Culpable Homicide and it’s degree of culpability
Culpa means Mind (Mental Element), Homicide means Killing human being by a human being, thus making more the concept clear regarding what culpable homicide means.
The important elements of culpable homicides are as follows: -
1) Causing of death of a human being.
2) Such death must have been caused by 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 the doer is likely by such an act to cause death.
Type of Homicides
Homicides are divided into two categories and then further sub-classified into different types:
Lawful Homicide- These are homicides which generally deals with the cases under chapter of Indian Penal Code (Section 76-106) where human is killed by humans but still doesn’t comes under the ambit of being punished. E.g., killing of a person, by a person who is legally bound, acting judicially, mistake of fact believing himself justifies by law etc.
And, Unlawful Homicide- These are homicides which deals with cases, where killing of one human by another is under the ambit of getting punished for the same. Example when A the son shots B the father with criminal intent and kills him for the temptation of property this will be consider as Unlawful Homicide.
Culpable Homicide (under section 299)
Murder (under section 300)
Death by negligence act (under Section 304-A)
Many of us have confusing and wrong understanding between the meaning of Culpable Homicide and Murder. Let’s get into what the two means and how they are different, or is their any difference exits or not.
So, let assume that Culpable Homicide is a Genus and murder, suicide, death by negligence these all are its species. So, intention is a necessary element in all the forementioned homicides. We can clearly state that “all Murder are Culpable homicide, but not all culpable homicides are murder”. The major difference between them is that murder is a more heinous form of culpable homicide.
Section 299, Indian Penal Code Defines Culpable Homicide - Whoever cause death by doing an act with the intention of causing death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
Intention and knowledge - A intention for committing any crime is a very necessary element but it creates a boundary between the Culpable Homicide and grievance hurt. Whenever a criminal act is done with a criminal knowledge or intention it will amount to Culpable Homicide but when the criminal act is done without any criminal intention or knowledge then it will not amount to culpable homicide but would rather amount to grievance hurt.
Explanation 3: The causing of the death of 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.
This states that up to that time when the child is under the womb of the mother, death caused in that state of the unborn child will not amount to culpable homicide but the stage when the child’s any body part comes out of the womb like head, hand, even a small finger and then if the death is caused will amount to culpable homicide and will be punished accordingly.
What is the major difference between Murder and Culpable homicide not amounting to murder?
The difference is in the degree of intention and degree of culpability which creates a difference in the punishment under section 302, IPC for maximum of death penalty under Murder and under Culpable homicide not amounting to murder the punishment is mention under section 304, IPC which is imprisonment for the time which may extent to 10 years, or a fine, or with the both.
The word likely used under the definition of Culpable Homicide under Section 299, IPC clearly put emphasis upon the degree of the intention to commit any criminal act.
Example: I will kill him.
I shall kill him.
The difference between the two can clearly be differentiated as statement 1 provides the clear conscience of intention of killing someone whereas on the other side the 2nd statement word “shall” clearly indicate that he might kill him. Thus, making it clear the degree of intention between the two statement.
Section 300 defines Murder as—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
2nd - 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
3rd - 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
4th - 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.
The 3rd point of the above section is something that will add a new point to the knowledge regarding the Murder and we can understand it with an example, lets us suppose if someone with a heavy iron rod gave a powerful shot to a person in his head and that person died on the spot due to excessive blood loss, can the person just by saying that he was not having the intention of killing him could escape from his lethal act? The answer is no a person cannot just save himself by taking the plea that he was not having the intention for the same as his act itself reflects his intention and is solely sufficient for causing death to any person in the ordinary course of time.
The point four can also be clearly understood under the light of illustration d of bare act which states that 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 under Section 300 of IPC are as follows:
When the criminal act is done under sudden provocation then, it will not amount to murder but this too have certain exceptions like their must not be voluntarily provocation by the offender, provocation is not given by anything done in obedience to the law, or must not be given by anything done in the lawful exercise of the right of private defence.
A on coming home finds that his wife is sleeping with B. He causes the death of B by stabbing him with a knife under grave and sudden provocation. A Is not liable under Section 300 of IPC.
When A police officer saw a person B who is going to kill C, to save C if A kills that person C then he would not be liable under Section 300 IPC.
