_____________Offences like 'culpable homicide' and 'murder' are mentioned under Chapter XVI of the Indian Penal Code, relating to offences affecting the human body. This Chapter clearly indicates the importance attached to the preservation and protection of right and liberty - the two most precious and important rights guaranteed under Article 21 of the Constitution of India. Let us discuss the meaning and scope of word 'homicide'.
Homicide is the highest order of bodily injury that can be inflicted on human body. The word 'homicide' comes from the Latin words 'homo' and 'cide' where 'homo' means man and 'ride' means 'I cut'. Homicide means the killing of a human being by a human being1. However, every case of killing of a human being is not culpable (liable). There may be cases where the law will not punish a man for committing homicide, e.g., the death of a child in mother's womb is not homicide. If any part of the child in the womb has been brought forth, the death of living child may amount to culpable homicide, even though the child may not have breathed or been completely born2.
Homicide may be divided into the following heads:
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1. See Stephen's A History of the Criminal Law of England, (1883) Vol. III, p. 1.
2. Explanation III to section 299 of Indian Penal Code.
Section 299 of the Indian Penal Code defines the term 'culpable homicide' in the following manner:
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 the offence of culpable homicide.
Illustrations
(a) 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.
(b) 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 no offence; but A has committed the offence of culpable homicide.
(c) 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.
Explanation 1.--
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.
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 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 bom.
'Culpable homicide' according to section 299, I.P.C. has the following ingredients:
1. Causing of death of a human being;
2. Such death must have been caused by doing an act;
3. The act must have been done:
(i) with the intention of causing death;
(ii) with the intention of causing such bodily injury as is likely to cause death; or
(iii) with the knowledge that the doer is likely by such act to cause death.
Section 299 provides that, culpable homicide has wider spectrum than that of murder. Let us examine each phrase of this section one by one.
1. Whoever causes death.--
In this phrase, death means death of a human being and it does not include death of an unborn child. The offence of culpable homicide is complete as soon as any person is killed by the accused whose mental state is of the kind mentioned in ingredient No. 3 stated above, i.e. where the accused causes death by doing an act either with intention of causing such bodily injury which was likely to cause death or with the knowledge that he was likely by such act to cause death.
The death must result as a proximate and not a remote consequence of the act of violence. There should not be the intervention of any considerable change of circumstances between the act of violence and the death. Where the injury caused on the top of the head was simple and the deceased himself did not take it seriously and did not go to the hospital but died three weeks after the occurrence due to sepsis consequent to the bad handling of the wound, this section was held to be not attracted; Shobha v. Emperor, AIR 1935 Oudh 446.
2. By doing an act.--
Death may be caused by a thousand and one means, such as by poisoning, drowning, striking, beating and so on and so forth. As per section 32, I.P.C. the word act has been given a wider meaning in the Code inasmuch as it includes not only an act of commission, but illegal omissions as well. Hence, death may be caused by neglect of duty, such as parent not supplying food and medical care to his child, a husband starving his wife; Om Prakash v. State of Punjab, MANU/SC/0125/1961 : AIR 1961 SC 1782. Therefore, death caused by illegal omission will also amount to culpable homicide. Where a jailor voluntarily causes death of a prisoner by omitting to supply him food, or a nurse voluntarily causes death of a child entrusted to her case by omitting to take it out of a tub of water into which it has fallen, or a jail doctor voluntarily causes death of a prisoner by omitting to supply him medical care, the gaoler, the nurse or the doctor shall be guilty of murder. A, unlawfully inflicted an injury on D's vital organ certain to result in death if not treated, as B the guardian of D (who was a minor) refused to get him medically treated because he desired A to be hanged for the murder of D. D, succumbed to the injury. Here B, the guardian would be liable for causing the death of the minor because he knew that by illegal omission to provide necessary medical aid he was likely to cause D's death.
3. (i) Intention to cause death.--
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. Intention means the expectation of consequence in question. The intention is an inference of law resulting from the doing of an act.
In Dibia v. State, MANU/UP/0172/1953 : AIR 1953 All 373 it was held that, causing serious injury on a vital part of the body of the deceased with the dangerous weapon must necessarily, lead to inference that the accused intended to kill.
An intention also includes foresight of certainty. A consequence is deemed to be intended thought. It is desired when it is foreseen as substantially certain.
(ii) With the intention of causing such bodily injury as is likely to cause death.--
The intention of the offender may not be to cause death, it would be sufficient if he intended to cause such bodily injury which was likely to cause death. The connection between the 'act' and the death caused by the act must be direct and distinct, and though not immediate it must not be too remote.
The expression 'intention to cause such bodily injury as is likely to cause death' merely means an intention to cause a particular injury, which injury is, or turns out to be, one likely to cause death. It is not the death itself which is intended, nor the effect of injury; King v. Aung Nyug, AIR 1940 Rang 259. It is not necessary that the consequences of the injury are foreseen, it would be sufficient that there is an intention to cause injury, which injury is likely to cause death.
Grover, J. has rightly emphasised in Mohammed Hossein's case, (1864) WR (Cr 131), that "it is indispensable that the death should be clearly connected with the act of violence, not merely by chain of causes and effects, but by such direct influence as is calculated to produce the effect without the intervention of any considerable change of circumstances". The difference between the two expressions 'intention of causing death' and 'intention of causing such bodily injury as it's likely to cause deaths' is a difference of degrees in criminality. The latter is a lower degree of criminality than the former. But as, in both the cases the object is the same, the law does not make any distinction in punishment.
