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Culpable homicide not amounting to murder

April 11, 2025

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Shefali Chitkara wrote this article. It gives a detailed meaning and analysis of the concept of culpable homicide not amounting to murder as mentioned under the Bharatiya Nyaya Sanhita, 2023 (earlier the Indian Penal Code, 1860). The article covers all the important provisions that cover the topic as per both the old and new criminal laws. The readers will be able to clearly distinguish between the two most grave offences against the body after reading this article.

Table of Contents

Introduction

The Bharatiya Nyaya Sanhita, 2023, also referred to as “BNS”, is the prevailing Act that has replaced the age-old Indian Penal Code, 1860 (hereinafter referred to as “IPC”). It is important to know that the same has been replaced to streamline the criminal justice system and further deal with contemporary issues prevailing in society. This new Act has not only added several other offences like organised crime (Section 111 of the BNS) and terrorist acts (Section 113 of the BNS), but also added another kind of punishment of community service (Section 4(f) of the BNS) for the offenders.

Chapter VI of the Bharatiya Nyaya Sanhita, 2023, ranging from Sections 100 to 146, covers all the offences relating to the human body, out of which the two major crimes of highest punishment are ‘murder’ and ‘culpable homicide not amounting to murder’. We had Sections 299 to 304 in Chapter XVI of the Indian Penal Code, 1860, which covered these offences against the human body. The serious punishment given for these offences is significant in indicating the importance of rights enshrined under Article 21 of the Constitution of India to protect the life and personal liberty of persons.

Before proceeding further to discuss this offence, we need to know the basic elements of any crime.

Essential elements of a crime

Generally, to punish any crime that has been committed, two essential elements are required to be fulfilled: mens rea (guilty mind) and actus reus (an act). Specifically talking about murder and culpable homicide, an act has already been done, and the only factor that has to be seen in deciding the punishment is the mens rea with which the crime has been committed by the offender. This is the only factor that makes culpable homicide not amounting to murder different from murder.

To ponder more, you will be able to get a clear idea through illustrations and case laws that have been discussed below. Before moving forward, we should know the general meaning of culpable homicide not amounting to murder.

What is culpable homicide not amounting to murder?

The word ‘homicide’ is the illegal killing of a person by another person. Further, ‘culpable’ means the state of being at fault.

Culpable homicide is a genus and is broad enough to cover certain acts that may not amount to murder and certain other acts that are considered to be murder. We do not have any specific definition of ‘culpable homicide not amounting to murder’ under BNS, but it can be inferred from two of the provisions of the BNS, i.e., Sections 100 and 101 of the Bharatiya Nyaya Sanhita, 2023 (Sections 299 and 300 of the old IPC). Section 100 talks about culpable homicide, whereas Section 101 talks about the offence of murder, but a part of Section 101 also covers five exceptions, which are known as culpable homicide not amounting to murder.

Culpable homicide not amounting to murder means an act that is not done with the highest degree of intention and knowledge as required under the essentials for constituting an offence as murder.

In brief, we can say that culpable homicide not amounting to murder includes two things:

Those acts falling under the five exceptions mentioned under Section 101 of the Bharatiya Nyaya Sanhita, 2023, and
Those acts which are not fulfilling the conditions for murder under Section 101 of the Bharatiya Nyaya Sanhita, 2023, and those which are covered under Section 100 of the Sanhita.

Let us look at the meaning of culpability and homicide separately.

What is culpability

In layman’s language, culpability denotes the mental state of an individual. The ‘culpability’ can be ascertained by knowing the intention, knowledge, negligence, and recklessness behind the act. The word ‘culpable’ has been derived from the Latin word “culpe”, which means punishment. We can say that only such homicide is punishable, which is unlawful or culpable.

What is homicide

Homicide has been defined as the killing of one person by another and is the highest form of crime inflicted on a human being by another human being. Every homicide is not equally punishable, as the punishment depends on the degree of culpability. Some exceptions are: killing by a person of unsound mind or under private defence, wherein any grave criminal intent is absent and, therefore, the person can be excused under the law.

It can be said that homicide can be both lawful and unlawful. Lawful is the one that is excusable and justified under the law, as explained above, whereas unlawful is the one wherein an act of killing is accompanied by a criminal intent or mens rea. Unlawful homicide covers culpable homicide not amounting to murder, murder, suicide, and also death by rash and negligent act, which is covered under Section 106 of the Bharatiya Nyaya Sanhita, 2023 (Section 304A of the IPC).

Now, there are degrees of mens rea that we should understand. Intention and knowledge are two main degrees, and their difference must be known to us before actually going to the Section.

Distinction between intention and knowledge

It is important to understand the difference between the intention and the knowledge before dealing with the essential elements of culpable homicide not amounting to murder. It is because of factors like intention and knowledge that an offence falls under either Section 100 or 101 of the Bharatiya Nyaya Sanhita.

For culpable homicide, the accused may have the intention to cause death or to cause bodily injury which is likely to cause death. Moreover, for knowledge, the accused must only be aware that his actions are likely to cause death.

To understand the difference between murder and culpable homicide not amounting to murder, we must first know the difference between intention and knowledge. This was laid by the Hon’ble Supreme Court in the case of Basdev vs. The State of PEPSU (1956). It was held that an intention is formed through the motive of an individual and is the highest degree of culpability, whereas knowledge is knowing the consequences of one’s actions.

