This article has been authored by Sakshi Kuthari. The objective of this article is to exhaustively discuss Section 103 of the Bharatiya Nyaya Sanhita, 2023. It discusses the essentials and exceptions of murder, the different types of punishments covered in these penal provisions, and the other offences under BNS that prescribe punishment for murder. The landmark judgements related to punishment for murders in India that come into play with respect to the section are also discussed. 

Introduction 

Under criminal law, the offence of murder is one of the worst crimes that shakes the fabric of society and leaves irreparable wounds to the victims and their families. In the Indian legal system, murder is considered a very serious offence that casts a long shadow on society. In the year 2022, the National Crime Records Bureau (NCRB) published in its report that India recorded a total of 28,522 murder cases, and 95.24% of them were adult victims. The female victims were 8,125 out of the total victims, while 70 percent of the victims were men. Third-gender people were nine among the total victims of murder. The report stated that the motives behind the murders for most of the offences were related to dowry, communal or religious reasons, caste-based discrimination, political objectives, societal class clashes, honour killing-related violence, etc.

For the sake of everyone’s safety, the primary objectives of criminal law are to discourage the wrong done to the individual and society and establish a standard of behaviour for the community. Further, it forces one to exercise caution when engaging in a strict liability statute-governed activity and encourages one to exercise much more caution. The wrongdoer should always be aware that breaking the terms of the strict liability statute could result in the imposition of certain criminal sanctions. The Bharatiya Nyaya Sanhita, 2023 (hereinafter mentioned as “BNS”) serves as India’s strict liability law to discourage crime. An individual is convicted for the offence of culpable homicide amounting to murder under Section 101 of the BNS. Culpable homicide is implied in the definition of murder, but the contrary is not always true. This article explains murder, its penal provisions in Indian law, and the landmark judgements relating to the offence of murder.

What is culpable homicide

According to James Stephen, “homicide” means a human being killing a human being. It may be of two types, lawful and unlawful. The former explains the general exceptions falling under Chapter III of the BNS, and the latter includes offences of culpable homicide not amounting to murder (Sections 100 and 105), murder (Sections 101 and 103), causing death by negligence (Section 106), and abetment to suicide (Sections 107 and 108).

Under Section 100 of the BNS, the offence of culpable homicide takes place when a person’s actions cause the death of another human being in the cases mentioned below: 

• With the intention of causing death: Firstly, it is necessary to understand the meaning of the term “intention”. For convicting or acquitting an accused for an offence, it is necessary to know with what intent and for what purpose or reason an act is done. Prior knowledge while doing an act is implied in the intentions of the wrongdoer. Intentions cannot be confused with expectations. For instance, a shooter aiming to target a particular person might anticipate missing but still have the intent to shoot because he has the desire to kill that particular person. On the contrary, expecting an outcome from an act done is not equivalent to intending it. For example, a heart operation done by a cardiologist might anticipate the potential for a patient to die during a surgery done by him without actually having the intention to kill the patient. Whenever the death of a person is caused, there is an implicit presumption that there was an intention to cause the death until the contradictory evidence is proved by the accused. 
• With the intention of causing such bodily injury as is likely to cause death: There should be an intelligible and undeviating connection between the act of the accused and the death of the victim to hold any person liable for the offence of culpable homicide. This expression means that merely an intention to cause a particular injury must be such that it turns out to be causing death. For instance, a blow to the head with a rod will probably cause death and constitute the crime of culpable homicide.
• With the knowledge that such an act is likely to cause death: “Knowledge” can be defined as acknowledging the outcome of an act done. In R. v. Govinda (1876), the accused knocked down his wife, held his knee against her chest, and with his closed fist struck her face, leading to extreme blood flow from the brain and consequently causing her death. The Hon’ble Court held that the accused was not guilty of the offence of murder but only of culpable homicide not amounting to murder. Since there was no express intent of the husband to cause her death, though he had the knowledge that death could have been caused by the alleged act done. Knowledge is to be gathered from the circumstances of the case. In some cases, there may be specific knowledge that death is likely to be caused, while in others, such knowledge may be presumed even if the accused had no such specific knowledge.

When either of the above three elements is present, a person may be deemed accountable for the said crime. The mere death of a person is not sufficient to invoke criminal liability on the accused for the offence of culpable homicide. The first two elements, as defined in Section 100, are pertinent to intention being different from knowledge. The third element solely concerns knowledge, not intention. Intention signifies a deliberate act done to achieve a particular outcome, and knowledge is the awareness and recognition of certain facts wherein the mind remains passive.