(iii) With the knowledge that he is likely by such act to cause death.--
Here, knowledge means the personal knowledge of a person who does the act. The word 'knowledge' is a strong word and imports a certainty and not merely a probability. Where the accused picked the abdomen of B with such violence as to cause fracture of two ribs and rupture of the spleen which was normal B died. It was held that the accused knew that the abdomen is a most delicate and vulnerable part of the human body and should, therefore, be presumed to have kicked with the knowledge that by so kicking he was likely to cause death; Mansel Pledell v. Emperor, AIR 1926 Lah 813.
Sometimes even gross negligence may amount to knowledge.--
When a person acts negligently or without exercising the due care and caution, he will be presumed to have knowledge of the consequences arising from his act. Where A had gone to his father-in-law's house to fetch his wife. There was some quarrel between A and his brother-in-law B on the question whether his wife should accompany him by the night train the same day or by the morning train the next day as desired by their in-laws. During the quarrel A lost his temper and gave one blow with a knife on the chest of B which resulted in his death. It was held that A was guilty under the second part of section 304 for culpable homicide not amounting to murder because death was caused by doing an act with the knowledge that it was likely to cause death; Queen Empress v. Kangla, (1898) 18 AWN 163.
The intention or knowledge necessary in order to render the killing culpable homicide must be clearly proved by prosecution. The fact that such knowledge is accompanied by indifference whether death or serious injury results or not, makes no difference. Even if such intention is not proved the offence will be culpable homicide if the doer of the act causes the death with the knowledge that he is likely by his act to cause death; Ram Kumar v. State of Rajasthan, MANU/RH/0011/1970 : AIR 1970 Raj 60.
Section 299, I.P.C. contains three Explanations. Let us discuss them one by one.
Explanation 1.--
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.
The first explanation reproduces the English rule; that an injury which accelerates the death of a dying person is deemed to be cause of his death if he knows that condition of the deceased was such that his act was likely to cause death.
This Explanation speaks that to invoke section 299, I.P.C. the court must be satisfied:
(i) that the death at the time when it occurred, was not caused solely by the disease; and
(ii) that it is caused by the bodily injury to the extent, that it is accelerated by such injury.
It is important that the accused knows that condition of the deceased was such that his act was likely to cause death. When the injury inflicted was not such as would cause his death but death resulted from rupture of spleen (which was considerably enlarged) and the accused has no knowledge of his ailment, the accused was held to be guilty of grievous hurt; Megha Meeah, (1865) 2 WR (CR) 30.
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.
This Explanation deals with refusal of medical treatment for injury inflicted which could have asserted death as being a defence to the charge cannot be sustained.
In R. v. Davis, (1883) 15 Cox CC 174. A gave a blow to D, the injury to inflicted rendered an operation advisable. As a preliminary to the operation, chloroform was administered to D who died during its administration and it was agreed that the patient would not have died but for its administration. A was held liable for manslaughter because he had caused an injury which in the opinion of competent medical men necessitated the operation.
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 Explanation provides that causing of death of child in the womb is not homicide. But it would be 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. Thus, complete birth is not a requisite. Instead of an uncertain period which it would be difficult to define satisfactory and which would in many cases of infanticide, greatly add to the difficulty of proof a definite and readily ascertained point of time (that is, the time, when any part of the child is brought forth) is fixed to denote when the child may become a subject of culpable homicide.
The word 'murder' has been derived from the Germanic word 'mortna' which means 'secret killing'. According to early Germanic people a distinction was drawn between open killing and secret killing. Under English Lawunlawful homicide may broadly be classified into (i) murder; and (ii) manslaughter1. In Indian context, section 300 of the Indian Penal Code tells when the offence is 'murder' and when it is 'culpable homicide not amounting to murder'. To be more clear, culpable homicide is murder, if the act by which death is caused falls within any one of the four clauses mentioned in section 300, unless of course, the case comes under one of the five exceptions stated therein, the offence will amount to 'culpable homicide not amounting to murder'. To understand the simple but complex looking distinction, let us start our discussion with section 300, I.P.C.
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--
Secondly.--
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--
Thirdly.--
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 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.
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1. Pollock and Maitland History of English Law, 2nd Edn., Vol. II, p. 487.
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, in as much 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 V, 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, in as much as the provocation was given by a thing done by a public servant in the exercise of his powers.
(d) A appears as witness before Z, a Magistrate, Z says that he does not believe a word of A's deposition, and that 4 has perjured himself. A is moved to sudden passion by these words, and kills Z. This is murder.
(e) A attempts to pull Zs 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, in as much as the provocation was given 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 of 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 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 order to attract the provisions of clause (1) of section 300, I.P.C. the prosecution has to prove that very act, that was done with the intention to cause the death of the victim.
A question of intention is always a matter of fact. Once intention of causing death is proved, culpable homicide amounts to murder unless any of the exception is applied; Rajwant Singh v. State of Kerala, AIR 1966 SC 1874. Intention can rarely be proved by direct evidence, when facts are so entertained, determining whether it is culpable homicide and then finding out separately whether it amounts to murder may not be convenient; State v. Rayavarapu Punnayya, 1977 Cr LJ 1.
Where the accused sets fire to the room in which the victim was sleeping and the room was locked from outside and the villagers were prevented from rendering help, the intention to kill is fully made out; Rewalpenta Venkalu v. State of Hyderabad, AIR 1956 SC 171. Intention can also be inferred from the acts of the accused - namely nature of the weapon used, the part of the body where injury is inflicted, the force of the blow, etc. Stabbing wife with the aid of torch, in the middle of the back with such force as to penetrate the spinal cavity - the intention could only have been to kill her; Ghasi Ram v. State of Bhopal, AIR 1952 Bhopal 25.
