This article has been written by Arati Roy pursuing a Diploma in Corporate Litigation from LawSikho.

 This article has been edited and published by Shashwat Kaushik.

Introduction

Life and personal liberty are inalienable to human existence and natural law rights can be traced to times immemorial. Article 21 of the Constitution of India asserts this right and guarantees preservation and protection of right and liberty to not only citizens but all persons.  To ensure this end, various offences have been made punishable under the Indian Penal Code of 1860.  Chapter XVI of the Indian Penal Code deals with offences affecting the human body.   Culpable homicide and murder are two such offences, which we will investigate in this article.

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What is meant by homicide

The word homicide literally means the killing of one person by another person. Death is the ultimate result or consequence of all kinds of homicide. 

A homicide requires only a volitional act or an omission that causes the death of another, and thus a homicide may result from accidental, reckless, or negligent acts even if there is no intent to cause harm. Homicides can be divided into many overlapping legal categories, such as murder, manslaughter, justifiable homicide, assassination, killing in war (either following the laws of war or as a war crime), euthanasia, and capital punishment, depending on the circumstances of the death. 

Different kinds of homicide

Homicide can be either an unlawful criminal act or a non criminal act. Thus where death is caused by accident or misfortune or by mistake of fact by a person who in good faith believes himself bound by law, or where death is caused by a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes to be given to him by law etc, it is said to be lawful homicide.   Lawful homicide is said to be caused when the death is by accident, misfortune or without criminal intention or knowledge in the doing of a lawful act, in a lawful manner, by lawful means and with proper care and caution. Unlawful homicide includes culpable homicide, murder, manslaughter, causing death by dangerous driving, and killing in pursuance of suicide pact. A person is said to commit culpable homicide if the act by which the death is caused is done (a) with the intention of causing death; or (b) with the intention of causing such bodily injury as is likely to cause death; or (c) with the knowledge that the act is likely to cause death. Thus, there are 3 species of  mens rea in culpable homicide.  It does not necessarily involve premeditation or thinking out the killing beforehand.   On the other hand a person is said to commit culpable homicide amounting to murder if the act by which the death is caused is done (a) with the intention of causing death; or (b) 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 (c) 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 (d)with the knowledge that the act is so imminently dangerous that it must in all probability cause death and without any excuse for incurring the risk of causing death or such injury as is mentioned above.

Culpable homicide

Section 299 of the Indian Penal Code (IPC) envisages the following as the essentials of an act amounting to culpable homicide:

  • Causing death of a human being
  • Mens rea: Such death must have been caused by doing an act:
    • with the intention of causing death
    • with the intention of causing bodily injury that is likely to cause death or
    • with the knowledge that the doer is likely, by such an act, to cause death.

Without one or the other of the above mentioned 3 elements mentioned in point 2 above, an act, though it may be in its nature criminal and may occasion death, does not amount to the offence of culpable homicide.

Murder

Section 300 of the IPC provides the definition and punishment for murder.

What converts culpable homicide into murder is the presence of a special mens rea, which consists of the following 4 components:

  • Premeditation
  • No provocation whatsoever
  • Absence of heat of passion
  • Undue advantage taken by the offender or cruel and unusual manner of execution of death crime.

Defences that are considered to label an offence as not murder but culpable homicide:

Grave and sudden provocation

Where ‘A’ came to know of his partner having cheated him of his property by forging his signatures and upon confronting ‘B’ had altercation, following which A picked up a stone from the road and slammed B’s head, causing instant death, it would fall within the meaning of grave and sudden provocation 

Self defence

Where ‘A’ accused of killing ‘B’ establishes that the gun that was used for killing was in fact brought by B for the purpose of killing A and that B in fact intended to kill A but in act of self defence when A tried to pull the gun, it got fired and instead killed B, it would be seen as culpable homicide, not amounting to murder.

Acts of public servant in good faith

Where ‘A’, a police officer in charge of a prison, in the process of arbitrating between 2 inmates of the jail when engaged in a physical fight, ends up killing one inmate, his such act, if done in good faith, is culpable homicide, not amounting to murder. 

Insanity

Where ‘A’, in shock over the death of his child, kills the murderer of the child in the spell of insanity, it will be considered culpable homicide, not amounting to murder.

Accident

Where no reason, intention or plan to kill ‘A’ can be attributed to ‘B’ the accused, the same accident will amount to culpable homicide, not murder.

