This article is written by Yashovardhan Agarwal and further updated by Jaanvi Jolly. This article attempts to exhaustively deal with the concept of culpable homicide as provided under the Bharatiya Nyaya Sanhita 2023 and discusses in detail several nuances related to it with the help of related case laws. Further, the concept of ‘supposed circumstances’ and the doctrine of ‘transfer of malice’ have also been explained. It also seeks to introduce the concept of ‘battered women syndrome’ in the sphere of provocation as a defence. 

Introduction

The term “homicide” derives from the Latin words ‘homo,’ meaning human, and ‘caedere,’ meaning to kill. The act of one man killing another has been a phenomenon that traces its roots to the beginning of humankind itself, back to the state of nature. 

Homicide is not always punishable; think of an order of death penalty being executed or an act of private defence that unfortunately causes the death of another. In these instances, since we have justifiable grounds and no mens rea can be attributed, these are termed as lawful homicides. However, in the absence of justifiable grounds, the killing of another is unlawful and therefore punishable. The area of ‘unlawful homicide’ or ‘ culpable homicide’ is the subject matter of this article. 

The erstwhile Indian Penal Code, 1860 (hereinafter IPC, 1860) and the newly introduced Bhartiya Nyaya Sanhita, 2023 (hereinafter BNS, 2023) deal extensively with the offences against the body under Chapter XVI of the IPC, 1860 and Chapter VI of the BNS, 2023, of which culpable homicide is a part. In India, culpable homicide is divided into two forms: ‘culpable homicide’ under Section 100 of the Bharatiya Nyaya Sanhitha, 2023 (Previously Section 299 of the Indian Penal Code, 1860) and ‘culpable homicide amounting to murder’ under Section 101 of the Bharatiya Nyaya Sanhitha, 2023 (Previously Section 300 of the Indian Penal Code, 1860).

On a prima facie reading, the two may seem very similar; however, there are very crucial differences in the degree of intention, which has to be understood for a better understanding of the concepts. These differences are exhaustively dealt with in the article at suitable places. After understanding these concepts, one would be able to analyse and decipher as to what act would fall under the offence of murder and which would be restricted to culpable homicide not amounting to murder.

By the newly introduced BNS, 2023 only the section numbers of the provisions have been changed and there is no alteration in the wording of the section. The new and the old section numbers have been provided below in the table for comparison.

Offences	Sections under the Bharatiya Nyaya Sanhita 2023	Sections under the Indian Penal Code 1860
Culpable homicide	Section 100	Section 299
Murder	Section 101	Section 300
Culpable homicide by causing the death of a person other than the person whose death was intended- Transfer of malice	Section 102	Section 301
Punishment for murder	Section 103	Section 302
Punishment for murder by life convict	Section 104	Section 303
Punishment for culpable homicide	Section 105	Section 304

Culpable homicide

For every offence under the BNS, 2023, three elements have to be present:

1. Mens rea: which is the guilty mind or the guilty intention required for the offence. For the offence of culpable homicide, either intention or knowledge has to be present. It is based on the criminal law doctrine of “actus reus non facit reum nisi mens sit rea”, which means “an act does not render a man guilty of a crime unless his mind is equally guilty.” 

In the case of Dipta Dutta vs. State Of West Bengal and another (2023), it was stated that, ‘Mens rea’ is the state of mind which indicates culpability, which is required by a statute as an element of crime. Every crime requires a mental element that is some blameworthy mental condition.

Though the word ‘mens rea’ as such is nowhere found in IPC. 1860 or the BNS 2023, its essence is reflected in almost all the provisions of the Code by the usage of expressions like: “with intent, knowingly, recklessly, unlawfully, maliciously, knowing or believing, fraudulently, dishonestly, etc.

2. Actus reus: which is the guilty act or omission required for the offence. For the offence of culpable homicide, the death of a person must be caused.
3. Element of causality: The act of the accused must be done with the requisite mens rea. In other words, the ‘act of causing death’ must be done with the ‘intention or knowledge of causing death’ for the offence of culpable homicide. 

Degrees of culpable homicide

Culpable homicide can be divided into three categories on the basis of the graveness of the conduct and the mens rea involved:

• 1st degree– This is the gravest form of culpable homicide, which is defined in Section 101 of BNS, 2023 as murder and is made punishable in Section 103 of BNS, 2023.
• 2nd degree– This is the less grave form of culpable homicide not amounting to murder defined in Section 100 of BNS, 2023 and is made punishable under the first part of Section 105 BNS, 2023.
• 3rd degree– This is the least grave form of culpable homicide. This is also defined under Section 100 of BNS, 2023 and punishable under the second part of Section 105 of BNS, 2023.

In the scheme of the code, culpable homicide is the ‘genus’ while murder is the ‘species’. All murders are culpable homicides, but not all culpable homicides are murders. Therefore, culpable homicides sans special characteristics of murder are culpable homicide, not amounting to murder.

In the next segment we will begin by analysing the offence of culpable homicide not amounting to murder and the punishment for the offence.

Culpable homicide not amounting to murder: Section 100 BNS, 2023 (Section 299 of IPC, 1860)

An act can fall under culpable homicide not amounting to murder under two circumstances:

1. Culpable homicide, which never crossed the threshold to become murder or 
2. Culpable homicide, which did cross the threshold of murder but any of the exceptions provided under Section 101 BNS, 2023, were applicable, thereby diminishing the offence to culpable homicide not amounting to murder.

Both of these situations are punishable under Section 105 of BNS, 2023.

Section 100 BNS, 2023 consists of three phrases that reflect different mens rea and different conduct. These are as follows:

1. Intention of causing death
2. Intention of causing such bodily injury as is likely to cause death
3. Knowledge of the act likely to cause death

To ease the understanding of the distinction between the three phrases, the author will be dividing them into three parts for a detailed discussion in the next segment.

Part 1: Intention of causing death 

Section 100 BNS, 2023 states that where an act is done with the ‘intention to cause death’, it would be a culpable homicide. Interestingly, the same provision is reproduced under Section 101(a), which deals with murder; the consequence of the same will be discussed subsequently. The intention here represents the deep desire to cause a particular consequence. A person acting with an intention to do something acts with an absolute desire to achieve the consequence. 

As per Russel on Crime (12th Edition),”The mental element in crime, the word `intention’ is used to denote the mental attitude of a man who has resolved to bring about a certain result if he can possibly do so. He shapes his line of conduct so as to achieve a particular end at which he aims.”

The law presumes that an individual intends the natural and inevitable consequences of their actions; therefore, the accused cannot be allowed to take the defence of ‘lack of intention’ when his conduct shows otherwise. For instance, if it is demonstrated that the accused fired a gunshot from close range directly into the victim’s head, it can be concluded that the sole intention was to cause death and any plea by the accused of lack of intention cannot be accepted.

In order to satisfy the phrase act done with the ‘intention to cause death’ three conditions have to be satisfied:

1. Actus reus: By examining the act of the accused we need to ensure that the death of a human being is caused.

For example: if the accused fired a shot at the victim, however the shot did not hit him or only hit his arm resulting in grievous hurt and not death, then this condition cannot be said to be fulfilled.

2. Mens rea: By examining the conduct of the accused we will have to decipher whether the accused had the ‘guilty intention’ to cause death. For example: if the accused had stabbed the victim right in his heart, we can clearly state that he had the intention to cause death.
3. Element of causality: The connection between the act of the accused and the death must be established. In other words the death of the person must be caused by the act of the accused. This causality is to be proved by the direct and circumstantial evidence in the trial. 

For example: the accused mixed poison in the food of the victim, however the victim died due to a heart attack before he even touched the food, there is no causality between the act of the accused and the death of the victim. Thus, this condition is not fulfilled. However if the victim had eaten the food and died due to poisoning, the condition would be satisfied.

The element of causality was explored in the case of Moti singh and another vs. State of Uttar Pradesh (1963). On 9 February 1960, the deceased had received two gunshot wounds in the abdomen, which were life-threatening. He was later discharged, but there was no evidence as to whether he had fully recovered. He died on 1 March 1960 and was cremated without a post-mortem. The honourable Supreme Court held that the mere fact that the gun shots were dangerous to life cannot be held to be sufficient to hold that the victim’s death which happened after more than three weeks of the incident was on account of the injuries given to him by the accused. The court further stated that to prove the charge of murder, it is necessary to be established that the deceased died on account of injuries given to him by the accused. Since there was no evidence to establish the cause of death, the accused could not be liable for culpable homicide.

Rationale for inclusion of ‘act done with intention to cause death’ in both Section 100 and Section 101(a)

One would wonder as to why the phrase ‘act done with the intention to cause death’ is found both in Section 100 as well as Section 101(a) of BNS. To understand the reasoning of the inclusion, let us recall the statement that culpable homicide is the genus while murder is the species, therefore, every act that is a part of the species must also be a part of the genus. Therefore, for the act intending to cause the death of another person to fall under Section 101, it has to first fall under Section 100 BNS. As a consequence, every act that is done with the intention to cause death and does actually cause death will directly fall under the offence of murder.

