Killing of human being by another human being is known as culpable homicide. But, criminal liability of the person committing homicide is not same in every circumstance. It depends on the criminal intention or knowledge of the act or act by negligence or doing act in lawful capacity. Suppose ‘A’ drives vehicle with all care and protection but met with accident in which Mr. ‘B’ dies. It is case of general exception under section 80 of IPC. If, in the same scene ‘A’ was driving vehicle with carelessness then he is liable for less punishment. On the other hand, if ‘A’ plans to kill ‘B’ and succeed in doing so it is called murder (which is highest degree of killing of human being), but, if ‘A’ was provoked to kill ‘B’ it is case of culpable homicide.
(1) CLASSIFICATION OF HOMICIDE
Homicide is either lawful homicide or unlawful homicide. Both of them can be discussed as follows –
(1.1) Lawful Homicide
(a) Excusable homicide (u/ss. 80, 82, 84, 85, 87, 88 and 89)
- Where death is caused by accident or misfortune in doing of lawful act in lawful manner by lawful means with proper care and caution without any criminal intention or knowledge. [Section 80]
- Where death is caused by a child, or a person of unsound mind or an intoxicated person as will come under sections 82-85 of IPC.
- Act not intended and not known to be likely to cause death or grievous hurt, done by consent under section 87 of IPC.
- Act not intended to cause death, done by consent in good faith for person’s benefit under section 88 of IPC.
- Act done in good faith for benefit of child or insane person, by or by consent of guardian under section 89 of IPC.
(b) Justifiable homicide (u/ss. 76-79, 81, 100 & 103)
- Act done by a person who is bound or by mistake of fact believing himself bound by law under section 76.
- Ordered by a judge when acting judicially under section 77.
- A person acting in good faith and pursuant to the judgment or order of Court under section 78.
- By a person who is justified or who by reason of mistake of fact, in good faith, believes himself to be justified by law under section 79.
- By a person acting in good faith without criminal intent, for the purpose of preventing or avoiding other harms to the person or property under section 81.
- By a person exercising his right of private defence of person and body under sections 100 and 103 of IPC.
(1.2) Unlawful Homicide
- Culpable homicide amounting to murder (sections 300 & 302)
- Culpable homicide not amounting to murder (sections 300 & 304-I)
- Culpable homicide (Sections 299, 301 & 304-II)
- Causing death by rash or negligent act not amounting to culpable homicide (section 304A)
Chapter XVI of IPC deals with offences affecting the human body which start with offence of culpable homicide and murder. In the scheme of IPC culpable homicide is genus. 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 the generic offence, the IPC practically recognizes three degrees of culpable homicide.
The first may be term as “culpable homicide of the 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” which is culpable homicide not amounting to murder under section 300 and punishable under the first part of Section 304. Then, there is “culpable homicide of the third degree” (excluding section 300), which is the lowest type of culpable homicide punishable under part II of section 304.[1] The punishment provided for it is, also the lowest among the punishments provided for the three grades. The causing death by rash or negligent act not amounting to culpable homicide is defined and punishable under section 304A.
Unlawful homicide is not to be compared with ‘culpable homicide’ which expression is used in the Code in a technical sense as denoting the offence defined in Section 299. The distinction is apparent because an offence Under Section 304A is an unlawful homicide, but it does not amount to culpable homicide.
SCOPE AND LIMITATION OF THE SESSION
In this session we are discussing definition of culpable homicide under section 299 and 301 with punishment for culpable homicide under section 304 and Causing death by rash or negligent act not amounting to Culpable homicide under 304A and attempt to culpable homicide under section 308. The session will focus on definition and elements to establish the offence under the particular section as material is prepared for the police.
(2) DEFINITION OF CULPABLE HOMICIDE
The word “homicide” has been derived from Latin terms Homo (man) and cido (cut). Homicide is the killing of a human being by a human being.
The term ‘culpable homicide’ is defined by section 299 of IPC. It says that a person commits the offence of culpable homicide, who causes death by doing an act with – (i) the intention of causing death, or (ii) the intention of causing such bodily injury as is likely to cause death, or (iii) the knowledge that he is likely by such act to cause death.
Illustration.- 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 fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide. [Illustration (b)]
Illustration.- 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. [Illustration (c)]
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 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 casual 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 section 299.