What is murder

The term “murder” has its origins in the German term “mortna,” which means covert killing. Murder is simply an extended form of fixed or provoking culpable homicide. The cause of death applies to both murder and culpable homicide, and there is a presence of criminal intent or a standard of criminality exhibited by the act done. For the offence of murder, there exists a greater degree of intention or knowledge as compared to the offence of culpable homicide. This elucidates why the term “likely” as mentioned in Section 100 of the BNS indicates a lower likelihood, while the same term “likely” in Section 101 of the BNS suggests an increased likelihood of death. 

Sir Edward Coke’s definition of murder sets out the unlawful killing of a reasonable being under the King’s peace, within the realm, by a person of sound mind and the age of discretion. This killing may either be expressly premeditated by the perpetrator of the crime or implied by law, resulting in the demise of the victim within a year and the day of the inflicted injury. Section 100 of the BNS gives a detailed explanation of the essence of the offence of culpable homicide, while Section 101 of the BNS describes the circumstances under which it comes within the scope of “murder”. Apart from the exceptions provided in Section 101 of the BNS, culpable homicide constitutes murder if the action that causes the death is taken up with the intent of causing death, or if it comes within any of the three explanations of Section 100 of the BNS. If the accused’s intention or knowledge, which are essential requisites under Section 100 of the BNS, is established by the prosecution, then the accused is guilty only for the offence of culpable homicide. Further, the killing must not fall within one or other of the five exceptions specified in Section 101 of the BNS. If any of those mitigating circumstances apply, the prima facie presumption that the offence is murder is removed, and the offence becomes ‘culpable homicide not amounting to murder’.

Essentials of murder

It is important to note that Section 101 of the BNS provides for the definition of murder in relation to culpable homicide, as provided in Section 100 of the BNS. The definition of murder gives an extended explanation of culpable homicide. Each of the four explanations of culpable homicide warrants that the act done by the accused results in death, which may either be intentional or done with the understanding that death is the foreseeable result of the act done. For the purpose of establishing a charge of murder against the accused, intent is not always a prerequisite. Only possessing the knowledge that death is the real and likely consequence of an act done is sufficient to convict under Section 103. The essential elements required to convict an accused for the offence of murder are as follows:

Culpable homicide amounts to murder if it is done with: 

1. The intention of causing death: Clause (a) of Section 101 of the BNS provides for the “act done with the intention of causing death” and is similar to Explanation 1 of Section 100 of the BNS, which also deals with “doing an act with the intention of causing death”. The word “act” includes omission as well, which is provided under Section 3(4) of the BNS. Any failure to act in a supposed and reasonable way resulting in death will be punishable as though the death was caused directly by the act done. In Ganga Singh v. Chedi Lal (1873), the Hon’ble Allahabad High Court held that if parents fail to provide reasonable food to their children despite recurrent warnings about the potential consequences, resulting in the child’s death, the parents would be liable for the murder of the children. From the actions of a person, the intention to cause death could be inferred. Therefore, the intentions of a person can be reconciled with the act done and its resulting consequences. The intentions of a person could be deduced from their acts exhibited and done. In the case of Chahat Khan v. State of Haryana (1972), the Hon’ble Supreme Court held that intention is inherently a mental state and can only be proven from its outward exhibition. Thus, when injuries are inflicted on vital body parts using sharp-edged weapons, the intention to kill can be put down to the accused. 
2. The intention to cause such bodily injury, knowing that the injury caused is likely to cause death: Clause (b) of Section 101 of the BNS does not necessitate the intention to cause death on the part of the accused but should rather have the intention to inflict bodily injury that is likely to result in the death of the individual harmed. The mens rea, or guilty mind, comprises two essential elements. Firstly, there must be an intent to cause bodily harm, and secondly, there must be a subjective knowledge that death is likely to result from such bodily injury. The inclusion of the word “likely” in conjunction with ‘knowledge’ marks a greater degree of probable certainty regarding death than a mere possibility. It outlines a screenplay where the offender possesses specific knowledge relating to the victim’s health condition, stipulating that the deliberate bodily injury caused is likely to result in death. 
3. The intention to cause bodily injury and such bodily injury is sufficient in the ordinary course of nature to cause death: The provision of this clause does not necessitate an intention to cause death or knowledge on the part of the wrongdoer that death is the probable outcome of such bodily injury. Unlike the second clause, this clause disregards the requirement of knowledge and solely emphasises the deliberate infliction of injury resulting in death according to the ordinary course of nature. It is not necessary that the offender have knowledge about the sufficiency of injury to cause death. Whenever an injury is sufficient in the ordinary course of nature, it is a question of fact, and it does not cease to be sufficient merely because the person who causes the injury does not know that it is sufficient. In the case of Mangesh v. State of Maharashtra (2011), the Hon’ble Supreme Court stated that circumstances from which it may be gathered as to whether there was an intention to cause death included circumstances like the nature of the weapon, on what part of the body the blow was given, the use of force, whether it was a result of a sudden fight or not, whether the incident occurred by chance or was premeditated, prior enmity, grave and sudden provocation, the number of blows given, etc. While solely none of the injuries may be enough to cause death in the natural course of events, altogether, these injuries may prove to be adequate to cause death in the ordinary course of events. 
4. The person doing the act must have knowledge that the act is so imminently dangerous that in all probability it will cause death or bodily injury as is likely to cause death, and the act is done without legal justification: This clause requires neither an intention to cause death nor the presence of any intentional injury. Intention is not a requisite component in this clause. When a bodily injury is intentionally inflicted upon an individual, whether such an act constitutes an offence of murder or not is determined by making reference to the first three clauses of Section 101 of the BNS. However, this clause cannot be applied until it is evident that Clauses (a), (b), or (c) of this section are not applicable to the circumstances. In this clause, the act done does not need to target any specific individual, nor is there a requirement for an intention to cause the death of any particular individual. 

