This article has been authored by Bhavika Mittal, who is pursuing BA LLB at Shri Navalmal Firodia Law College, Pune, affiliated with Savitribai Phule Pune University. The article attempts to give an insight into one of the most confusing concepts of the Indian Penal Code of 1860. That is the difference between homicide and murder.
It has been published by Rachit Garg.
Table of Contents
Introduction
A person named A killed B. What does this illustration mean? What can you deduce from it? Well, upon first reading, any individual would say that A has murdered B. So, A should be punished for committing the horrific offence of murder. Just because a person has killed another doesn’t indicate that he has murdered someone. Instead, it means that the person has committed the act of homicide.
But aren’t homicide and murder synonyms? Also, isn’t it a culpable homicide and not homicide? For laymen, sure, but these are separate terms for law professionals. Despite this awareness, there is persistent confusion among them. This article attempts to clarify the difference between these terms.
Meaning
Homicide
The World Health Organisation, in 2019, released a report stating that 475,000 people worldwide are victims of homicide. The global rate is 6.2 per 100,000. What is this act or concept of which the world’s population is a victim? Well, the term “homicide” is relatively more common among law enthusiasts and professionals than laymen.
The word ‘homicide’ owes its origin to two Latin words, ‘homo’, meaning ‘man’, and ‘cido’ meaning ‘I cut’. So, homicide implies the killing of a human being by a human being. The World Health Organisation defines homicide ‘as the killing of a person by another with intent to cause death or serious injury by any means. It excludes death due to legal intervention and operations of war’.
Murder
The origin of “murder” can be traced back to “morth”, a German word meaning “secret killing”.
Murder is defined as an act carried out with malice and the intention to inflict sufficient injury to cause death by natural causes. It can be classified as an imminently dangerous act that has all the probability of causing the death of another human being. It shall also be noted that there is no excuse for incurring such a risk.
The following essentials must be fulfilled for an offence to be constituted as murder or culpable homicide amounting to murder.
- Intention of causing death
The intention of the offender should be clear to kill another human. The intention of a person should be in a conscious state where the person is aroused, and he must have deliberately acted, particularly to kill a person.
For instance, A fires in the direction of Z with the intention of killing him. As a consequence, Z dies. Here, the intention of A to cause the death of Z is evident.
- Intention to cause bodily injury, which is likely to cause the death
A person acts in such a way that the bodily injury caused is sufficient to cause death.
- Knowledge of causing death
The person committing the act is well aware that the act will cause the person’s death. Knowledge is not a probability but the clarity of knowing the consequence.
For instance, knowing that the particular food has poison, A serves it to B with malicious intent. B dies after eating it.
Illustration
A, without an excuse, fires a cannon into a crowd of people and kills one of them. A is guilty, even though there was no premeditated intention to kill any particular person. Since it is committed with full consciousness of its probable consequences.
In Virsa Singh v. State of Punjab 1958, the Supreme Court stated that the three essentials should be proved to be present, and then the enquiry must proceed further for the offence of murder. It shall also be proved that the enquiry for murder is initiated as the three elements set out above are sufficient to cause death in the ordinary course of nature.
In Anda and Ors v. State of Rajasthan 1965, the accused beat the victim in a house after dragging him there. The beating caused numerous injuries and bruises. His arms and legs were smashed, and lacerated wounds were caused. Further, the injuries caused were sufficient in the ordinary course of nature to cause death. The Supreme Court held that the offence of murder had been committed. The Court backed its judgement by stating that the intended injury caused by such bodily injury constitutes death.
However, not every act fulfilling the above mentioned consequences constitutes the offence of murder. There are certain circumstances where the essentials are fulfilled, yet the act falls under the category of culpable homicide, not amounting to murder. Those are five in number and have been mentioned under Section 300 of the Indian Penal Code, 1860. The exceptions will be discussed later in this article.
Types with examples
The definition of homicide indicates that it has a broad scope. It can be divided into two categories, one, criminal acts, and second, non-criminal acts.