In Maqbool v. State of A.P., MANU/SC/0472/2010 : AIR 2011 SC 184, in this case the appellant murdered and cash snatched away from deceased. Incident taking place near house of deceased. Evidence by wife and employee were truthfully describing events without exaggeration and can't be discarded on ground of interested witnesses. A faulty investigation where IO failing to collect blood stained earth from place of incident. After three fire on deceased the accused snatch his bag and run away. Appeal dismissed and judgment upheld by the Supreme Court.
This clause deals with cases where the intention is to kill the person even though the injury is not fatal in the ordinary course of nature but is fatal in the case of that person, by reasons of knowledge of the accused as regards the physical infirmity, disease of the person's sub-normal state of health and his special physical condition; Rahaman Samail v. Emperor, AIR 1939 Lah 2450.
The third clause of section 300 speaks of an intention to cause bodily injury which is sufficient in the ordinary course of nature to cause death. Sufficiency is the high probability of injury to cause death. Sufficiency is the high probability of death, depending upon the nature of weapon used, on the part of the body where the injury is inflicted or both. If the injury is not such as would cause death i.e. if the probability is not so high the offence will not fall under section 299 or even a lesser offence.
Supreme Court in the case of Virsa Singh v. State of Punjab, MANU/SC/0041/1958 : AIR 1958 SC 465 observed that to bring the case under this part of the section the prosecution must establish objectively:
(1) That a bodily injury is present;
(2) That the nature of injury that must be proved;
(3) It must be proved that there was an intention to inflict that particular bodily injury;
(4) That the injury inflicted is sufficient to cause death in the ordinary course of the nature (this is purely objective).
Once these four elements are established by the prosecution then the offence is committed under clause 3 of section 300, I.P.C.
Clause 4 of section 300, I.P.C. is usually applied to cases where the act of the offender is not directed against any particular person. What this clause contemplates is the imminently dangerous act which in all probability is done, without any intention to kill a particular person but with knowledge that death is very likely and that such act is done without any excuse. This clause is usually invoked in cases where there is no intention to cause death of any particular individual. The clause is applied in cases where there is such closeness towards the result and the risk taken is such that it may be stated that the person knows that the act is likely to cause death or such bodily injury as is likely to cause death. The explosion of a bomb in a crowded room must have been known to the accused that it would cause death and the fact that the accused had nointention of killing a particular person does not take the case outside the preview of clause (4); State of Madhya Pradesh v. Ram Prasad, MANU/SC/0084/1967 : AIR 1968 SC 881.
The distinction between sections 299 and 300 was made clear by Melvill, J. in R. v. Govinda, (1876) ILR 1 Bom 342. In this case the accused had knocked his wife down, put one knee on her chest, and struck her two or three violent blows on the face with the closed fist, producing extraversion of blood on the brain and she died in consequence, either on the spot, or very shortly afterwards, there being no intention to cause death and the bodily injury not being sufficient in the ordinary course of nature to cause death.
The accused was liable for culpable homicide not amounting to murder.
For the purposes of comparison and bringing out the distinction clearly section 299 and section 300 may be put as follows:
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Section 299 |
Section 300 |
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A person commits culpable homicide by which the death is caused. |
Except in the cases if the act hereinafter excepted is done. Culpable homicide is murder if the act by which death is caused is done. |
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INTENTION |
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(a) With the intention of causing death; |
(1) With the intention of causing death; |
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(b) With the intention of causing such as is likely to cause death; |
(2) With the intention of causing such bodily injury as the offender known to be likely to cause the death of the person to whom the harm is caused; |
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(3) 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; |
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KNOWLEDGE |
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(c) The knowledge that he is likely by such act to cause death. |
(4) 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. |
(1) Section 300 begins with the words "except in the cases hereinafter excepted culpable homicide is murder." This means that culpable homicide is not murder if the case falls within any of the exceptions mentioned in section 300.
(2) Whenever there is an intention to cause death it would always be a case of murder unless the case falls within one of the exceptions to section 300.
(3) The essence of distinction between clause (b) of section 299 and clause (2) of section 300 lies in the knowledge on the part of the offender that the person harmed is likely to die. The offence is murder if the offender knows that the particular person injured is likely, either from peculiarity or constitution, or immature age, or other special circumstances, to be killed by an injury which would not ordinarily cause death. The distinction is made clear by illustration (b) to section 300. This clause is intended to meet cases of emerged spleen and liver which may be easily ruptured by a blow of no great violence in which case the degree of criminality depends upon the knowledge of the offender of these facts. Clause (b) of section 299 postulates no such knowledge.
(4) A comparison of clause (b) of section 299 with clause (3) of section 300 would show that 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. The distinction is fine but appreciable. The decision of most of the doubtful cases depends on a comparison of these two clauses. The word "likely" means "probably". When the chances of a thing happening are greater than its not happening, we say the thing will "probably" happen. When the chances of its happening are very high, we say that it will "most probably" happen. An injury sufficient in the ordinary course of natureto cause death only means that "death will be the most probable result of the injury having regard to the ordinary course of nature". The expression does not mean that death must result. Thus the distinction between clause (b) of section 299 and clause (3) of section 300 would depend very much upon the degree of probability or likelihood of death in consequence of the injury. As Melvill, J. has observed: "Practically it will generally resolve itself into a consideration of the nature of the weapon used. A blow from the fist or stick on a vital part may be likely to cause death", a wound from a sword on a vital part is sufficient, in the ordinary course of nature, to cause death. It may be pointed out that it is not so much the nature of the weapon used as the nature of the injury inflicted that would determine the difference here made. The weapon may be the same, but it may cause injuries of different proportions. It depends upon the constitution of the man, the part of the body injured and the degree of violence used.