Exceptions to murder

Culpable homicide will not amount to murder if it is:

Grave and sudden provocation

In order to plead provocation as a defence to a charge of murder, it is necessary that there be provocation that is grave and sudden. The expression “grave” suggests that the provocation should be sufficient to cause harm to the accused. The term “sudden” implies an action that must be expeditious and unanticipated, resulting in the provocation of the accused. While determining whether provocation was grave and sudden, it is a matter of fact rather than one of law. The Hon’ble Court in Kanhaiya Lal v. The State (1952) observed that in order for provocation to be pleaded in defence to a charge of murder, four things are necessary:

1. Existence of provocation.
2. The provocation that arose must be grave and sudden.
3. As a consequence of such a grave and sudden provocation, the wrongdoer must have lost self-control and
4. The death of the person who provoked it or of any other person, by mistake or by accident, must have taken place.

Right of private defence

The entitlement to claim the right of self-defence is acknowledged as a legitimate justification for exemption from criminal liability under Chapter III of the BNS. Where an individual lawfully exercises his right of private defence within the boundaries set by law, the individual commits no offence. It is a fundamental principle of the law governing self-defence that this right should never extend to causing any more harm than is necessary for the purpose of defence (Section 37, BNS), as its purpose is solely preventive and not punitive. This exception is an essential consequence of Section 37, BNS. The principle underlying this exception is based on the idea that if the law itself permits an individual to inflict harm short of death, it should impose the most severe punishment if death is inflicted.

When an act is done in good faith without premeditation while exercising the right to defend oneself or one’s property and without causing more harm than was necessary for self-defence, this exception may be applied. Both parties can be convicted for their individual acts, and if neither party has the right to self-defence, they will be held accountable for their actions. Where there is a lack of evidence indicating that the accused acted in good faith, Exception 2 will not apply. The law, in this respect, honours the human instinct of self-preservation. Thus, the burden is not upon the accused to establish beyond a reasonable doubt that he acted in self-defence; he has only to raise a probability in his favour of the same being true.

An act done by a public servant

Exception 3 to Section 101, BNS, gives immunity to a public servant or an individual assisting a public servant who, while carrying out duties for the advancement of public justice, exceeds their lawful authority and causes someone’s death. This exception provides immunity to them so long as the public servant acts with full sincerity. But it does not shield them if their actions are unlawful or go beyond the powers conferred upon them by law. There is an assumption that the public servant causing the death must do so with genuine intent and while fulfilling their duties as a public servant, and without ill will towards the individual whose death occurs.

Sudden fight

Exception 4 to Section 101, BNS, 2023, does not statutorily define the term “fight”. The situation involves the participation of two individuals. A heat of passion requires an absence of time for the person to calm down, and in this case, the parties become enraged due to a verbal altercation at the outset. A fight involves a confrontation between two or more individuals, with or without weapons. Establishing a straight-jacket formula to determine what constitutes a sudden fight is challenging. It is a matter of fact, and whether a fight is sudden or not depends on the proven circumstances of each case.