Under the category of criminal act, murder and culpable homicide are included. While justifiable homicide and accidental or excusable homicide fall under the category of non-criminal acts.
For the sake of clarity, it seems imperative to briefly elucidate the above mentioned terms.
Justifiable homicide
It means causing death in circumstances authorised by law. For instance, killing in the course of dispersing a riot, killing in self-defence, in the prevention of a violent attack, killing a prisoner who is attempting to escape, etc.
Illustration
A, a soldier fires on a mob by order of his superior officer in conformity with the commands of the law. A has committed no offence, as it was justifiable by law.
The concept of justifiable homicide is best understood by reading R v. Dudley and Stephens 1884 case. In the instant case, there were two adults and one child on a ship. The three passengers had been stranded for days and had gone without eating. The child had become weak; the adults decided to feed on the child and save themselves. The adults claimed that the act of homicide was out of necessity, but the court held them guilty. The killing of another human to save one’s life is not justifiable homicide.
Accidental homicide
It is either an accidental or excusable homicide. It means causing unintentional death by misadventure. For instance, a street accident, an unsuccessful attempt at surgery, etc.
Illustration
A, a surgeon comes across a child suffering from an accident that is likely to prove fatal unless treated immediately. There is no time to ask for the guardian’s consent. A performs the surgery in good faith. Now, if the child dies, A has committed no offence.
Illustration
A and B agree to fence with each other for leisure. This agreement implies the consent of each to suffer any harm during fencing without foul play. A, while playing fairly, hurts Z. Here, A commits no offence.
Culpable homicide
Culpable homicide owes its derivation to the Latin word “culpabilis”, meaning “worthy of blame. While homicide means to cut or kill a man. So, culpable homicide is an offence when one is or can be blamed for killing another man.
It is the causation of an act that most likely causes death. The three essential ingredients of culpable homicide are:
- intention of causing death,
- bodily injury likely to cause death, or
- knowledge that is likely to cause death.
Illustration
A knows Z is behind the bush. B doesn’t know it. A, with the intention of causing Z’s death, induces B to fire at the bush. B fires and kills Z. Here, B is not guilty, but A is guilty of culpable homicide.
Illustration
A, lays sticks and turf over a pit, with the intention or knowledge that it will likely cause death. Z, unaware of the pit, walks on by the path, falls into the pit, and dies. Here, A has committed the offence of culpable homicide.
Further, there are two types of culpable homicide, namely:
- Culpable homicide not amounting to murder; this situation is said to arise when either of the five exceptions to murder in the Indian Penal Code, 1860, are fulfilled.
- Culpable homicide amounting to murder is basically that the accused has committed murder in fact.
Murder
This is the last kind of homicide. It is the gravest form of a criminal act. Usually, not only laymen but also law professionals, especially students, are unable to distinguish between other kinds of homicide and murder. Under the heading below, the concept of murder has been discussed in detail.
The above-detailed explanation of homicide clearly implies that the scope of homicide is broad. It covers criminal as well as non-criminal acts. However, these acts are offences that affect human life.
Scope
Homicide
All homicides are not murders. There are four types of homicide, them being justifiable homicide, accidental homicide, culpable homicide, and murder. The concept of homicide constituting such a wide variety makes the scope of homicide broad.
Murder
All murders are homicides. Murder is one of the types of homicide, which makes its scope relatively narrow. However, there are four degrees of murder.
How is murder different from other types of homicide
On reading the brief mentioned above on homicide and murder, you might have drawn a faint line between the two. Herein, a detailed account of how murder differs from other types of homicide has been discussed.
Intention and knowledge
Intention is the desire to achieve a particular object, and to form an intention, there must be a capacity to reason. Intention needs to be proved; it cannot be assumed. Knowledge stands on a different footing; it is the awareness of the consequences of an act.
