Murder and Culpable Homicide

Culpable Homicide
According to sec-299 of the Penal CodeWhoever causes death by doing an act with the intention of causing death or 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 ant to
cause death commits the offence of culpable homicide.
Illustrations
(a)

(b)

(c)

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.
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 to fire at the bush. B
fires and kills z. here b may be guilty of n offence but a has committed the
offence of culpable homicide.
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 ant the was not guilty of culpable homicide as he did not intend to
kill b or cause death by doing an act that he knew was likely to cause
death.
Explanation 1. A person who causes bodily injury to another who is laboring
under a disorder, disease or bodily infirmity and thereby accelerates the death
of that other, shall be deemed to have caused his death.
Explanation 2. 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 skilful treatment the death might have been
prevented.
Explanation 3. The causing of the death of a 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 breathe or been completely born.

Analysis

Culpable homicide is usually "killing someone for a reason", i.e. because someone
has done something or tried to do something, another person killed him or her.
Culpable homicide is the legal term for the killing of another individual to which
blame can be reasonably assigned to the killer. In this definition, the killing of the
individual happens as a circumstance of dangerous actions, though some
jurisdictions make distinctions between intentions and mental state.

Essential ingredients of this section are:

1.Causing of death of a human being
2.Such death must have been caused by doing an act(a)with the intention of causing death or
(b)with the intention of causing such such bodily injury as is likely to cause
death or
(c)with the knowledge that the doer is likely by such act to cause death
The definition of culpable homicide embodies three species of mens reas. The
person in performing some act (a)either expects death to be the consequence
thereof or (b)expects an injury which is likely to cause death or (c) knows that
the death is the likely consequence thereof.In each case the death must be the
result of his act. Intention in first two cases and knowledge in the last case
render the person liable for culpable homicide.If none of the three mens rea is
present the offence is not culpable homicide merely because death ensures.
An act is said to cause death when death results either from the act directly or
results from some consequence necessarily or naturally flowing from such act
and reasonably contemplated as its result. (AIR 1958 Ker 907)
Circumstances For Culpable Homicide
a) Causes Death: In order to hold a person liable under the impugned Section
there must be causing of death of a human being as defined under Section 46 of
the Penal Code. The causing of death of a child in the mothers womb is not
homicide as stated in Explanation 3 appended to Section 299, Penal Code But the
person would not be set free. He would be punishable for causing miscarriage
either under Section 312 or 315 Penal Code depending on the gravity of the
injury. The act of causing death amounts to Culpable Homicide if any part of that
child has been brought forth, though the child may not have breathed or been
completely born. The clause though the child may not have breathed suggests
that a child may be born alive, though it may not breath (respire) , or it may
respire so imperfectly that it may be difficult to obtain clear proof that respiration
takes place. Causing of death must be of a living human being which means a

living man, woman, child and at least partially an infant under delivery or just
delivered.
b) By Doing An Act With The Intention Of Causing Death: Death may be
caused by a hundered and one means, such as by poisioning, drowning, striking,
beating and so on and so forth. As explained under Section 32, Penal Code the
word act has been given a wider meaning in the Code in as much as it includes
not only an act of commission, but illegal omissions as well and the word illegal
is applicable to everything which is an offence or which is prohibited by law, or
which is prohibited by law, or which furnishes ground for civil action (s.43).
Therefore death caused by illegal omission will amount to Culpable Homicide.
i. Death caused by effect of words on imaginations or passions: The
authors of the Code observe : The reasonable course, in our opinion , is to
consider speaking as an act, and to treat A as guilty of voluntary Culpable
Homicide, if by speaking he has voluntarily caused Zs death, whether his words
operated circuitously by inducing Z to swallow a poison or throwing Z into
convulsions.
c) With The Intention Of Causing Such Bodily Injury as is likely to cause
death: . The word intention in clause (a) to Section 299, Penal Code has been
used in its ordinary sense, i.e., volitional act done without being able to forsee the
consequence with certitude. The connection between the act and the death
caused thereby must be direct and distinct; and though not immediate it must not
be too remote. If the nature of the connection between the act and the death is in
itself obscure, or if it is obscured by the action of concurrent causes, or if the
connection is broken by the intervention of subsequent causes, or if the interval
of time between death and the act is too long, the above condition is not fulfilled.
Where a constable fired five shots in succession at another constable resulting in
his death, it was held that it would be native to suggest that he had neither
intention to kill nor any knowledge that injuries sufficient to kill in ordinary course
of nature would not follow. His acts squarely fell in clauses 2,3 and 4 of s.300, I.P.C
i.e Culpable Homicide amounting to murder.
d) With the knowledge that he is likely by such act to cause death :
Knowledge is a strong word and imports ceratinity and not merely a probability.If
the death is caused under circumstances specified under Section 80, the person
causing the death will be exonerated under that Section. But, if it is caused in
doing an unlawful act, the question arises whether he should be punished for
causing it. The Code says that when a person engaged in the commission of an
offence, without any addition on account of such accidental death. The offence of
Culpable Homicide supposes an intention, or knowledge of likelihood of causing
death. In the absence of such intention or knowledge, the offence committed may
be grievous hurt, or simple hurt. It is only where death is attributed to an injury
which the offender did not know would endanger life would be likely to cause
death and which in normal conditions would not do so notwithstanding death
being caused, that the offence will not be Culpable Homicide but grievous or
simple hurt. Every such case depends upon the existence of abnormal conditions