When a sudden fight takes place in the heat of passion without the offender taking an undue advantage or engaging in a cruel or unusual manner, it falls under this exception. It is not pertinent to which party provoked the situation or initiated the first assault. The language of this exception clarifies that culpable homicide does not amount to murder if it occurs without premeditation during a sudden fight in the heat of passion over a sudden quarrel, provided the offender has not taken undue advantage or acted with cruelty, or acted unusually. 

Consent

The severity of the crime is lessened after consent is given for a particular act. It can never absolve the wrongdoer entirely. Consent given by the deceased mitigates the gravity of the offence to culpable homicide, not amounting to murder. The consent referred to in the exception must be unconditional and unequivocal; that is, there should be no coercion or limitations of options imposed upon the individual whose life is taken by consent. It must be proved that the deceased was fully aware of both the circumstances under which consent is given and willingly accepted the possibility of death and maintained this resolve up to and including the moment of the demise. 

Section 103 of Bharatiya Nyaya Sanhita prescribing punishment for murder 

Section 103 of the BNS provides that any individual who commits murder shall face either a capital sentence or a sentence of imprisonment for life along with a fine. Additionally, it is important to note here that if a group of five or more individuals, after agreeing altogether, commit murder on the grounds of race, caste or community, sex, place of birth, language, personal belief, or any other similar ground, each member of the group shall be subject to either the death penalty or life imprisonment, in addition to a fine. The punishments under this provision are elaborated in detail below:

Death penalty 

Death punishment, also known as capital punishment, stands on a very different footing from other types of punishments. It is generally resorted to for serious and heinous offences like murder, rape, etc. The death penalty serves as a mode to deter potential wrongdoers to the greatest and utmost extent, especially for those who are aware of this type of punishment and the severity of its consequences. It is considered to be more powerful, effective, and deterrent than life imprisonment. Men fear death more than life imprisonment. It also serves as a unique deterrent to professional criminals. 

Different tests to award the death penalty

The tests that the courts apply while awarding death sentences are the “crime test” or “criminal test” and the rarest of the rare test.

Crime or criminal test

Any type of crime done must satisfy the crime test entirely, i.e., 100%, while a criminal test involves 0%, indicating no mitigating circumstances that could in any way favour the accused. If any circumstances favour the accused, the “criminal test” may help the accused to avoid death penalty, such as lack of intention to commit the crime, possibility of rehabilitation, the young age or minority of the accused, no previous track record of a criminal offence committed by the accused, etc. The criminal test was applied in the case of Kumudi Lal v. State of U.P. (1999), in which a fourteen year old girl was raped and murdered by stragulation. The Hon’ble Court considered the brutality of the crime and commuted the death penalty to life imprisonment. The court noted that the evidence presented did not conclusively prove that the girl absolutely was not interested;  rather it indicated that the girl initially let the accused take liberties but later expressed her unwillingness. Applying the “Criminal Test,” the Court found that some mitigating factors favoured the accused, leading to the avoidance of a death sentence. 

Rarest of rare test

‘Rarest of the rare’ is neither defined in the BNS nor does it specify the situations that come under the scope of this principle. It only hinges on the different facts and circumstances of each individual case, including the brutality and heinousness of the crime, the previous and subsequent behaviour of the offender, their prior criminal history, and the potential for rehabilitation and reform. This principle suggests that an individual who has committed a heinous offence should also face commensurate punishment. While imposing the death penalty in such exceedingly rare instances, it aims to serve as a discouragement, inculcating fear in society and preventing others from engaging in the like offences.

In Bachan Singh v. State of Punjab (1980), the Constitution Bench of the Hon’ble Supreme Court laid down the following guidelines for the death penalty:

1. The death penalty should only be imposed in cases of extreme culpability.
2. Before awarding the death penalty, the facts and circumstances of the case and the offender’s background should be thoroughly evaluated.
3. Capital punishment should only be imposed when life imprisonment is deemed insufficient and inappropriate for the purpose of providing justice to the victim.
4. Before a decision to impose the death penalty is taken, a check on the fair balance of aggravating and mitigating circumstances is important to be taken, with especially placing importance on all the mitigating factors of the case.  

Aggravating and mitigating circumstances

When two different people are given punishments for committing the same offence, it could be perceived as unfair or unjust. But these differences arise due to some legitimate reasons, such as the severity of the crime, manner of doing the crime, criminal history of the offender, circumstances surrounding the offence, etc. The court considers all the relevant factors when determining the punishment to be awarded to the offender. The punishment should always be in proportion to the offence committed and should serve the interests of justice. 