(5) Clause (c) of section 299 and clause (4) of section 300 appear to apply to cases in which there is no intention to cause death or bodily injury but knowledge that the act is dangerous and, therefore, likely to cause death. Both clauses require knowledge of the probability of the act causing death. Clause (4) requires knowledge in a very high degree of probability.
(6) The distinction between the offences of culpable homicide and murder is the presence of special mens rea which consists of four mental attitudes in the presence of any of which the lesser offence becomes greater. These attitudes are stated in section 300, I.P.C. as distinguishing murder from culpable homicide not amounting to murder; Subhash Shamrao Pachunde v. State of Maharashtra, IV (2005) CCR 316 (SC).
(7) The following factors are necessary:--
(i) That the act is imminently dangerous;
(ii) That in all probability it will cause death or such injury as is likely to cause death; and
(iii) That the act is done without any excuse for incurring the risk.
Whether the offence is culpable homicide or murder, depends upon the degree of risk of human life. If death is likely result, it is culpable homicide; if it is the most probable result, it is murder.
The penal section of section 300 is section 302. Section 302 reads:
Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
Therefore, section 302 provides two alternative punishments for murder,
viz.,
(i) Death sentence; or
(ii) Imprisonment for life.
The legislature has left to the court to award the appropriate punishment in a case of murder as it deem fit.
In Bachan Singh v. State of Punjab, MANU/SC/0055/1982 : AIR 1980 SC 898 the Supreme Court by a majority of four to one held that, the provision of death penalty as an alternative
punishment for murder under section 302 of I.P.C. is not unreasonable and is in the public interest. The court laid down the following propositions:--
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the offender is also required to be taken into consideration along with the circumstances of the crime.
(iii) Life imprisonment is the rule and the death sentence is the exception. In other words, the death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and (provided and only provided) the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and taking into account all the relevant considerations.
(iv) A balance sheet of aggravating and mitigating circumstances have to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance struck between the aggravating and the mitigating circumstances before the option is exercised.
As discussed earlier, section 300, I.P.C. after laying down the cases in which culpable homicide becomes murder, states certain exceptional situations under which, if murder is committed, it is reduced to culpable homicide not amounting to murder punishable under section 304, I.P.C. and not under section 302, I.P.C. The five exceptions specified in this section are special exceptions in addition to the general enumerated in Chapter IV of the Penal Code. The five special exceptions are; (1) Provocation; (2) Right to Private defence; (3) Public servant exceeding his powers; (4) Sudden fight; and (5) Consent.
The abovestated extenuating circumstances do not offer complete vindication of the conduct of the accused. But they do reduce the impact of gravity of the offence since dictates of humanity and reason prescribe such cases as fit grounds for mitigation.
Exception 1 to section 300, I.P.C. reads:
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:--
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 defence.
The Code has listed under Exception 1 to section 300, I.P.C. the circumstances under which the offence of murder will be reduced to 'culpable homicide not amounting to murder' punishable under section 304, I.P.C. if the murder is committed or provocation adduced by the deceased. The following conditions must be complied with in order to invoke the benefit of this clause:--
(1) The deceased must have given provocation to the accused.
(2) The provocation must be such as would deprive any reasonable man of his power of self-control over himself.
(3) The act of killing of the accused must have been done when he was deprived of his power of self-control by the grave and sudden provocation. It must be done under the immediate impulse of provocation.
(4) The offender must not have reflected, deliberated or cooled, between the provocation and the mortal stroke. Thus, there must not be sufficient time for the passion caused by the provocation to cool down and reason to reassert its control; Datta Gem v. State of Maharashtra, MANU/SC/0102/1973 : AIR 1974 SC 387.
(5) The offender must have caused the death of the person who gave the provocation or that of any other person by mistake or accident.
The First exception is however subject to three exceptions:
(a) Where the accused courts provocation or merely uses it as an excuse for assaulting another. In other words, provocation must come to him and he must not seek to get provocation.
(b) Where the act is legal but is done in an illegal manner which offers sufficient provocation, killing in pursuant there is no murder.
(c) A person who acts in the exercise of his right of self-defence performs a legal act and may provoke another and if he retaliates on account of the provocation so received, it will not be an extenuation of this crime.
The Explanation makes it clear that the question whether the provocation is sudden or grave enough to prevent the offence from amounting to murder is a question of fact i.e. whether a reasonable person in the circumstances of a particular case would have committed the offence under a grave and sudden provocation.
In K.M. Nanavati v. State of Maharashtra, MANU/SC/0147/1961 : AIR 1962 SC 605 the fact of the case was, the accused, a naval officer was charged with the murder of Prem Ahuja, a businessman of Bombay, for having illicit intimacy with his wife, Sylvia. On coming to know from his wife about the illicit relationship with the deceased, he went to the ship, took from the stores a semi-automatic revolver and six cartridges on a false pretext, loaded the same, went to the flat of Ahuja to his bedroom and shot him dead after a heated exchange of words.
Issues Involved:
'In the present context the only question relevant for our purpose is whether the appellant was deprived of power of self-control by sudden and grave provocation, thus covering the offence under Exception I to section 300, I.P.C.?