In Basdev v. State of Pepsu 1956, the Supreme Court stated that the demarcating line between knowledge and intention is no doubt thin, but it is not difficult to perceive that both mean different things. It is mainly this line of confusion that causes conflict between murder and homicide, but with the help of illustration and judicial precedents, clarity is attempted.
Murder and justifiable homicide
Chapter IV of the Indian Penal Code, 1860, contains principles of general exceptions whereby the accused may avoid criminal liability. In justifiable defences, the accused does not deny the existence of elements of the crime but pleads that despite those elements, he should be acquitted as the actions were justified in some manner. For instance
- Act done in execution of legal punishment,
- act done in execution of legal process,
- act done to keep peace, or
- act done for prevention of crimes.
In the above instances, even though homicide occurs, the author of the act is immune from the punishments prescribed for criminal acts.
Further, some instances from the chapter are applicable and fall under the category of justifiable homicide.
- Mistake of fact
A person who has, by reason of a mistake of fact and not by reason of a mistake of law, committed an act in good faith and believed himself to be bound by law is excused from criminal liability.
In R v. Prince 1875, the accused takes away a girl of sixteen years for keeping her lawful guardian without his consent, believing that the girl is over eighteen years old. The court held him liable as proper enquiries would have elicited facts. Therefore, there is no defence against the mistake of fact.
This exception lies on the principle of “ignorantia facti excusat, ignorantia juris non excusat,” that is, ignorance of fact is excused, but ignorance of law is not. However, the lack of knowledge of facts shall be reasonable. When it comes to murder, the accused is aware of the facts and other circumstances.
- Believing himself to be justified by the law
Where a person believes himself to be justified by law, he is not imposed with criminal liability.
Illustration
A sees Z committing a murder. A, in good faith, believes that the law empowers all persons to apprehend murderers in the act and seizes Z to bring him in front of appropriate authorities. A has not committed any offence, even though, in reality, Z was acting in self-defence.
In Waryam Singh v. Emperor 1926, the Madras High Court held that the accused was not guilty of murder or culpable homicide under Section 302 and Section 304 of the Indian Penal Code, 1860, respectively. In the instant case, the accused assaulted a man, believing him to be a ghost. The assault was proved to be fatal and life-threatening, but the accused was excused as there was a mistake of fact, and he believed his actions to be justified by law.
Therefore, the point of difference between murder and justifiable homicide is that murder is not an act done in the execution of a legal process. It is not a legal act at all. While justifiable homicide is. Also, under murder, there is intention, but under justifiable homicide, there is no intention.
Murder and accidental homicide
Death may occur accidentally or unintentionally while doing an act that is lawful; such deaths may be categorised as unnatural deaths. For instance, by accident, by consent, etc. The acts that constitute accidental homicide are done in good faith and with no intention to cause the death of another person.
Illustration
A, in good faith and for the benefit of his child, without his consent, permitted a surgeon to operate on him despite knowing that the operation might cause the child’s death but without any intention to cause death. A is not guilty, as the object is the child’s cure.
Certain acts are excusable, and the person committing them is not criminally liable. For instance, acts by children are not constituted as criminal acts because they are incapable of knowing the consequences of an act.
In Shrikant Anandrao Bhosale v. State of Maharashtra 2002, the accused caused the death of his wife by hitting her with a grinding stone. The state of mind of the accused at the time of committing a crime shall be proved to get immunity under the category of accidental or excusable homicide. It was proved that the appellant had paranoid schizophrenia, and the court did not charge the appellant with the offence of murder.
In Jethuram Sukhra Nagbanshi v. State of Madhya Pradesh 1959, the expression “without his knowledge” means ignorance of fact. The person is incapable of knowing the act, and under such circumstances, the accused gets immunity from criminal liability.
Therefore, the point of difference between murder and accidental or excusable homicide is knowledge of causing death; under accidental homicide, there is no knowledge of causing death, but in murder there is. Death in the case of accidental homicide is unnatural, but when murder is committed, the action is so fatal that death is caused in a natural course.