unkown to the person who inflicts injury. Once it is established that an act was a
deliberate acct and not the result of accident or rashness or negligence, it
obvious that the offence would be Culpable Homicide.
e) Death Caused of Person Other Than Intended: To attract the provisions of
this Section it suffices if the death of a human being is caused whether the person
was intended to be killed or not. For instance, B with the intention of killing A in
order to obtain the insured amount gave him some sweets mixed with poison. The
intended victim ate some of the sweets and threw the rest away which were
picked up by two children who ate them and died of poisoning. It was held that B
as liable for murder of the children though he intended to kill only A.
f) Death Caused Inadvertently without Intention While Doing an Unlawful
Act: It has been clearly stated in I.P.C that a person will not be liable for Culpable
Homicide, if he causes the death of a person while doing an unlawful act,
provided he did not intend to kill or cause death by doing an act that he knew was
likely to have that effect. On the other hand, under English law, if a person whilst
committing an unlawful act accidently kills another, he would be liable for
manslaughter or murder according to whether his act constituted a felony or
misdemeanour.
g) Consent is not a defence to Manslaughter: The House of Lords in R v
Walker held that the respondent a truck driver carrying illegal immigrants will be
criminally responsible for involuntary manslaughter, if the act results in death,
even if the victim has consented to take such risk engaged in some joint unlawful
activity. In this case the defendant, truck driver ( a Dutch national) drove a lorry
from Rotterdam (Netherlands) to Zeebrugge (United Kingdom). The lorry had
been loaded with a refrigerated container in which 60 Chinese (illegal immigrants)
had been hidden to conceal the illegal human cargo behind a load of tomatoes.
The container was sealed apart from a small air vent which was closed for 5 hours
prior to the ferry crossing to Dover to preserve secrecy. On disembarkation at
Dover (in England) the customs officers examined the container and discovered
the bodies of 58 immigrants, who had suffocated to death. Walker was charged
with 58 offences of manslaughterand conspiracy to facilitate the entry of illegal
entrants into United Kingdom. Applying the doctrine of negligence( ex turpi causa
non oritur actio) for causing death of the victims the trial convicted and
sentenced the respondent to 6 years imprisonment for each the manslaughter
charges to run concurrently and eight years imprisonment for the conspiracy to
facilitate entry of illegal immigrants with a total of 14 years. This decision was
upheld by the House of Lords as well.

Meaning of likely
In the case of R vs Whitehouse, the accused was convicted of an offence of
behaving in a manner likely to endanger the safety of an air craft by the
President use of his mobile telephone in mid-flight.His appeal against
conviction failed because the word likely was correctly construed in its
statutory context as meaning a real risk not to be ignored.

