SOPORE LAW COLLEGE

ASSIGNMENT
Criminal Law II

TOPIC : Culpable Homicide, Differentiate with Murder

SUBMITTED TO : Sameena Mam

SUBMITTED BY : REHAN UL ISLAM

ROLL NO. : 05

CLASS : B.A LLB 5TH SEMESTER

Homicide is the killing of a human being by another human being. It is either lawful or unlawful. As
per the Indian Penal Code, 1860 (hereinafter, ‘the IPC’), lawful homicide includes several cases
falling under the ‘General Exceptions’. These include:
1. Death caused by accident or misfortune, and without any criminal intention or knowledge in

the doing of a lawful act, in a lawful manner, by lawful means, and with proper care and
caution.
2. Death caused justifiably, i.e. to say,

a. By a person, who is bound, or by mistake of fact in good faith believes himself bound, by

law.
b. By a judge when acting judicially in the exercise of power which is, or which in good faith

he believes to be, given to him by law.

c. By a person acting in pursuance of the judgment or order of a Court of Justice.

d. By a person who is justified or who by reason of a mistake of fact, in good faith, believe

himself to be justified by law.

e. By a person acting without any criminal intention to cause harm and in good faith, for the

purpose of preventing or avoiding other harm to person or property.

f. Where death is caused in the exercise of the right of private defence of person 11 or
property.
3. Where death is caused by a child, or by a person of unsound mind, or an intoxicated person.
4. Where death is caused unintentionally by act done in furtherance of good faith for benefit of
the person killed, when-
a. He or, if a minor or lunatic, his guardian, has expressly or impliedly consented to such act;

or
b. Where it is not possible for the person killed to signify his consent or where he is incapable

of giving consent, and has no guardian from whom it is possible to obtain consent, in time
for the thing to be done with benefit.

Unlawful homicide includes, ‘Culpable Homicide not amounting to murder’, ‘Murder’, ‘Rash or

negligent act’ and ‘Suicide’.

CULPABLE HOMICIDE

Culpable homicide under Section 299 has certain ingredients. To attract this section, death of a
human being must have been caused by doing an act, (i) with the intention of causing death; or (ii)
with the intention of causing such bodily injury as is likely to cause death; or (iii) with the knowledge
that such act done is likely to cause death. ‘Knowledge’ and ‘intention’ must not be confused. The
provision in defining first two categories does not deal with the knowledge whereas it does in
relation to the third category. It would also be relevant to bear in mind the import of the terms
“likely by such act to cause death”. Herein “likely” would mean probably and not possibly. Injury is
likely to cause death, when the same is sufficient in the ordinary course of nature to cause death
which in turn would mean that death will be the most probable result. “likely”- The accused was
convicted of an offence of behaving in a manner likely to endanger the safety of an aircraft by
persistent use of his mobile phone. His appeal against conviction failed since the word “likely” was
correctly construed in its statutory context as meaning “a real risk not to be ignored”. “with the
knowledge that he is likely by such act to cause death”- While it may be difficult to delve into the
mind of the attacker to decode his intention, knowledge of the consequences of his actions can
certainly be attributed to him. The appellant had knowledge that his actions are likely to cause
death. He would, therefore, be guilty of culpable homicide not amounting to murder and liable to
be sentenced under Part II of Section 304 IPC. Where the accused inflicted injury by piercing a sharp
edged weapon into the heart of the victim, resulting in his death and the witnesses also testified
that the accused uttered the words before inflicting the injury “of doing away with him”, the court
said that the intention to kill the deceased could be inferred.

Clauses 1 and 2- The practical difference between the two phrases is expressed in the punishment
provided in section 304. But the phrase, ‘with the knowledge that he is likely by such act to cause
death’ includes all cases of rash acts by which death is caused, for rashness imports a knowledge of
the likely result of the act which the actor does in spite of the risk.
Both the expressions “knowledge” and “intent” in Section 299 postulate existence of a positive
mental attitude which is of different degrees. Further, such mental attitude towards consequences
of conduct is one of knowledge and intention. If the death of the deceased is caused in any of the
circumstances envisaged in Section 299, offence of culpable homicide is said to have been
committed.

‘Knowledge’ v. ‘intention’- ‘Knowledge’ is an indication of a bare state of conscious awareness of

some facts in which human mind might itself remain supine or inactive whereas intention connotes
a conscious state in which mental faculties are roused into activity and summed up into action for
the deliberate purpose of being directed towards a particular and specific end which the human
mind conceives and perceives before itself. Intention need not necessarily involve premeditation.
Existence of such an intention or not is a question of fact.
Some judicial pronouncements- Where the facts were that the acts of the accused was in the
category of a rash act which brought about dashing against the victim and ultimately in his death.
There appeared to be no intention or knowledge of bringing about a fatal consequence.

The liability was under Section 304A. The accused, while engaged in a verbal wrangle with his wife,
struck her a blow on the left side with great force, the effect of which was that she vomited and
bled from the nose, and within an hour died. The death was caused by spleen rupture. It was held
that he was guilty of grievous hurt only.