Murder and culpable homicide
As mentioned earlier, Section 300 of the Indian Penal Code, 1860, lays down an exception to murder that is culpable homicide not amounting to murder. Except for the five circumstances, all other acts fulfilling the essentials of murder constitute the offence of culpable homicide amounting to murder. The exceptions being:
Grave and sudden provocation
This is available only when the offence is committed against the one who provoked it. However, an offender is said to have not been provoked when done for the obedience of the law and right to private defence.
Illustration
Y gives grave and sudden provocation to A. A, provoked, fires a gun at Y. Here, A had no intention or knowledge of killing Y. Thus, A is liable for the offence of culpable homicide.
In Hansa Singh v. State of Punjab 1976, the accused saw the deceased commit an act of sodomy on his son. The accused, on seeing this, under grave and sudden provocation, murdered the deceased. The Supreme Court, considering this a sufficient provocation, convicted the accused under the offence of culpable homicide and reduced his imprisonment sentence.
Exceed power given for private defence
Private defence serves a social purpose, as everyone has the right to safeguard themselves. However, it is required that private defence be exercised in good faith, and the death caused shall not be premeditated or intended.
Illustration
Z attempts to horsewhip A. A draws a pistol to persist in the assault by Z. A, in good faith, believing it to be the only way to prevent shooting Z. Consequently, Z dies. Here, A is liable only for culpable homicide and not murder.
In Mohammed Mytheen Shahul Hameed v. State of Kerala 1979, the deceased had slapped the appellant for beating the dead’s friends; a fight ensued between them but was resolved by the bystanders. Two days later, the appellant and his friends attacked the deceased and his brother. The deceased started running south, where the appellant used a dagger and killed the deceased.
The Supreme Court held that no right of private defence accrues to the assailant as the deceased was unarmed. Where the right of private defence is exceeded, the causing death amounts to murder. The instant case implies that there is a thin line between culpable homicide and murder.
Public servants exceed the power given by law
The death caused by the public servant was done in good faith only. The right was instead believed by the public servant to be his lawful duty.
Illustration
A, a thief, runs from the custody of B, a police officer. B shoots at A with the intention of catching him, despite being able to catch him. The shot fired hits A, and he dies. B is liable for the offence of culpable homicide, not murder.
Sudden fight
It must be sudden in all circumstances. It shall be in the heat of passion, and there shall be no action of cruelty or unusual manners. Additionally, it shall not be premeditated.
Illustration
A, buying vegetables in the market, accidentally steps on B’s foot. B is charged by this, and A and B get into a heated argument. Further, the argument turns into a fight where A hits B with a stone. Consequently, B dies, but A is liable for culpable homicide.
In Rajendra Singh and Ors v. The State of Bihar 2000, the Supreme Court stated that exceptions four to Section 300 are a sudden fight, absence of premeditation, no undue advantage, or cruelty, but the occasion must be sudden and not use the circumstance as a cloak for pre-existing malice.
Consent of the victim
The victim shall be above the age of eighteen years, which is a major. The death he caused is a consequence of his taking a risk.
Illustration
A instigates Z to commit suicide. Z, a person below the age of eighteen, voluntarily commits suicide. Since Z is not capable of giving consent, A is liable for the offence of abetting murder.
The point of difference can easily be deduced from the abovementioned exceptions. The intention, knowledge, and degree of seriousness of the act demarcate a line between culpable homicide and murder.
Phulia Tudu and Anr v. The State of Bihar, (2007)
In the case of Phulia Tudu and Anr v. The State of Bihar 2007, the appellant assaulted the deceased with a single blow of lathi, which caused death. The lower court convicted the appellant under Section 302 of the Indian Penal Code, 1860. However, the Supreme Court upheld the instant petition and reduced the sentence to Section 304 of the Indian Penal Code, 1860.
Additionally, the Supreme Court, to reduce the confusion between the two, stated that the confusion between culpable homicide and murder is caused if courts lose sight of the true scope and meaning of the terms used by the legislature in Section 299 and Section 300 of the Indian Penal Code, 1860. Thus, they allow themselves to be drawn into minute abstractions.