Part 2: Intention of causing such bodily injury as is likely to cause death 

As per the phrase ‘intention of causing such bodily injury’ the accused must cause a ‘bodily injury’ like a stab from a knife or injuries from an iron rod and this injury must be ‘likely’ or probable (may or may not) to cause death. The intention is directly related not with death but with the bodily injury that is likely to cause death. 

• Particular injury: For the application of this phrase, the accused must have the intention to cause a ‘particular’ bodily injury, like a stab in the abdomen, etc. For example, if A was driving a car and he hit B, here no particular injury was intended. This act cannot fall within the phrase ‘intention to cause bodily injury likely to cause death’  as no particular injury was intended.
• Intention to cause the injury which is actually inflicted: Additionally, the accused must have intended to cause the injury that was actually caused. For example, if a person only intends to hit another on his arm but the victim moves due to which the blow lands on the head of the victim. Here, the accused cannot be said to have intended the injury that was actually caused.
• Intended injury likely to cause death: the likelihood of the injury to cause death is an objective inquiry according to the medical opinion. Therefore, while the intention to cause the bodily injury that has actually been caused has to be proved, the knowledge that such bodily injury is likely to cause the death of the person is not required.

Therefore, the intention to cause the particular body injury that is caused is a subjective examination and whether the bodily injury intended was likely to cause death or not is the objective examination.

• Internal injury caused due to external injury: whenever a person has the intention to cause some external injury, then the intention to cause all the consequent internal injuries will also be attributed to him. Depending on the nature of the injury, he will be questioned as to whether such an external and internal injury together was such as is likely to cause death.

For example, if A punched B in the rib cage area. As a result, ribs broke and punctured his lung, due to which he died. The intention to cause both external and internal injury will be imputed upon the accused, and he cannot claim that he did not intend to puncture the lung of B. 

To summarise, the following ingredients have to be fulfilled to attract the application of this phrase:

1. The intention to cause a ‘particular’ bodily injury 
2. The body injury must be ‘likely’ to cause death 

Explanation 1 

Explanation 1 to Section 100 of BNS, 2023 deals with the act wherein the person does not directly and independently cause the death of another, but rather accelerates the death of the other person. In this case, the person whose death is caused is already suffering from a disorder, disease, or bodily infirmity and the accused’s act accelerates the death of the victim. It shall be deemed as if he has caused the death of the person and the plea that it was not his independent act that has caused the death will not be available to him. 

For example, A punched B in the rib cage area, who has a fractured rib, ultimately leading to the death of B. A is liable for culpable homicide not amounting to murder. Even if it is proved that had B’s ribs not been broken, he might not have died due to the punch. In this case, as A has accelerated the death of B, who was already suffering from an injury, he will be deemed to have caused his death.

Explanation 2

Explanation 2 to Section 100 of BNS, 2023 states that if the accused caused the initial bodily injury that led to the victim’s death, the accused cannot claim that the victim would have survived with proper medical treatment and care.

Here the ‘causa sine qua non’ which means the initial cause will be seen. For example, A stabs X in the abdomen. B carries X on his shoulder to the hospital but accidentally drops him. When they arrive, C, a compounder, performs the operation, but X dies. In this case, A cannot argue that X would have been saved if proper treatment had been given.

This basically refers to cases where the primary cause is set in motion by the accused, but the death occurs due to some ensuing cause. For example, if A caused a minor injury to B, but B died due to gangrene, A would be liable as the primary cause was initiated by A, which resulted in gangrene.

Sobha and Anr. vs. King Emperor (1935) 

Facts: In this case, the accused along with his brother got into a quarrel with the deceased. The accused struck the deceased with a lathi on the head and also showered him with kicks and fists. After a week of the fight, the deceased passed away. According to the postmortem report, it was revealed that the sepsis that was the cause of the death was due to neglect in the treatment. 

Issue: Was the act of the accused the primary cause of the death of the victim?

Judgement: The Oudh High Court held that the occasion assault was an ordinary quarrel and only one blow was given with a lathi, which was referred to only as a simple injury as per the doctors. The primary cause of death is sepsis due to neglectful treatment. What the explanation covers is the situation where the primary cause of death is the act of the accused and the death could have been prevented had skilful treatment been provided to him. It does not cover where the neglectful treatment post-injury is the primary cause of death.

Thereby, the accused was convicted only under Section 325 of IPC, 1860 (Section 116 of BNS, 2023) and not under Section 304 of the IPC, 1860 (Section 105 of BNS, 2023).

Part 3: Act done with the knowledge that he is likely by such act to cause death

The third phrase of Section 100 states that ‘culpable homicide is an act done with the knowledge that such an act is likely to cause death’. This phrase deals with the element of knowledge. Here,  “knowledge” refers to an individual’s awareness or understanding of facts and circumstances. The accused must know that the act that he is committing is one that is likely to cause death. 

In the landmark case of Basdev vs. State of  Pepsu (1956) the honourable Supreme Court, distinguished between intention and knowledge. In this case, the accused shot a 16 year old boy during a marriage feast in a highly drunken condition. He claimed that he was so drunk that he did not have either the intention or the knowledge to kill the boy. The court stated that, “knowledge is an awareness of the consequences of the act. In many cases, intention and knowledge merged into each other and mean the same thing, more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that they are different things.”

The word ‘likely’ means probably and it is distinguished from ‘definitely’. When the chances of happening are equal or greater than the chances of it not happening, we may say that the thing is ‘likely’ to happen. In reaching the conclusion as to whether the accused had the knowledge of his act being likely to cause death, the examination has to be from the point of view of a reasonable person. If a reasonable man would have been in the position of the accused would he have known about the likelihood of causing death? If yes, then the same knowledge would be imputed on the accused. 

For example: if in a small room, 10 people are present and the accused fired a shot towards the roof, here any reasonable man would have the knowledge that his act is likely to cause death.

To summarise, two conditions are required to be fulfilled for an act to be culpable homicide as per this phrase:

1. Firstly, the act or illegal omission must be done by the offender 
2. Secondly, knowledge of the offender that he is likely by his act to cause death.

Explanation 3

Explanation 3 to Section 100 BNS, 2023 states that wherein by an act, a person causes the death of a child who is still in the mother’s womb, the act would not be considered to be culpable homicide. If the ingredients of the section are satisfied.

If any part of the child has been brought forth, though the child may not have been completely born, then if the death of the child is caused, that would be covered under culpable homicide. However, if the child is completely in the womb, that would not be covered under culpable homicide.

Case laws on Section 100 BNS, 2023

Shanmugam @ Kulandaivelu vs. State of Tamil Nadu (2002) 

Facts  

As per facts of the case, on the fateful evening, the victim went to his fields to fetch water from the borewell, where he found his elder brother whistling at a place that was frequented by ladies. He asked him as to why he was doing that. Following a brief quarrel, the accused ran towards his hut and came out with a weapon. He bounced upon the victim and stabbed him in the abdomen and the chest.

Issue

The question before the honourable Supreme Court was whether the injuries found on the victim were sufficient in the ordinary course of nature to cause death, so as to fall within the ambit of Section 300 of IPC, 1860 (Section 101 of BNS, 2023).

Judgement 

The court held that, as per the opinion of the doctor, the stab was not on any vital organ as there was no injury inside the stomach. It was stated that death occurred as a result of septicaemia due to infection. Therefore, it cannot be said that death was a certainty on account of stab wounds in the gallbladder. 

On these facts, the court concluded that it was not safe to infer an intention to cause death on the part of the accused and thereby the case was one where the injuries were of nature as to be likely to cause death. Further, the accused intended to cause and did actually cause such injuries, hence he was held to be liable under Section 299 of IPC (Section 100 of BNS, 2023) punishable under the first part of Section 304 of IPC (first part of Section 105 of BNS, 2023) 

Rajan vs. State Represented by The Inspector of Police, Gomangalam Police Station Coimbatore District, Now Tiruppur District (2016) 

Facts

The brief facts of the case are as follows: The accused was the husband of the victim; on the fateful day, the accused husband, who had become a drunkard, asked his wife for money for his drinking purposes. The deceased refused to give him the same, after which a quarrel ensued between the couple. The accused, in his anger, closed the mouth and the nose of the deceased, due to which she fainted. The accused, believing that she had died, laid her on the mat, poured kerosene on her, set fire to her and bolted the house from inside. 

Issue

Can the accused lady be held guilty of murder under Section 302 of IPC (Section 103 of BNS, 2023)?

Judgement

The Madras High Court analysed that when the accused committed the first act of slapping the deceased, he had no intention to cause her death or to cause any bodily injury that was likely to cause death. When he committed the second act of pouring kerosene and setting fire, he had no intention to cause the death of the deceased or to such bodily injury as was likely to cause death. 

The court held that both of these acts constituted a single act, and the accused did not have the intention to cause death or bodily injury at any point. He would not fall within the first or second part of Section 299 (Section 100 BNS, 2023). However, since the second act, pouring kerosene and setting fire, was done without taking adequate care and attention, and in a reckless manner without verifying as to whether this deceased was alive or not, the court imputed the knowledge upon him as is required under the third limb of Section 299 (Section 100 BNS, 2023) and was punished as per the second paragraph of Section 304 IPC (Section 105 BNS, 2023). 