Aggravating factors are those circumstances that magnify the gravity or answerability of the offence. The aggravating factors for causing the commission of heinous or inhumane crimes are mostly crimes of murder, rape, and armed robbery, which basically involve a lengthy criminal record of the accused or consequential harm inflicted on the victim. Conversely, mitigating circumstances are those factors that diminish the gravity or seriousness of the offence committed or the imposition of fine. This could only be done by portraying the action of the wrongdoer as reasonable or less blameworthy. It may include mental illness, coercion, duress, self-defence, etc.

In both Bachan Singh and Machhi Singh’s cases, the Hon’ble Supreme Court has laid down guidelines for when an extreme sentence should be granted and when it should not. The court was of the opinion that a comprehensive assessment of both aggravating and mitigating circumstances is done to ensure that mitigating circumstances are duly considered and given full significance. It highlights the necessity of striking a fair balance between the two factors before deciding on the sentence to be imposed.

The foundational questions that must be addressed are as follows:

• Is there something extraordinary about the offence that makes life imprisonment insufficient and necessitates the imposition of the death penalty?
• Are the circumstances relating to the offence such that there is no substitute but to award a death sentence, even after diligently considering the mitigating circumstances that support the offender?

To reach a conclusion that the death sentence awarded is justified or not, the Court proceeds accordingly, having thoroughly examined all the relevant circumstances.

Imprisonment for life

In its strict interpretation, life imprisonment denotes confinement for the entirety of the convicted individual’s remaining natural life. There are various state jail manuals that refer to life imprisonment for a definite period. But the Hon’ble Court in G.V. Godse v. The State (1961), held that life imprisonment cannot be regarded as having a set duration unless officially granted remission by the appropriate government. 

In Abdul Azad v. State (1976) it was further observed that if any remission of sentence is granted by the government, the prisoner would be entitled to set-off his detention period experienced by him during the period of investigation, inquiry or trial.

An examination of the various provisions and the judicial pronouncements would result in the following conclusions:

1. Life imprisonment means confinement for the whole of the accused’s remaining life unless the sentence is set aside, either wholly or in part. It is necessary to note here that imprisonment for life does not automatically terminate after twenty years.
2. The state, where the prisoner has been convicted and sentenced, alone has the power to remit the sentence.
3. The remission of imprisonment for life under the rules framed under the Prisons Acts or Jail Manuals are merely administrative directions for the administration and functioning of the jails and prisons and cannot in any way supersede the statutory provisions of the BNS.

Fine

The fine serves as an additional or alternative method of punishment, endorsed both by the law and judicial authorities. As provided in the BNS, the imposition of fines follows four different paths. For some specific types of offences, it stands as the sole form of punishment with a prescribed maximum limit. In certain cases, it acts as an alternative punishment, although with restrictive amounts. Furthermore, fines are obligatory for certain individuals either alongside another penalty or independently without a set pecuniary limit. The determination of the amount of the fine is carefully regulated after considering the nature of the offence committed and the financial capacity of the offender.

A person accused of the offence of murder may also be liable to pay a fine, along with the punishment directed by the court. The amount of the fine imposed on the convict is totally at the court’s discretion. The court has the power to consider the circumstances surrounding the commission of the murder, and, after due diligence, it shall pay the exact amount of the fine to be paid by the accused. Whenever an accused is convicted of murder, irrespective of what punishment is awarded, i.e., life imprisonment or the death penalty, a fine will be imposed on the convict of murder.

Other provisions of the Bharatiya Nyaya Sanhita, 2023, prescribing punishment for murder

Section 103 of the BNS provides punishment for murder. Further, there are other provisions for specific types of murder or related offences, such as:

Section 80 of the BNS

The offence of dowry death constitutes the demise of a woman that is caused by any burns, bodily injury, or occurs otherwise than under normal circumstances. It must occur within seven years of her marriage, and the evidence submitted shows that shortly before her death, she suffered cruelty or harassment by her husband or any relative of her husband regarding the demand for dowry. Anyone who is found guilty of such an offence shall be imprisoned for a minimum period of seven years, extendable to life imprisonment.

To know more about dowry death, click here.