PUNISHMENT FOR CULPABLE HOMICIDE

Section 304 provides punishment for offence of culpable homicide not amounting to murder. Under
this there are two kinds of punishments applying to two different circumstances:
1. If the act by which death is caused was done with the intention of causing death or such

bodily injury as is likely to cause death, the punishment is life imprisonment or

imprisonment of either description for a term which may extend to 10 years and fine.

2. If act is done with knowledge that it is likely to cause death but without any intention to

cause death or such bodily injury as is likely to cause death, the punishment is
imprisonment of either description for a term which may extend to 10 years or with fine
or both.

Section 304 Part I v. Section 304 Part II- Linguistic distinction being apparent, there are two other
distinctions as well. One in relation to the punishment, while other is founded on the intention of
causing such act, without any intention but with the knowledge that the act is likely to cause death.
It is neither advisable nor possible to state any fixed criterion that would be universally applicable
to all such cases. Every case must be decided on its own merits. The Court has to perform the
delicate function of applying the provisions of IPC to the facts of the case with a clear demarcation
as to under which category of cases, the case at hand falls and accordingly punish the accused.
MURDER

An offence cannot amount to murder unless it is a ‘culpable homicide’. Section 300 of the IPC merely
points out the cases in which culpable homicide is murder. To render culpable homicide murder the
case must come within clauses 1, 2, 3, or 4 of Section 300 and must not fall within the five exceptions
under the Section.
Some judicial pronouncements- When several persons assaulted the victim with various weapons
but death of the victim was caused due to head injury caused by the accused whose lone conviction
for murder was held to be proper. Owing to dispute between two brothers over the undivided
family, one of the brothers caused bleeding injuries to his brother with cart-peg resulting in his
death. The eye-witnesses deposed that the assailant categorically declared that unless the
deceased was killed, they could not get rid of the evil in the house. This established his intention to
kill. His conviction for murder was not interfered with.

Punishment for Murder

Section 302 provides the punishment for the offence of murder under Section 300. The punishment
prescribed is death or imprisonment for life and fine. In such case, the court has no power to impose
a lesser sentence once the offence is proven.

Constitutionality of death penalty- The constitutional validity of death sentence was challenged in
Jagmohan Singh v. The State of U.P. The Constitutional Bench while upholding the constitutional
validity of death penalty examined whether total discretion can be conferred on the judges in
awarding death sentence, when the statute doesn’t provide guidelines on how to exercise the
same. The decision in Jagmohan case was rendered when the incumbent Code of Criminal
Procedure, 1973 (hereinafter, ‘the CrPC’) was not in existence. However, with the coming of the
CrPC, the aforesaid provision substantially changed with the introduction of a reformed sentencing
structure under the Code. In Rajendra Prasad v. State of U.P., it was held that special reasons
mandatory for imposing death penalty must relate not to the crime but the criminal. It could be
awarded only if the security of the state and society, public order in the interest of the general
masses compelled that course.

Legality of capital punishment- Though death sentence has to be awarded in “rarest of the rare
cases”, yet the Apex Court has held that in no uncertain terms that capital punishment is legal and
is not violative of Articles 14, 19 and 21 of the Constitution. It has further been held that the mode
of executing death sentence by hanging as in Section 354(5) of CrPC is not violative of Article 21 as
it is not a cruel, barbarous or degrading method.
Doctrine of transferred malice
Section 301 of the IPC is a specific provision. It lays down that if a person causes death,
whose death he neither intends, nor knows himself to be likely to cause, 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. For instance, blow aimed at the intended victim, if alights on another,
offence is same as it would have been if the blow had struck the intended victim. This
provision under IPC embodies what the English authors describe as the doctrine of
transfer of malice or the transmigration of motive. Under this section, if X intends to kill Y
but kills Z whose death he neither intends nor knows himself to be likely to cause, the
intention to kill Z is, by law attributed to him.

Some judicial pronouncements- In a scuffle between accused persons and the complainant’s party,
one member on the side of the accused fired a shot at a particular member from the complainant’s
side but the shot actually hit another person and he died. The court held that the doctrine of
transferred malice was attracted. The act done was covered by Section 304 and he was liable to be
convicted under Part II of that section, though the deceased was neither aimed at nor intended to
be harmed by the accused. The accused with the intention of killing X, on whose life he had effected
some insurance, gave him poisoned sweetmeat. X ate a portion of it and threw the rest away which
was picked by the 8-year old daughter of accused’s brother-in-law, without the knowledge of the
accused. She ate it and gave some to another little child. The two children died from the effect of
poison but A eventually recovered. It was held that the accused was guilty of murder.
THE DISTINCTION BETWEEN CULPABLE HOMICIDE AND MURDER –