The court also said that the safest way to approach the interpretation and implementation of these two provisions is to focus on the keywords used in the various clauses of these two sections.
Legal provisions
Despite the differences between homicide and murder, the legal provision governing them is the Indian Penal Code of 1860. However, the legislature differs between the two by mentioning them under distinct headings and sections.
Homicide
Chapter IV, “General Exceptions”, mainly governs the types of homicides. Moreover, Chapter XVI also has specific provisions. They are as follows.
- Justifiable homicide can be covered under Section 76, Section 77, Section 79, Section 81, Sections 91 to 106 of the Indian Penal Code, 1860.
- Accidental or excusable homicide can be covered under Section 80, Section 82, Section 83, Section 84, Section 85, Section 87, Section 88, Section 89, and Section 92 of the Indian Penal Code, 1860.
- Culpable homicide has been covered under Section 299 of the Indian Penal Code, 1860. Additionally, Section 304 of the Indian Penal Code, 1860, contains the punishment for culpable homicide. Moreover, this type of homicide has been mentioned under Chapter XVI of the Indian Penal Code, 1860.
Murder
Chapter XVI titled “Offences Affecting Human Life’, contains the provisions for murder.
Section 300 of the Indian Penal Code, 1860, defines murder by stating the five exceptions, that differentiate between culpable homicide amounting to murder and culpable homicide not amounting to murder. Further, Section 302 of the Indian Penal Code, 1860, prescribes the punishment for the offence of murder.
Punishment
Homicide
Culpable homicide, as mentioned above, is punished under Section 304 of the Indian Penal Code, 1860. Punishment for justifiable homicide and accidental homicide has not been prescribed under the Indian Penal Code, 1860, as they are non-criminal acts.
There are two categories laid out under Section 304.
- Where the intention is proved, the accused is liable for life imprisonment or ten years of imprisonment and a fine.
- Where knowledge is proved, the accused is liable for ten years of imprisonment and a fine.
Murder
Murder, as mentioned above, is punished under Section 302 of the Indian Penal Code, 1860. Where all the essentials of murder are fulfilled and the exceptions tested. The person would be held guilty of murder. Such a person is liable to the death penalty, life imprisonment, and a fine.
Conclusion
The words homicide and murder are often used interchangeably. Sure, murder is a type of homicide, but as elucidated above, homicide is divided into categories, and just murder is a part of them. As the most famous expression goes, “Homicide is a genus, and murder is a species”. However, the demarcating line is so obscure that the difference between murder and homicide is one of the most discussed topics in criminal law.
The main elements that draw a line between murder and the other types of homicide are intention, knowledge, the degree of probability of death, and the nature of the act. The degree of seriousness among the types of homicide differs, as does the punishment. Therefore, to ensure that the offender is charged with deserving imprisonment, it is imperative to understand the difference.
Frequently Asked Questions (FAQs)
What is the death penalty?
The death penalty, or capital punishment, is the highest degree of punishment. It is when the court sanctions the practice of killing a person as a punishment for committing a crime. The punishment of the death penalty in India is granted for the rarest of rare cases. For the offence of murder, the death penalty may be given, but for other forms of homicide, the punishment of the death penalty is nowhere closer. Therefore, for murder, a person can be held liable for the death penalty.
References
- B M Gandhi’s Indian Penal Code, fourth edition
- Ratanlal and Dhirjlal, Indian Penal Code, thirth edition
- https://img1.wsimg.com/blobby/go/ebd848cd-b7d3-4983-97dd-4f3ff071e103/downloads/INDIAN%20PENAL%20CODE-%20COMPARATIVE%20STUDY%20OF%20CULPAB.pdf?ver=1609736957309
- https://www.nolo.com/legal-encyclopedia/homicide-murder-manslaughter-32637.html
- https://www.mondaq.com/india/crime/988662/difference-between-murder-and-culpable-homicide
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