Distinction between knowledge and intention

Knowledge denotes a bare state of conscious awareness of certain facts in which
the human mind might itself remain supine or inactive whereas intention
connotes a conscious state in which mental faculties are roused into activities
and summed up into action for the deliberate purpose of being directed towards a
particular and specific end which the human mind conceives and perceives before
itself. Intention need not necessarily involve premeditation .Whether there is such
an intention or not is a question of fact.
Case References
To constitute culpable homicide there must be knowledge that the act is likely
to cause death and the knowledge reffered to this section is the personal
knowledge of the accused that causes injury(AIR 1930 Bom 483)
Culpable homicide is not murder if it is committed without any premeditation,
in a sudden fight, in the heat of passion,upon a sudden qurrel and without the
offender having taken undue advantage or acted in a cruel or unusual manner.
[Bandez Ali vs. State,1986 BLD (AD)]
In the case of Gonesh Dooley[(1879) 5 Cal 351], a snake-charmer, to show
his own skill, placed a venomous snake,whose fangs had not been
extracted,on the head of a spectator, without the intention to cause harm, and
the spectator in trying to push off the snake was bitten and died in
consequence,it was held that he was guilty under clause 3 of section.299.
Intention always connotes a conscious state of mind of a wrong-doer.In
deciding questions of intention or knowledge , (a) nature of weapon used, (b)
part of body on which blow was given,(c) the force of the blow and (d) the
number of blows are some of the factors which assume importance.
[Ghashi Ram vs. State,1952
Cr LJ 1366]
Abusive language
The death of the victim was without any pre-mediation caused in a sudden
provocation resulting from use of insulting language.The accused Aynul Hoque
Mollah inflicted dao blow on the left chest of the victim in the heat of passion
and thus such act clearly falls under the category of culpable homicide not
amounting to murder.[The state Vs Aynul Hoque Mollah 60DLR(2008) 255].

Murder
Sec.-300: murder.- Except in the cases hereinafter excepted, culpable homicide
is murder if the act by which the death is caused in dove with the intention of
causing death or
Secondly- if it is done with the intention of causing bodily injury as the
offender knows to be likely to cause the death of the person to whom the harm
is caused, orThirdly.- 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
Fourthly.- if the person committing the act knows that it os 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.
d) A without any excuse fires a loaded cannon into a crowed of persons and
kills one of them.A is guilty of murder,although he may not have had a
premediated design to kill any particular individual.

Essential ingredients of this section are:

01.Intentionally causing death
02.Intentionally causing of injury with knowledge of death of the
injured.

person

03.Intention and injury sufficient to cause death

Here Death means the death of human beings. But this word does not
include the death of an unborn child. It is immaterial if the person whose death
has been caused is not the very person whom the accused intended to kill. The
offence is complete as soon as any person is killed.The connection between
the act and the deathcaused thereby must be direct and distinct and
though not immediate it must not be too remote.
Analysis of Murder

According to Lord Coke, Murder means such act where a person unlawfully kill
any other person with aforethought malice, which may be expressed or implied.
In order to constitute the crime of murder,as above defined:
1st. There must be a killing
2nd.The killing must be of a human being
3rd.It must be unlawful
4th.It must be with malice
And all these elements must be combined in every case of this offence.For e.g. if
there be not the first or only the first,it is no homicide; if there be the first and
second only ,without the others,it is justifiable or exclusable homicide ; if there
be the first,second and third ,without the fourth , it is manslaughter but where
all concur,it is murder.
The crime of murder is the willful taking of another person's life. In almost all
jurisdictions murder is classified as either first-degree or second-degree.
First-degree murder is both the intentional and premeditated killing of a person,
or as it is sometimes referred to with malice aforethought, which means the killer
deliberately killed out of ill will toward the victim.
Second-degree murder is charged when the killing was intentional but not
premeditated, but also was not done in the "heat of passion." Second-degree
murder can also be charged when someone is killed as a result of reckless
conduct without concern for human life.

When culpable homicide is not murder

Exception 1.-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 cause the death of any other person by
mistake or accident.
The above exception is subject to the following provisos:
Firstly.-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 defense.
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 exercise of the right of private defense, 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
given by a thing done in the exercise of the right of private defense.
(f) Z strikes B. B is by this provocation excited to violent rage. A, a by stander,
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.
Grave and sudden provocation
Grave and sudden provocation means that situation where 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 loss his selfcontrol.Words and gestures may also,under certain circumstances,cause grave
and sudden provocation.(AIR 1962 SC 605)
What amount to grave and sudden provcation depriving the accused of his power
of self-control may vary according to circumstances of each case as also
according to the general standard of self-control among the people of class
involved.(AIR 1972 SC 502)
Grave and sudden provocation is a mixed question of law and facts(AIR 1982 SC
31)
Where the victim had committed sodomy on the son of the accused,who killed the
victim,it was held that there was grave and sudden provocation.(AIR 1977 SC
1801)