Decision:
It was contended on behalf of the appellant that the act of Ahuja, namely the seduction of Sylvia, gave provocation though the fact of seduction was communicated to the accused by Sylvia. For the ascertainment of the suddenness of the provocation it is not the mind of the person who provokes that matters but that of the person provoked is decisive. On behalf of the State it was argued that though a confession of adultery by a wife may in certain circumstances be provocation by the paramour himself, under different circumstances it has to be considered from the standpoint of the person who conveys it rather than from the standpoint of the person who gave it. It was further contended that even if the provocation was deemed to have been given by Ahuja, and though the said provocation might have been grave it could not be sudden, for the provocation given by Ahuja was only in the past.
It was observed that--
(i) The test of 'grave and sudden provocation' is whether 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 lose his self control.
(ii) In India, words and gestures may also under certain circumstances, cause grave and sudden provocation to an accused so as to bring his act within the first exception to section 300 of I.P.C.
(iii) The mental background created by the previous act of the victim may be taken into consideration in ascertaining whether the subsequent act caused grave and sudden provocation for committing the offence; and
(iv) The fatal blow should be clearly traced to the influence of passion arising from the provocation and not after the passion has cooled down by lapse of time, or otherwise giving the accused room and scope for premeditation and calculation.
It was held that, between 1.30 P.M. when he left his house, and 4.20 P.M. when the murder took place, three hours had escaped, and therefore there was sufficient time for him to regain his self-control, even if he had not regained it earlier. His conduct clearly showed that the murder was deliberate and calculated one. The mere fact that before the shooting the accused abused the deceased and the abuse provoked an equally abusive reply could not conceivably be a provocation for the murder. Conviction of the accused under section 302, I.P.C. and sentence of imprisonment for the life was upheld.
Exception 2.--
Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of 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.
Exception 2 to section 300, I.P.C. is applicable to those cases wherein a person exceeds the right of private defence. If the excess is intentional, the offence is murder, if unintentional, it is culpable homicide not amounting to murder.
It is a cardinal principle of the law of right of private defence that the accused must be free from fault in bringing about an encounter; there must be present an impending peril to life or of great bodily harm, either real or apparent. The right of private defence is purely preventive and not punitive or retributive; Kirpal Singh v. State, AIR 1951 SC 137.
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 fault in bringing about the encounter; Secondly, there must be present an impending peril to life or of great bodily harm either real so apparent 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; Balbir Singh Balwant Singh v. State of Punjab, 1959 Cr LJ 901 (SC).
Tn Jassa Singh v. State of Haryana, MANU/SC/0008/2002 : (2002) 2 SCC 481 the fact of the case was, dispute of land arose between deceased Surmukh Singh and the accused Jassa Singh @ Jaswant Singh (appellants). At about 6.00 p.m. when Surmukh Singh and Narinder Singh were sitting on the boundary of the held, all the appellants came there. While appellants Jassa Singh, Bakha Singh and Sukha Singh were armed with guns, other accused persons were having gandasis with them. Labh Singh and Jassa Singh made exhortations to kill Surmukh Singh, the Sarpanch. Gurmukh Singh and his deceased brother, Surmukh Singh made an appeal to the appellants not to pick up a quarrel and that they may settle the dispute in court. But the appellants advanced towards the tractor driven by Gurvinder Singh and Jassa Singh fired a shot at Surmukh Singh. The appellant Bakha Singh also fired a shot at Surmukh Singh. Surmukh Singh fell down on the ground.
The appellant Sukha Singh also fired a shot at Surmukh Singh with his 12 bore gun.
The appellants Jassa Singh, Kabul Singh, Jeet Singh, Labh Singh, Lakha Singh, Sarang Singh, Satnam Singh and Swaran Singh started attacking Surmukh Singh with their gandasis. The appellants Bakha Singh and Sukha Singh fired shots at others also and some of them took shelter behind the ridge of the field. Thereafter, all the accused persons went away from the scene. Contended that the appellants were entitled to exercise their right of private defence as Surmukh Singh and others had trespassed into the property possessed by Jassa Singh and caused mischief by destroying the standing crops.
Issue:
Does the act of the appellant persons comes within the Exception 2 to section 300 of I.P.C.?
Decision:
It was held by the Supreme Court that, Right of private defence is a valuable right and it is basically preventive in nature and not punitive. Sections 96 to 104 lay down the general principles governing the right of private defence. Section 96, I.P.C. lays down that nothing is an offence which is done in the exercise of the right of private defence and section 97 proceeds to divide the right of private defence into two parts--the first part relating to private defence of his own body, and the body of any other person, against any offence affecting himand the second part deals with the property, whether movable or immovable, of himself or of any other person, against any act which is an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or criminal trespass. Here the matter is concerned with the private defence of property. Section 103, 1.P.C. states that the right of private defence may even extend to causing death, but this right of private defence can be exercised only as against certain criminal acts which are enumerated in that section. The right of private defence of property would extend to causing death only in the case of robbery, breaking into house by night; mischief by fire committed on any building, tent or vessel, which building, tent or vessel is used as a human dwelling, or as place for the custody of property. It is further stated that in the case of theft, mischief or house-trespass these offences must have been committed under such circumstances as may reasonably cause apprehension that death or grievous hurt would be the consequence. Though private defence is available in respect of criminal trespass or mischief as against the property owned by himself or of any other person, but criminal trespass is not enumerated as one of the offences under section 103, I.P.C. Therefore, the right of private defence of property will not extend to the causing of death of the person who committed such acts, if the act of trespass is in respect of an open land. Only a house-trespass committed under such circumstances as may reasonably cause apprehension that death or grievous hurt would be the consequence is enumerated as one of the offences under section 103.