Kapur Singh vs. State of Pepsu (1954) 

Facts

In this case, the facts are as follows: One year before the incident, the son of the deceased caused severe injury on the leg of the son of the appellant which led to the amputation of his leg. Due to the accident, the appellant had a grudge against the father and son and was trying to take revenge. On the fateful day of 30 September 1952, the appellant met the deceased and he and his companions held him, and the accused inflicted as many as 18 injuries on the arms and the legs of the deceased with a thick wooden stick.

Issue

Can the accused be held guilty of murder  under Section 302 of IPC ( Section 103 of BNS, 2023)?

Judgement

The court analysed that, although the number of injuries was a lot, none of them were on a vital part of the body. The Apex Court held that the motive of the appellant was to seek vengeance and thereby he inflicted injuries only on the arms and legs of the deceased and none on the vital parts of the body. It clearly manifests that he did not intend to kill the deceased. Therefore, the injuries cannot be said to have been inflicted with the intention of causing the death of the deceased. However, they were such bodily injuries as he would have known would be likely to cause the death of the deceased. Therefore, the court convicted him under Section 299 of IPC (Section 100 of BNS, 2023) and sentenced him to life.

Punishment for culpable homicide not amounting to murder under Section 105 BNS, 2023 

Section 105 of BNS, 2023 (previously Section 304 of IPC, 1860) provides punishment for culpable homicide not amounting to murder as defined under Section 100 BNS, 2023. 

Section 105 BNS, 2023 states that if the act of the accused falls within the first or second part of Section 100 BNS, 2023, which deals with the intention to cause death or intention to cause bodily injury as is likely to cause death, the accused can be punished with life imprisonment or for a minimum term of 5 years extendable up to 10 years and a fine.

The second part deals with the punishment in case the act of the accused falls within the third part of Section 100 of BNS, 2023, which deals with the knowledge on the part of the accused that his act is likely to cause death. In this case, a maximum punishment of 10 years imprisonment has been provided along with a fine.

Anbazhagan vs. State Represented by the Inspector of Police (2023)

Facts

The brief facts of the case are as follows: the deceased and the accused were both agriculturalists, who owned adjoining fields. There is an existing dispute over the pathway between the fields. On the use of the pathway, a quarrel ensued between the two. The accused in anger struck the deceased with a hoe on the head, which is an agricultural tool. As a result, the deceased died on the spot. 

Issues

Can the accused be held guilty of murder under Section 302 of IPC (Section 103 of BNS, 2023)?

Judgement

The Apex Court held that it could not be held that when the appellant struck the deceased with the weapon of offence, he intended to cause such bodily injury as was sufficient in the ordinary course of nature to cause death, the injuries shown in the post-mortem report are indeed fracture of the parietal bone as well as the temporal bone and the injury was indeed the cause of death. However, the moot question is – whether that by itself is sufficient to draw an inference that the appellant intended to cause such bodily injury as was sufficient to cause death. The court held that the appellant could only be attributed with the knowledge that it was likely to cause an injury which was likely to cause the death. 

The court further clarified the distinction between the two paragraphs of Section 304 IPC as follows- if the act of an accused person falls within ‘intention to cause bodily likely to cause death’, it is punishable under the first paragraph of Section 304 (first paragraph of 105 BNS, 2023). If, however, the act is done with the knowledge that is likely to cause death’, it is punishable under the second paragraph of Section 304 (second paragraph of 105 BNS, 2023). In effect, therefore, the first paragraph of this Section would apply when there is ‘guilty intention,’ whereas the second paragraph would apply when there is no such intention but there is ‘guilty knowledge’.

Alister Anthony Pareira vs. State of Maharashtra (2012)

Facts

In this case, on 12th november 2006, in the city of Mumbai in the early hours of the morning, a car ran into the pavement and killed seven people and caused grievous injuries to many others who were sleeping on the pavement. The medical evidence established the presence of alcohol in the blood of the accused at the time of the incident. The accused was held liable for the offence of culpable homicide not amounting to murder under Section 299 and punished under Section 304 second paragraph by the High Court.

Issue

Whether a sentence awarded to the appellant by the High Court for the offence punishable under Section 304 second paragraph requires any modification?

Judgement

The Apex Court upheld the finding of the High Court that the accused at the time of the incident was under influence of alcohol and drove his car at a very high speed in that condition thereby killing seven people. He is imputed with the knowledge that his act was likely to cause death in these circumstances. The sentence was awarded by the High Court and stated that for the accused to be punished under Section 304 second paragraph, the prosecution has the burden to prove that the death was caused by the act of the accused and he had the knowledge that his act was likely to cause death.

Culpable homicide amounting to murder under Section 101 of BNS, 2023 (Section 300 of IPC, 1860)

The Section states that culpable homicide is murder; this is reflective of the fact that for an act to be murder, it has to first be culpable homicide, that is, without first amounting to culpable homicide. It cannot be murder and therefore it is implicit that culpable homicide is the genus and murder is the species.

Section 101 of BNS, 2023, begins with the words that ‘except in cases hereinafter excepted’, culpable homicide is murder. This clearly manifests that if any of the five exceptions to Section 101 is applicable, then culpable homicide will not be murder. Therefore, in order for an act of culpable homicide to amount to murder, either of the subsequent parts has to be applied and none of the exceptions should apply. 

Intention of causing death

Section 101(a) is identical to the first part of Section 100, which deals with an act which is done with the intention of causing death. In order to justify the statement ‘culpable homicide is murder’, the act first has to fall under the definition of culpable homicide. Therefore, we find the first part under Section 100 to be identical to Section 101(a). In effect, every intentional causation of death has to fall under murder under Section 101, anything which falls under the first part of Section will automatically fall under Section 101(a) directly. The implication and ambit of both provisions are the same. The intention cannot be of a lesser or higher degree and therefore the same degree of intention is found within both Sections.

Intention means the desire to produce a consequence; no casual conduct can be seen, rather, a certain pinpointed conduct is required for this Section. For example, a shot with a gun from a close range on the middle of the forehead of a person clearly manifests the intention of the accused to cause death.

Intention is always a state of mind and can only be proved by its external manifestations. Where the injuries are impacted in the vital parts of the body with sharp instruments, then the intention to kill can be attributed to the offender as stated in Chahat Khan vs. State of Haryana (1972).

In the case of Vasanth vs. State of Maharashtra (1983), the accused and the deceased had some previous enmity and had a brief grappling, which was pacified by bystanders. The accused then went to his jeep and drove it on the wrong side towards the deceased at high speed and knocked him down leading to his death. It was proved that there was no reason for the accused having driven the jeep in the wrong direction. Therefore, the honourable Supreme Court held that his act clearly manifested his intention to cause death of the deceased. 

The intention to cause death has to be examined. It has to be seen that the accused does the act with a greater degree of certainty to ensure the production of the consequence with certainty. The intention of the person is examined by the conduct of the person. How did he do the act? The conduct is established on the basis of the evidence and the same conduct will be then examined to decipher his intention as per a reasonable person. In other words, what would have been the intention of a reasonable person had he acted in the way the accused acted?

For example, if A hits on the head of a grown-up man with a stick once, the act does not manifest his intention to cause death. However, if he gives a single blow with the same stick on the head of a two-month-old child, then it might manifest the intention to cause death.

Intention of causing such bodily injury as the offender knows to be likely to cause the death

Section 101(b) states that when an act is done with the intention of causing such bodily injury as the offender knows is likely to cause the death of the person to whom the harm is caused, it would amount to murder.

The term likely along with the word knowledge are indicative of the certainty of death and not a probability. It conveys that the chances of a thing happening are very high. Arun Nivalaji More v State of Maharashtra (2006)

The essential elements of Section 100 (b) are as follows-

1. A bodily injury is caused
2. The offender has the subjective knowledge that the specific bodily injury is likely to cause the death of the specific person to whom it is caused
3. The requirement of knowledge of the peculiar circumstance is the extra element in culpable homicide amounting to murder.

While the intention to cause a specific bodily injury and the fact that that particular bodily injury is likely to cause death is common in Section 100 and Section 101, in the latter the additional element of specific knowledge of the accused that the bodily injuries likely to cause death of that particular victim is required. 

This clause contemplates a situation where the offender has special knowledge about the peculiar situation or a health condition of the particular victim due to which his intentional bodily injuries were likely to be fatal as stated in Anda and others v  The State of Rajasthan (1966).

For example, if the victim has a swollen spleen and the accused has this particular knowledge, then if he hits the victim on that particular spot resulting in the death of the victim, then for the purpose of second part of Section 100, he intended to cause that injury and as per the doctor’s opinion that particular injury was likely to cause death. However, to bring his act under Section 101, the additional requirement that the offender must have specific knowledge about the swollen spleen is required which is present here and thus, it would bring the act under Section 101 which is murder.

