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Murder and Culpable Homicide not amounting to Murder-Distinction

The term culpable homicide and murder are the two most confusing terms in the Indian Penal Code, 1860. There is a faint line difference between both of them. Where section 299 of IPC defines Culpable homicide and section 300 deals with concept of Murder.

These terms always snarls up the one who starts learning these concepts. 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 at times it becomes difficult to distinguish between the two, as the causing of death' is common in both. However, The basic difference between these two offences lies in the gravity with which the offence has been perpetrated.

In common parlance Sec. 300 is a sub-set of the sec 299 (Culpable homicide is a genus and murder its specie), Every unnatural human death is homicide but when it is coupled with intention and not only knowledge (culpable homicide not amounting to murder) then it is a murder.

The topic namely distinction of Murder and Culpable homicide not amounting to Murder is very vital. Referring to section 299 and 300 of IPC, Whitely Stocks, Previously Law member of the council of the Governor-General of India, in his introduction to the Indian Penal Code in the Anglo Indian Codes, Volume 1, published in 1887, Page 41 comments as follows:
The definitions just referred to are the weakest part of the code, and the law on the subject should be recast so as to express clearly what is or sought to be the intention of the legislature.

But, unfortunately, such a legislative exercise did not take place. It has been left to the courts to bring out and expound the difference between culpable homicide and murder, as defined in the above said sections.

In the scheme of the IPC culpable homicide is genus and murder its specie. All murder is culpable homicide but not vice-versa. For the purpose of fixing punishment, proportionate to the gravity of the generic offence, the IPC practically recognizes three degrees of culpable homicide.
  1. Culpable homicide of First degree: Gravest form of Culpable homicide. Defined u/s 300 as Murder.
  2. Culpable homicide of second degree: Punishable u/s 304 Part 1
  3. Culpable homicide of Third degree: lowest type of Culpable homicide which is punishable u/s 304 Part 2.

The academic distinction between 'murder' and 'culpable homicide not amounting to murder' has vexed the courts for more than a century. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the key words used in the various clauses of sections 299 and 300.

In order to deal with such a vital topic, it is proper to deal with the following three heads namely:

  1. Exceptions as enumerated in Section 300 IPC.
  2. Distinction between murder' and 'Culpable homicide not amounting to murder.
  3. Distinction between section 304 part 1 and part 2.

A. Exceptions as enumerated in Section 300 IPC:

There are 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. IPC recognizes such five exceptions which are as follow:
  1. Grave and Sudden Provocation
  2. Private Defense
  3. Exercise of Legal Power
  4. Without Premeditation to a sudden fight and
  5. Consensual Homicide/ Suicide Pacts.

Exception 1- Grave and Sudden Provocation

When the person losing his self-control by the sudden and grave provocation, causes the death of the person who gave the provocation or any other person due to a mistake or an accident then he will be liable for the culpable not amounting to murder.

According to Goddard C.J in the case of R v. Duffy:
Provocation is some act, or series of acts done by the dead man to the accused which would cause in any reasonable person ….. a sudden and temporary loss of self-control, making him for the moment not master of his mind….

However, it has to be noted that this provocation should not be first initiated at the instance of the accused.

Essentials of this exception:

  1. The accused should not have any ill will and premeditation
  2. The accused had been provoked by the deceased.
  3. Such provocation must be grave and sudden.
  4. Due to it, the accused loses his power of self-control.
  5. That the offence of murder was committed by the accused before he could cool down.
It is essential to prove that provocation was sudden as well as grave. The Statutory explanation of the provision under IPC provides that:
Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

However courts generally apply the principle of reasonableness in order to determine if such provocation was grave and sudden enough to result in the ground of exception. Hence Supreme Court gives Reasonable man's test in the landmark case of K.M. Nanavati v. State of Maharashtra 1962 SCR Supl. (1) 567:
  1. The test of grave and sudden provocation is whether 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 lose his self control.
  2. Gestures and words under certain situations cause sudden and grave provocation to an accused so as to bring his action under this exception.
  3. 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.
  4. The fatal blow on the person giving a sudden and grave provocation should be immediately when he was provoked but not after the time which was sufficient for him to calm down or to cool down.

Sustained Provocation (A court formulated exception under Exception 1)

From the analysis so far, the concerns with the traditional definition of provocation are discernible. Acknowledging the problems with the grave and sudden criteria, Madras High Court in the case of Suyambukani In re 1989 LW (cr) 86 have introduced the defense of sustained provocation within the wider ambit of provocation.