In this case, the appellants went to the place of occurrence with guns and deadly weapons. This clearly indicated that there was premeditation on the part of the appellants and from the acts committed by the appellant, it is evident that they had intention of doing more harm than was necessary for the purpose of self-defence. Therefore, the acts committed by the appellants will not come within Exception 2 of section 300, I.P.C. so as to make it culpable homicide not amounting to murder.
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 has been provided to protect a public servant or a person aiding a public servant, if either of them exceeds the power given for the advancement of public justice. This exception clause will not apply if the act is illegal or against public policy and not authorised by law, or the person glaringly exceeds the power given to him by law. However, to invoke this exception it must fulfil the following:
(1) The person accused must be a public servant.
(2) He must believe in good faith that the act which resulted in the death was lawful and necessary for the due discharge of his duties.
Where a suspected thief who has been arrested by a police officer escapes by jumping down from the train from its off side and the police officer finding
that he is not in a position to apprehend him, shoots at him but in doing so hits the fireman and kills him; it was held that the case is covered by exception 3 to section 300, I.P.C. and the accused is guilty of culpable homicide not amounting to murder; Dukhi Singh v. Slate, MANU/UP/0109/1955 : AIR 1955 All 379.
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 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.
In this exception, if the death is caused without pre-meditation 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 cruel or unusual manner. It is immaterial in such cases which party offers the provocation or commits the first assault. The conditions necessary for the application of this exception; Subhash Shamrao Pachunde v. State of Maharashtra, IV (2005) CCR 316 (SC), are:--
(i) There must be a sudden fight;
(ii) The act must have been committed in a heat of passion;
(iii) The act must have been committed without pre-meditation;
(iv) The accused must not have taken undue advantage;
(v) The accused should not have acted in a cruel manner; and
(vi) The fight must have been with the person killed.
In Sukhbir Singh v. State of Haryana, MANU/SC/0116/2002 : (2002) 3 SCC 327 the fact of the case is, one Gulab Singh brother of the deceased, had come to his brother's residence where they were smoking hukka and chatting. Ram Niwas, son of Lachhman (deceased) was sweeping the street in front of his house with a broom and that some mud splashes stuck Sukhbir Singh at a time when he was passing in the street. Sukhbir Singh felt offended and is alleged to have abused Ram Niwas. When Sukhbir Singh and Ram Niwas were abusing each other, Lachhman separated them and gave two slaps to Sukhbir Singh. Sukhbir Singh went away declaring that a lesson would be taught to them. After sometime all the 9 accused persons came at the spot. Sukhbir Singh, Behari and Ram Chander, accused were carrying bhalas, accused Pala, Tara and Baijit were carrying gandasas and accused Kidara, Darya and Raj were carrying jailwas. Sukhbir Singh challenged Lachhman to come out so that a lesson could be taught to him. When Lachhman proceeded towards the door of his house saying that the matter should not be aggravated and as soon as he reached the door of his house, accused Sukhbir Singh gave two thrust-blows with his bhala on the upper-right portion of his chest. Lachhman fell down, whereafter accused Ram Chander caught hold of the legs of Lachhman and dragged him out in the street. Accused Behari gave a bhala-blow on the left side of the chest of Lachhman.
Issue; Whether under the facts and circumstances of the case the accused can avail that benefit of Exception 4 of section 300 of I.P.C.?
Decision:
It was held by the Supreme Court that, to avail the benefit of Exception 4, the defence is required to probabilise that the offence was committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and the offender had not taken any undue advantage and the offender had not acted in a cruel or unusual manner. The exception is based upon the principle that in the absence of premeditation and on account of total deprivation of self-control but on account of heat of passion, the offence was committed which, normally a man of sober urges would not resort to. Sudden fight, though not defined under the Act, implies mutual provocation. It has been held by the courts that a fight is not per se palliating circumstance and only unpremeditated fight as such. The time gap between quarrel and the fight is an important consideration to decide the applicability of the incident. If there intervenes a sufficient time for passion to subside, giving the accused time to come to normalcy and the fight takes place thereafter, the killing would be murder but if the time gap is not sufficient, the accused may be held entitled to the benefit of this exception.
In the instant case, concededly, there was no enmity between the parties and there is no allegation of the prosecution that before the occurrence, the appellant and others had premeditated. As noticed earlier, the occurrence took place when Sukhbir Singh got mud splashes on account of sweeping to the street by Ram Niwas and a quarrel ensued. The deceased gave slaps to the appellant for no fault of his. The quarrel appeared to be sudden, on account of heat of passion. The accused went home and came armed in the company of others though without telling them his intention to commit the ultimate crime of murder. The time gap between the quarrel and the fight is stated to be a few minutes only. According to Gulab Singh when Sukhbir Singh was passing in the street and some mud got splashed on his clothes, he abused Ram Niwas. They both grappled with each other whereupon Lachhman (deceased) intervened and separated them. Accused Sukhbir had abused Lachhman who gave him two slaps. The said accused thereafter went to his home after staring that he would teach him a lesson for the slaps which had been given to him. After some time he, along with other accused persons, came at the spot and the fight took place. His own house is at a different place. There is a street in between his house and the house of Lachhman (deceased). On the northern side of his house, the house of the appellant is situated. Similarly Ram Niwas has stated that after the quarrel the accused went towards his house and within a few minutes he came back with other accused persons. It is, therefore, probable that there was no sufficient lapse of time between the quarrel and then fight which means that the occurrence was "sudden" within the meaning of Exception 4 of section 300, I.P.C.
In Suresh Chandra v. State of Uttar Pradesh, MANU/SC/0435/2005 : AIR 2005 SC 3120, it was argued that the incident had happened without any premeditation or prior concert, upon a sudden quarrel and the resultant attack on the victims was unintentional and therefore, the offence would appropriately fall under Exception 4 punishable under section 304, Part I or II.