Intention of causing bodily injury sufficient in the ordinary course of nature to cause death

As per Section 101(c), the accused must have the intention to cause a bodily injury and the bodily injury that is intended to be inflicted must be “sufficient in the ordinary course of nature to cause death”. 

Section 101(c) is the aggravated form of the phrase ‘bodily injury likely to cause death’ found under Section 100. For an act to fall under Section 101(c), it must be sufficient to cause death in the ordinary cause of nature. There is a difference in the degree of probability of death between Section 100 and Section 101(c). 

A two-step examination is envisaged by Section 101 (b)-

1. The intention of causing bodily injury means that the bodily injury which is caused was exactly the injury that the accused intended to cause. This is the subjective test of the accused’s mind
2. The intended bodily injury must be sufficient in the ordinary cause of nature to cause death. This is the objective text, which is based on the opinion of the doctors. To prove this element, the mind of the accused is not to be examined. 

Case laws on Section 101(c) of BNS, 2023

Virsa Singh vs. The State of Punjab (1958) 

Facts

In this case, the accused gave a spear blow to the abdomen of the victim, leading to his death.

Issues

Was the blow given by the accused sufficient in the ordinary course to cause death?

Judgement

The Apex Court held that for Section 300, (thirdly) of IPC (Section 101(c) of BNS, 2023), it has to be proved that the body injury found on the victim was actually intended by the accused. Further, it has to be examined whether the said intended bodily injury was sufficient in the ordinary course of nature to cause death. The latter inquiry is based on the medical opinion. If both of the above elements are approved, culpable homicide would amount to murder.In other words, “The question is not whether the prisoner intended to inflict a serious injury or a trivial one but whether he intended to inflict the injury that is proved to be present….The question, so far as the intention is concerned, is not whether he intended to kill, or to inflict an injury of a particular degree of seriousness, but whether he intended to inflict the injury in question.”

Since the spear blow was such that “it penetrated the bowels and three coils of the intestines came out of the wound and that digested food oozed out from cuts in three places.” The court finally upheld the convicted of the accused for the offence of murder.

Inder Singh Bagga Singh vs. State of Pepsu (1954) 

Facts

In this case, the facts of the case were that the deceased victim had made advances towards the sister-in-law of the appellant. The appellant had warned him not to do so in the future. Subsequently, there was a wedding in their village, the deceased was standing in front of the house of the accused and was engaged by one Pearey Singh in a discussion. At that time, the accused rushed out of his house with a lathi and gave a blow on the head of the victim from behind, and when he turned, another blow was given to his head. Even after the deceased fell on the ground, the appellant gave him another blow on his neck, in total six blows were given. When the bystanders raised an alarm, the appellant ran away. After a few days, the victim died due to compression of the brain.

Issues

What is the offence committed by the accused and what punishment should be given to him?

Judgement

As per the opinion of the doctor, it was stated that injury number one was a fatal injury due to which he developed symptoms of compression of the brain, which gradually increased, he stated that this injury was sufficient in the ordinary force of nature to cause death. 

However, the Apex Court stated that while the blows were given by the accused that led to the death of the victim, the weapon used was a lathi and not an iron road. Further, the deceased was a young man of strong build and the accused could not be held to have acted with the intention of causing his death. Despite the medical evidence, the court believed that the injury was not sufficient in the ordinary cause of nature to cause death since he survived for three weeks after the injury, thereby he was convicted of causing such bodily injury as was likely to cause death under Section 299 of IPC (Section 100 of BNS) and punishable under the first paragraph of Section 304 of IPC ( Section 105 of BNS).

State of Andhra Pradesh vs. Rayavarapu Punnayya & Anr. (1976)

Facts

The facts of the case were as follows, on the fateful day the deceased along with two others boarded a bus for a destination. Later the accused along with others got onto the bus. When the deceased and his companions deboarded the bus, they were followed by the five accused. There was a political dispute between the deceased and the accused and the deceased had launched a complaint against the accused on the previous day and on the fateful day, he was going to the police station in regard to the same. The two accused picked up heavy sticks and went after the deceased who was an old man and was not able to escape. He pleaded with folded hands for mercy but to no avail, the accused pounded the legs and arms of the deceased and started beating him until he became unconscious. thereafter they left. A total of 19 injuries of which nine were grave were found on the deceased who died the next morning due to shock and haemorrhage, as per the opinion of the doctor, the injuries cumulatively were sufficient to cause death in the ordinary cause of nature.

Issues

Is the accused culpable for the offence of murder?

Judgement

The court stated that to decide the issue, two elements have to be examined. Firstly, that the act which resulted in the death was done by the accused, , that is, the death can be manifestly related to the series of acts of the accused.

Secondly the element of mens rea is examined by the conduct of the accused. All the injuries were given on the legs and the arms and no blows were given on any vital part of the body. Therefore a direct intention to kill the deceased person cannot be said to be proved beyond doubt. However, from the evidence, it can be stated that the accused had the intention to cause the bodily injuries that were actually found and they must have had the intention and knowledge that such bodily injuries were likely to cause death. Therefore, culpable homicide is beyond all doubt. 

Further to answer the question whether culpable homicide amounts to murder, the act has to be examined under Section 300, thirdly of IPC (Section 101(c) of BNS, 2023). For the application of the section, two elements have to be discussed. Firstly, whether the bodily injuries found on the deceased were intentionally inflicted by the accused, which is a subjective enquiry. Secondly were these injuries sufficient in the ordinary course of nature to cause death, which is an objective enquiry. Both of these factors have been proved in the case and thereby the accused was held liable for murder.

Harjinder Singh Alias Jinda vs. Delhi Administration (1967) 

Facts

In this case, the facts of the case are as follows, the fight took place between Dalip Kumar and the appellant on 31st January 1962. In the fight the appellant was defeated, consequently he left after threatening Dalip Kumar. The appellant along with another reached the house of Dalip Kumar and struck him. At this time the brother of Dalip Singh, Kewal Kumar intervened. At that time the person accompanying the accused held Dalip Singh and the appellant stabbed him with a knife on the upper part of the thigh.

Due to the stab by the knife, the femoral artery and vein were cut due to which there was a fusion of blood in the muscles and around the upper left thigh, resulting in a great loss of blood. As per the doctors, the cutting injury of these vessels could result in immediate death, due to shock and haemorrhage. 

Issues

Whether the requirements for the application of section 300 thirdly are proved?

Judgement

The prosecution contended that all the ingredients described in the case of Virsa Singh vs. State of Punjab have been fulfilled. This contention was not accepted by the Apex Court and it was observed that:

Firstly it must be established objectively that bodily injuries are present. 

Secondly, the nature of the injury must be proved. 

Thirdly, it must be proved that there was an intention to infect that particular injury and that the injury was not accidental or unintentional or that some other kind of injury was intended.

Once all of these elements are present, the enquiry proceeds to check that injury of the type described above, made up of the three elements, is sufficient to cause death in the ordinary cause of nature. This enquiry is objective and has nothing to do with the intention of the offender.

The question is whether the accused intended to inflict the particular injury that was found on the victim. If he is able to show that he did not intend so, then the intent required for the application of the Section is not satisfied. In this case, the circumstances reflect that the accused did not intend to cause an injury on the particular portion of the thigh, and as the deceased was in a crouching position to intervene between the fight and separate the two, the stab landed on his thigh. It cannot be stated with definiteness that he aimed the blow at that particular point knowing that it would cut the artery. Therefore, Section 300, thirdly of IPC (Section 101(c) of BNS, 2023) cannot be applied.

Nevertheless, the knife was a dangerous weapon, and when the deceased was struck with the knife, the accused must have known that it would land near a vulnerable part of the body and was likely to result in his death. Therefore, the intention to cause a bodily injury which is likely to cause death is established as per the second part of Section 299 of IPC (Section 100 of BNS, 2023).

Knowledge about an imminently dangerous act 

As per Section 101(d), for an act to be considered as culpable homicide amounting to murder, the act must be such as the accused knows that it “is so imminently dangerous that it must in all probability cause death or such bodily injury as likely to cause death”. Further, this act must be done without an excuse for incurring the risk of causing death or such injury.

There are three essential ingredients to this clause-

1. The knowledge that the act is so imminently dangerous 
2. The act must in all probability cause the death of such bodily injury as is likely to cause death
3. The act is committed without any excuse for incurring the risk

While in Section 100, which is the genus the ‘knowledge of the likelihood of causing death’ is required, whereas in Section 101(d) which is the species, the knowledge required is of a higher degree. The latter requires the knowledge that the act is imminently dangerous and must in all probability cause death. 

Here, imminently means immediately or almost, certainly about to happen.

For example, A fires a shot in a crowd randomly. He does not aim at a particular part, therefore, there is no direct intention to cause death or intention to cause a bodily injury. However, there is a knowledge that the act is likely to cause death. However, if he shoots 5-6 shots his act would fall under Section 101(d).

In another example, if A goes into a hospital and sets up a time bomb for three minutes, he tells everybody about the bomb. We might not be able to impute a direct intention to cause death as there is still time to escape. Since no particular bodily injury is intended, therefore, the second part of Section 100 would also not apply. However, he has the knowledge that is likely to cause death. Then we further check if the act is so imminently dangerous that it must in all probability cause death, if the answer is in the affirmative then the act would fall under Section 101(d).