Exception 2.- Culpable homicide is not murder if the offender, in the exercise
in good faith of the right of private defense of person or property, exceeds the
powers given to him by law and causes the death of the person against whom he
is exercising such right of defense without premeditation, and without any
intention of doing more harm than is necessary for the purpose of such defense.
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 can by
no other means prevent himself from being horsewhipped, shoots Z dead. A has
not committed murder, but only culpable homicide.
Exception-2 deals with cases where death is caused in the excessive exercise of
the right of private defence. Four cardinal conditions must have existed before
the taking of the life of a person is justified on the plea of self-defence. Firstly, the
accused must be free from thfault in bringing about the encounter Secondly,
there must be present an impending peril to life or of great bodily harm,either
real or so appearent as to create honest belief of an existing necessity .Thirdly,
there must be no safe or reasonable mode of escape by retreat and fourthly,
there must have been a necessity for taking life.[(1959)CrLJ 401]
Plea of private defence of person is not available against person other than
assailant. (PLD 1959 AJ & K 49)
A person who exceeds his right of private defence and kills his assailant comes
under the exception and is guilty under section304 and not under sec.302 (AIR
1980 SC 660)
In a charge of murder, the plea of private defence was not available when
accused continued to assault after the deceased had fallen down and rendered
harmless(AIR 1983 SC 108)

For the application of this exception it is essential that the person causing hurt in
the bonafide exercise of the right of private defence should act without any
intention of doing more harm than is necessary for the purpose of such defence.
(48 CrLJ 809)

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.
This exception protects a public servant or a person aiding a public servant
acting the advancement of public justice.,if either of them exceed the powers
given to them by law and cause death. It gives protection so long as the the
public servant acts in good faith; but if his act is act is illegal and unauthorized by
law or if he glaringly exceeds the powers given to him by law,the exception will
not protect him.
Where a police officer in the zeal of his duty to trace out an offence commits
physical torture on the suspect causing his death,he is guilty of murder and can
not claim the benefit of this exception. (1955 CrLJ 1385)

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.
Illustration:
The word fight conveys something more than a verbal quarrel.It is not necessary
that weapons should be used in a fight. In order to constitute a fight,it is
necessary that blows should be exchanged even if they do not all find their
target.The fight must be with the person who is killed and not with another
person
The words undue advantage in this exception means unfair advantage

Sudden Quarrel is that which is not pre-arranged. If on any sudden

quarrel,blows pass without any intention to kill or injure another materially and in
the course of the scuffle, after the parties are heated by the contest,one kills the
other with a deadly weapon,it is culpable homicide and not murder.The lapse of
time between the quaqrrel and the fight is therefore a very important

consideration.If there intervens a sufficient time for passion to subside and for
reason to interpose,the killing will be murder.
This exception applies only to those cases where on a sudden quarrel both the
parties begin to fight upon an equal footing.In such cases,it is immaterial,which
party offers the provocation or commits the first assault because the combat is
mutual.
Where in course of a sudden fight the deceased inflicted knife injury and run
away to be chased by the accused and done to death. It was held that, the case
came under this exception. (AIR 1976 SC 1133)

Sudden fight is that which is arises out of chance encounter where

passions having
been ignited slightest blow results in fight and opposing
parties assault each other and basic feature is initial absence of premeditation
to cause death.
Where time span between quarrel and fight was only a few minutes,occurrence
can be said to sudden within the meaning of exception 4 of sec-300. (AIR
2002 SC 1168)
Sudden fight resulting from an earlier dispute may also come within this
exception. (AIR 1978 SC 3 )

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.
Voluntarily consenting to take risk: Exception-5 refers to cases where a man
consents to submit to the doing of some particular act, either knowing that it will
certainly cause death or death will be the likely result; but it does not refer to the
running of a risk of death from something which a man intends to avert if he
possibly can do so,even by causing the death of the person from whom the
danger is to be anticipated.
The exception-5 will not apply where there is an agreement to fight between two
riotious mobs armed with all sorts of weapons the character of which is left
individual choice.Where a person kills another who is more than eighteen years of
age and pleads it was done with the consent of the deceased in circumstances in
which the court can hold that it is not impossible that the deceased felling
desparate and depressed asked to be killed and no motive is to be proved against

the accused for deliberately killing the deceased of his own free will he is entitled
to the benefit of this exception. [(1930)54 Mad 504]
It must be proved that the person killed had the full knowledge of the
situation,was determined to suffer death or take the risk of death, the
determination have existed up to the moment of his death.Consent in this section
implies not only knowledge of the risk but a judgement in regard to it.