Essential ingredients of culpable homicide not amounting to murder under Section 100

The Hon’ble Supreme Court in the case of Richhpal Singh Meena vs. Ghasi @ Ghisa & Ors. (2014) stated that for cases where death is alleged to have been caused by a person, we should make an inquiry consisting of these five steps:

Is it a homicide?
If yes, whether the act amount to a culpable homicide or ‘not a culpable homicide’?
If it is a culpable homicide, whether the offence is one of culpable homicide amounting to murder (Section 300 of the Indian Penal Code) or is it a culpable homicide not amounting to murder (Section 304 of the Indian Penal Code)?
If it is ‘not a culpable homicide’, then a case under Section 304-A of the Indian Penal Code is made out.
If it is not possible to identify the person who has committed the homicide, the provisions of Section 72 of the Indian Penal Code (now, Section 10 of the Bharatiya Nyaya Sanhita) may be invoked.

The causation of death is one of the essentials of the offence of culpable homicide not amounting to murder. Besides this, the essential ingredients of culpable homicide not amounting to murder as per Section 100 of the BNS (Section 299 of the IPC) have been discussed below:

Causation of death

The word “death” is defined under Section 2(6) of the BNS (Section 46 of the IPC) as the death of a human being. This word does not include the death of an unborn child (as per Explanation 3 of Section 100 of the BNS). Furthermore, 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. Death occurs when the brain dies completely. A person cannot be said to be dead if some brain activity is present. The same was held in the case of Aruna Ramchandra Shanbaug vs. Union of India & Ors. (2011).

One of the most essential ingredients of proving culpable homicide is the death of the victim through any act or omission by the accused. If the result is not death, then no criminal charge of culpable homicide could be made against an accused. However, there may be hurt or grievous hurt in such cases, but not culpable homicide or murder.

The Supreme Court, in the case of Rama Nand & Ors. vs. State of Himachal Pradesh (1981), has held that one of the essential ingredients of the offence of culpable homicide required to be proved by prosecution is that the accused caused the death of the person alleged to have been killed. It was further stated by the Supreme Court that the same can be proved by circumstantial evidence, and discovery of the dead body of the victim has never been considered as the only mode of proving death.

This judgment was followed in the case of Rishipal vs. State of Uttarakhand (2013), and the court noted that the failure of the prosecution to assemble evidence of the death of the victim would fail the most essential requirements in cases of culpable homicide and murder.

By doing an act

It is further essential on our part to know that the death must have been caused due to an act or omission. Death may be caused by poisoning, starvation, striking, drowning, and in a hundred different ways. Under Section 32 of the IPC (Section 3(4) of the BNS), words that refer to acts done extend also to include “illegal” omissions. Further, the word illegal means everything which is an offence or which is prohibited by law or which furnishes ground for civil action as per Section 43 of the IPC (Section 2(15) of the BNS). Therefore, death caused by a lawful or illegal omission will amount to culpable homicide.

Only actus reus in itself would not constitute this offence; mens rea is also equally essential to be proved. Let us now have a look at the mental element that is necessary for proving this offence.

Mental element of the offender

It is to be noted that only actus reus is not sufficient. Along with actus reus, i.e., an act or an omission, a mental element (mens rea) is also an essential condition for constituting a crime. This mental element can be in the form of intention or knowledge of the likelihood of causing death.

Intention of causing death

The degree of intention under culpable homicide not amounting to murder is comparatively less and not sufficient to cause death, like in murder. The Supreme Court in the case of Satpal vs. State of Haryana (2021) observed that the intention to cause death has to be gathered and inferred from the actions of the accused and the surrounding circumstances. Let us have a look at a few of the factors:

The motive of the accused,
Utterances made,
Nature of the attack,
The time and place of attack,
The nature and type of weapon used,
The nature of the injuries caused.

These and other factors are to be taken into consideration to determine whether the accused had the requisite intention or not. In this case, there was no material or evidence to show that the act of throwing the stone was such that it could be attributed that such an act was likely to cause the death of the victim. Hence, the court did not gather the intention of the accused to place it either for culpable homicide or murder.

Intention of causing bodily injury that is likely to cause death

This ingredient talks about such an intention of causing bodily injury to a person, which is likely to result in the death of that person. For instance, in a fight between Sahil and Nirmal, Sahil gave two blows with a lathi on the head of Nirmal, which is likely to cause his death, and death will not be the result in all probability. Here, bodily injury was the result of his intention only, but death was not the ultimate intention. So, the act of Sahil will amount to the case of culpable homicide not amounting to murder.

The connection between the act and the death caused thereby must be direct and distinct, though not immediate. It must not be too remote where bodily injury sufficient to cause death is caused, it is immaterial to go into the question of whether the accused had the intention to cause death or knowledge that the act would cause death.

In finding out whether there was the requisite intention or not, the Court has to go merely by the part of the body where the injury is caused, but also by the circumstances and the background of the offence and the ferocity of the attack.

Knowledge of the likelihood of causing death

The degree of knowledge is less, and it need not be compulsorily present as in the case of murder. In the case of a person giving a chokeslam to another person and having knowledge that it is likely to cause the death of such a person and will not, in all probability, cause the death of that other person. This will be covered under culpable homicide not amounting to murder. Unlike murder, the knowledge is not accompanied by the intention of culpable homicide not amounting to murder.

In the case of State Tr. P.S. Lodhi Colony, New Delhi vs. Sanjeev Nanda (2012), the Supreme Court accepted the appeal of the State that the accused driver had the requisite knowledge of the consequences of his dangerous driving and was made liable under Part II of Section 304 (now Part II of Section 105). The court inferred such knowledge through the driver’s post-accident conduct and fleeing from the scene without caring for the victim.