The Section itself presents a situation where the act of culpable homicide would not amount to murder. In other words, if the accused has an excuse to incur the risk, then Section 101 (d) will not apply. 

Case laws on Section 101(d) of BNS, 2023

Emperor vs. Mt. Dhirajia (1940)

Facts

In this case, the husband of the appellant was of a cruel nature, and he was chasing the appellant in order to kill her. The appellant was running away and had her child in her arms. In order to save herself, the appellant jumped into the well due to which the child died. 

Issues

Can the accused be held guilty of the offence of murder ?

Judgement

Here it was contended before the court that, when the appellant jumped into the well, she had the knowledge that her act was imminently dangerous, and would in all probability cause death. However, she claimed that as she was in a panic as she was being chased by her husband, she jumped into the well. The Allahabad High Court considered her excuse for incurring the risk of jumping into the well and concluded that her act amounted to culpable homicide, not amounting to murder as she was being chased by her husband, and it was a panic situation where she had no other option to save herself.

Gyarsibai w/o Jagannath vs. State of Madhya Bharat (1952)

Facts

In this case, the husband of the appellant-wife had threatened to kill her due to which she left the house with her child. The husband was not chasing her, despite that she ran away and jumped into a well due to which her child died. 

Issues

Can the accused be held guilty for the offence of murder ?

Judgement

The Madhya Pradesh High Court held that there was no imminent threat and thereby she had no reasonable excuse for incurring the risk of causing death. Therefore, she was held liable for murder and was not given the benefit of the exception provided under Section 300 (fourthly) of IPC (Section 101(d) of BNS, 2023). 

Landmark cases on Section 101 of BNS, 2023 (Section 300 of IPC, 1860)

Laxman vs. State Of Madhya Pradesh (2006)

Facts

In this case, the deceased along with others went to the gadaghat to get food grains and were coming back when the incident happened. On the way back, the accused along with others stopped them and started attacking them with arrows and stones. One arrow shot by the accused hit the deceased. On sustaining the injuries the deceased fell down and died immediately.

Issues

The issue before the court was, what is the appropriate provision to be applied?

Judgement

The Apex Court held that the facts show that the arrows were being shot from a distance and not with any particular accuracy. Out of multiple arrows, one of the arrows hit the deceased. Further, there was no quarrel preceding the attack. The court stated that the facts established only prove the offence of culpable homicide not amounting to murder and punishable under Section 304 first para (Section 105 BNS). 

Manoj Kumar vs. The State Of Himachal Pradesh (2018)

Facts

In this case a civil suit was pending between the accused and the deceased regarding the ownership of some land. The incident took place when the deceased was returning from the disputed land and the accused persons were busy in the adjoining field transplanting paddy. When the accused  saw the deceased crossing their land. One of the accused persons suddenly came and started quarrelling with the deceased and then later the other family members of the accused also joined. The quarrel escalated to a fight in which the accused and others attacked the deceased. Some attacked with a knife others with sticks. In order to save their lives, the deceased and other companions attempted to run from the scene. However, later the deceased succumbed to his injuries and died.

Issues

The issue arose whether here the accused was liable to be punished for the offence of culpable homicide, amounting to murder or not?

Judgement:

The court analysed the application of Exception 4 to Section 300 (Section 101 BNS) in the present case. It was proved on record that there was a sudden verbal quarrel between the parties in light of the pending civil dispute, and that verbal corral escalated into a physical fight. 

The court stated that Exception 4 to Section 300 (Section 101 BNS) deals with the cases in which a blow may have been struck or some provocation given in the origin of the dispute or whatever was the reason for the quarrel. Yet the subsequent conduct of both the parties puts them in the respect of guilt on equal footing. 

Since in the present case the quarrel escalated into a sudden fight without any remediation, the whole incident was spontaneous. Therefore, in light of these circumstances, the accused is held liable for culpable homicide, not amounting to murder due to the application of exception, 4 to section 300 (Section 101 BNS).

Jai Prakash vs. State (Delhi Administration) (1991)

Facts

In this case, the deceased was married to Agya Devi and lived with her in their house in Shahdara, Delhi. The accused was married to a cousin of Agya Devi and used to visit the house of the deceased as a relative. The deceased feared that there was an illicit relationship between his wife and the accused, and therefore asked him not to visit his house. On 18 August 1973, when the deceased was not in the house, the accused came to visit Agya Devi. When the deceased  returned back, he had an altercation with the accused, and the accused took out Kirpaan from his waist and stabbed the deceased in the chest. The attack led to the death of the deceased.

Issues

The issue before the court was, what was the offence committed by the accused?

Judgement

The Apex Court held that, since there was a mere  altercation and no fight between the two, the application of the Exception 4 to Section 300 (Section 101 BNS) was out of question. 

Secondly, the court examined the ingredients of Section 300 IPC thirdly (Section 101(c) BNS) and concluded that the accused visited the house of the deceased, armed with a Kirpan and stabbed on the chest of the diseased, which is a very vital part of the body leading to the death of the deceased.

The court also examined the fact that only a single blow was given by the accused. Court stated that it’s not the number of blows rather the weapon used and the aim of the attack which has to be seen in order to decide whether in ordinary circumstances, the injury was sufficient to cause death.

Therefore, the above circumstances clearly depict that the accused intentionally inflicted that injury with a deadly weapon, therefore, he was held liable for the offence of murder.

Machchi Singh  vs state of punjab, etc (1983)

Facts

In this case the enmity between two families led to the loss of 17 lives in a series of five incidents which occurred in quick succession in five villages. On the night between 12th August and 13 August 1977, 17 people lost their lives who were related to Amar Singh. Due to these incidents one Macchi Singh and his 11 companions were prosecuted in five cases. Machi Singh, along with two others was given the death penalty.

Issues

The issue before the court was whether there was something uncommon or of extreme depravity about the crime, which renders the sentence of life imprisonment inadequate? 

Judgement

The Honourable Supreme Court stated that, it is only in the gravest of cases of extreme culpability that death penalty should be ordered. In this particular case, the circumstances disclose that it was indeed a cold blooded murder of victims, who were helpless and undefended. There was no personal enmity with the victims. Rather their only fault was that they belonged to the family of Amar Singh. The manner of murder was of extreme atrocity and cruelty. The accused  also killed minor children, helpless women, and a veteran couple along with others. Further, the victims could offer no resistance to the accused. Therefore, in these circumstances, a sterner sentence than life imprisonment is required.

Exceptions to Section 101 of BNS, 2023 (Section 300 of IPC, 1860)

In the BNS, 2023 chapter III provides for general defence. These are the defences which if the accused successfully proves, would make him eligible to be acquitted of all the charges. These are uniformly applicable to all offences provided in the BNS, 2023. However, under Section 101 itself, some specific exceptional circumstances have been provided which if established by the accused would diminish his offence from one of murder to culpable homicide not amounting to murder. In the case of State of Andhra Pradesh vs. Rayavarappan Punnayya (1976), the honourable Supreme Court stated that the existence of one of the four conditions of Section 101 would turn culpable homicide into murder, while the special exceptions would reduce the offence of murder to culpable homicide not amounting to murder.

These exceptions are discussed below along with relevant case laws.

Exception 1

As per exception one to Section 101, the offence of murder will diminish to culpable homicide not amounting to murder if the following conditions are satisfied:

1. If the offender was deprived of the power of self-control
2. The loss of self-control was due to a grave and sudden provocation
3. While deprived of self-control, he causes the death of the person, giving the provocation or death of another person by mistake or accident
4. However, the provocation must not be 

• sought or voluntarily provoked by the offender as an excuse for killing
• provocation must not be due to an act done in obedience to law or by a public servant in the exercise of his lawful powers
• By an act done in the lawful exercise of the right of private defence

It is a question, of fact, whether a particular provocation was grave and sudden enough to be covered within the exception.

In the case of R vs. Duffy (1949), Goddard, CJ defines provocation as “Provocation is some act or a series of acts which done by the dead man to the accused would cause in any reasonable person and actually cause the accused, a sudden and temporary loss of self-control which would render the accuse so subject to passion as to make him for the moment, not master of his mind”.

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

Facts: In this case, brief facts are as follows. The accused was a naval officer who was prosecuted under Section 302 of the IPC, 1860 for the murder of his wife’s paramour Ahuja. On the date of the incident, the wife of the accused confessed to him about her illegitimate relationship with Ahuja. On the same day, he drove his wife and children to a movie, and he drove to his ship, took the revolver and drove to Ahuja’s house. They had an altercation and a struggle, in the course of which two shots were fired, which hit Ahuja.

Issues: Can the accused be given the benefit of the exception in the present case?

Judgement: The exception was claimed by the defence that the accused shot the deceased while he was deprived of his power of self-control due to grave and sudden provocation. The question to be asked is whether Ahuja gave Nanavati provocation as per the exception. And further, whether the provocation was grave and sudden?