Case References
Direct and distinct connection:
The test to determine whether the accused has caused death is to see whether
the cause of death is directly associated with the act. [1980(82)PUN LR page
8]
The connection between the primary cause and death should not be too remote
[AIR 1964(SC) page 900]
Where a person receives injuries on head but progress well in the hospital and
after a month and a half when he had left the hospital, develops pneumonia and
dies,it can not be said that the injury cause was the cause of death [AIR 1924
ALL Page441]
The accused whom a married women suspected of having affair with her sister,
was stopped by the accused on her way.He immediately doused her with some
inflammable substance and set her on fire with his lighter. In that state of
burning inferno she ran to a nearby water column of the railway station,sat under
it and saved herself from further burning. A women covered her body and took
her to a hospital. She died after a fortnight. Justifying the conviction of the
accused,the Court said that it could not be said,only because of the time gap, that
death might have been due to other causes. The cause of death has to be
ascertained on the basis of broad probabilities and not on academic possibilities.
It could not be said that the accused did not know that the type of burns which he
caused were not likely to cause death.
[Patel Harilal Joitaram vs.State of Gujrat AIR 2001SC 2944]

In a qurrel between the accused and his father, the accused attacked his father
with a dagger causing death and also attacked the intervener who were his step
mother and sisters. No injury was caused to the accused because all others were
unarmed. The exception was not attracted. He was guilty of murder.
[Sikander vs.
State(Delhi)Admin.]

The murder having taken place while the accused was living with his wife is the
same house , the accused husband under section 106 of the Evidence Act is
under obligation is explain how his wife had met with her death. In absence of
any explanation coming from his side , none other than the accused husband was
responsible for causing such death.
[Sudhir kumar Das Vs The State 60
DLR(2008) 261]
Devine influence
Where the parent of a child threw their child to chrocodiles in the superstitious
believe that it would be ultimately save, it was held that it was culpable homicide
not amounting to murder. It is submitted that the decision ia not correct, it was
found in the case that there was no intention to cause death but they had the
knowledge that it would be likely to cause death of the child.The case clearly falls
within the section 300 secondly. (AIR 1921 CAL 501)

Differences between Murder and Culpable Homicide

The distinction between cuipable homicide and murder has very ably and lucidly
been set forth by Melvil J. in Reg v. Govinda. In this case the accused,a young
man of 18 years was married to a girl of 15. It appeared that he was habitually illtreting 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 extravasation of blood on the brain, and she died in
consequence, either on the spot,or very shortly afterwards. The accused was
held guilty of the offence of murder by the Session Judge.The case came up
before a bench of two judges of the Bombay High Court for confirmation of the
death sentence.As there was a division of opinion between the learned judges
constituting the bench as to whether the facts constituted an offence of murder or
an offence of culpable homicide not amounting to murder ,the case was referred
for opinion to a third judge,Melvil,J. Observing the circumstances of the case,His