Though the exceptions to Section 300 of the IPC seem restrictive in nature, courts have been broadening the exceptions ejusdem generis to the existing exceptions and have brought in sustained provocation under Exception 1 to Section 300 of the IPC.

After noting that either pre-meditation or ill will is absent in all exceptions, and that an act or omission would not be an exception if both are present, the courts came to the conclusion that sustained provocation can be brought within Exception 1 to Section 300 of the IPC. Thus, it was held that a series of acts over a period of time could also cause grave and sudden provocation. 

Sustained Provocation and Battered Women in India

The Madras High Court recognized the Nallathangal syndrome as the Indian equivalent of the Battered Woman Syndrome. Recognising the Nallathangal ballad as Nallathangal syndrome, the Madras High Court reduced the sentences of abused women who were compelled to attempt suicide along with their kids.

In Suyambukkani v. State of T.N., unable to bear the cruelty of her husband, she jumped into a well along with her children. The children died, whereas she survived. She was charged for murder and attempt to commit suicide. The trial court held her guilty for murder and in appeal, the Madras High Court ruled that her act would fall within the sustained provocation exception taking into consideration the compelling circumstances in which she was pushed to commit it .

Following this judgement the Guwahati High Court set aside murder charges in the case of Manju Lakra v. State of Assam, and instead convicted Manju Lakra for culpable homicide not amounting to murder.

Further, the ground of provocation is itself subject to the limitations set by further statutory explanation to the section, according to which:

  1. The provocation must not cause intentionally from the act of the offender as an excuse to kill such person or any other person.
  2. The provocation is not caused by anything which is done in accordance with the law, or by a public servant in the lawful exercise of the powers of any public servant. Example: A is lawfully arrested by C, a constable. A was provoked because he was arrested so he kills C. Here A will be liable for murder as C was exercising his public duty.
  3. The offender must not have been provoked by the act of the person who is exercising his right to private self-defense.

Exception 2 - Private defense

This exception came into play in those cases wherein a person exceeds the right of private defense. If the excess is intentional, the offence is Murder, if unintentional, it's culpable homicide not amounting to murder.

Essentials for this exception is as follow:

  1. The act must be done in exercise of right of private defense of person or property
  2. The act must be done in good faith
  3. The person doing the act must have exceeded his right given to him by law and have thereby caused death
  4. The act must have been done without premeditation and without any intention of causing more harm than was necessary in private defense.
Hence, accused get partial defense from criminal liability, when exercising his right to self-defense in good faith, unfortunately crosses the legal limits imposed by law of self-defense. Thus, his offence of murder becomes culpable homicide under this ground of exception.

In case of Lachhmi Koeri v. State of Bihar, in which a hwaldar in civil uniform went to arrest appellant. The Hawaldar confronted appellant in which appellant's shirt was torn . Then appellant took out his chhura and gave a blow on Hawaldar's arm . Later appellant gave several blows to Hawaldar and fled. The Hawaldar died shortly afterwards. Supreme Court held, that the appellant initially had the right of private defence, but subsequently intended to cause more harm than was necessary for his defence. Therefore appellant's case did not comes under this exception and was guilty under section 302 IPC for murder.

Exception 3 - Exercise of Legal Power

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 . This exception clause will not apply, if the act is illegal or against public policy and not authorized by law, or the person glaringly exceeds the power given to him by law.

The question whether the public servant did or did not believe in the legality of his power is a question of fact to be decided upon the facts and circumstances of each cases.

In Dakhi Singh v. State, where a suspected thief who was arrested by a police officer, while trying to escape by jumping down from the train from its off-side was shot dead by the police officer [finding himself not in a position to apprehend him], the court held that the accused as guilty of Culpable Homicide not amounting to murder, as it was a case where the officer though exceeded his legal powers did not have any ill will and committed the offence for the advancement of public justice.

Exception 4 - Without Premeditation to a Sudden Fight

Sudden fight means when the fight was unexpected or premeditated. There was no intention of either of the parties to kill or cause the death of any person. It is not an important fact that which party has first assaulted or who have offered a provocation.

The Apex court in Surendar Kumar v. Union Territory, Chandigarh (1989) 2 SCC 217 summarized the principles as follows:
  1. it was a sudden fight
  2. there was no premeditation
  3. the act was done in a heat of passion and
  4. the assailant had not taken any undue advantage or acted in a cruel manner.