The honourable Supreme Court considered whether a reasonable person placed in the same position as the accused would have reacted to the confession by his wife of the adultery in the manner the accused reacted.

In answering this question particular importance has to be given to, firstly considering whether a sufficient interval has collapsed since the provocation to allow a reasonable person time to cool down and secondly, the instrument with which the homicide was affected has to be taken into account. A simple blow in the heat of passion is very different from using a deadly instrument like a concealed dagger, therefore, the mode of injury must be reasonable to the provocation if the exception has to be claimed. 

The court went on to state the Indian law relevant in the enquiry of the exception application of the exception:

1. The test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused placed in a situation in which the accused was placed would be so provoked as to lose his self-control
2. Words and gestures may also under some circumstances, cause grave, and sudden provocation to bring his act within this exception
3. The mental background created by the previous act of the victim may be taken into consideration to ascertain whether the subsequent act caused grave and sudden provocation for committing the offence
4. The fatal blow should be clearly traced to the influence of passion arising from that provocation, and not after the passion has cooled by the lapse of time or otherwise, giving room for premeditation and calculation.

The Apex Court cited the case of Holmes vs. Director of Public Prosecution (1946)  where Justice Simon stated that “the whole doctrine relating to provocation depends on the fact that it causes or may cause a sudden and temporary loss of self-control, thereby malice, which is the formation of an intention to kill or inflict the grievous body harm is negatived”

The court finally held that when the wife of the accused confessed to him about her adulterous behaviour, we can assume a momentary loss of self-control. However, his conduct of seeking an explanation from Ahuja about the future of his wife and children clearly indicates that he had regained his self-control. Further, he had planned the entire day. He drove his wife and children to a cinema, went to his ship, took a revolver loaded with six rounds and drove his car 1st to the office, and then later to the flat of Ahuja. He left his house at 1:30 PM and it was at 4:20 PM that the murder happened. There was sufficient time for him to regain his self-control, the mere fact that before the shooting, the deceased abused the accused and the abuse provoked him. An abusive reply could not conceivably be a provocation for murder. Therefore, the court refused to provide the benefit of exception one to Section 100 of the IPC, 1860 and convicted the accused under Section 101 of the BNS, 2023.

Exception 2 

As per exception 2 to Section 101, the act of murder would diminish to culpable homicide, not amounting to murder if:

1. The offender was exercising his right to private defence in good faith
2. He exceeded his right to private defence
3. He caused the death of another person against whom he was exercising his right of defence
4. Such death must be caused without remediation and without the intention of doing more harm than necessary

Wherein the accused caused the death of another while he was exercising his right of private defence as provided under Section 34-44 BNS, 2023 (Section 96–106 of IPC)  in good faith. However, he exceeded his right and caused death. The death must not be caused by any premeditation. Further, he should not be acting with an intention to cause more harm than necessary for defence.

In the case of Katta Surendra vs. State of Andhra Pradesh (2008), the honourable Supreme Court distinguished between the situation of ‘exceeding the right to private defence’ and ‘acting after the right to private defence has ceased’. In the latter case, the exception would not apply since the accused no longer had the right to private defence and thereby could not have exceeded it.

In the case of Nathan vs. State of Madras (1972), the accused was in possession of some land which he had taken on lease from the deceased. Some arrears of rent had occurred due to which the deceased landlord forcefully tried to evict the accused and harvest his crop. In an exercise of private defence against his property, the deceased attacked the deceased resulting in his death. The court stated that the accused did have a lawful right to excise his private defence. However, since the deceased landlord was not armed with any deadly weapon, there was no fear of death or grievous hurt on the part of the accused. Therefore, his private defence was limited to the extent of causing any harm other than death under section 104 IPC (section 42 BNS, 2023). Since he had exceeded his right to private defence, Exception 2 to Section 300 was applicable, and his offence was reduced to culpable not amounting to murder.

Exception 3 

As per exception, 3 to Section 101, the offence of murder would diminished to culpable homicide, not amounting to murder if

1. The offender was a public servant or a person aiding a public servant in advancing public justice
2. He exceeded the power conferred upon him by law
3. He caused the death of the person while acting in good faith
4. His act must be without any malice towards the person and must be lawful and necessary for the discharge of his duty as a public servant

In the case of Dakhi Singh vs. State (1955), the police officer had arrested a thief and was taking him in a train. However, the thief escaped from the running train and the police officer tried to pursue him. When the police officer was not in a position to catch him, he fired a gun shot at him, but inadvertently that gunshot hit the fireman and killed him. The honourable Supreme Court held that the case was covered by Exception 3. 

Exception 4 

As per exception 4 to Section 101, the offence of murder will be diminished to culpable homicide, not amounting to murder, where: 

1. Death is caused by a sudden fight in the heat of passion
2. The fight must succeed a sudden quarrel 
3. The accused must act without premeditation, without taking undue advantage and without acting in a cruel or unusual manner.

It is immaterial to check whether it was the accused or the victim who offered the first provocation or assault. The existence of a fight is a prerequisite, where there is no fight at all the exception is not attracted as stated in the case of Jaswant Singh and others vs. State of Uttar Pradesh and others (1998).

The word ‘fight’ conveys something more than a verbal quarrel, it demands an exchange of blows as stated in Kesar Singh vs. State of Haryana (2008).

A fight implies an attack by both the parties and an attack by one party and the retreat by another does not constitute a fight, as stated in Mohammad Mythen Shahul Hamid vs. State of Kerala (1980).

In the case of Dharman vs. State of Punjab (1956), there existed a dispute about the ownership of land between the accused and the deceased. The deceased had set up a lime crushing machine on the disputed land, which was destroyed by the accused. Due to this, a fight ensued between the two and as a result, the deceased received fatal blows. The court held that the sudden fight had insured without remediation and the injuries were causing heat of passion upon a sudden quarrel. Further, there was no undue advantage or a cruel act on the part of the accused. Therefore, Exception 4 would apply to the present case.

Exception 5

As per Exception 5 to Section 101, the offence of murder will be diminished to culpable homicide not amounting to murder, where the victim is a major and has consented to suffer death or the risk of death. In the case of Dasrath Pawan vs. State of Bihar (1957), the accused was a student in 10th class who had failed thrice in his exams. Frustrated by his failures he decided to end his life. His wife asked him to kill her first, and then kill himself. In pursuance of the agreement, the accused killed his wife, but before he could end his life, he was arrested. The accused was given the benefit of Exception 5 by the Patna High Court. 

Case Laws on Exceptions to Section 101 of BNS, 2023

Kishore Singh & Anr.  vs. State of Madhya Pradesh (1977)

Facts 

The appellants attacked Jawahar, the deceased, and also one Pooran Singh on July 28, 1968 and caused grievous  injuries to the deceased using the ‘sabbal’ and  the blunt  side of the axe with which they were armed. Jawahar died  in  the hospital on August 27, 1968, after recovering from a surgical operation for his head  injuries.

Issues

Can the accused be held guilty of murdering the victim?

Judgement

In this case, the honourable Supreme Court stated after analysing the circumstances and evidence on record. It is clear that there is “somewhat hesitant medical opinion with regard to the cause of death given by the three doctors” and further, the deceased died one month after the incident. Therefore, Section 300 thirdly was not established on these facts and since Section 300 is not proved the question of accused pleading the application of exceptions does not arise. The prosecution cannot lighten its burden of proving the elements by stating that the accused has not pleaded or proved the application of the exceptions.

The court further explained that with the application of the exceptions to Section 300, the burden first falls upon the prosecution to establish all the required elements of Section 300. 

The Apex Court explained that in case the offence of murder is proved, by the application of any of the exceptions under section 300, the offence would be diminished to culpable homicide not amounting to murder. However in a case where the accused has not pleaded the applicability of any of the exceptions, the initial burdeen still lies upon the prosecution to prove the required ingredients of the offence of murder under Section 300  (Section 101 of BNS). Further the court stated that, “If the prosecution fails to discharge this onus in establishing any one of the four clauses of section 300 IPC namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under section 299 IPC.” 

Punishment for murder under Section 103 BNS, 2023

For the offence of murder, two options for punishment are provided. First being death and second being life imprisonment. In addition to these sentences, the accused would also be liable to pay a fine. 

The Bharatiya Nyaya Sanhita, 2023, added a new subsection for the punishment of murder.

Section 103(2): “When a group of five or more persons acting in concert commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground each member of such group shall be punished with death or with imprisonment for life, and shall also be liable to fine.”

The newly added sub-section, in effect, seeks to discourage an unlawful group of people from committing an offence of murder in concert. This is the acknowledgement of the fact that a person would be more likely to commit an offence when supported by other people than he is of doing it alone. Further, factors like race, caste, community sex, place of birth, language, and personal belief act as important identity markers that have the potential to group people together. Therefore, 5 or more under this Section acting together, commit the offence of murder on the grounds mentioned above, the severest punishment of death or, in alternative, life imprisonment, has been prescribed for each member of the group. This liability would be fastened irrespective of the individual contribution of each member. 