Culpable homicide not amounting to murder under exceptions to Section 101 of the Bharatiya Nyaya Sanhita, 2023

We have understood the meaning of culpable homicide not amounting to murder and its essential elements above. Now is the time to understand the exceptions to murder that will ultimately be punished as culpable homicide not amounting to murder. Any of these exceptions mentioned under Section 101 (Section 300 of the IPC) can be availed as a defence by the accused. These acts mentioned below are not purely intentional acts done by the accused alone and are a result of a reaction to the actions of the deceased or derived through lawful powers. As per Section 101 of the BNS, the exceptions to the offence of murder are given below:

Grave and sudden provocation

Exception 1 of Section 101 covers the exception of grave and sudden provocation. Deprivation of the power of self-control by grave and sudden provocation causes that person’s death who gave the provocation or causes the death of any person by mistake or accident.

There are three provisos to this exception.

The first proviso mentions that the provocation should not be voluntarily provoked by the offender;
The second proviso states that the same is not to be given by anything done in obedience to the law or by a public servant during his lawful exercise of the powers; and
The third proviso states that the provocation should not be made through the lawful exercise of the right of private defence.

It is further stated that the question of whether it was a grave and sudden provocation so as not to amount to murder is a pure question of fact. Let us understand these with the help of some illustrations.

Illustration 1: Anand abuses and slaps the sister of Mahesh several times in front of him and gives grave and sudden provocation to Mahesh. The same will fall under this exception.
Illustration 2: Preeti killed Nimrit, who was Sushant’s child, due to the grave provocation by Sushant. Here, Preeti is guilty of murder because the provocation was not given by that child but by Sushant.
Illustration 3: When Mohan was arrested by Sohan, who was a bailiff, he was excited by sudden and grave provocation and thereby killed Sohan. Here, since Sohan was lawfully exercising his powers as a public servant, Mohan had committed murder.
Illustration 4: Kabir provoked Aman on 1st July 2023. On 3rd July 2023, Aman stabbed Kabir to death. In such a case, the provocation is not grave and sudden. Therefore, Aman will be held liable for murder under Section 103 of the BNS.
Illustration 5: Aditi, who was the sister of Bhushan, was seen marrying Sandeep after running from her home. Bhushan, in grave and sudden provocation, fired a pistol at Sandeep, which killed him. Here, the case will fall under the first exception to murder, and Bhushan will be liable for culpable homicide not amounting to murder under Exception 1 to Section 101 of the BNS and will be punished under Section 105 of the BNS. Provided, all essentials of Exception 1 to Section 101 are made out.

We should also know about the landmark case on the same, which is K.M. Nanavati vs. State of Maharashtra (1961), wherein the accused was not given an advantage under this exception and was convicted of murder. This case is discussed below in detail. For a case analysis of the K.M. Nanavati case, click here. To know more about the exception of grave and sudden provocation, click here.

Private defence

Exception 2 of Section 101 mentions the exception of private defence. It includes exercising the right of private defence of body or property in good faith and exceeding his power given by law. Further, causing the death of the person against whom he is exercising such a right of defence without any premeditation and intention of doing more harm than is necessary for taking such defence. Let us understand this through an illustration.

Illustration: Sahiba was running towards Zeba with a carving knife in her hand, and being scared of her anger and knife, Zeba fired at her, which caused her death. This will fall under the given exception of private defence.

To know more about the exception of private defence, click here.

Exercise of legal powers

Exception 3 of Section 101 covers this exception. If the offender is a public servant or aiding a public servant and exceeds his powers in good faith, believing to be lawful and necessary for the due discharge of his duty, and without ill-will.

In the case of Dakhi Singh vs. State of Uttar Pradesh (1955), the constable of the Railway Protection Force fired on the thief when he was escaping his arrest to catch him, however, it caused his death. However, the constable was given protection under this exception and was booked for culpable homicide not amounting to murder.

To understand this more clearly, let us look at this illustration.

Illustration: Adil, a police officer, goes to arrest a person, Bobby, and he is running away. Adil shoots at Bobby. Here, Adil will not be held liable for murder but for culpable homicide not amounting to murder as he exceeded his powers of lawfully arresting Bobby. This case will come under Exception 3 of Section 101 of the BNS, and Adil will be punished under Section 105 of the BNS.

Without premeditation in a sudden fight

Exception 4 of Section 101 covers the exception of sudden fights. It talks about the situation of a sudden fight in the heat of passion upon a sudden quarrel without any premeditation. However, the offender should not have taken undue advantage or acted cruelly or unusually. In the case of Narayan Nair Raghavan Nair vs. State of Travancore-Cochin (1955), the court highlighted that to establish a case under this exception, there must be a fight with the person who has been killed.

Let us have a look at one more case of Samuthram Alias Samudra Rajan vs. State of Tamil Nadu (1997) wherein a person, in the heat of passion while fighting with another person, picks up a weapon that was handy and causes injuries to that person, which resulted in his death. This case was covered under this exception.

Consent

This exception has been covered under Exception 5 of Section 101. Under this, the person suffers death or takes the risk of death with his consent and is above the age of eighteen years. The consent in this case has to be free and voluntary. A few illustrations to understand it in a better way are:

Illustration 1: Ayush, a 22-year-old boy, asked Binu to feed him a poisonous drink; here, the act of Binu will be covered under this exception.
Illustration 2: Akshit instigated Bhanu, who was a child, to commit suicide. Here, since Bhanu was a child and, therefore, not capable of giving consent for his death, Akshit would be liable for abetment to suicide.

If any of these acts are done, they will not be considered or punished for murder; however, the same will be punished for a lesser term under culpable homicide not amounting to murder. To know more about the exception of concept, click here.

Explanation clauses under Section 100 of the Bharatiya Nyaya Sanhita, 2023

The essential ingredients of Section 100 of the BNS (Section 299 of the IPC) have already been highlighted above. Further, the Section also provides three explanations to make the provisions clearer. Let us have a look at these explanations and understand them through illustration and case laws.

Explanation 1 clarifies that if any person accelerates or increases the chance of the death of another person by causing bodily injury to him who is already suffering from any disorder, disease, or bodily infirmity, the person who caused such injury will be deemed to have caused his death.

