What is the Difference between Murder and Culpable Homicide not amounting to murder?

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Reams of paper and tons of neurotransmitters of the best legal minds around the world has been spent pondering over this legal dilemma. When is a death caused by the accused to be classified as a Murder as described per S.300 IPC and when must the courts handle it as a Culpable Homicide not amounting to murder within the meaning of S.299 IPC?

Let’s find out…..

Plain reading of Bombay High Court Judgement in Reg. v. Govinda ,some interesting and fine legal principles emerge which will help in appreciating the difference between the two offences as mentioned above.

In the words of HIS LORDSHIP  the offence is culpable homicide, if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death.

Let’s see the above statement with an illustration.

A fist blow on the face or chest is likely to cause death while an attack with a sword or dagger is sufficient in the ordinary course of nature to cause death.The former comes within the ambit of Culpable Homicide not amounting to murder while the latter may be dealt as an offence of murder.

Let’s carry it further…….

A fist blow on the face of a small child,infirm/old person or any person known to be in a state of health fragility to the accused attacker is sufficient in the ordinary course of nature to cause death………and as a result fall within the classification of murder contrary to observation in the above example.

In all such cases the principle of Mens rea is of paramount importance.So if it is established that the Accused has intention of killing the victim here is no doubt that the offence will be treated as a murder.

Murder is therefore a Genus within which a species is Culpable Homicide not amounting to murder.So all murders are culpable homicides but all homicides may not be dealt as murders.

Applying the above observations to the case HIS LORDSHIP came to the conclusion that when there was no intention to cause death, nor was the bodily injury sufficient in the ordinary course of nature to cause death.

In the courts in ordinary states this question is mostly answered by the nature of weapon used.So a dagger,sword used as weapon easily tilts the balance towards murder and likewise.

It is in some cases where such legal dilemmas erupt strongly like in the example above wherein …..

In Reg. v. Govinda the accused who was a boy of 18 years was married to a girl of 15. The boy appeared to have been habitually ill- treating the girl. On the fateful day the accused knocked his wife down, put one knee on her chest, and struck her two or three violent blows on the face with closed fist, producing extravasations of blood on the brain, and she had died in consequence either on the spot, or very shortly afterwards.

The accused was held guilty of the offence of murder by the Sessions Judge. The case came up before a Bench of two Judges of the Bombay High Court for confirmation of the death sentence.

His lordship compared the provisions of Sections 299 and 300, I.P.C., viz., cul­pable homicide and murder thus:

The differences have been marked in italics .

Nos. (a) and (1) show that where there is an intention to kill there is always murder.

Nos. (c) And (4) are intended to apply to cases where there is no intention to cause death or bodily injury, e.g., furious driving, firing at a mark near a public road. Whether the offence is culpable homicide or murder depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder.

No. (2) Denotes that the offence is murder, if the offender knows that the particular person injured is likely, either from peculiarity of constitution, or immature age, or other special circumstances, to be killed by an injury which would not ordinarily cause death.

As regards (b) and (3) the offence is culpable homicide, if the bodily injury intended to be inflicted is likely to cause death; it is murder, if such injury is sufficient in the ordinary course of nature to cause death.

At this stage it is essential to read the EXACT WORDS of S.300 IPC

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.

Illustrations

(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.

Exception 1.-When culpable homicide is not murder.-Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident.

The above exception is subject to the following provisos:-

First.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.

Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.

Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defence.

Explanation.-Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.

Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z’s child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation.

(b) Y gives grave and sudden provocation to A. A, on this provocation, fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide.

(c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers.

(d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A’s deposition, and that A has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.

(e) A attempts to pull Z’s nose. Z, in the exercise of the right of private defence, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was giving by a thing done in the exercise of the right of private defence.

(f) Z strikes B. B is by this provocation excited to violent rage. A, a bystander, intending to take advantage of B’s rage, and to cause him to kill Z, puts a knife into B’s hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder.

Exception 2.-Culpable homicide is not murder if the offender in the exercise in good faith of the right of private defence or person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.

Illustration

Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide.

Exception 3.-Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.

Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.

Explanation.-It is immaterial in such cases which party offers the provocation or commits the first assault.

Exception 5.-Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.

Illustration

A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death; A has therefore abetted murder.

In the light of the given exceptions try and deal with the following problem set:

Problems:

A. X, a juggler, specialises in dagger tricks and tells his audi­ence that he is immune from injury even if stabbed, and offers his dagger to the people present to stab him if they chose to do so. He then stabs himself in his stomach and is found to be uninjured. Y who watches the show with interest takes his own knife and stabs X in the same place. X dies immediately. For what offence if any is Y liable?

Give reasons for your answer:

Ordinarily Y would have been guilty of murder. But in the circum­stances of the case, Y cannot be said to have committed the offence of murder. The reason is that he never intended by his act, to kill the deceased juggler nor did he intend to cause him any bodily injury, nor did he know that his act would, in all probability, cause death, be­cause the juggler himself had demonstrated by his own act that he could not die or be injured by showing a trick with his own dagger.