It was held by the apex Court that, though there was absence of premeditation and it was a case of sudden fight, that is not sufficient to bring the offence committed by the accused within the purview of Exception 4. The further requirement of Exception 4 that the offender should not have taken undue advantage or acted in a cruel or unusual manner should be satisfied. The very fact that accused used the firearms in the course of a frivolous quarrel, would demonstrate beyond doubt that the appellants acted in a cruel manner and it would further demonstrate the intention to cause death or at any rate, to cause a bodily injury of the nature mentioned in clause thirdly of section 300, Such intention is writ large on the acts done by the accused. Thus, it is a case in which clauses I to III of section 300, I.P.C. are attracted and Exception 4 would not come to the rescue of the accused.
In Dhirajbhai Gorakhbhai Nayak v. State of Gujarat, MANU/SC/0500/2003 : (2003) 9 SCC 322 the fact of the case is, Dahiben and the deceased were staying in Dhastripura in the city of Sural with her two sons Dhanesh and Narendra. About 10 days prior to the date of occurrence the accused (appellant) had taken his small daughter to the in-law house and had kept her there. On his return, the deceased scolded him for leaving a small child at a distant place and the accused was very angry for this interference in his personal matters and that led to quarrels--first verbal and then physical. Subsequently, on the date of occurrence at about 1.30 p.m. when the deceased was sitting in a temple the accused warned him and challenged him, saying that if he wanted to fight he was ready for the same. This resulted in exchange of words and a fight. Residents of the locality and Dahiben separated them. In the evening Nanabhai a friend of the deceased came to the house of the deceased and told Dahiben that since a quarrel was going on in the house, he would take the deceased for seeing a movie. Dahiben agreed and both Nanabhai and the deceased went to see a movie late at night. As it was midnight when they got back the deceased slept in the verandah of the house while Dahiben and Dhanesh slept inside the house. At about 4.00 a.m. in the morning on hearing shouts for help Dahiben opened the door and went outside. In the meantime Dhanesh also woke up and he joined his mother outside the house. They saw the deceased in bleeding condition. They also found the accused-appellant delivering blows on the deceased. Dahiben called out his name and asked him as to why he was doing this and if there was any problem that could be sorted out in the morning. The appellant on hearing this immediately ran away. Dahiben went out and asked for help from the neighbours. Many of them came to her house. The deceased was taken to the hospital where he breathed his last at about 4.45 a.m.
Issue:
Whether Exception 4 of section 300 is applicable in this case?
Decision:
The Supreme Court observed that, for bringing in Exception 4 in operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
The fourth Exception of section 300, I.P.C. covers act done in a sudden fight. The said Exception deals with a case of prosecution not covered by the first exception, after which its place would have been more appropriate. The Exception is founded upon the same principle, for in both there is absence of premeditation, But, while in the case of Exception 1, there is total deprivation of self-control, in case of Exception 4, there is only that heat of passion which clouds men's
sober reason and urges them to deeds, which they would not otherwise do. There is provocation in Exception 4 as in Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor could in such cases the whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1. There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation and it is difficult to apportion the share of blame, which attaches to each fighter. The help of Exception 4 can be invoked if death is caused (a) without premeditation, (b) in a sudden fight, (c) without the offenders having taken undue advantage or acted in a cruel or unusual manner, and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the "fight" occurring in Exception 4 to section 300, I.P.C. is not defined in I.P.C. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two or more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden or not, must necessarily depend upon the proved facts of each case.
For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'.
It was held that the Exception 4 of section 300 has no application to the facts of the present case.
For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in a cruel or unusual manner. The expression 'undue advantage' as used in the provision means "unfair advantage".
It was held that the Exception 4 of section 300 has no application to the facts of the present case.
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. Mere, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder.
This last exception to section 300, I.P.C. deals with causing death by consent which is nowadays very popular in terms of 'euthanasia' (mercy killing). The exception is justified on the ground that a man's life is not only valuable to himself, but also to the State.
The infliction of harm with the consent of the sufferer falls in the general exception (Sections 87 to 93) but under those sections death cannot be consented to. But under this exception if death consented to, then in such a case the person who kills shall be guilty of culpable homicide but not murder. The person giving such a consent must be above 18 years of age. This exception has to be strictly construed. Unless all the facts and circumstances are taken into account by the person who consents to be killed this Exception cannot be invoked. The consent must be unconditional.
In Dasrath Paswan v. State of Bihar, MANU/BH/0071/1958 : AIR 1958 Pat 190 the accused was a student of class X. He had failed at the annual examination for three years in succession. The accused was very upset and depressed. He took his last failure so much to heart that he decided to end his life and informed his wife, an illiterate woman of about 19 years of age, of his decision. His wife asked him first to kill her and then kill himself. In accordance with the pact the accused killed his wife first, but was arrested before he could kill himself. It was held by the Supreme Court that, the deceased was above the age of 18 years and that she had suffered death with her own consent. The deceased did not give the consent under the fear of injury, nor under misconception of fact, but voluntarily, and so the case would fall under Exception 5 to section 300, I.P.C.
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, I.P.C., embodies the principle of transfer of malice or transmigration of malice/motive e.g. Where A aims a shot at B in order to kill him but it misses B and hits some other person C, whether within sight or out of sight, A is deemed to have hit C with the intention to kill and the case will be covered under this section.