Illustration: Anuj was suffering from a disease and had been lying in the hospital for several weeks. Sukhbir was unable to see Anuj in such a situation and, therefore, accelerated his death. He will be liable for culpable homicide not amounting to murder as per Explanation 1 of Section 100 of the BNS.

Further, Explanation 2 states that, even if the death might have been prevented by resorting to proper remedies or skilful treatment, the person who caused bodily injury will be held liable if such bodily injury has caused death. The reason behind this explanation is that it is not always that proper remedies or treatment are within the reach of the wounded person. If death is the result of an injury that is voluntarily caused, the person who caused the injury will be deemed to have also caused the death, although the victim’s life may be saved through proper treatment or remedies.

In the case of Nga Paw vs. State, AIR 1936 Ran 526, the death of the victim did not result from the injury but from the gangrene due to some dirty substance like a bandage, coming into contact with the injury. Here, though the injuries were not the direct cause of death, the person who caused such injury was held to have caused death.

Furthermore, in Explanation 3, it has been clarified that the death of a child in the mother’s womb is not a culpable homicide. However, this is only till the time any part of that child has not been brought forth, even though that child has not been completely born or may not have breathed.

Under the first two explanations, the person who caused the death will be held liable for culpable homicide not amounting to murder. Whereas, Explanation 3 mentions a case that does not amount to the offence of culpable homicide.

Section 102 of the Bharatiya Nyaya Sanhita, 2023

Section 102 of the BNS (Section 301 of the IPC) mentions the offence of culpable homicide wherein the death of a person is caused, which was not intended, rather than the death of a person whose death was intended. When a death is caused without intending or knowing it to be likely to cause the death of that person, but the intention was meant for some other person, it will be treated as of the same description as if it were caused to a person to whom it was intended. Let us have a look at its illustration.

Illustration: Anil, believing Carles to be Dev, fired at Carles and thereby caused his death, intending to cause the death of Dev. This case will fall under Section 102 of the BNS and will be treated as murder or culpable homicide only depending on the facts and circumstances without any exception.

We have understood the provisions dealing with the meaning of the offence. Now, let us know about the provisions regarding punishment for this offence.

Punishment for culpable homicide not amounting to murder

Being an offence that is less grave than murder, the punishment for culpable homicide not amounting to murder does not extend to the death penalty but goes up to life imprisonment, depending upon the degree of intention and knowledge as mentioned under Section 105 of the BNS (Section 304 of IPC). The punishment under this Section is divided into two parts. The acts that are covered under Section 100 are made punishable under either of these two parts of Section 105 of the BNS. Let us have a look at both the parts separately.

Part 1 of Section 105 of the Bharatiya Nyaya Sanhita, 2023

When an act is done with the intention of causing death or bodily injury that is likely to cause death, then the same is punishable with imprisonment for life, rigorous or simple imprisonment for a period of not less than five years and a maximum period of ten years, and also fine. We should know about a few important case laws wherein the court applied the first part of this Section.

In the case of Selvam vs. State of Tamil Nadu (2012), the accused used the blunt side of the aruval and a stick on the deceased. The court noted that they did not have any intention to cause the death of the deceased. However, the injuries were caused on the head of the deceased, through which the court concluded that they had the intention of causing bodily injury, which is likely to cause death. Thus, they were made liable under Part 1 of Section 304 (now Section 105 of the BNS).

Further, in the case of Laxman vs. State of Madhya Pradesh (2006), the accused was shooting arrows and pelting stones without any accuracy, and one of the arrows hit the deceased person and caused his death. The court held him liable under Part 1 of Section 304 (now Section 105 of the BNS).

In the case of Rampal Singh vs. State of Uttar Pradesh (2009), the accused and the deceased had no animosity earlier, and a dispute was started between them at a spot of construction which was being made by the deceased on his land. A heated exchange of words took place between them, which resulted in a physical fight. In the midst of this, the accused brought a rifle from his home and, on the provocation of the deceased, he fired a shot that hit the deceased and caused his death. The accused was a person belonging to the armed forces and was very well aware of his actions.

The court, in this case, noted that, though the offence was not committed with any premeditation or intention to kill the deceased, it was committed with an intent to cause bodily injury which could result in the death of the deceased. It was a case involving intention and not knowledge as per the facts; thus, the punishment was altered by the Supreme Court from Section 302 (now Section 103 of BNS) to Part 1 of Section 304 (now Section 105 of the BNS).

Part 2 of Section 105 of the Bharatiya Nyaya Sanhita, 2023

This paragraph states that if an act is done with the knowledge of the likelihood of causing death but without any intention on the part of the offender to cause death or such bodily injury as is likely to cause death, then it is punishable by rigorous or simple imprisonment for a maximum term of ten years, a fine, or both. Let us have a look at a few case laws wherein punishment was given as per this part.

In the case of Dharam Pal & Ors. vs. State of Uttar Pradesh (2008), the court held that there was no premeditation by the accused and the fight started in the area where the hand pipe was situated after the exchange of excuses between the deceased and the accused. The court could not gather any intention of the accused to cause the death of the deceased. He was made liable under Part 2 of Section 304 (now Section 105 of the BNS) since the case fell under Exception 4 of Section 300 (now Exception 4 to Section 101 of the BNS).

Further, in the case of Tularam vs. State of Madhya Pradesh (2018), the facts were quite similar. There was a quarrel between two people, which escalated into an altercation and was joined by a few family members with lathis and ballam. During this altercation, the appellants pierced B with a ballpoint on his left chest.