This can be seen as an offshoot of the principles of common intention found under Section 3(5) of the Sanhita. It states that when an act which is criminal is done by multiple people in ‘furtherance of the common intention of all’ the liability of each person is fastened as if he did the act alone. The liability is irrespective of the particular contribution of each, provided each had the same common intention and did some act in furtherance of it. 

Death penalty under Section 103 BNS of 2023

The growing importance being attached to a person’s life and liberty not only in Indian jurisprudence but also globally has led to a raising of questions on the constitutionality of the death penalty as a punishment for certain crimes. 

A retentionist versus. abolitionist debate has emerged, where the former argue that for some heinous offences, the punishment of the death penalty must be retained. While the abolitionist argues that in the age of primacy to human rights, the death penalty has no place. The positions are based on different theories of penology. The retentionists believe in the theory of deterrence and retribution, while the abolitionists believe in the theory of rehabilitation and reformation.

In India, both the Indian Penal Code (IPC) of 1860 and the Bharatiya Nyaya Sanhita (BNS) of 2023 maintain the provision for the death penalty as a form of punishment for a few very heinous offences, one of them being murder. On the question of decision upon inflicting the punishment of death or life imprisonment in every case Section 393(3) BNSS (Section 354(3) of CRPC 1973) has to be considered. The section enjoins upon the court the duty to record reason for awarding the particular sentence and further, special reasons have to be recorded in case death penalty is awarded. However, as per a report titled “Death penalty sentencing in trial courts” published by Project 39-A which is a project started by the National law university delhi which deals with various areas related to death penalty. The report exposed the superficial nature of capital sentencing hearings conducted by trial courts and  demonstrates the normative and procedural gaps in the capital sentencing framework in India set out by the Bachan Singh judgement. 

Until the year 1980, there was a sort of vacuum as to which matters shall fall under the domain of capital punishment and which shall not but now the doctrine of exceptional and rarest of rare cases has set some guidelines for the same. This doctrine was developed by the Apex Court in the case of Bachan Singh vs. State of Punjab (1980). It was stated that the court must not confine its consideration principally to the crime, but due consideration must also be given to the circumstances of the criminal. It is only when the culpability assumes the proportion of extreme depravity that special reasons can legitimately be said to exist. The judges must not be bloodthirsty. Some of the guidelines that can be inferred from the case are as follows:

1. Extreme penalty of death may not be inflicted, except in grave cases of extreme culpability
2. Before opting for the death penalty, the circumstances of the offender also need to be considered along with the circumstances of the crime
3. Life imprisonment is the rule, while the death penalty is an exception and should only be awarded when life imprisonment seems to be inadequate in regard to the circumstances of the crime and the criminal
4. A balance sheet of aggravating and mitigating circumstances must be drawn.

Further, the court must also form two questions which must be answered in deciding the sentence

1. Is there something uncommon about the crime that renders the sentence of life imprisonment inadequate and calls for a death sentence?
2. Are the circumstances of the crime such that there is no alternative but to impose that sentence, even after maximum weightage has been given to mitigating circumstances?

Next in the case of  Machhi Singh And Others vs. State Of Punjab (1983), the honourable Supreme Court laid down various situations by way of examples, which will fall under the rarest of the rare cases. These are as follows:

1. When the murder committed is extremely brutal, ridiculous, diabolical, revolting, or reprehensible, it awakens intense and extreme indignation of the community. For instance, setting someone’s house on fire with the intention to burn them alive;
2. The magnitude of the crime is at a large scale, which means causing multiple deaths; or where there are large-scale massacres, the killing of people of one community, etc
3. When death is caused because of the caste and creed of the person;
4. When the motives of the accused were cruel or indicated total depravity; and
5. When the murder victim is an innocent child, a helpless woman or person (due to old age or infirmity), a public figure, etc. in a brutal manner.
6. Killing of a person who stored a lot of trust in the murderers

As a matter of proposition of law, it would be difficult to come to the agreement that where the death penalty should be awarded and where not, it is a matter to be decided on the facts and circumstances of each case and no straight jacket formula can be laid down as no two crimes are the same. It is still subjective to determine what is rarest of the rare and what is not. Hence it leaves an ambiguity as to in what cases the death penalty can be applied.

The most recent case where the accused of the crime were given the death penalty is the case of Mukesh & Anr vs. State For Nct Of Delhi & Ors (2017) (Nirbhaya case), where all the accused, except one who was a juvenile, were sentenced to death penalty and the sentence was finally executed in 2020. This execution made the issue of the death penalty the epicentre of several heated debates across the country. The major question raised is, like other countries, should India also abolish the death penalty when there is a recourse like life imprisonment present with the judiciary?

After the hangings in the nirbhaya rape case, verious arguments were put forth by the public on the issue of death penalty. The group which supports the retention of death penalty arguments like those who commit murder, because they have taken the life of another, have forfeited their own right to life or that by executing convicted murderers, we will deter would-be murderers from killing people. On the other hand, with the increased importance given to Article 21 and human life, the voices for the abolition of the death penalty are louder than ever. They argue that retribution and the idea of an eye for an eye must give way to the idea of reformation and rehabilitation. Further, they contend that the deterrent effect of the death penalty is not established by any evidence.

A survey was conducted by the Jindal Institute of Behavioural Sciences, the purpose of this study to assess public attitude towards capital punishment, the type of crime and circumstances for which death penalty is favoured, According to the findings of the empirical research, it has been observed that an overwhelming 79% of the respondents’ favour legalising capital punishment for specific crimes. 

Relationship between culpable homicide not amounting to murder and culpable homicide amounting to murder

S.no.	Section 100 of BNS, 2023- Culpable homicide	Section 101 of BNS, 2023- Culpable homicide amounting to murder	Difference between the two
	Intention to cause death.	Intention to cause death.	No difference- any act with an intention to cause death would directly fall under the offence of murder.
2.	Intention to cause such bodily injury as is likely to cause death.	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.	While in Section 100 the bodily injury is only likely, in Section 101, the subjective knowledge about the particular victim is required.
3.	Intention to cause such bodily injury as is likely to cause death.	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	The bodily injury under section 100 is merely likely to cause death; however for Section 101 the bodily injury must be ‘sufficient’ to cause death
4.	Knowledge that such an act is likely to cause death.	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.	The knowledge required under Section 100 is only about likelihood of death however under Section 101 the knowledge is about the causation of death in all probability.

Landmark case of Reg vs. Govinda (1876)

Reg vs. Govinda (1876) is one of the most landmark cases dealing with the distinction and relationship between culpable homicide not amounting to murder and murder was elucidated in the case of Reg vs. Govinda (1876). As per the facts of the case, a quarrel ensued between a couple and in a fit of anger, the husband slapped and pushed his wife to the ground. Subsequently, he put one knee on her chest and struck her with two or three violent blows on the face with a closed fist. Due to the injuries, the wife died shortly after. As per the medical evidence, it was stated that the death occurred due to the effusion of blood to the brain. Justice Melvill, while deciding the case, elucidated the differentiation between Section 100 of BNS, 2023 and Section 101 of BNS, 2023 (previously Section 299 and 300 IPC, 1860, respectively). 

The court underlined the differences between the two Sections in the following words.

 “First part of Section 299 and Section 300 show that where there is an intention to kill, the offence is always murder.

The third part of Section 299 and Section 300, fourthly appear to me intended to apply to cases in which there is no intention to cause death or bodily injury. Whether the offence is culpable homicide or murder, depends upon the degree of risk to human life. If death is a likely result, it is culpable homicide; if it is the most probable result, it is murder.

The essence of Section 300, secondly appears to me to be found in the words… The offence is murder, if the offender knows that the particular person injured is likely, either from peculiarity of constitution, immature age, or other special circumstance, to be killed by an injury which would not ordinarily cause death.”

There remains to be considered the second part of Section 299  and Section 300, thirdly, and it is on a comparison of these two clauses that the decision of doubtful cases like the present must generally depend. 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.”

Therefore, in the present case, he concluded that the accused had no intention to cause death, nor there was any peculiarity about the deceased of which the accused was aware and neither the bodily injury intended to be inflicted was sufficient in the ordinary cause of nature to cause death, but rather it was only ‘likely’ to cause death. The death in the case was caused by the effusion of blood to the brain; therefore, the accused was held guilty of the offence of culpable homicide not amounting to murder.

Punishment for murder by life-convict Section 102 of BNS, 2023 (Section 303 of IPC, 1860 )

As per Section 102 of BNS, 2023, which corresponds to Section 303 of the IPC, 1860, dealt with the punishment for murder in a special case. Wherein a person who is already undergoing a sentence of life imprisonment and while that sentence is in effect commits murder shall be punished with death or, in the alternative, with life imprisonment, which is stated to mean for the rest of his natural life. 

Section 303 IPC, 1860 was held to be unconstitutional by the Apex Court in the case of Mithu vs. State of Punjab (1983). A five-judge bench of the honourable Supreme Court held that the Section is unconstitutional and void as it violates the guarantee of equality as provided under Article 14 of the Indian Constitution along with the right under Article 21, which prohibits the deprivation of a person’s life or private liberty, except as per the procedure established by law The court stated that there is an absence of reasonable rational justification for making a distinction in the matter of punishment between the persons who commit murder while under sentence of life of imprisonment and the person who commit murder while they’re not under such sentence.

