4.1Culpable homicide and murder#
In brief
Covers intention of causing death, (a / Firstly), (b / Secondly), (c / Thirdly), (d / Fourthly) and more.
- intention of causing death
- Explanations
- murder
- (a / Firstly)
- (b / Secondly)
- (c / Thirdly)
- bodily injury to any person
- (d / Fourthly)
A. Culpable homicide (s.100; IPC s.299)
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 culpable homicide. Explanations: causing bodily injury to a person suffering from a disease or infirmity that accelerates death counts; causing death by bodily injury where proper remedies and skilful treatment might have prevented death counts; causing the death of a child in the mother's womb is not homicide, but causing death of a living child, even if only part of it has been brought forth, may amount to culpable homicide.
B. Murder (s.101; IPC s.300)
Culpable homicide is murder if the act is done:
-
(a / Firstly) with the intention of causing death;
-
(b / Secondly) 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;
-
(c / Thirdly) with the intention of causing bodily injury to any person, and the bodily injury intended is sufficient in the ordinary course of nature to cause death;
-
(d / Fourthly) 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 commits it without any excuse for incurring the risk.
C. Exceptions (culpable homicide not amounting to murder) in s.101 (IPC s.300)
-
Grave and sudden provocation: the offender, deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or of any other person by mistake or accident. Provisos: the provocation must not be sought or voluntarily provoked as an excuse; not given by anything done in obedience to law or by a public servant in lawful exercise of powers; not given by the lawful exercise of the right of private defence. Test: whether a reasonable man, placed in the same position, would have been so provoked (objective test). Case: K.M. Nanavati v. State of Maharashtra (1962): the accused shot his wife's lover after her confession; the Supreme Court held there was a time gap (cooling time), so the provocation was not sudden; the case ended the jury system in India (jury trial was abolished in Bombay after this case).
-
Exceeding the right of private defence in good faith, without premeditation and without intention of doing more harm than necessary.
-
Public servant (or person aiding) exceeding the powers given by law, in good faith, for advancement of public justice, in the belief the act is lawful and necessary.
-
Sudden fight in the heat of passion upon a sudden quarrel, without premeditation, and without the offender having taken undue advantage or acted in a cruel or unusual manner. Cases: Surinder Kumar v. Union Territory, Chandigarh (1989); Sandhya Jadhav v. State of Maharashtra (2006).
-
Consent: the person whose death is caused, being above 18, suffers death or takes the risk of death with his own consent (e.g., euthanasia-type cases, suicide pact survivors).
D. Distinction (very important)
| Point | Culpable homicide (s.100) | Murder (s.101) |
|---|---|---|
| Relationship | Genus | Species |
| Intention | Intention of causing death or likely to cause death | Intention of death, or injury known to be likely to cause death, or injury sufficient in the ordinary course of nature to cause death |
| Degree of probability | "Likely" to cause death (lower) | "Must in all probability" or "sufficient in ordinary course of nature" (higher) |
| Punishment | s.105: Part I: imprisonment for life, or imprisonment of not less than five years up to ten years, plus fine (where the act is done with intention); Part II: up to ten years, or fine, or both (where done with knowledge only) | s.103(1): death or imprisonment for life and fine |
-
Case law: Reg v. Govinda (1876) (the accused knocked down his wife and, kneeling on her chest, struck her; since he did not intend to cause the bodily injury that resulted in death, it was culpable homicide not amounting to murder); Virsa Singh v. State of Punjab (1958) (the four-step test for clause (c) / thirdly: (i) bodily injury is present; (ii) its nature is proved; (iii) there was an intention to inflict that particular injury, i.e., not accidental; (iv) it is sufficient in the ordinary course of nature to cause death, an objective inquiry); State of A.P. v. R. Punnayya (1976) (clearly distinguishes culpable homicide from murder and lays down an approach of three stages); Anda v. State of Rajasthan (1966); Rajwant Singh v. State of Kerala (1966) (clause (d)); Kesar Singh v. State of Haryana (2008); Pulicherla Nagaraju v. State of A.P. (2006) (factors for deciding intention: nature of weapon, part of the body, manner of attack, circumstances).
-
Transferred malice: s.102 (IPC s.301): if the offender causes the death of a person other than the one he intended, the liability is as if he had caused the death of the intended person.
-
Murder by life convict: s.104 (IPC s.303): death or imprisonment for life (the old IPC s.303 mandatory death was struck down in Mithu v. State of Punjab, 1983).
-
Mob lynching (s.103(2), new): when a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground, each member shall be punished with death or imprisonment for life and fine. This follows Tehseen S. Poonawalla v. Union of India (2018) (guidelines to prevent mob lynching).
-
Attempt to murder s.109 (IPC 307); attempt to commit culpable homicide s.110 (IPC 308): see topic 2.