Homicide is the highest order bodily injury that can be inflicted on a human body. It has from earliest times been considered most heinous offences. The word comes from Latin where ‘homo’ means ‘man’ and ‘cide’ means ‘I cut’. Thus 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. So practically there is no difference between culpable homicide and murder. The question that arises is whether an offence is a ‘murder’ or ‘culpable homicide not amounting to murder’.
Lawful homicide will set the culprit free. It may further be classified into:-
- Excusable homicide, and
- Justifiable homicide
Homicide is unlawful when the death is caused by an intentional act, or by an intentional act, or by an intentional omission amounting to culpable negligence in discharging one’s duty or accidentally by an unlawful act.
Section 299 of The Indian Penal Code – Culpable homicide
Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
(a) A lays sticks and turf over a pit, with the intention of thereby 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. Ahas committed the offence of culpable homicide.
(b) 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 to fire at the bush. B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.
(c) A, by shooting at a fowl with intent to kill and steal it, kills B, who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B or to cause death by doing an act that he knew was likely to cause death.
Explanation 1 — A person who causes bodily injury, to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death.
Explanation 2 — Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented.
Explanation 3 — The causing of the death of a child in the mother’s womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born.
The important elements of culpable homicide are:-
- Causing death,
- By doing an act,
- The act of death must be done:-
- With the intention of causing death,
- With the intention of causing such bodily injury as is likely to cause death, or
- With the knowledge that such act is likely to cause death.
There are two classes of culpable homicide:
- 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. In murder, there is greater intention or knowledge than in culpable homicide not amounting to murder.
Section 300 of The Indian Penal Code – Murder
Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or—
2ndly.— If it is 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—
3rdly.— 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—
4thly.— 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 death or such injury as aforesaid.
(a) A shoots Z with the intention of killing him. Z dies in consequence. A commits murder.
(b) A, knowing that Z is labouring 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 a sound state of health. But if A, not knowing that Z is labouring 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.
(c) 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.
(d) A without any excuse fires a 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.
Mitigating circumstances — When offence is gruesome and has been committed in a calculated, cold-blooded and diabolical manner, the age of accused may not be a relevant factor, Shabnam vs State of U.P., (2015) 6 SCC 632.
Delhi December 16, 2012 Gang Rape in Bus Case — In this case of brutal, barbaric gang rape, unnatural sex and assault leading to death of victim, principles of balancing of aggravating and mitigating circumstances, applied and death sentence confirmed even though there were many mitigating factors, Mukesh vs State (NCT of Delhi), (2017) 6 SCC 1.
Distinction between Culpable Homicide and murder
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. However, the difference between culpable homicide is real though very fine and based upon a very subtle distinction of the intention and knowledge involved in these crimes. The true difference lies in the degree, there being the greater intention or knowledge of the fatal consequences in the one case than the other.
The distinction between sections 299 and 300 was made clear by Melvil J. in Reg. vs Govinda [1876 ILR Bom 342]. 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.
Murder or culpable homicide not amounting to murder
Whenever a court is confronted with the question whether the offence is ‘murder’ or ‘culpable homicide not amounting to murder’, on the facts of a 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 to the second stage for considering whether that act of the accused amounts to “culpable homicide” as defined in S. 299. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of S. 3000, 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 S. 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 S. 304, depending, respectively, on whether the second or the third clause of S. 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in S. 300, the offence would still be ‘culpable homicide not amounting to murder’, punishable under the first part of S. 304, Penal Code. Ingredients of Ss. 299 and 300 compared clause by clause, State of A.P. v. Rayavarapu Punnayya, (1976) 4 SCC 382; Jaswant Singh v. State of Kerala, AIR 1966 SC 1874 and Veera Singh v. State of Punjab, AIR 1958 SC 465, followed.
An offence under S. 302 presupposes an offence under S. 299. But an offence under S. 299 becomes an offence under S. 302 if it is committed with the intention or knowledge described in the four clauses of S. 300. If the requisite intention or knowledge is not proved then the offence is one under S. 299 provided the intention or the knowledge mentioned in the clauses (a) to (c) of that section are proved. [Suresh Chand vs State, 1972 Cri LJ 1416]
Author – Mayank Shekhar
- K.D. Gaur, Textbook on Indian Penal Code, Fifth Edition 2014
- Ratanlal and Dhirajlal, Indian Penal Code, Thirty-Fifth Edition
- SCC Online