The element of unconstitutionality was due to the fact that only the punishment of death was prescribed in the case of such an offender. However, now under the BNS, 2023 choice has been provided between death and life imprisonment. Thereby the element of unconstitutionality has been remedied.

Doctrine of transfer of malice under Section 102 of BNS, 2023

The notion of ‘culpable homicide by causing the death of a person other than the person whose death was intended’ is enshrined in Section 102 of BNS, 2023 (Section 301 of IPC, 1860) which states that:

Culpable homicide occurs when a person, intending or knowing that their actions are likely to cause death, inadvertently causes the death of someone other than the person they intended to kill or knew was likely to be killed. In such a case, culpable homicide is classified the same as if the person had caused the death of their intended or expected victim.

In other words, whatever malice he had towards B transferred to C. The same intention or knowledge which they had towards B would be transferred to his act that killed C.

1. Only the amount of mens rea that the accused initially possessed will be transferred.
2. For the transfer of malice, it is essential that the effect caused must be in the continuity of the transaction.
3. This doctrine of the transfer of malice is applicable to all offences and is not limited to Section 102 of BNS.

This is also known as the “doctrine of transferred malice’ or ‘transmigration of motive’ or ‘transferred intention’ in English law. Mens rea is generally an essential element of proof of crime. It cannot be used as a plea to escape the punishment when, due to the act of the accused due to fortuitous circumstances, it brings a result not foreseen by the criminal.

For instance, A shoots at B with the intention of killing him, but B ducks and the bullet kills C. Here C died as a result of the shot by A; he would not have died if he had not shot B with the intention to kill him, therefore, the malice towards B is said to have been transferred to C. However, this doctrine has only one caveat, which is ‘Cum grano salis’ which means that the act in men must be of the same crime 

This means if A shoots B, who is a human being and B ducks, thereby the bullet hitting C,  A would be liable for culpable homicide.

However, if A shoots at B, who is a dog and misses, and the bullet instead kills C, who is a human being, he would not be liable as he had the mens rea to kill a dog and not a human being.

Case laws

Rajbir Singh vs State Of U.P. & Anr (2006)

Facts

In this case, the appellant claimed that the neighbour threw some bricks on the compound of his brother’s house. On account of this, a verbal fight took place between his father and the accused but the matter was somehow settled by the local people. The next day, the accused with his two relatives came with guns. They came near the shop of the complainant, where his father was standing. There, the accused persuaded or encouraged his relatives to kill him. The accused started firing at the father of the complainant, who then received injuries and fell down.

A girl came to that shop to purchase some articles from there and suffered injuries and fell down. Both the injured persons died on the way to the hospital. The accused, in his argument, said that the girl died by accident and there was no intention on their part to kill her. She was passing by from that place and as a result, suffered injuries and died. 

Issues

Can the accused be held guilty of the charge of murder of the girl?

Judgement

The court stated that Section 301 in essence means that if the killing took place in the course of doing an act which a person intends or knows to be likely to cause death, it ought to be treated as if the real intention of the killer had been actually carried out. In this case, the accused had the intention of causing some harm and, in pursuance of that, fired the shots. Section 301 would be applicable to this case. Therefore, the honourable Supreme Court held the accused guilty and was convicted under Section 301 of IPC (Section 102 of BNS, 2023).

Public Prosecutor vs. Mushunooru Suryanarayana Moorty (1912)

Facts

In this case, A had the intention to kill B and for that, he served him the Halwa which was poisoned. B ate a very little part of the halwa and kept the rest of it on the road. Some children picked up the Halwa and ate it, due to which they died. A claimed that he had no intention to kill those children and therefore must not be liable for their murder.

Issues

Can the accused be held liable for the death of the children?

Judgement

The court held him guilty of the murder, as whatever intention he had to cause the death of B was transferred to those children. So, in reference to B, he was held liable for the offence of attempt to murder and in reference to the children, he was held liable for the offence of murder. 

Doctrine of supposed circumstances

This doctrine can be best understood with the help of an example:

A hit B with a thick stick on her head, and she fell down unconsciously. The initial malice of A was only limited to causing grievous hurt to B. However, when she fell down unconsciously, he believed her to be dead and only with the intention of presenting the death as suicide, he hanged her body from the ceiling fan.

In the postmortem report, it was revealed that the death was caused not due to the hit on her head by the stick, but rather by hanging. 

The question arose, whether in this case A would be held liable for the murder of B or not. 

As per the doctrine of the supposed circumstances, the criminal liability of A would only be for his initial malice. As the act of hanging was not done with the mens rea of intention to cause the death, as he believed her to be dead when he hung her body.

However, if he hung the body only for greater certainty to ensure that she must die, then his liability would be for murder. 

In Re: Palani Goundan vs. Unknown (1919)

Facts

In the landmark case, the facts were as follows: The accused hit his wife with a ploughshare with the wooden side on her head due to which his wife fell down unconsciously. Believing her to be dead, he thereafter, in order to create false evidence, hanged her. In the postmortem, the reason for death was stated to be hanging. 

Issues

What is the offence committed by the accused ?

Judgement

The Madras High Court applied the doctrine of supposed circumstances, as when A hung the body of his wife, he thought that she was dead. Here the doctrine of transfer of malice would apply, which means that the initial intention or the mens rea of A for the original act will be transferred to the point when death is actually caused. Here when he hit his wife with the wooden side of the plough share and not the metal side, his intention was to only commit assault and attempt to create false evidence, therefore, he would only be liable for those offences.

Conclusion

The primary distinction between murder and culpable homicide is that murder represents a more aggravated form of culpable homicide. In murder, there is no ambiguity about whether the act will result in death, whereas culpable homicide involves some uncertainty. According to Section 100 of BNS, 2023 (Section 299 of IPC), culpable homicide occurs when an act is done with the intention of causing death or causing bodily injury likely to cause death, or with knowledge that the act is likely to cause death. The repeated use of the term “likely” in this Section indicates an element of uncertainty about whether the act will definitely cause death. In contrast, murder is defined under Section 101 BNS, 2023 (Section 300 IPC, 1860). 

Here, the term “sufficient” is used instead of “likely,” which eliminates ambiguity. This indicates that the accused’s actions are certain to result in death. To summarise, while both culpable homicide and murder involve causing death, the distinction lies in the degree of intention and certainty. Murder represents a more aggravated offence with a clearer intent to cause death.

Frequently Asked Questions (FAQs)

What is the law relating to celebratory fires causing death seen in weddings and other festivities?

In the case of Bhagwan Singh vs. State of Uttarakhand (2020), the Apex Court dealt with the liability of the people who injure others while firing celebratory gunshots.

The question in this case before the Apex Court was whether the act of the appellant would fall under Section 101 or Section 100 of the BNS, 2023. The brief facts of the case were as follows: The accused’s son was getting married in the village, and as soon as the marriage procession reached the destination, he fired celebratory gunshots. These gunshots ended up hitting five people and two of them died due to the injuries.

The court stated that although we cannot find the intention on the part of the accused to cause death or bodily injury, which would be likely to cause death, he did not take any reasonable safety measures and therefore was expected to know that the gunshot could injure people standing nearby. A licensed gun that is to be used for protection should not be used in celebratory events as it can turn out to be very fatal. Therefore, the offence committed by the accused was held to be culpable homicide under Section 100 and punishable under Section 105, BNS 2023..

What is the ‘battered women syndrome’?

‘Battered Women Syndrome’ is a psychological theory propounded by Dr. Lenore Walker that explains why battered women who are compelled to kill their partners continue to stay in the relationship in the first place. This has been interpreted as the ‘Nallathangal Syndrome’ as applied in the Indian context. However, the legal recognition of the Battered Women Syndrome is at its nascent stage in India. There is little or no focus on battered women who retaliate.

The case of Regina vs. Kiranjit Ahluwalia (1992), the English and Wales Court of Wales acknowledged that the cumulative effects of sustained abuse could impact a person’s reaction and their ability to control their actions and further the traditional understanding of ‘provocation’ as a defence is too narrow and does not adequately account for the psychological impact of prolonged domestic abuse. 

In India, the case of Smti Manju Lakra vs State of Assam (2013), the Guwahati High Court, is the first reported case in India wherein provocation has been used as a defence in the case of a battered woman who killed her partner. 

What are other offences found in the Bharatiya Nyaya Sanhita where the death of a person is caused but does not fall under Section 100 or Section 101 of the Sanhita?

Section 106 of the BNS, 2023 (Section 304A of IPC, 1860), which deals with the offence of causing death by negligence the Section provides that if any person causes the death of another by doing any rash or negligent act, which does not fall within Section 100 BNS, 2023, would be punished with a term up to 5 years and fine.

It also deals with medical negligence leading to the death of a person, where punishment of up to 2 years is provided. 

Reference

• http://docs.manupatra.in/newsline/articles/Upload/F1D66902-8FAE-4580-BDB1-479D1768B695.pdf

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