In Amirthalinga Nadar v. State of Tamil Nadu (1976) 2 SCC 195, Justice P.N.Bagwati, held that In a case of Sudden fight, where the fatal blow was given as part of the sudden fight that arouse out of sudden quarrel between the appellants part and deceased's party, there is no scope for premeditation. The appellant neither took undue advantage nor acted in cruel and unusual manner. Conviction altered from section 302 to 304 Part 1.

Exception 4 v. Exception 1 of section 300 IPC

The Apex court in the case of Smt.Sandhya Jadhav v. State of Maharashtra, clarified this by holding:
The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution not covered by the First Exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's sober reasons and urges them to deeds which they would not otherwise do.

There is provocation in Exception 4 as in Exception 1 but the injury done is not the direct consequence of that provocation.

Exception 5 - Consensual Homicide

The last exception of section 300, IPC deals with causing death by consent which is commonly known as 'Euthanasia' (mercy killing). According to this Exception, 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.

The points to be proved are:
  1. The death was caused with the consent of the deceased
  2. The deceased was then above 18 years of age
  3. That such consent was free and voluntary and not given through fear or misconception of facts.

Supreme Court in the case of Dasrath Paswan v. State of Bihar, held that the deceased was above the age of 18 years and she had suffered the death with her own consent. The deceased did not give the consent under the fear of injury, nor under a misconception of fact, but voluntarily, and so the case will fall under Exception 5 of section 300, IPC. Such cases in common law fall under the suicide pacts, and it shall be manslaughter and not murder.

B. Culpable Homicide not Amounting to Murder v. Murder:

Culpable homicide is a genus and murder its specie. All murders are culpable homicide, but all culpable homicides are not murder. According to section 299 of IPC culpable homicide means the unlawful killing of a human being, and this killing becomes murder when the act firstly fulfills all the conditions of section 299 and then section 300.

As per section 299 of IPC which defines culpable homicide says, 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 which defines Murder says, Whoever causes death by doing the 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.

If we carefully examine the bare act language of both the section 299 and 300 of IPC, there is thin line difference between both the sections. Section 299 includes term 'an act' which shows uncertainty, that means 'doing an act by which probability of death is not certain. On the other hand section 300 includes the act, which shows certainty, that means where the probability of death is certain by that act.

For example: taking illustration (a) of section 299 - 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. A has committed the offence of culpable homicide.

Now suppose A put some poisonous snakes in the same pit, then here this act of A comes under the scope of section 300 as Murder.

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 and a lesser degree would result culpable homicide. It is therefore difficult to arrive at any strait jacket differences between culpable homicide and murder. Supreme Court from time to time through different cases give their views on this topic. As in the case of Thangaiah v. state of Tamil Nadu, Supreme court held that following factors should be taken into consideration for determining death is culpable homicide or murder weapon used, place of injury, ferocity of attack, state of mind of the accused .

Perhaps the distinction between culpable homicide and murder could be well appreciated by the illustration given by Justice Melville in the landmark case of Reg v. Govinda, and repeatedly quoted with approval by the Supreme Court (State of Andhra Pradesh v Rayavarappu Punnayya AIR 1977 SC 45 ) may be outlined thus.

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, if the act by which the death is caused is done:
  1. With the intention of causing death;
  2. With the intention of causing such bodily injury as is likely to cause death;
  1. With the intention of causing death;
  2. 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;
  3. 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;
(c) With the knowledge that the act is likely to cause death
(4) With the knowledge that the act is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death and committed without any excuse for incurring the risk or causing death or such injury as aforesaid.

On comparison between section 299 and 300 IPC, the points of distinction are as follow:

Intention to Kill

Clause (a) of s 299 and cl (1) of s 300 are identical, that shows where there is an intention to kill, the offence is always murder . Example - A shoots Z with the intention of killing him. Z dies in the consequence. A commits murder ( illustration (a) section 300 ).

Note - If an intentional act which fulfills the condition of section 299, but it goes to the second part of section 300(exceptions), then that act does not amount to murder.

Intention to Cause Bodily Injury Likely to Cause Death

Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. Both require intention to cause bodily injury. As far as s 299(b) is concerned, it merely stipulates that if death is caused by an act, with the intention of causing such bodily injury as is likely to cause death it amounts to culpable homicide.