The Supreme Court held that all the ingredients of Exception 4 of Section 300 (now Section 101 of the BNS) are present, as the fight was sudden and not premeditated. There was no intention on the part of the appellant to cause death or such bodily injury, but they knew that piercing the chest with a ballam would cause bodily injury as is likely to cause death. Thus, the conviction was converted from Section 302 (now Section 103 of the BNS) to Part 2 of Section 304 (now Section 105 of the BNS), and his sentence was altered to a period of incarceration already undergone since he spent 14 years in prison.

Let us understand it more clearly through a few illustrations under this provision:

Aarush knows that Sandeep is behind the tree, but Bahadur is not aware of it. Aarush, intending to cause Sandeep’s death or knowing it to be likely to cause Sandeep’s death, induces Bahadur to fire at the tree. Here, Aarush is guilty of the offence of culpable homicide not amounting to murder since no definite knowledge is present and there is also no 100% probability that Sandeep will be killed. Thus, Aarush will be liable under Section 105 of the BNS for the offence of culpable homicide.
Ankita induced Benny to set fire at the house, knowing that Zeba was sitting on the balcony and that the fire was likely to cause his death. Here, only Ankita is liable for the offence of culpable homicide not amounting to murder under Section 105 of the BNS because Ankita knows, but Benny has no such knowledge or intention. So, Ankita will be liable.
Adit gives a chokeslam to Bunny, which, to his knowledge, is likely to cause Bunny’s death. Here, Adit is liable for the offence of culpable homicide not amounting to murder because Adit only knows that a certain act is likely to cause Bunny’s death. Thus, falling under Section 105 of the BNS.

With this, we can conclude that intention per se makes the offence more heinous as compared to knowledge of likelihood, which is of a lesser degree than intent and is punishable for a lesser term as well.

Attempt to commit culpable homicide not amounting to murder.

Section 110 of the Bharatiya Nyaya Sanhita, 2023 (Section 308 of the IPC) covers the penalty for attempting to commit culpable homicide, not amounting to murder. Even an attempt to commit an act with such knowledge and intention as if he can cause death by such an act and will be punishable for culpable homicide not amounting to murder is liable to be punished even if the death is not so caused.

The punishment prescribed under this Section is not severe. The punishment prescribed for the same is rigorous or simple imprisonment for a maximum term of three years, a fine, or both.

Further, if hurt is caused by such an act to any person, then that person will be punished for rigorous or simple imprisonment for a maximum term of seven years or a fine or both. Before holding any person guilty under this Section, it is necessary to arrive at a finding that the ingredients of requisite knowledge or intention exist. It postulates the doing of an act with such an intention or knowledge that, if death is caused by such an act, he would be guilty of culpable homicide not amounting to murder.

For instance, if there is a person, Ankit, who is a public servant, and he, by exceeding his powers without any ill-will towards Manoj, fires a pistol at him under such circumstances as to cause his death, but the pistol could not hit him, then he will be made liable under this section.

One should know the difference between two of the grave offences against the body. Let us understand it in a better way through a tabular presentation.

Difference between culpable homicide not amounting to murder and murder

Basis of differentiation	Culpable Homicide not amounting to murder	Murder
Meaning	It is culpable homicide when the death of the victim is caused by an act by the offender with the intention or knowledge that is likely to cause the death.	It is murder when the death of the victim is caused by an act that is done with sufficient intention to cause that person’s death.
Essentials	Death caused by any of the following mental elements on the part of the offender:The intention of causing death; orThe intention of causing such bodily injury as is likely to cause death; or Knowledge of the likelihood of causing death.	Death caused by any of the following mental elements on the part of the offender:The intention of causing death; or The intention of causing such bodily injury and knowledge of its likelihood of causing death; or The intention of causing bodily injury which is sufficient to cause death; or The knowledge that it is imminently dangerous to cause death or bodily injury, is likely to cause death in all probability.
Provisions under BNS	Section 100 explains the offence of culpable homicide, and the same is punishable under Section 105.	Section 101 explains the offence of murder, and the same is punishable under Section 103.
Degree of intention	Comparatively less	Sufficient to cause death
Knowledge	Knowledge of the likelihood of causing death	Compulsory to be present
Purpose (majorly)	Likelihood of causing death	Causing death
Punishment	Imprisonment for life or up to ten years of imprisonment and not less than five years and a fine as mentioned in the first part of Section 105 if the death is caused to cause death or such bodily injury as is likely to cause death. Imprisonment for life or up to ten years of imprisonment or fine or both as mentioned in the second part of Section 105 if an act has been done with the knowledge that it is likely to cause death, but the same is done without any intention or cause such bodily injury as is likely to cause death.	Death or imprisonment for life and a fineIn case a murder is committed by five or more persons in concert on any of the grounds of race, sex, language, place of birth, caste or community, personal belief or other similar grounds, each member will be punished with death or life imprisonment and also a fine.

The degree of responsibility is taken into consideration. When the probability of death is high, it is considered murder, and when the probability is low, it is considered to be culpable homicide not amounting to murder.

An offence is not murder unless it falls within the definition of culpable homicide. However, an offence may amount to culpable homicide without amounting to murder. To make a culpable homicide murder, the case must come within the provisions of Section 101 of the Bharatiya Nyaya Sanhita and must not come within any of the exceptions to Section 101.

The difference between these two offences has been set forth by Justice Melvill in R vs. Govinda (1876) 1 Bom 342 and Justice Sarkaria in the case of State of Andhra Pradesh vs. R. Punnayya AIR 1977 SC 45. Justice Sarkaria laid down that, under the Penal Code, murder is a species of culpable homicide, which is the genus. All murders are culpable homicide, but this is not true vice versa.

Further, he stated that there are three degrees of culpable homicide. The first one is murder, which is the gravest offence. The second is the culpable homicide not amounting to a murder committed with an intention and punishable under Part 1 of Section 105 of the BNS. The third degree is culpable homicide not amounting to murder committed with the knowledge and punishable under Part 2 of Section 105 of the BNS.