Section 104 of the BNS

This section lays down that when an individual serving a life imprisonment sentence commits murder, they shall face the death sentence. A similar provision was earlier present in Section 303 of the Indian Penal Code (1860), but it was invalidated by the Hon’ble Supreme Court in Mithu v. State of Punjab (1983) as it contravened Articles 14 and 21 of the Constitution. This section unjustly categorises life convicts as an inherently dangerous class without any empirical basis, thereby violating the principle of justness and fairness under Article 21 of the Indian Constitution. The Court also opined that this section was formerly intended to deter the assault by life convicts on prison staff, but its language extended beyond this intent. Furthermore, the court found no scientific evidence to support the assumption that life convicts constitute a uniformly dangerous class. The Supreme Court’s Full Bench concluded that this essentially violates Article 21 of the Constitution.

Section 106 of the BNS

This section provides that where the death of an individual is caused by a rash or negligent act, without the intention to cause death or knowledge that the act could cause death. This constitutes a different type of homicide, often referred to as “homicide by negligence”, along with the other two categories of homicide: homicide amounting to murder and homicide not amounting to murder. In instances where death is caused due to rash or negligent act, the provision provides a punishment of either imprisonment for a term extending up to two years, a fine, or with both.

To know more about the offence of causing death by negligence, click here.

Section 140 of the BNS

This section provides that anyone who kidnaps or abducts any individual with the intention of either murdering them or placing them in a situation where they are at a risk of being murdered shall face either life imprisonment or rigorous imprisonment for up to ten years and shall also be liable to a fine.

Section 310(3) of the BNS

This section provides that if five or more persons are jointly committing dacoity and, along with that, committing murder during that time, each of those persons shall suffer punishment by death, life imprisonment, or rigorous imprisonment for a duration of not less than ten years, and shall also be liable to pay a fine. 

Landmark case laws for punishment for murders in India

R. Venkalu v. State of Hyderabad (1956)

In this case, the two accused, Rawalpenta Venkalu and Bodla Ram Narsiah, had a dispute regarding a piece of land with the deceased, Moinuddin. The accused had set fire to the cottage in which the deceased was sleeping. Both the accused locked the door of the cottage from outside so that neither Moinuddin’s servants who were sleeping outside might come to help him nor he himself would be able to leave the cottage. They also took steps to prevent the villagers from providing any type of help to Moinuddin. 

The Hon’ble Supreme Court observed that the intention to kill the deceased is clear from the fact that they took care to lock the door from outside so that the deceased’s servants sleeping outside could be of no help, and when the villagers were roused from their sleep and were proceeding towards the cottage, they were prevented from rendering any help. There was also clear evidence that both accused lit a matchstick and set fire to the cottage, and both of them are liable for the offence of murder. Their subsequent acts in repelling all attempts at bringing succour to Moinuddin clearly showed their common intention of bringing about the same result, i.e., the death of the deceased. The Court held that there is no doubt that the evidence led by the prosecution in this case against both the appellants, Rawalpenta and Bodla, found them guilty of murder under Section 300 of the Indian Penal Code, 1860, and awarded them the death penalty under Section 302 of the Indian Penal Code, 1860.

Virsa Singh v. State of Punjab (1958)

In this case, the accused-appellant thrust a spear into the abdomen of the deceased. There was only one injury, but the injury was through the whole thickness of the abdominal wall. Three coils of intestines came out of the wound. The doctor said that the injury was sufficient to cause death in the ordinary course of nature. The Sessions Judge and the High Court said that the accused was guilty under Section 300 “thirdly” and so he was convicted under Section 302. The accused contended that the facts of the case do not expressly disclose an offence of murder because the prosecution did not prove that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. The question that arose was what is the extent and nature of intent that Section 300 “thirdly” requires, and how is it to be proved?

The Hon’ble Supreme Court observed that the following facts should be taken into consideration by the prosecution before it can bring a case under Section 300 “thirdly”:

1. It must be established quite objectively that a bodily injury is present.
2. The nature of the injury must be proved.
3. It must be proved that there was an intention to inflict that particular bodily injury, i.e., it was not accidental or unintentional, or that some other kind of injury was inflicted;
4. And, lastly, it must be proved that the injury made up of the three elements set out above is sufficient in the ordinary course of nature to cause death.

The Hon’ble Supreme Court held that the appellant was guilty under Section 302 and dismissed the appeal.

Jagmohan Singh v. State of Uttar Pradesh (1972)

In this case, it was argued that the death penalty is an invalid mode of punishment and is unconstitutional. It was contended that the freedom guaranteed under Article 19 of the Indian Constitution cannot be co-extensive with the legislature prescribing the punishment of death as a restriction on fundamental rights. Any legislative attempt at the destruction of life cannot be deemed to be a reasonable restriction on the right to life implicitly found in the fundamental freedoms. It was contended that the discretion to impose the death sentence was not based on any policy but rather on the vice of excessive delegation of legislative power. It violated the equal protection of law under Article 14 of the Indian Constitution, and in the absence of any procedure established by law in the matter of a death sentence, the protection given under Article 21 of the Indian Constitution was also violated.