(2.1) INGREDIENTS OF CULPABLE HOMICIDE
The section has following ingredients, which is necessary to establish the offence of culpable homicide under section 299.
(i) the causing of death of human being,
(ii) the doing of an act (physical conduct of a person), and
(iii) presence of the intention of casing death or knowledge that the act was likely to cause death (the mental attitude of that person towards the consequences of such conduct).
(2.2) CAUSING OF DEATH
Death here means the death of human being.– The Explanation 3 to the section, made it clear that causing of death of a child in mother’s womb is not homicide. It may amount to culpable homicide to cause 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.
Death must be caused by that act.- In case of culpable homicide, it is not necessary the person dies on the spot but it is necessary that person dies causing of the act. Explanation 1 to section 299 made it clear that 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.
Temporary prevention of death.- Where death is prevented by skillful treatment or by using medical science for a period but later on dies causing of that bodily injury is a culpable homicide. Explanation 2 to section 299 made it clear by stating that 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 skillful treatment the death might have been prevented.
For example Nirbhay case (victim of sexual assault and injury in Delhi rape case committed in December, 2012), even she dies after 12 days of the incident, still accused are liable to be tried under section 299 for culpable homicide along with offence of rape and grievous hurt.
(2.3) BY DOING AN ACT
None of the endless variety of modes, by which human life may be cut short before it becomes in the course of nature extinct, is excluded. Death may be caused by poising, starving, sticking, drawing and by hundred different ways.
Illustration (a) to section 299 just describe the situation, it says that 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.
(2.4) MENS REA
As far as mens rea is concern, it is intention or knowledge. The section says that death must have been caused by doing an act –
- with the intention of causing death; or
- with the intention of causing bodily injury as is likely to cause death; or
- with knowledge that doer is likely by such act to cause death.
Section 299 speaks of intention or knowledge of that act is likely to cause death. But, the fact that death caused by a person may or may not be a crime, and if a crime, it may not amount to homicide unless there is present all essential elements of criminality. The intention of causing death or the intention of causing such bodily injury as is likely to cause death or the knowledge that the act is likely to cause death.
(2.5) PUNISHMENTS FOR CULPABLE HOMICIDE
The offence of culpable homicide is punished in two parts.
(a) If the act by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death. It is punishable with imprisonment for life, or imprisonment up to ten years, and shall also be liable to fine.
(b) 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, shall be punished with imprisonment of either description for a term which may extend to ten years, or with fine, or with both.
Where the intention is to cause only bodily injury, it may, or may not, amount to murder. If the offence is culpable homicide not amounting to murder, the punishment is still regulated by the first part of Section 304 to cover “if the act, by which the act is caused, is done with the intention of causing such bodily injury as is likely to cause death”. The bodily injury intended to be caused must be such “as is likely to cause death”.
(3) INTENTION OR KNOWLEDGE REQUIRED (MENS REA)
(3.1) INTENTION OF CAUSING DEATH
In a case, the accused wanted informant and his family members to vote for their candidate. The informant refused to do that. On their refusal to do so appellants throwing two young grandsons of informant into pond by side whereof they were playing. Both children died. The court held that there is no intention but knowledge attributable to the accused. There is no injury and no attempt to even strangulate victims. Hence, accused persons were rightly convicted by trial court under Section 304, Part II. The High Court upheld that situation fit for murder under section 302, which is not justifiable and the Supreme Court upheld the decision of trail court.[2] It said that lives of two innocent children taken away due to political rivalry of elders, therefore, award of maximum sentence of 10 years under part II of section 304 by trial court fully justified.