In the case of Ajit Singh vs. State of Punjab (2011), it was observed by the Supreme Court that for checking whether an offence would fall under Section 302 (Section 103 of the BNS) or Part 1 of Section 304 of the IPC (Section 105 of the BNS), the courts have to be very cautious while examining whether it falls under Section 300 of the IPC or the five exceptions to Section 300 of the IPC.

Now, it is also equally important for us to know the difference between culpable homicide not amounting to murder and voluntarily causing hurt because, in both offences, death is not the result.

Difference between culpable homicide not amounting to murder and voluntarily causing hurt

The distinction between “culpable homicide not amounting to murder” and “voluntarily causing hurt” lies primarily in the gravity of the offence, the intention behind the act and the consequence of the act under the Bharatiya Nyaya Sanhita. The key differences are mentioned below:

Basis of differentiation	Culpable homicide not amounting to murder	Voluntarily causing hurt
Meaning	It refers to the act where a person causes the death of another person with either the intention of causing death or with the knowledge that such an act is likely to cause death.	It is a less severe offence and occurs when a person causes bodily pain, disease or infirmity to another person either to cause such harm or with the knowledge that the act is likely to cause harm.
Provisions involved	Section 299 of the Indian Penal Code and Section 100 of the Bharatiya Nyaya Sahita.	Section 321 of the Indian Penal Code and Section 115 of the Bharatiya Nyaya Sanhita.
Key elements	The intention to cause death or such bodily injury that is likely to cause death or, The knowledge that the act is likely to cause death.	Intention to cause hurt or harm, or,Knowledge that the act is likely to cause hurt or harm.
Gravity of the offence	It deals with the loss of life. Thus, it is a severe offence.	It is concerned with causing physical pain or injury without much fatal consequences.
Intention and knowledge	There is an intention or knowledge that the act may result in death, even though it does not amount to murder.	There is an intention or knowledge to cause injury or pain but not death.
Punishment	If the death is caused to cause death, or such bodily injury as is likely to cause death, the punishment is imprisonment for life or up to ten years of imprisonment and not less than five years and a fine. If an act has been done with the knowledge that it is likely to cause death, but the same is done without any intention or cause such bodily injury as is likely to cause death, then the punishment is imprisonment for life or up to ten years of imprisonment or fine or both.	The punishment for voluntarily causing hurt is prescribed as imprisonment for up to one year or a fine or both.

In the case of Roop Chand @ Lala vs. State (NCT) of Delhi (2010), the Supreme Court explained the difference between an attempt to commit culpable homicide not amounting to murder (Section 110 of the BNS) and voluntarily causing hurt by dangerous weapons as given by Section 324 of the IPC (Section 118 of the BNS). The three-judge bench noted that under the former, injuries must be such as to likely cause death and in the latter, the injuries may or may not endanger life. In this case, an appeal was filed against the conviction of the accused under Section 308 of the IPC, C, and it was to be considered whether the offence fell under Section 308 or 324 of the IPC.

It was further observed that, for securing conviction under Section 308 of the IPC, it must be proved by the prosecution that the accused had requisite knowledge or intention to cause culpable homicide, which can be ascertained from the actual injury and also from other surrounding circumstances. On the other hand, Section 324 of the IPC requires proof of intention or knowledge of voluntarily causing hurt using an instrument for stabbing or cutting. In the case at hand, it was further observed that the facts fell short of establishing the ingredients of Section 308 of the IPC and will be liable only under Section 324 of the IPC.

Furthermore, in the case of Bishan Singh & Anr. vs. State (2007), it was observed by the Supreme Court that, to hold the accused guilty under Section 308 of the IPC, it was necessary to satisfy that all the ingredients, i.e., intention or knowledge, existed. There cannot be any doubt that such an intention or knowledge of the accused is required to be proved.

Now, we are almost at the end of the article. Before concluding, we need to have a look at some of the most important and recent case laws wherein the court has explained the ingredients of the offence more clearly.

Landmark case laws on culpable homicide not amounting to murder

Reg vs. Govinda (1876)

Facts of the case

In this case, the husband and wife had a fight wherein the accused, who was the husband, knocked down his wife and gave her two to three violent blows on her face that resulted in extraversion of blood in her brain. As a result, the wife died.

Issue raised

Whether the accused be held liable for murder or culpable homicide not amounting to murder?

Judgement

The court thought that the offence committed could be classified as culpable homicide not amounting to murder because the act was not done to cause death. The court noted that the skull was not fractured, but the blow caused an extravasation of blood on the brain, which resulted in her death. The Bombay High Court also noticed that bodily injury was not sufficient in the ordinary course of action to cause death. Thus, the accused was held liable for culpable homicide not amounting to murder.

Virsa Singh vs. State of Punjab (1958)

Facts of the case

In this case, on 13th July 1955, the accused person, Virsa Singh, killed Khem Singh by thrusting a spear into his abdomen. It was opined by the doctor that the injuries were sufficient to cause death in the ordinary course of nature. Virsa Singh was booked under Section 302 of the IPC (now Section 103 of the BNS) along with five other accused persons for other offences.

Issue raised

Whether the victim was killed by Virsa Singh to cause bodily injury sufficient to cause death, or the bodily injury was unintentional and accidental?

Judgement

The Trial Court convicted the accused person, Virsa Singh, under Section 302 of the IPC (now Section 103 of the BNS). The High Court of Punjab and Haryana also upheld the conviction of Virsa Singh for murder. When the matter went to the Supreme Court by special leave to appeal, the Supreme Court elaborated on the elements of Section 300 of the IPC (now Section 101 of the BNS). It stated that the case would fall under the third clause of Section 300 of the IPC (now clause (c) of Section 101 of the BNS) since the bodily injury inflicted by the accused was sufficient in the ordinary course of nature to cause death.