Lordship came to the conclusion that there was no intention to cause death nor
was the bodily injury sufficient in the ordinary course of nature to cause death.
The accused was accordingly found guilty of the offence of culpable homicide not
amounting to murder and sentenced to transportation for seven years. In this
case Melvil J compared the provisions of section 299(culpable homicide) and
section 300(murder) of the Penal Code followingly:Firstly, Causing death by doing an act with the knowledge that it is likely to
cause death is culpable homicide under section 299 and causing death by an act
known to be imminently dangerous that in all probability cause death or such
bodily injury as is likely to cause death is murder.
Secondly, If somebody is caused to death with the intention of killing the person,
it is always murder
On the otherhand, somebody is caused to death inspite of not having the
intention of killing the person,that may be both culpable homicide and murder.
Thirdly, Where there is no intention of killing but the victim falls into death,if it is
proved there the accused has killed or hurt the victim in such a way that is most
probabale to ensure the cause of death of any person,then it is murder.
On the otherhand, if it is proved that the accused has killed or hurt the victim in
such a way that death is a likely result then it is Culpible Homicide.
Fourthly, If it is proved that the victim is like to cause death by the hurt of the
accused then it is culpable homicide.
On the otherhand if it is proved that the hurt made by the accused is sufficient in
the ordinary course of nature to cause death then it is murder.
Fifthly, the accused person, if it is proved in a particular circumstance or
surrounding , knew that the victim would fall into death naturally then it is
murder.
On the otherhand if the accused has no knowledge about that circumstances then
it is culpable homicide.
Sixthly, all culpable homicides are not murder but all murders are culpable
homocide.
Seventhly, murder is an offence punishable with death or imprisonment for life
and fine.
On the otherhand culpable homicide is an offence punishable with imprisonment
for life and imprisonment which may extend upto 10 years with fine.

Is encounter death culpable homicide or murder ?

According to exception 3 of section 300 of the Penal Code- 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.
Where the accused, fearful of being punished if they allowed an outlaw to escape and
thinking that they were acting lawfully, killed him while he was endeavoring to escape,it
was held that the offence committed came under this exception and amounted to
culpable homicide and not amounting to murder.

A suspected thief, who had been arrested by police constable,escaped from a

running train.One of the constables pursued him fired at him but in that process
he hit the fireman of the engine and killed him. It was held that the act of the
constable was covered by this exception. (1955 CrLJ 905)
Exclusable homicide is where the party killing is not altogether free from blame
but the necessity which renders it exclusable may be said to be partly induced by
his own act.
Mr.Archbold divides exclusable homicide into 1 st homicide by misadventure and
2nd where a man kills another upon a sudden encounter merely in his own defence
or in defence of his wife,child,parent or servant and not from any vindictive
feeling,which is termed homicide. Homicide by misadventure is where a man
doing a lawful act without any intention of bodily harm and after using proper
precautions to prevent danger, unfortunately kills another person.And in above
two grounds the accused person should not be treated as murderer.
Again, Mr. Roscoe says that, where the proper officer executes a criminal in strict
conformity with his sentence or where an officer of justice or other person acting
in his aid in the legal exercise of a particular duty kills a person who resists or
prevent him from executing it or where the homicide is committed in prevention
of a forcible and atrocious crime, as for instance if a man attempt, the slayer shall
be acquitted and discharged.
In famous Batla House encounter case officially known as Operation Batla House,
took place on 19 September 2008, against suspected Indian Mujahideen (IM)
terrorists in Batla House locality in Jamia Nagar, Delhi, in which two suspected
terrorists, Atif Amin and Mohamed Sajid were killed by a dreadful encounter led
by encounter specialist and Delhi Police inspector Mohan Chand Sharma. The

incident took place a week after five serial blasts on 13 September 2008 that hit
Delhi in which at least 30 people were killed and over 100 injured. The encounter
took place only after seven member police Delhi Police team led by Mohan Chand
Sharma Inspector in the Special Cell of Delhi police, stumbled upon IM
commander Atif Amin and his comrades in their rented address at L-18, Batla
House in the morning of 19 September 2008. The team had received specific
information that a suspected person wanted in connection with the serial bomb
blasts in Delhi was hiding in a flat in Batla House area of Jamia Nagar. Upon
reaching the four-storied house the polices attempt to storm the flat on the
second floor at around 10 30 AM (IST) led to a heavy exchange of fire. Sharma
received the first burst of fire from the terrorists holed up inside. After the ensuing
exchange of fire two suspected terrorist, Atif Amin and Mohd. Sajid were killed,
two other suspects Mohd Saif and Zeeshan were arrested, while one managed to
escape. Also two Delhi police personnel were injured, among which, Sharma who
led the operation, later succumbed to the injuries. Later, the intelligence team
said that the arrested allegedly had links with Dubai and further questioned if
they had any link with Dawood Ibrahim.[13] After the incident doubts were allayed
various politicians, media and civil society outfits accusing the Delhi Police of
carrying out a fake encounter.but the court says that the operation and the
encounter activities leading by MC Sharma is valid for the sake of ensure ensure
criminal justice in the society .
But in many times in many cases we see that the encounter proved as fake. In
famous Gonda case, A special CBI court awarded death sentence to three
policemen and life term to five others in a 31-year-old fake encounter case in
Gonda district in which 13 persons, including a Deputy Superintendent of Police
were killed. DSP and circle officer K P Singh and 12 other people were killed in the
fake encounter in Madhopur village in March 1982.Police initially claimed that
Singh was killed by criminals, but his wife Vibha Singh suspected foul play and
moved the Supreme Court, which ordered a CBI inquiry.The CBI filed chargesheet
against 19 policemen. In Bangladesh we see that in many operation RAB or the
police forces kill many innocent person that was later proved as fake encounter.
In Golam Maola case(41DLR 226),we see that the so called accused who was
held terrorist by the RAB and died in a cross-fire but later it was clearly proved
that he was not the actual culprit. So in the name of ensuring justice or to prevent
crime or self-defence encounter death is lawful but if the facts and circumstances
prove that it was not the urgent need or fake encounter then it is ofcourse murder
as we see from the above discussion.
Section 301: Culpable homicide by causing death of person other than person
whose death was intended