The Hon’ble Supreme Court did not agree with the above-mentioned contentions. The Court held the death penalty to be a valid punishment since deprivation of life is constitutionally permissible if it is done according to the procedure established by law. They also observed that it is difficult to say that capital punishment per se is unreasonable or is not in the public interest.

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

In this case, the deceased seduced the wife of the accused. When Sylvia confessed to the accused that she had illicit intimate relations with Ahuja, the latter was not present. It was very natural that the accused was enraged at the conduct of the deceased and had, therefore, sufficient motive to do away with the deceased. The accused contended that he was only thinking of the future of his wife and children and also of asking for an explanation from Ahuja for his conduct. This somehow shows the attitude of the accused, which indicates that he had not only regained his self-control but was also planning for the future.

The accused drove his wife and children to a cinema, left them there, went to his ship, deliberately secured the revolver on a false pretext from the ship, loaded it with six rounds, and drove his car to the office of Ahuja and then to his flat. He entered his bedroom with a loaded revolver in hand and, in about a few seconds thereafter, came out with a revolver in his hand.

The deceased was found dead in his bathroom with bullet injuries to his body. The injuries found on the body of the deceased are similar to intentional shooting and wholly inconsistent with accidental shooting. Between 1.30 PM, when he left his house, and 4.20 p.m., when the murder took place, three hours had elapsed, and there was sufficient time for him to regain his self-control, even if he had not regained it earlier. The accused’s conduct clearly shows that the murder was deliberate and calculated. 

Even if any conversation took place between the accused and the deceased in the manner described by the accused, it does not affect the question, for the accused entered the bedroom of the deceased to shoot him. The mere fact that, before the shooting, the accused abused the deceased, and the abuse provoked an equally abusive reply, could not be conceived as a provocation for the murder. The facts of the case did not attract the provisions of exception 1 to Section 300, IPC. The conviction was confirmed, and the accused’s appeal was dismissed.

To know more about this case, click here.

Dasrath Paswan v. State of Bihar (1957)

In this case, the accused was a student in class X. He had failed the annual examination for three consecutive years. The accused was very upset and depressed at these failures in succession. He took his last failure so much to heart that he decided to end his life. He informed his wife, an illiterate woman of about 19 years of age, of his decision. His wife asked him to kill her first and then kill himself. In accordance with the pact between the two of them, the accused killed his wife first but was arrested before he could kill himself. It was held that the deceased was above 18 years of age and that she had suffered death with her own consent. The consent of the deceased was not obtained by force nor under a misconception of fact, but voluntarily, so the case would fall under Exception 5 to Section 300 of the IPC, and the accused is held to be not guilty of her wife’s murder.

People’s Union for Democratic Rights v. Union of India (2015)

In this case, the essential procedural safeguards were mandated to be followed before the execution of a death sentence so that Article 21 of the Constitution is not denuded. Those procedural safeguards are given below:

1. Sufficient notice is to be given to the convicts before the sentence of death warrant by the Sessions Court;
2. A death warrant must specify a date and time of execution;
3. There should be a reasonable period between the date of the order on the execution warrant and the date fixed in the warrant for execution,
4. A copy of the death warrant must be immediately supplied to the convict, and
5. If the convict requires, he should be provided with legal aid.

Gopal v. State of Karnataka (2011)

In this case, the question that arose was whether a dying declaration can be made the sole basis for conviction under Section 302, IPC. In this case, the accused was alleged to have poured kerosene on the body of his wife, the deceased, and set her on fire. The accused was not able to explain how kerosene was found to be present on the undergarments and sarees of the deceased. The accused did not plead that the death was accidental or suicidal. It was held that the fact that the witness who carried the deceased to the hospital turned hostile is immaterial, as circumstantial evidence is sufficient proof to prove that it was the accused alone who committed the offence. The deceased was in a fit mental state to make the statement. It was also held that the failure to make an attempt to record a second dying declaration will not render an earlier dying declaration of the deceased incredible. Hence, a conviction can be made on a dying declaration.

Dakhi Singh v. State of Uttar Pradesh (1955)

In this case, a police constable was taking a suspected thief by train after arresting him. But the thief escaped from the running train. The constable chased him, and when he was not in a position to apprehend him, he fired at him. But in this process, the bullet hit the railway engine fireman, who got killed. It was held that the constable was entitled to the benefit of Exception 3 to Section 300, IPC.