K.M. Nanavati vs. State of Maharashtra (1961)

Facts of the case

In this case, the accused was a naval officer who murdered a businessman from Mumbai, Prem Ahuja, for having an illicit relationship with his wife. His wife told him about their relationship, and, after that, the accused went to his ship, took out the revolver and then went to the house of Prem Ahuja. After the heated arguments, he shot him dead.

Issue raised

Whether the accused caused death by sudden and grave provocation, and whether the act is covered under an exception to murder?

Judgement

The accused was convicted under Section 302 (now Section 103 of the BNS) for murder, and the court gave the reasoning that there was a difference of three hours after he left his house and the murder took place. The accused had sufficient time to regain his self-control. His conduct has led the court to conclude that the murder was very calculated and pre-planned.

Nathan vs. The State of Madras (1973)

Facts of the case

The landlord was trying to forcefully evict the tenant, who was the accused in this case. While exercising his right to private defence, the accused killed the landlord even when the landlord was not carrying any deadly weapon.

Issue raised

Whether the tenant will be liable for murder or culpable homicide by claiming an exception under Section 300 of the IPC (now Section 101 of the BNS)?

Judgement

The accused was held liable for culpable homicide not amounting to murder by the Supreme Court of India because he exceeded his right to private defence by killing the landlord even when there was no fear of death to the accused. The court noted that the accused acted in good faith and without any intention to cause death. However, due to exceeding the power of private defence, his case fell under Exception 2 of Section 300 of the IPC.

Kusa Majhi vs. The State of Orissa (1985)

Facts of the case

In this case, a deceased mother warned her son not to go fishing with his friends. The son, out of anger, brought an axe and gave her blows, due to which she died.

Issue raised

Whether the act of the son amounted to murder or culpable homicide not amounting to murder?

Judgement

The case was considered a culpable homicide not amounting to murder by the Orissa High Court as it caused a bodily injury that was likely to cause death. The court also noted that it was out of a sudden moment and not pre-planned by the accused.

Gurdial Singh & Ors. vs. State of Punjab (2011)

Facts of the case

In this case, three accused persons were involved in constructing a drain. The deceased, when objecting to the construction of a drain, was attacked by the accused who were carrying gandasi and dangs. As a result, he died.

Issue raised

Whether the accused persons are held liable for murder or culpable homicide not amounting to murder?

Judgement

The accused persons were held liable under Paragraph 1 of Section 304 (now Part 1 of Section 105 of the BNS) for culpable homicide not amounting to murder by the Supreme Court of India because there was no prior intention to kill the deceased, and it happened all of a sudden when the deceased tried to stop them.

Dattatraya @ Datta Ambo Rokade vs. The State of Maharashtra (2019)

Facts of the case

In this case, the appellant, Dattatraya, poured kerosene oil on his wife while she was in the kitchen because of a fight they had at the moment. It resulted in 98% burn injuries to the wife. The wife also gave a dying declaration accusing her husband of the said act. The appellant was tried under Section 302 of the IPC (now Section 103 of the BNS) and was convicted under the same. The Bombay High Court upheld the conviction of the husband (appellant). Consequently, an appeal was filed before the Supreme Court of India.

Issue raised

Whether the said act of the appellant fall under the provisions of murder or culpable homicide not amounting to murder?

Judgement

The Supreme Court noted that the act of the appellant was not premeditated but was a result of a sudden fight with his wife. Also, there was no intention on the part of the appellant to kill the deceased. The Supreme Court converted the conviction order under Section 302 of the IPC (now Section 103 of the BNS) to Part 2 of Section 304 of the IPC (now Section 105 of the BNS) and stated that the act fell under Exception 4 to Section 300 (now Section 101 of the BNS).

Bhagwan Singh vs. State of Uttarakhand (2020)

Facts of the case

In this case, the accused was pointing a gun at the top of the house and, during celebratory gunfire, his bullets hit someone and killed two people.

Issue raised

Whether the act of the accused amounted to murder or, due to a lack of intention on the part of the accused, he will be liable for culpable homicide not amounting to murder.

Judgement

The Supreme Court held him guilty under Para 2 of Section 304 IPC (now Part 2 of Section 105 of the BNS) because he knew that his bullet could kill someone, but there was no intention on his part to kill someone.

Recent case laws on culpable homicide not amounting to murder.

Boya Badannagari Laxmanna, Siddanagattu (V) Kurnool vs. State (2022)

Facts of the case

In this case, the accused, after marrying the deceased, came to know about her infidelity. He used to beat the deceased and, in 2008, the prosecution alleged that the accused caused the death of the victim using a Jeep mudguard. The case was heard by the High Court in an appeal.

Issue raised

Whether the offence of culpable homicide not amounting to murder was proved beyond a reasonable doubt by the prosecution?

Judgement

The prosecution could not prove the presence of the accused at the time of the death of the deceased, and all the direct witnesses turned hostile during cross-examination. The Andhra Pradesh High Court held that the conviction under Section 304 (now Section 105 of the BNS) could not be sustained, and it was set aside.

Dauvaram Nirmalkar vs. State of Chhattisgarh (2022)

Facts of the case

In this case, the appellant was convicted of murder for killing his brother. He confessed at the police station, but the same was inadmissible. He also stated as to the weapons that were later recovered by the police. The deceased was an alcoholic, and the murder took place out of sudden provocation by the deceased. The case was brought before the Hon’ble Supreme Court.

Issue raised

Whether the act of the accused amount to murder or fall under the exceptions to murder?

