does this constitute a valid defence to a charge of murder?
B, the concubine, was killed by A at her own request and instance. She produced a knife and requested A to kill her. As such the case should fall under Exception 5 of Section 300 I.P.C. which reads as follows:
“Culpable homicide is not murder when the person whose death is caused being above the age of 18 years, suffers, death or takes the risk of death with his own consent.”
It is, therefore, clear that A has not committed murder but only culpable homicide not amounting to murder. The confession of A, therefore, does not absolve him altogether from the liability of having committed an offence, but it does constitute a valid defence to the specific charge of murder with which obviously he cannot be charged. Thus, he is liable only for the lesser offence and not for graver offence of murder. The defence is valid.