But it cannot be said that the act of Y was not likely to cause death and Y could not be presumed to have knowledge that by stabbing him in the stomach it was not likely to cause death. Since the act was likely to cause death and Y could be presumed to have knowledge that the act was likely to cause death, Y has committed the offence of culpable homicide under Section 299, I.P.C.

B. A husband, who was himself unfaithful to his wife, had for sometime suspected her of infidelity to him. During a quarrel between them the wife confessed that she was unfaithful to her husband, whereupon he struck upon her head with a hammer used for breaking coal which was close to his hand, and then proceeded to strangle her. She had many bruises on her body, but the Final cause of death was manual strangulation. For what offence can the husband be punished? Decide.

Confession of infidelity on the part of the wife has been held to be a sufficient cause for grave and sudden provocation. On account of this the husband was deprived of self-control and, in the heat of the moment, committed the act which cannot be attributed to his consi­dered judgment or well formed criminal intention. An ordinary hus­band would, therefore, be guilty of culpable homicide not amounting to murder and the case would fall under Exception 1 to S. 300 I.P.C.

But the husband here is a peculiar husband. He himself is unfaith­ful to his wife and had also suspected her of infidelity.

Therefore, on discovering the infidelity he could not have been shocked; because it could not be said to have been unexpected.

Further, the character of the husband himself was such as would not and could not give a shock on account of his wife’s infidelity.

Taking into consideration these circumstances it could be said that there was no justification for the hammer-blow and, even conceding that, there was absolutely no justi­fication for subsequently and deliberately strangulating her. The of­fence committed, therefore, by the husband in this case is murder and he can be punished for it.

C. State the offence, if any, which A or B is guilty of in each of the three cases given below:

(i) A is lawfully arrested by B, a bailiff. A is excited to sudden violent passion by the arrest and kills B.

(ii) B attempts to horsewhip A in such a manner as to cause grievous hurt to A. A, draws out a pistol. B, however, persists in assault. A, believing in good faith, he can by no means prevent himself from being horsewhipped, shoots B dead.

(iii) A under the influence of passion caused by provocation given by B, kills C, son of B, intentionally.

Problems:

(i) A is guilty of murder:

Being a bailiff B was a public servant. He was acting in the lawful exercise of his powers in trying to arrest A. If the arrest by B gave A, provocation it cannot make the offence one of culpable homicide.

Proviso I to Exception 1 of Section 300 lies down that where provo­cation is given by anything done in obedience to the law or by a public servant in the lawful exercise of his powers, such a provocation cannot convert an offence of murder into culpable homicide.

(ii) A is not guilty of any offence.

B horsewhips him in such a manner as to cause grievous hurt. A believes in good faith that there is no way out for his escape except by shooting at B.

In these circumstances he must be said to be exercising his right of private defence provided to him by Section 99 of the Indian Penal Code. It cannot be said that he inflicted more harm than was necessary to inflict for the purpose of defence.

The reason is that there was absolutely no way out for A to save himself from being horsewhipped except by shooting at B. The fact that B did not stop horsewhipping even when A had taken out his pistol shows that the former (B) was adamant in his act and A was justified in shooting for his defence.

(iii) A is guilty of murder.

The provocation was given to him by B and not by his (B’s) son C whom A killed. Exception I to S. 300 applies only where the provoca­tion is given by the person who is killed and not where it is given by a third person. There could be absolutely no excuse for A in killing C and the offence committed by him cannot be said to be culpable homicide not amounting to murder.

D. Is a guilty of any offence on the following facts?

A who has been suspecting illicit relations between his wife and B surprises B under compromising circumstances with her?

(i) He thereupon kills B.

(ii) Thinking that killing B outright a mercy to the scoundrel, he determines not to kill him but to cut off his leg so that A may have the satisfaction to see B limp all his lifetime. A cut off his leg at the knee. This produces B’s death.

(iii) A kill’s wife two days later.

(i) A is guilty of culpable homicide not amounting to murder in this case. The case clearly falls under Exception I to Section 300, I.P.C. because the killing of B is due to A’s being deprived of the power of self-control on account of grave and sudden provocation, given to him by discovering his wife under compromising circum­stances with B. The provocation was not sought voluntarily by him.

If, however, it could be found that A voluntarily sought the provocation, which on account of his suspicion of the illicit relations, could be avoided by him or at least he could have avoided surprising B under compromising circumstances, it would nonetheless be an offence. A, therefore, cannot escape unscathed—he is guilty of culpable homicide amounting to murder or murder itself, according to the finding arrived at.

(ii) This is clearly an offence of culpable homicide. That A had no intention of causing the death of B is clear. He had caused such bodily injury as was not sufficient in the ordinary course of nature to bring about death and so the case does not fall under Section 300, I.P.C.

The death of B was caused not with the intention to cause death, nor was the injury such as would ordinarily result in death. So A’s offence falls under Section 299, I.P.C., the injury being such as is likely to cause death.