Leading case: K. M. Nanavati v. State of Maharashtra, AIR 1962 SC 605,
In this case an Indian Navy Commander was tried for the murder of his friend Prem Ahuja who have the physical relationship with his wife. The commander was earlier held not guilty of murder by the jury as but the same for reversed by the bench of High Court of Bombay. He tried to take the plead of sudden provocation by Prem Ahuja but the same after investigation not found. Later, was finally pardoned by Vijayalakshmi Pandit, newly appointed Governor of Maharashtra and sister of Prime Minister Jawaharlal Nehru.
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 right of private defence.
A was attacked by muggers who had guns with them, A in private defence kills all the muggers with his licensed gun. A is not liable under Section 300 0f IPC.
Punishment for Murder
Section 302, IPC, Punishment for murder, Whoever, commits murder shall be punished with death, or 1[imprisonment for life], and shall also be liable to fine.
The Death Penalty is generally given only in the rarest of the rare case and this was held in the landmark case of Bacha Singh v. State of Punjab, AIR 1980 SC 898, here it was thoroughly discussed that as Indian code already have the provision for life imprisonment then why the provision for death penalty is required and then the concluding remark came that the death penalty will only be given in the rarest of the rare case.
The decision to decide which case comes under the ambit of the rarest of the rare case the same would be decided by the bench of the court and further by the facts and circumstances of the case. No thumb rule is been provided regarding the same as the bench have been given the discretionary power upon taking the decision regarding the same.
Example: X was driving his car, under the influence of alcohol he was driving at a speed of more than 150 km per hour, he loses control and ramps the car on a footpath killing almost everyone sleeping there. A is liable for culpable homicide under Section 301 of IPC.
Degrees of Culpability
The degree of culpability depends upon the fact of circumstances that could vary from case to case. There are 3 degree of culpability, which are as follows:
Section 299, Murder- This is the most severe form of degree of culpability, and a person could get death penalty for the same.
Section 304, paragraph 1- Punishment for culpable homicide not amounting to murder. Whoever commits culpable homicide not amounting to murder shall be punished with 1[imprisonment for life], or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, 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.
In this a person could get the punishment of imprisonment for life.
Section 304, paragraph 2- this is considered as the 3rd degree and the lowest one as in this the punishment is either an imprisonment for the term of 10 years, or fine, or both.
Kusa Majhi v. State of Orissa, AIR 1980 SC 559
The deceased admonished her own son for not going for fishing with the co-villagers. Infuriated on this the accused, the son, brought an axe and dealt blows on her shoulder and she died. There was no pre-plan or premeditation. The blows were not on the neck or head region. The accused dealt blows likely to cause bodily injury which was likely to cause death and he dealt blows on the spur of moment and in anger. Therefore, it was held to be a case of culpable homicide falling under this section.
Ramesh Kumar v. State of Bihar, 1993 Cri L.j. 3137 (S.C),
H.NL. Das, father of murdered. It is alleged that appellant's father while going to his paddy field was surprised by respondents, namely, Ram Briksha Rai, Giani Mohinder Baitha and Kusheshwar Rai (since deceased). The responded relieved the deceased of his loaded pistol, assaulted him with fist blow and kicks and then neck of the deceased was tied with a rope and he died of strangulation. The accused were tried for the offence under section 3 Indian Penal Code and sentenced under Section 302/34 by the trial Count the High Court in appeal preferred to convert the conviction under Section 304, Part II, I.P. Code. Mr. Ramesh Kumar son of deceased filed a spa leave petition against the order of the High Court. The Supreme Court d not deem it fit to interfere with the judgment of the High Court be injuries were caused to the deceased only by kicks and fist blows although they were in possession of weapons like pistol, knife and lathi. Had be accused shared the common intention to cause the death of the deceased nothing prevented them from using the pistol. The circumstances show that in all probabilities the respondents did not intend to cause death of the deceased and they wanted to severely assault him only. Accused person not intend to cause injury sufficient in the ordinary course of nature to cause death.
Indian Penal Code, Bare Act.
Indian Penal Code by Prof. S.N. Misra
By: Khushboo Agarwal
BBA. LLB. 2nd Year, ICFAI University, Dehradun