(3.2) INTENTION OF CAUSING BODILY INJURY
The Orissa High Court has rightly observed that the expression “with the intention of causing death” contains a significant word, i.e, “intention”. The same means the mental attitude of the man who decides to bring about, a certain result. Every act is followed by consequences. The consequence necessary to constitute the offence of culpable homicide is death. A man expects the natural consequences of his acts and, in law, is presumed to intend them. Both first and second clauses of Section 299 require intention. But the intention required by the two clauses are not the same. While in the first the intention is to cause death, in the second it is only to cause such bodily injury as is likely to cause death.[3] Some of the examples are as follows –
(i) When an accused had no intention to cause injury on non-vital part of body which was sufficient to cause death in ordinary course of nature.[4]
(ii) Having regard to the number of injuries inflicted on the deceased it was not possible to uphold the contention that there was no intention to kill.[5]
(iii) Pelting stones resulted into rob-fracture. Rupture of pleura is sufficient to cause death. External injury noted by doctors. He is has not committed murder but committed culpable homicide.[6]
(iv) It is fallacious to contend that when death is caused by a single blow clause thirdly is not attracted and, therefore, it would not amount to murder. The ingredient intention’ in that clause gives clue in a given case whether offence involved is murder or not.[7]
(v) Where, multiple injuries received by the deceased persons, were caused by blunt weapons like lathis and they were of minor character and none of the injuries was on any vital part whereas, is culpable homicide under Part II of section 304 of IPC.[8]
(v) Where the accused on spur of moment aimed the dagger at a vital part of body and that one below was inflicted with a level of force inflicting a fatal injury, therefore, inference could be drawn that accused intended to kill the deceased and as such case falls under section 304 Part I IPC.[9]
(3.3) “INTENTION OF CAUSING DEATH” AND “BODILY INJURY AS IS LIKELY TO CAUSE DEATH”
The expression “with the intention of causing death” contains a significant word, i.e, “intention”. The same means the mental attitude of the man who decides to bring about, a certain result. Every act is followed by consequences. The consequence necessary to constitute the offence of culpable homicide is death. A man expects the natural consequences of his acts and, in law, is presumed to intend them. Both first and second clauses of Section 299 require intention. But the intention required by the two clauses are not the same. While in the first the intention is to cause death, in the second it is only to cause such bodily injury as is likely to cause death.
The difference between an intention to cause death and an intention to cause such bodily injury as is likely to cause death is a difference of degrees only. The latter is a degree lower in the scale of criminality than the former. If death is a likely result it is culpable homicide; and if death is a most probable result it is murder. An offence cannot amount to murder unless it falls within the definition of culpable homicide.
(3.4) KNOWLEDGE THAT THE ACT WAS LIKELY TO CAUSE DEATH
In case where there was no intention to cause death, the act was done with knowledge that same is likely to cause death, the guilt of offence comes under section 299.
The Supreme Court held that Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. 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 degree 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 of the lowest degree. The word ‘likely’ in Clause (b) of Section 299 conveys the sense of probable as 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. Clauses (c) of Section require knowledge of the probability of the act causing death.[10]
If the act of the accused falls under clause (b) of Section 299, that is to say, if the intended bodily injury is likely to cause death as distinguished from one which is sufficient to cause death in the ordinary course of nature, it is not a murder but a culpable homicide under section 299.
(3.5) Top of FormCAUSING DEATH OF ANOTHER PERSON
According to section 301 of IPC, 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, 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.
The accused is punishable for murder under doctrine of transfer of malice under section 301 of the Code when he aimed at one and killed another person.
(3.6) SOME SETTLED CASE LAWS
(i) in a case, out of the three accused persons, one of the accused persons gave a fatal blow on the head of the deceased; the other accused person injured the deceased by spear on his knee and arm. First accused person is liable to be convicted under part I of section 304. The other accused person is liable to be convicted under section 324 as section 34 has not been applied after setting aside conviction under section 147 of IPC.[11]
(ii) Where there was absence of prior enmity with deceased and intention accused was sentenced under section 304, Part II and not under section 302.[12]
(iii) Where the accused, who inflicted fatal injury on head of deceased which caused his death, without intention to kill him is liable to be convicted under section 304 Part II while other accused who inflicted sword injury is liable to be convicted under section 325 IPC.[13]
(iv) Where the accused was about 80 years at the time of occurrence and is totally bedridden, therefore sentence reduced to period already under gone for the ends of justice.[14]
(v) In absence of pre-meditation for committing murder of deceased and accused inflicted single injury by “Chhura” in agitated mental state due to provocation caused to him by verdict of “Panchayat” which with in favour of deceased the case falls under section 304 Part II IPC.[15]
(vi) Where only single shot fired by accused on victim not on a vital part of body which resulted simple injury to victim without intention to commit homicide. Therefore, the accused is guilty of offence punishable under section 324 IPC.[16]
(4) CAUSING DEATH BY NEGLIGENCE
According to section 304A of IPC, whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide, shall be punished with imprisonment of either description for a term which may extend to two years, or with fine, or with both.