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.
Section 301 embodied the principle that where a blow aimed at one person
alighs some one another and the offence committed by the asyler is the same as
it would have been if the blow had star the intended victim .This is based on the
well established principle of Criminal Jurisprudence and known as doctrine of
transferred malice. (AIR 1928 Lahore 344)
The essential pre-requisite for an offence under this section is the commission of
offence of culpable homicide as defined in section-299 with reference to some
person .Once that is established and a person dies as a consequence of this act
intended for a different offence and there is a culpable homicide with reference to
the person whose death was caused. (AIR 1979 ALL 157)
Section302: Punishment for murder
Whoever commits murder shall be punished with death, or imprisonment for life,
and shall also be liable to fine.
Analysis:
This section only prescribes a sentence for the offence of murder.
Motive is the reason for promoting the intention which induces a person to do act
which he intends to do. It is relevant and important when dealing with the
question of intention.It is an essential ingredient of an offence.In a criminal trial
failure to prove a motive does not necessarily means that there was no motive for
the crime.Motives exist unknown and innumerable which might prompt the
act.Mysterious is the working of human mind. (State vs.Durga Charan Barik
,AIR 1963 Orissa 33)
In the case of Amrutal vs.State of Maharastra (AIR1994 SC 2516) ,the act of
a domestic servant in killing three members of his masters family for committing
robberywas held by the Supreme Court as coming under the category of rarest of
rare cases warranting death sentence.The fact that he otherwise maintained the
tradition of respect and loyalty for the master was not considered to be a
mitigating factor.
Section 303: Punishment for murder by life-convict
Whoever, being under sentence of
punished with death.

imprisonment for life, commits murder, shall be

Analysis
This section prescribes the sentence to be passed on a person convicted of murder while
understanding a sentence of imprisonment for life.No other sentence is possible in such
a case. (AIR 1994 SC 2516)
This section does not apply to person whose sentence has been commuted under section
55 of the Penal Code.
In the case of Ghulam Mohammad Wali vs.Emperor(AIR 1943 Sind 114),it was held
that when an accused person has beenconvicted of murder and sentenced to
imprisonment for life and the remainder of that sentence has been remitted without
conditions by the Govt. under sec-401 of CrPC,he can no longer be said to be under a
sentence of imprisonment for life .But while the sentence having in effect been served
and if he commits asecond murder,the provisions of this section cannot apply.
Section 304: Punishment for culpable homicide not amounting to murder
Whoever commits culpable homicide not amounting to murder, shall be punished with
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 intention of causing death, or of causing such bodily injury as is likely to cause
death;
or with imprisonment of either description for a term which may extend to ten years, or
with fine, or with both, 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.
Analysis:

This section consists of two parts. In part I there is intention while in part II there
is only knowledge and intention is expressly excluded. For the application of part
I, death must be caused under any of the circumstances mentioned in five
exceptions of section 300 (Haji Khuda vs. Emperor,AIR 1939 Sind 57)
On the otherhand,Part II applies when the act is done with the knowledge that is
likely to cause death but without any intention to cause death. So this clause will
not come into operation when there is intention to cause such bodily injury as is
likely to cause death. (Ram Khelwan vs.State 1951 ALJ 464)
Section-304A: Causing death by negligence
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 five years, or with fine, or with both.