Culpable homicide is the genus of which murder is a species. All murders are culpable homicide but
the vice-versa is not true. Ever since the IPC was enacted, this distinction and as to what case will
fall under which category is a perennial question with which courts are often confronted. On a plain
reading of the relevant provisions of the Code, it appears that the given cases can be conveniently
classified into two categories but when it comes to actual application, the courts are often
confronted with this dilemma. This confusion often emerges when it is difficult to decipher from
the evidence whether the intention was to cause merely bodily injury which would not make out
an offence of murder or there was a clear intention to kill the victim making out a clear case of an
offence of murder. The most confusing aspect is ‘intention’ as in both the provisions the intention
is to cause death. Hence, you have to consider the degree of intention of offenders. If the person is
killed in cold-blood or with well-planned then it is murder because the intention to kill is in high
degree. On other hand, person is killed without pre-planned, in sudden fight or in sudden anger
because of somebody’s provocation or instigation, then such death is called the culpable homicide.
Hence, whether the act done is culpable homicide or murder is a question of fact.
The distinction between the two was aptly set forth by Melvill, J., in Reg v. Govinda and by Sarkaria
J., in State of A.P. v. R. Punnayya, “In the scheme of the Penal Code, ‘culpable homicide’ is genus
and ‘murder’ its specie. All ‘murder’ is ‘culpable homicide’ but not vice versa. Speaking generally
‘culpable homicide’ sans ‘special characteristics of murder’ is culpable homicide not amounting to
murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence,
the IPC practically recognises three degrees of culpable homicide. The first is what may be called,
culpable homicide of first degree. This is the gravest form of culpable homicide which is defined in
section 300 as ‘murder’. The second may be termed as ‘culpable homicide of the second degree’.

This is punishable under the 1st part of Section 304. Then, there is ‘culpable homicide of the third
degree’. This is the lowest type of culpable homicide and the punishment provided for it is also the
lowest among the punishments provided for the three grades. Culpable homicide of this degree is
punishable under Part II of Section 304.” The distinction is laid down below:
 Section 299 Section 300

A person commits culpable homicide if

the act by which the death is caused is
done- Subject to certain exceptions culpable
homicide is murder of the act by which the
Intention death is caused is done-
(a) With the intention of causing
Intention (a) With intention of causing
death; or
death; or (b) With the intention of causing
(b) With the intention of causing such such bodily injury as the offender knows to

bodily injury as is likely to cause be likely to cause death of the person to

whom the harm is caused; or (c) With the
death; or 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

Knowledge
(c) With the knowledge that the act is (d) With the knowledge that the act is
likely to cause death. so imminently dangerous that it
must in all probability cause death or
such bodily injury as is likely to cause
death, and without any excuse or
incurring the risk of causing death or
such injury as is mentioned above.
Case Law 1: Kusa Majhi v State of Orissa 1985 Cr. L.j 1460

The deceased admonished her own son for not going for fishing with the co-villagers. Infuriated on
this the accused, the son brought an axe and dealt with the blows on her shoulder and she died.
There was no pre plan of the offence. The blows were not on the neck or head region. The accused
dealt blows likely to cause bodily injury which was likely to cause death and he dealt blows on the
spur of moment and anger. Therefore it was held to be a case of culpable homicide.

Case Law 2: Ganesh Dooley Tulsa I.L.R 20 All . 143

A snake charmer exhibited in public a venomous snake, whose fangs he knew had not been
extracted and to show his skills without any intention to cause harm to anyone, placed the snake
on head of one of the spectators. The spectator trying to push off the snake was bitten and died in
consequence. The snake charmer was held to be guilty of culpable homicide not amounting to
murder.
CONCLUSION

‘Culpable homicide’ and ‘Murder’ are two overlapping yet distinct offences. The distinction
between the two is in the ‘intention’ and ‘knowledge’ of the culprit in committing the crime.

Though on plain reading of the provisions, it appears that the cases can be conveniently classified
into the two categories but when it comes to the actual application of these two sections in a given
case, the courts are often confronted with the dilemma of culpable homicide and murder.

A general line, however, cannot be drawn. Hence, every case must be looked into depending on the
facts and circumstances. Hence, the role of the judge becomes very important. One cannot expect
him or her to be precise all the time as a human is meant to err but a judge deciding such a sensitive
case must leave no stone unturned in analysing all the nuances of the case and then come to any
conclusion. Since “A person is what he thinks”, the courts needs to spy the minds of the accused
and by applying certain logics and theories with parameters determine as to whether the person
intended to cause the death. Such determination has to be arrived at after extensive observation.

Since there is no radical difference between the two offences except the degree of intention and
knowledge (being higher in case of murder), a common line of distinction cannot be drawn. Hence,
it will depend from case to case. As noted above, it’s the judge who plays the most crucial role in
such cases. Hence, it is quite obvious that such decisions do attract lot of
scrutiny by lawyers, judges, law scholars and professors, as it’s all about the facts of the case and
nothing else. Since it’s the facts that will determine the gravity of the offence, the burden of
presenting good arguments before the court will be borne by the lawyers representing the two
sides, as to how well articulate and precise are there arguments in support of their clients,
irrespective of which side they are representing. Also, another important postulate would be as to
how the law or Code dealing with the crimes regards the two offences as distinct and what the
criterion for distinguishing them is.