Nathan v. State of Madras (1972)

In this case, the landlord had tried to forcefully evict the accused, and the accused, in the exercise of his right of private defence, killed the deceased. Even though the deceased was not armed with any deadly weapon, there could not have been any fear of instant death or grievous hurt on the part of the accused. The right of the accused was limited to causing any harm other than death. There was no intention on the part of the accused to cause death, and the act was done in good faith. It was, therefore, held that the accused had exceeded his right of private defence and the case would fall under Exception 2 to Section 300 of the IPC, and the offence committed by the accused was held to be culpable homicide, not amounting to murder.

Conclusion

Section 103 of the BNS provides a very detailed provision for punishment for murder. Whenever a person is charged and later convicted for the offence of murder, all the necessary facts, circumstances, and connecting evidence should always be taken into account in each and every case. The main difficulty that arises for the court under this section while convicting the accused is whether to award imprisonment or the death penalty. 

In the four decades following the Bachan Singh case, which upheld the constitutional validity of the death penalty in 1980, numerous concerns have emanated regarding the structure for death penalty sentencing established by the majority judgement. These concerns primarily revolve around inconsistent application, interpretational errors, and a tendency towards judge-centric decision-making. It is imperative again to go through these concerns arising from the incorrect application of the Bachan Singh case. Instead, attention should be drawn towards the loopholes within the Bachan Singh case itself and how these gaps have contributed to the subsequent fate of the sentencing framework. This highlights a complete collapse of what has been termed the “rarest of rare” doctrine. Identification of substantive and procedural faults that have widened over the last forty years is essential. There is a need to identify the procedural and substantive fault lines that have only widened over the last four decades. There is a lack of profound commitment to the principle of rule of law and fair trial rights, burdening the courts with a standard that is barely judicially maintainable. Without significant normative coherence and full enforcement of fair trial rights in sentencing procedures, the constitutional crisis with death penalty sentencing will inevitably intensify.

Frequently Asked Questions (FAQs) 

Who can be charged with murder under Section 103 of the BNS?

Any person who commits an act of murder, as defined under Section 101 of the BNS, can be charged with murder. Section 103 of the BNS stipulates that the punishment of murder is applicable to all persons, regardless of their age or gender.

When does a person become guilty of murder?

There are different types of acts that hold a person guilty of murder. Some of the acts are as follows:

1. Poisoning;
2. Gives poison voluntarily and knowingly to be likely to cause death;
3. Administering noxious things with the intent to commit suicide;
4. Wilfully doing an act that endangers human life; or
5. Wilfully causing or procuring the miscarriage of a woman.

What elements are required to prove murder?

To hold a person guilty of murder under Section 103 of the BNS, the following essential elements should be present:

1. Mens rea: Intention to cause death;
2. Actus reus: Act done with the knowledge that it could result in death;
3. Bodily injury: Intent to inflict bodily harm that is likely to result in death.

How are murder trials conducted in India?

If the accused does not plead guilty to murder, the court calls the prosecution and gives a date to examine the witnesses. Once the prosecution evidence is taken and examined, the court calls the accused for his defence. Under Section 381 of the Bharatiya Suraksha Sanhita, 2023 (hereinafter referred to as “BNSS”), the court examines and interrogates the accused so as to enable the accused to explain any circumstantial evidence which is brought by the prosecution against him. After examination of the accused under Section 255 of the BNSS, the judge hears the prosecution and the accused. Should the judge determine there are no proper and complete evidence against the accused, they have the authority to issue an order of acquittal. 

But if the accused is not acquitted after trial under Section 255 of the BNSS, the accused may present his defence or give any other evidence that may be in his favour. After the conclusion of the defence evidence, the final argument takes place.

What evidence can be used for proving murder cases?

The prosecution uses any of the following evidence so as to convict the accused for the offence of murder. Some of them are:

1. Fingerprints;
2. Blood and other DNA evidence;
3. Crime scene reconstruction;
4. Ballistic and Trajectory Analysis.

References

• “The Indian Penal Code” authored by Ratanlal and Dhirajlal.
• https://www.centurylawfirm.in/blog/section-302-ipc-indian-penal-code-sod/
• https://www.masseymcclusky.com/violent-crimes/murder-homicide-faqs/
• https://www.ndtv.com/india-news/india-saw-28-522-murder-cases-in-2022-government-data-reveals-motives-4637675