Section 80 protects an act done by accident or misfortunate 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. The primordial requirement of Section 80 is that the act which killed the other person must have been done “With proper care and caution”. Where the accused shot his own colleague at close range without knowing the identity of his target, the Supreme Court observed that the act smacked of utter dearth of any care and caution.[17] The amount of care and circumspection taken by an accused must be one taken by a prudent and reasonable man in the circumstances of a particular case.
Section 304A applies only to such acts which are rash and negligent and are directly the cause of death of another person. Rashness and negligence are essential elements under Section 304A. It carves out a specific offence where death is caused by doing a rash or negligent act and that act does not amount to culpable homicide under Section 299 of murder in Section 300 IPC. Doing an act with the intent to kill a person or knowledge that doing an act was likely to cause a persons’ death is culpable homicide. When the intent or knowledge is the direct motivating force of the act, Section 304A IPC has to make room for the graver and more serious charge of culpable homicide. In order to be encompassed the protection under Section 304A there should be neither intention nor knowledge to cause death. When any of these two elements is found to be present, Section 304A has no application.
In order to impose criminal liability on the accused, it must be found as a fact that collusion was entirely or mainly due to the rashness or mainly due to the rashness or negligence.
(5) ATTEMPT TO COMMIT CULPABLE HOMICIDE
According to section 308 whoever does any Act with such intention or knowledge and under such circumstances that, if he by that Act caused death, he would be guilty of culpable homicide not amount to murder, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both, and if hurt is caused to any person by such Act, shall be punished with imprisonment of either description for a term which may extend to seven years, or with fine, or with both.
Illustration.- A, on grave and sudden provocation, fires a pistol at Z, under such circumstances that if he thereby caused death he would be guilty of culpable homicide not amounting to murder. A has committed the offence defined in this section.
In a case, one accused had inflicted knife injuries while two other accused threw stones on ‘X’. When the incident occurred it was dark. None of injuries were on vital organs of accused. The Supreme Court observed that the appellant can be attributed only knowledge that by inflicting such injuries he was likely to cause death and such an offence is punishable under Section 308. The Supreme Court set aside the conviction under for offence under Section 307 (attempt to murder) and held liable for offence under section 308 (attempt to culpable homicide) and sentence was reduced from 5 years RI to one and half years’ imprisonment and fine of Rs. 1,000/.[18]
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[1] Shankar Narayan Bhadolkar v. State of Maharashtra, AIR 2004 SC 1966 : (2005) 9 SCC 71.
[2] Ruli Ram v. State of Haryana, AIR 2002 SC 3360 : (2002) 7 SCC 691 : 2002 (6) SCALE 506.
[3] Ashok Kumar Barik v. State of Orissa, 1992 CriLJ 1849 : 1991 (2) OLR 99
[4] Gokul Parashram Patil v. State of Maharashtra, AIR 1981 SC 1441
[5] Prabhu v. State of Madhya Pradesh, (1991) CrLJ 1373 (SC).
[6] Madan Lal v. State of Uttar Pradesh, 1998 SCC (Cr) 1549.
[7] Jai Prakash v. The State (Delhi Administration), (1991)1 Crimes 474 (SC).
[8] Molu v. State of Haryana, AIR 1976 SC 2499.
[9] Lokesha v. State of Karnataka, 2000 Cr LJ 194 (Kant).
[10] Ruli Ram v. State of Haryana, AIR 2002 SC 3360 : (2002) 7 SCC 691 : 2002 (6) SCALE 506.
[11] Kedar Prasad v. State of Madhya Pradesh v. State of Uttar Pradesh, AIR 1992 SC 1629.
[12] Rajju v. State of Uttar Pradesh, (1994) Cr LJ 105 (All).
[13] Asu v. State of Rajasthan, 2000 Cr LJ 207 (Raj).
[14] Dev v. State of Punjab 2000 Cr LJ 347 (Punj).
[15] Paras Kumar v. State of Bihar, 2000 Cr LJ 112 (Pat).
[16] Rohtas v. State of Uttar Pradesh, 2000 Cr LJ 89 (All).
[17] Bhupendrasinh A. Chaudasama v. State of Gujarat, 1998 CriLJ 57.
[18] Tukaram Gundu Naik v. State of Maharashtra, 1993 (4) SCALE 15 : (1994) 1 SCC 465.