Whereas clause (2) of section 200 clarifies, The offence is murder, if the offender knows that the particular person injured is likely, either from peculiarity of constitution or suffering from any disease or immature age could be killed by an injury which would not ordinarily cause death.

The word likely' used in sec. 299(b) means a mere probability or possibility(a fifty-fifty chance) that the injury could result in death. But on other hand word 'likely' used in clause (2) of sec. 300 denotes , to an extent, certainty of death.

Illustration (b) to s 300 explains this aspect, where A knowingly with intention of causing death strikes Z, who is labouring under such a disease that a blow is likely to cause his death, and 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 death of a person in a sound state of health. The distinction in the meaning attributed to the word likely in sections 299(b) and 300 (2) is only in the 'degree of probability'.
Bodily Injury + Intention + Knowledge = Murder

As far as cl (3) of sec. 300 is concerned, the intention of causing bodily injury is accompanied by a further objective of certainty that such bodily injury is sufficient in the ordinary course of nature to cause death.

The sufficiency is the highest probability of death in the ordinary course of nature and when this exists and death ensues and the causing of such injury is intended, the offence is murder. The degree of the probability of death is higher in this particular clause than sec. 299 (b).

For example, a blow inflicted by stick on head may be likely to cause death amounting to culpable homicide, on the other hand, a wound from a sword in heart will be sufficient in ordinary course of nature to cause death amounting to murder.

Bodily injury that is sufficient in the ordinary course of nature to cause death + Intention = Murder 

Knowledge of Death

Both cl (c) of s 299 and cl (4) of s 300 apply to cases where the accused has no intention to cause death or bodily injury, but there is knowledge that the act is essentially a risky one . In such a case whether the act amounts to murder or culpable homicide depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide [illustration (b) to sec. 299] if it is the most probable result, it is murder [illustration (d) to sec. 300].

For example:
Death caused due to furious driving will be culpable homicide whereas death caused due to firing at a mark near a public road will be murder under section 300 IPC.

Supreme Court in Willie Staney v. State of Madhya Pradesh held that:
Sec.300 (4) contemplates the doing of an imminently dangerous act in general and not the doing of any bodily harm to any particular individual. It is designed to provide for rarest of rare cases wherein the accused puts in jeopardy lives of many persons as shown in illustration(d) of section 300 IPC.

C. Distinction between section 304 part 1 and part 2.

For the purpose of awarding sentence sec. 304, IPC divides culpable homicide not amounting to murder in two parts on the basis of intensity and gravity.
Part 1 - (a) which is considered to be more serious and grave in nature, liability has to be proved on the basis of intention of the person while committing the offence.
  1. It covers those cases which fall within one of the exceptions 1 to 5 of section 300. IPC and cases which fall within second clause of sec. 299 , IPC.
  2. Punishment - Imprisonment for life, or imprisonment for either description for a term which may extend to ten years and fine.

Part 2 - (a) which is considered to be less serious in nature, the liability does not depend upon the intention rather knowledge is the basis for punishment.

(b) It applies when the act is done with the knowledge that is likely to cause death but no intention to cause death ( third clause of sec.299, IPC). However, if an offence is committed with the knowledge 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 such act is done without any excuse, then the offence will be taken out of the purview of sec. 304, Pt II, and would be covered under sec. 302, as the offence would amount to murder under sec. 300, cl (4). Thus, the knowledge referred to in Pt II of s 304 is of a lesser degree than the special knowledge referred to in cl (4) of sec. 300.

(c) Punishment - Imprisonment extending up to 10 years or fine.

From the above conspectus it emerges that whenever a court is confronted with the question of whether a killing is murder or culpable homicide, it will be convenient to approach the problem in 3 stages:
  1. In first stage, proof of causal connection between the act and death is determined.
  2. In second stage, it is determined whether the act of the accused amounts to culpable homicide'. If the answer is yes', then the third stage is reached.
  3. In third stage, it is determined whether the act is murder' e.g. case within the ambit of four clauses of Sec. 300. If the answer is negative, then the offence would be culpable homicide not amounting to murder' punishable under the first or second part of Sec. 304, depending on whether the second or third clause of Sec. 299 is applicable.
If the answer is positive but the case comes within any of the exceptions enumerated in Sec. 300, the offence would still be culpable homicide not amounting to murder' under the first part of Sec. 304 (State of A.P. v R. Punnayya, AIR 1977 SC 45).

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