Judgement

The court noticed that the testimonies of the family members revealed that the deceased was an alcoholic and used to often threaten and abuse the accused. The accused had also tried to commit suicide. At that moment, there was a loss of self-control, and it was due to the acts of provocation of his brother that the accused caused his death. Therefore, the Hon’ble Supreme Court converted the conviction of the accused from Section 302 (now Section 103 of the BNS) to Para 1 of Section 304 IPC (now Part 1 of Section 105 of the BNS).

Ex. Ct. Mahadev vs. The Director General, Border Security Force & Ors. (2022)

Facts of the case

In this case, the appellant was posted in Tripura, adjoining the Bangladesh border, which was famous for smuggling. The deceased was carrying out smuggling activities, and his name was also mentioned in the list received from BSF. The appellant had fired on the deceased, who later, as a result of the act of the appellant, died, and the same was admitted by the appellant as well before the Trial Court. According to him, several people were carrying weapons and tried to surround him. He apprehended a threat to his life and fired at that circle. As a result, the deceased fell to the ground and died.

Issue raised

Whether the accused will be held liable for murder or can he be given the benefit of the exception of right to private defence and will be liable for culpable homicide not amounting to murder?

Judgement

The Supreme Court held that the right to private defence will be available to the appellant because the preponderance of probabilities lies in their favour. Since the people surrounding him were armed with weapons and had no other option left, he fired at them. The offence will fall under exception 2 of Section 300 IPC (now Section 101 of the BNS) and will attract punishment under Section 304 IPC (now Section 105 of the BNS). The court further noticed that the appellant had already undergone a sentence of over eleven years; hence, the sentence was considered sufficient and he was set free.

Conclusion

We are all aware that culpable homicide and murder are considered to be heinous offences since they involve the killing of an individual by another individual and, thus, have serious consequences These are grave offences against mankind as well. There is no doubt that there has been a lot of confusion between the two.

However, now we are also in a position to conclude that culpable homicide not amounting to murder involves those crimes which are not fulfilling the essentials of murder given under Section 101 of the Bharatiya Nyaya Sanhita and which fall under the exceptions to murder, which are covered under Section 100 of the Bharatiya Nyaya Sanhita itself.

Sections 100 and 101 of the Bharatiya Nyaya Sanhita have to be understood to further understand the difference between murder and culpable homicide not amounting to murder. These sections lay down the intensity of intention and knowledge for determining the seriousness of the offence and appropriate punishments. There have been no changes in the new criminal code regarding these two offences. Only the punishment for murder by five or more people on the grounds of race, sex, language, place of birth, caste or community has been added under Section 103(2) of the Bharatiya Nyaya Sanhita and a minimum punishment of five years has been prescribed for culpable homicide under Part 1 of Section 105 of the Bharatiya Nyaya Sanhita.

We are also able to conclude through various illustrations and case laws that crimes punished under culpable homicide not amounting to murder have a lesser degree of intention and may or may not have knowledge, unlike murder and are punished for a comparatively lesser term than murder. Even the attempt to commit the offence has been made punishable to prevent such future crimes.

The defence lawyers try to take advantage of the exceptions and lack of sufficient meaning of certain terms as provided in the provisions, but it is the beauty of the legislation and judiciary that has helped us keep evolving by the precedents set and amendments made therein. However, by looking at certain terms that might have different meanings for different people, like knowledge, probability, and the major and constant use of these provisions in the Indian legal system, there must be more clarifications and justifications on the same.

Frequently Asked Questions (FAQs)

What are the types of homicide?

There are two types of homicides: lawful and unlawful. Lawful homicide is excusable and justified under the law, whereas unlawful homicide is punishable since it involves guilt or mens rea to kill the other person.

Which section covers culpable homicide not amounting to murder under the BNS?

Section 100 and exceptions under Section 101 of the BNS cover culpable homicide not amounting to murder.

What is the difference between culpable homicide not amounting to murder and murder?

The basic difference is based on the intention and knowledge required to commit an offence. If there is a lesser degree of intention and knowledge might or might not be present, then it can be called culpable homicide not amounting to murder, but if there is a higher degree of intention involved and knowledge is compulsorily present, then it is taken as murder. The same was also noted in the case of Basdev vs. the State of Pepsu (1956).

Is death an essential ingredient of culpable homicide not amounting to murder?

Yes, death is a prerequisite for holding a person liable for culpable homicide not amounting to murder.

Which section punishes culpable homicide not amounting to murder?

Section 105 of the BNS makes the offence of culpable homicide not amounting to murder punishable and prescribes the punishment by dividing the same into two different parts, one involving intention and the other with knowledge.

What new penalties have been added for the offence of culpable homicide under the BNS?

The penalty prescribed under Section 105 of the BNS for culpable homicide is the same as mentioned under Section 304 of the IPC. However, if the offence is done with an intention, a minimum penalty of five years has been added under the Section.

Is an attempt at culpable homicide not amounting to murder also punishable?

Yes, an attempt to commit culpable homicide not amounting to murder is also punishable under Section 110 of the BNS.

What is the difference between knowledge and intention?

Intention comes from the motive of an individual behind doing or not doing a particular act, whereas knowledge is knowing the consequences of one’s acts.

Is suicide a homicide punishable under the law?

Suicide is an unlawful homicide, but its attempt is not punishable now since Section 309 of the IPC has already been struck down. The abetment of suicide is punishable under Section 108 of the BNS.

Which new offence has been added under Chapter VI of the BNS?

The offence of mob lynching has been added and made punishable under Section 103(2) of the BNS with death or life imprisonment and a fine.

What are the essential elements for the offence to be made punishable as ‘mob lynching’?

If a murder is committed on the grounds of race, caste, sex, place of birth, language or any other similar ground by a group of five or more persons who acted in concert, the same is punishable under Section 103(2) of the BNS.