Rash or negligent act: A rash act is primarily an overhasty act and is thus
opposed to a deliberate act but it also includes an act which, though it may be
said to be deliberate, is yet done without due deliberation and caution.
Negligence means the act or quality of being negligent, want of proper care ,etc.
Negligence implies on omission to do something which a reasonable man guided
upon those considerations which ordinarily regulate the conduct of human affairs
would do or doing something which a prudent and a reasonable man would not
do. (AIR 172 SC 685)
Criminal negligence is the gross and culpable negligent or failure to exercise the
reasonable and proper care and precaution to guard against injury either to the
public generally or to an individual in particular which having regard to all the
circumstances out of which the charge has arisen,it was the imperative duty of
the accused to have adopted.
There must be proof that the rash or negligent act of accused was the proximate
cause of death. There must be direct nexus between the death of person and the
rash or negligent act of the accused. (State vs. Narhari Anant Naik, AIR 1969
Goa 87)
Section-304B: Causing death by rash driving or riding on a public way

Whoever causes the death of any person by rash or negligent driving of any
vehicle or riding on any public way not amounting to culpable homicide shall be
punished with imprisonment of either description for a term which may extend to
three years, or with fine, or with both.
Analysis
The factor to determine rash and negligent driving are(i)examination of marks of wheels on the road
(ii)the state of traffic at the relevant time
(iii)the speed of the vehicle
(2000 CrLJ 2394)
Deceased coming from a side road to main road riding on a motor-cycle. His
motor cycle collidiging with the car of the accused which was going on main road.
Car not colidigiing with motor cycle mere fact that accused was driving car at a
first speed would not make him liable for rashness and negligence if road was
clear . Duty of a person coming driving from a side road towards main road to see
that main road was clear before entering same. It was held doubtful if death of

deceased was due to any rash and negligence act of the accused . Accused given
benefit of doubt and acquitted. (1985 CrLJ 2794)
Conviction under sec-304B requires that some rash or negligent act on the part of
accused must be conclusively established by direct evidence. It must be
established by evidence that at the time of the accident the driver was driving the
car at uncontrollable speed and was therefore guilty of a rash or negligent act.
(PLD 1969 Kar 30)
Driving a car at high speed can not be considered as a rash and negligent act as
modern technology provides for reasonable safeguard of stopping the vehicle
within known distance and time. In order to prove rashness and negligence by the
driver the prosecution had to establish that he failed to take proper care by
omitting to take some action through which he could have avoided the accident
(1980 P CrLJ 103)

Differences between rashness and negligence

As regards the difference between criminal rashness and criminal negligence, a
rash act is primarily an overhasty act and is thus opposed to a deliberate act, but
it also includes an act which, though it may be said to be deliberate, is yet done
without due deliberation and caution.
In the case of rashness the actor adverts to the consequences but assumes on
insufficient grounds that they will not follow; in the case of negligence there is a
culpable carelessness. In cases of negligence he adverts not to the act, which it is
his duty to do. In cases of rashness, he adverts to those consequences of the act;
but, by reason of some assumption which he examines insufficiently, he
concludes that those consequences will not follow the act in the instance before
him.
Negligence has been defined as breach of a duty caused by the omission to do
something which a reasonable man, guided by those considerations which
ordinarily regulate the conduct of human affairs, would do, or doing something
which a prudent and reasonable man would not do.
Austin thus differentiates the two in his inimitable style. In cases of negligence,
the party performs not an act to which he is obliged. He breaks a positive duty. In
cases of rashness the party does an act from which he is bound to forbear. He
breaks a negative duty.
Culpable rashness is acting with consciousness that the mischievous and illegal
consequences may follow, but with the hope that they will not, and often with the

belief that the actor has taken sufficient precautions to prevent their happening.
The immutability arises from acting despite the consciousness.
Culpable negligence is acting without the consciousness that the illegal and
mischievous effect will follow but in circumstances which show that the actor has
not exercised the caution incumbent upon him, and that if he had he would have
had the consciousness. The immutability arises from the neglect of the civic duty
of circumspection.