Consent of the deceased

Where ‘A’ and ‘B’, both suffering from a disease, decide to commit suicide by jumping into a well and where A jumps and B at last changes his mind, it will amount to culpable homicide, not murder.  

In one of the most famous criminal cases of Indian legal history, where Commander. K.M. Nanavati was tried for murdering his wife’s lover, Prem Ahuja, it was held that Nanavati’s act did not amount to murder but culpable homicide, not amounting to murder. This case led to significant changes in Indian criminal law, especially with regard to the application of the defence of provocation. So also in the case of the terrorist attack of 2008, where Mohd. Ajmal Amir Kasab was tried for the offence, he was found guilty of various offences, including culpable homicide not amounting to murder.

Punishment

The death of a person may be the consequence of acts by 2 different persons, each of whom may, in the eyes of the law, stand on a different footing depending on the motive (intention) of the person committing the crime. Thus, depending on the nature of the crime that a person is found guilty of, their extent of punishment will vary. 

For the purpose of fixing punishment, the Indian Penal Code recognises 3 degrees of punishment:

Punishment for culpable homicide of the first degree, i.e., murder, under Section 300 of IPC: Section 302 of the IPC prescribes imprisonment for life or the death penalty for culpable homicide of the first degree, and this is generally reserved for the rarest of the rare cases.

Punishment for culpable homicide of the second degree: This is punishable under Section 304 Part I of the Indian Penal Code, which prescribes punishment of imprisonment that may extend to 10 years and a further fine.

Punishment for culpable homicide of the third degree: This is the lowest type of culpable homicide and amounts to murder. It is prescribed in Section 304, Part 2, of the Indian Penal Code that it prescribes imprisonment for life or imprisonment of either description for a term that is not less than 7 years but which may extend to imprisonment for life.

In Reg vs. Govinda (1876), a person was convicted of murder for poisoning his wife and it was held that a person who administers poison with the intent to endanger life and death ensues amounts to murder even if the person administering the poison believed it to be harmless. Thus, murder is considered to be a much more grave crime than culpable homicide. In Virsa Singh vs. State of Punjab (1969), it was held that it is not enough to show that the injury found to be present was sufficient to cause death but it has to be further proved that the injury was intended to be inflicted.

3-step enquiry

To differentiate murder from culpable homicide, a 3-step inquiry may be conducted as follows:

  • Whether an act of the accused has caused the death of another
  • Whether act of accused amounts to culpable homicide as defined in Section 299 of the IPC and
  • Whether the facts, as proved during the trial, bring the case within the four corners of the definition of murder.

While the reading of the provisions of the IPC may appear to be a clear cut classification, very often the facts of the cases are so complex that it may be a challenge to do justice in every matter. The overlapping of facts very often makes it difficult to distinguish between a culpable homicide of first degree and second degree or culpable homicide of second degree and murder.

While mens rea is a necessary component in culpable homicide, it is the proof of special mens rea, i.e., the intention to cause the death of the person, that converts culpable homicide into murder.  Culpable homicide may be elevated to murder due to further qualifying conditions namely- intent, knowledge and aggravating factors. Thus, in Narshingh Challan’s case, it was held that an offence cannot amount to murder unless it falls within the definition of culpable homicide; in other words, all murder is a culpable homicide but every culpable homicide need not necessarily amount to murder. In State of Andhra Pradesh vs. Rayavarapu Punnayya & Anr. (1976), while laying down parameters to distinguish these two crimes, the Supreme Court emphasised that the degree of probability of death occurring would determine whether an act falls under murder or culpable homicide and that ‘culpable homicide’ is genus and ‘murder its specie. All ‘murder’ is ‘culpable homicide’ but not vice versa. Speaking generally, ‘culpable homicide sans ‘ special characteristics of murder’ is culpable homicide not amounting to murder.

In short, any homicide in which mens rea, i.e., intention and/or knowledge that the act of the offender is likely to cause death, is proved, is a culpable homicide, and any act of culpable homicide in which special mens rea, i.e., premeditated or thought out planned manner of execution, is proved, amounts to murder.

Conclusion

While culpable homicide is an act of causing death of a person by any means, murder is a culpable homicide with the intention of killing the person by deliberate and premeditated act or malice aforethought. Murder involves deliberate intention, while culpable homicide may or may not involve the element of intention. Murder specifically involves the intentional killing of another person, is a consequence of malicious thought, requires a higher level of culpability, is a more serious criminal offence and therefore attracts more severe punishment as compared to culpable homicide.

References

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