(iii) A is guilty of murder under Section 300, I.P.C. The killing having been committed two days later, it cannot be said that it was due to grave and sudden provocation and that he was deprived of the power of self-control. The act of A must be deemed to be a premedi­tated one with intent to cause death and after mature consideration after the first excitement had passed away.

In 1938 All 789 where death was caused after the first excitement had passed away, it was held that the case fell under Exception I to Section 300 and was not murder but only culpable homicide not amounting to murder, notwithstanding the interval of time between seeing the act of adultery and killing by the accused, but the facts of that case do not apply to the present case which must be held to be a murder, and not culpable homicide not amounting to murder.

E. Discuss which offences, if any; have been committed in the following cases:

(a) A without any excuse fires loaded cannon into a crowd of persons and kills one of them.

(b) A gives grave and sudden provocation to B. B on this provocation fires a pistol at Y neither intending nor knowing him to be likely to kill Z which is near Y but out of sight. Z is killed by the pistol shot.

(c) A gave three lathi blows to B who was a strong and healthy young man. Two blows fell on the arms and one fell on the head, causing fracture of the skull which caused B’s death.

Problems:

(a) A is guilty of murder.

Where it is clear that the act by which the death is caused is so imminently dangerous that the accused must be presumed to have known that it would in all probability cause death, or such bodily injury as is likely to cause death, then the accused must be held guilty of the offence of murder. In the present case.

A may not have had premeditated design to kill any particular individual but he is pre­sumed to know the natural consequences of his act of shooting. There­fore, A must be held guilty of murder.

(b) A is guilty of murder, as he has fired a pistol at Y at the provocation given by B. Hence he does not come under the Exception to S. 300, I.P.C., for he has not caused the death of the person who gave the provocation but he intended to kill a third person Y and the shot killed Z.

(c) A is guilty of murder as B’s death was only due to the lathi blows of his. The accused must be presumed to have known that death would be the result of his imminently dangerous act.

F. What offence has been committed to the following case?

A enquired of B and C about his missing crop. B and C unrea­sonably thinking that they were being suspected for theft, abused A in return and shouted that A should be beaten; B and C at once attacked A with lathis which resulted in the fracture at the skull and death of A.

In consideration of the present case one has to focus his attention on the following points:

(i) Whether the enquiry made by A, amounted to sudden provoca­tion?

(ii) Whether B and C acted as a prudent and ordinary man would do in that circumstances?

(iii) Did the act of B and C amount to murder or not?

The verbal enquiry of A did not amount to sudden provocation. It was not an act on the part of A so as to provoke B and C.

The Cuttack High Court in the case of Vila Mahapatra, (1950) Cuttack 293 had held: “Mere verbal provocation even if it be by threats or gestures or by the use of abusive and insulting language cannot induce a reasonable person, to commit an act of violence.”

In this case the act of B and C was cruel and unusual one. No ordinary prudent man would ever commit such a heinous crime on any enquiry made by a person. It was beyond human reason.

“Where on an exchange of abuse between the deceased and the accused the latter picked up a rice pounder with such force as to cause fracture of his skull and he died a few hours later, it was held that the accused was guilty of murder as he had acted in a cruel and unusual manner.

[See Muni and Sarvai (1944) Madras 818], the act of B and C was that of murder. Both the provocation caused by A was so offensive to lead to murder and the act of B and C could be considered to be acts of any ordinary reasonable and prudent man. It was a clear case of murder.

G. What offence, if any, has A committed in the following case?

There was a fight between P and A. The deceased had no hand in it. He did not even try to separate the assailants. All he did was to ask P to stop fighting and said that he would settle their dispute. A thereupon stabbed the deceased causing injury resulting in death.

On similar facts it has been held in Naryanan Nair Raghavan Nair v. The State of Travancore Cochin, (1966 Cri. Law Journal, 278) by the Supreme Court that A was guilty of an offence under S. 302 Indian Penal Code.

In the present case Exception 5 to S. 300 did not apply, inasmuch as the exception requires that no undue advantage be taken of the other side. It was impossible to say that there was no undue advantage when the accused a stabbed the unarmed person who made no threat­ening gesture and merely asked the accuser’s opponent to stop fight­ing. Then also, the fight must be with the person who was killed. Here the fight was between P and the accused. The exception therefore, did not apply.

H. A kills B his concubine, at her own request and instance:

They were on affectionate terms but due to social ostracism in the village they could not find a place to live. In his confession which was believed, A stated that B produced a knife and requested A to kill and go back to his own village. Does this constitute a valid defence to a charge of murder?

B, the concubine, was killed by A at her own request and instance. She produced a knife and requested A to kill her. As such the case should fall under Exception 5 of Section 300 I.P.C. which reads as follows:

“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.”

It is, therefore, clear that A has not committed murder but only culpable homicide not amounting to murder. The confession of A, therefore, does not absolve him altogether from the liability of having committed an offence, but it does constitute a valid defence to the specific charge of murder with which obviously he cannot be charged. Thus, he is liable only for the lesser offence and not for graver offence of murder. The defence is valid.

I hope a degree of clarity must have emerged after this prolonged discussion.

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