In Shankarlal Kachrabhai v. State of Gujarat, MANU/SC/0083/1964 : AIR 1965 SC 1260 the Supreme Court held that, if the accused shoots at a particular person with the intention of killing him though under a misapprehension of his identity, shoots another the ingredients of sections 299 and 300 of I.P.C. are satisfied. Similarly, there will be no difference when the injury intended for one falls on another by accident. If 'A' makes a thrust at 'B' meaning of kill, and 'C throws himself between, receives the thrust and dies, 'A' will be liable for killing 'C as though he had intended to kill 'C'.
Section 302, I.P.C. is the penal section of murder; it reads:
Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine.
Therefore, section 302 provides two alternative punishments for murder, viz., death sentence or imprisonment for life. The legislature has left to the Court to award the appropriate punishment in a case of murder according to its wisdom.
In Bachan Singh v. State of Punjab, MANU/SC/0055/1982 : AIR 1980 SC 898 the Supreme Court by a majority of four to one held that, the provision of death penalty as an alternative punishment for murder under section 302 of I.P.C. is not unreasonable and is in the public interest. The court laid down the following propositions:--
(i) The extreme penalty of death need not be inflicted except in gravest cases of extreme culpability.
(ii) Before opting for the death penalty the circumstances of the offender is also required to be taken into consideration along with the circumstances of the crime.
(iii) Life imprisonment is the rule and the death sentence is the exception. In other words, the death sentence must be imposed only when life imprisonment appears to be an altogether inadequate punishment having regard to the relevant circumstances of the crime, and (provided and only provided) the option to impose sentence of imprisonment for life cannot be conscientiously exercised having regard to the nature and circumstances of the crime and taking into account all the relevant considerations.
(iv) A balance sheet of aggravating and mitigating circumstances have to be drawn up and in doing so the mitigating circumstances have to be accorded full weightage and a just balance struck between the aggravating and the mitigating circumstances before the option is exercised.
In Rameshbhai Chandubhai Rathod v. State of Gujarat, MANU/SC/0075/2011 : AIR 2011 SC 803, the Supreme Court held appellant taking the girl with him on his bicycle. Appellant made an extra-judicial confession that ha had raped and killed the child. Dead body recovered from the place of incident. High court dismissed the appeal and confirmed the death sentence. Case fell with in the category of the rarest of rare cases. Deceased was a helpless child of tender age and the accused being a watchman in the building, was in a position of trust and as the murder and rape was brutal, so the death sentence was the only adequate one. At the same time the gravity of the offence, the behaviour of the appellant and the fear and concern such incidents generate in ordered society, cannot be ignored. Supreme Court confirm the conviction and commute the death sentence into that of life imprisonment.
In Chirra Shivraj v. State of Andhra Pradesh, MANU/SC/0992/2010 : AIR 2011 SC 604 the Supreme Court held that where deceased received burn injuries and FIR registered under section 307. Due to septicemia on account of burn injuries deceased expired and second FIR registered under section 302, IPC. It was no necessity to registered anew FIR. It was a mistake by SHO but no prejudice had been caused to accused. There were no defect in entire investigation so no possibility to acquittal of accused. Dying declaration before judicial officer sufficient for conviction.
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 the 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.
Section 304, I.P.C. creates no offence but prescribes the punishment for culpable homicide not amounting to murder and draws a distinction in the penalty to be inflicted.
(a) when the act would have amounted to murder but for its having fallen within one of the Exceptions to section 300, I.P.C., and
(b) in those cases when there is knowledge that death will be a likely result but intention to cause death of bodily injury is absent.
The sentence varies according to the offenders' intention or knowledge, ranging from imprisonment for life to a mere fine.
Elements of section 304.--
Section 304, I.P.C. divides the offence of culpable homicide not amounting to murder into two categories according to intensity and gravity of the crime for the purpose of awarding sentence. In one case, (which is more serious and more grave in nature) the liability is proved on the basis of intention to be inferred from all the circumstances; whereas in the other case (of less serious nature) liability does not depend on intention.
That is to say, in Part I to section 304, I.P.C. intention is the basis of liability for determining the guilty. It applies where the accused causes bodily injury with the intention to cause death or with intention to cause such bodily injury as is likely to cause death.
On the other hand, in Part II to section 304, I.P.C., knowledge is the basis of punishment. It comes into operation when the death is caused by doing an act with the knowledge that it is likely to cause death as stated in clause (3) to section 299, I.P.C.
In Gurdial Singh v. State of Punjab, MANU/SC/0074/2011 : AIR 2011 SC 840, in this instant case three appellants armed with gandasi and other two with dangs caused injuries to deceased. Weapons used for common use which are normally carried by villagers. Accused had used Gandasi from its blunt side confirmed by the doctor. No prior intention to commit murder, incident happened all of sudden when deceased objected to construction of drain by accused. All accused are liable for offence under section 304, Part 1 read with section 34, IPC. Trial Court convictedand sentenced to life imprisonment. The High Court dismissed the appeal, but the Supreme Court's view that they have already undergone about 5 years of sentence, so keeping in view sentence of 5 year is sufficient.
In Dayal Das v. State of Rajasthan, MANU/SC/0326/2011 : AIR 2011 SC 1361, where Supreme Court held that Culpable Homicide not amounting to murder where death caused by consuming illicit liquor. It is nowhere mentioned in entire evidence that liquor was purchased by deceased from shop of accused. When liquor consumed by deceased at shop of accused was not sent for chemical examination, conviction of accused cannot be sustained on the basis of statement that deceased was seen drinking liquor at shop of accused. Supreme Court have no hesitation at the conclusion that both Trial Court and High Court erroneously read the statement and unfortunately led to the conviction of the appellant. Appeal allowed and conviction of appellant set aside.
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