This article is written by Upasana Sarkar, a student at Jogesh Chandra Chaudhuri Law College. This article aims to provide an understanding of Section 302 of the Indian Penal Code, 1860. It provides a detailed analysis of punishment awarded under Section 302 IPC.
This article has been published by Sneha Mahawar.
Table of Contents
The Indian Penal Code, 1860, states that a person committing murder should be given severe punishment. Murder is an evil act. No one has the right to take another person’s life. For this serious crime, the murderer should be punished with life imprisonment or the death penalty. Killing someone is a terrible thing that a person does. Section 302 of the Indian Penal Code deals with the punishment for murder. It prescribes the punishments that are awarded to the offenders for specific crimes that they commit. The main point of consideration for the Court is the intention and motive of the accused in murder cases.
What does Section 302 IPC say
Section 302 of the Indian Penal Code talks about the punishment of the offender who is guilty of committing murder. The accused will be tried under this section. At the final stage of the proceeding, if the accused is proven guilty of the crime, he is given punishment as prescribed in Section 302. This Section states that whoever has committed murder shall be punished with either imprisonment for life or the death penalty along with a fine, depending upon the seriousness of the crime. The intention and motive of the accused are important factors in murder cases.
Essential ingredients of murder
The essential elements of murder are as follows:
The intention of causing death should be there.
Illustration: ‘A’ dealt a severe knife blow on the stomach of ‘B’ with the intention of causing death. Therefore, ‘B’ died and the murder is committed by ‘A’.
Cause of death
The act must be done with the knowledge that the act may or is likely to cause the death of another.
Illustration: ‘X’ pushed ‘Y’ from the roof of a tall building, where ‘X’ had the knowledge that the act was likely to cause the death of ‘Y’. Hence, ‘Y’ died and the murder was committed by ‘X’.
The intention must be to cause such bodily injury as is likely to cause death.
Illustration: ‘P’ knew that ‘Q’ was already injured as he fell from his bike. ‘P’ hit ‘Q’s head with a rod with the intention of causing bodily injury that was likely to cause death. As a result, ‘Q’ died, and the murder was committed by ‘P’.
Scope of Section 302
The Indian Penal Code provides punishment for murder under Section 302. Section 302 states that whoever commits murder is punished with:
- Death, or
- Life imprisonment, and
- The offender will be liable to pay a fine.
The offence is non-bailable, cognizable, and triable by the Court of Sessions.
Punishment for Section 302 IPC
The punishment for Section 302 of the Indian Penal Code, 1860 has been given below:
A death sentence or capital punishment is awarded when a person is guilty of committing the murder of another person. It is a legal procedure whereby a person is put to death by the state as a punishment for a dreadful crime like murder. The main motive behind giving such a serious punishment is to ensure that the person doesn’t repeat the offence again. In India, the death penalty is given in the “rarest of the rare” cases. Nevertheless, there are certain hideous crimes for which there is no other alternative than capital punishment. The death penalty is one of the oldest forms of punishment, where the offender is executed under due process of law.
In Mithu v. State of Punjab (1983), the Supreme Court struck down Section 303 of the Indian Penal Code, which provided for a compulsory death penalty for offenders serving life imprisonment. The petitioner challenged Section 303 of the IPC. It was held by the Court that Section 303 violates equality guaranteed under Article 14 of the Indian Constitution as well as the rights that are conferred under Article 21. This case also talked about the Law Commission report and Statutes on the mandatory death penalty. India voted against a United Nations General Assembly resolution to banish the death penalty in December 2007. India again upheld its decision by voting against the resolution of the UN General Assembly draft to end capital punishment globally in November, 2012. India only supported the death penalty for crimes involving waging war against the nation or offences relating to terrorism. The Law Commission of India submitted that report to the government on August 31st, 2015.
In Raju Jagdish Paswan v. The State of Maharashtra (2019), the doctor testified that there was evidence of vaginal as well as anal intercourse. The cause of death was stated to be drowning, and the Supreme Court stated that life imprisonment is a rule and the death penalty is an exception.
An imprisonment is a form of punishment that is awarded to anyone who commits an offence. The offender is sent to jail, where he has to serve his term of imprisonment. The Indian Penal Code under Section 53 mentions three types of imprisonment, including simple imprisonment, rigorous imprisonment, and solitary confinement. Life imprisonment means the offender has to spend the rest of his life in prison. Life imprisonment is awarded to a person who committed some serious kind of offence like murder. Life imprisonment also has a marked effect on the minds of the offenders, though it is not as grave as capital punishment.
In Bhagirath v. Delhi Administration (1985), the Delhi High Court stated that for the purposes of compensation, conversion, and tolerance of sentences shall be construed from the provisions of the Code of Criminal Procedure. Though the accused was sentenced to life imprisonment, he had undergone a period of detention in jail totalling 14 years.
The Indian Penal Code under Section 302 states that a person committing murder is liable to pay a fine along with a death sentence or life imprisonment. The amount of the fine that the offender needs to pay depends on the discretion of the court. The amount to be paid totally depends on the seriousness of the crime. A fine is also used as a punishment for minor crimes like fraud, gambling, embezzlement, etc. Therefore, the court decides the amount of the fine depending on the magnitude of the offence committed.
Punishment of a minor in a murder case
“Minor” means a person who is below the age of 18 years. Minors are not awarded death sentences or life imprisonment without carefully evaluating the seriousness of the crime. Since children are the future of every generation, the court must inspect the situation properly before imposing any punishment. The court must try to find out under what circumstances the minor committed the murder. A minor is given punishment based on the principle of the law of evidence. They are awarded punishment based on the Juvenile Justice (Care and Protection of Children) Act, 2000, as they are below the age of 18 years.
The Juvenile Justice (Care and Protection of Children) Act, 2015, replaced the Act of 2000. According to the amendment, persons between the ages of 16 and 18 years can be punished for committing heinous crimes like rape and murder. This was amended, keeping in mind the Nirbhaya rape case. One of the accused in the Delhi rape case was awarded only three years’ imprisonment because he was 17 years old when he committed the crime. After that, a lot of controversies arose, which led to the amendment of the Act.
In Sri Puneet v. State of Karnataka (2019), the accused was charged under Sections 366A and 376 of the IPC and under Section 6 (envisages the death penalty) of the Prevention of Children from Sexual Offences Act, 2012. The accused had abducted a girl and had sexual intercourse with her during that period. It was held that all the provisions of the Juvenile Justice Act, 2015, are applicable to the facts and circumstances of the case.
Punishment to co-accused in a murder case
The person or persons who are accused of the same crime are called co-accused and shall be awarded the same punishment. According to Section 30 of the Indian Evidence Act, 1872, the accused’s statement cannot be used against the co-accused. The confession of the accused must be supported by proper evidence since it will affect both of them. The accused and co-accused should be awarded similar punishments to avoid inequality and injustice.
In the case of Kamal Kishore v. State (Delhi Administration), 1972, the Delhi High Court held that the statement of the accused that leads to discovery, or the informatory statement amounting to a confession of the co-accused, cannot be used against the accused.
Difference between punishments under Section 302 IPC and Section 304 IPC
Section 302 deals with punishment for murder, whereas Section 304 deals with punishment for culpable homicide not amounting to murder. Section 302 of the IPC states that whoever commits murder shall be punished with death or imprisonment for life, along with a fine. On the other hand, Section 304 of the IPC states that whoever commits culpable homicide not amounting to murder shall be punished with imprisonment for life or imprisonment for a term of ten years along with a fine. If the act is done with the knowledge that it is likely to cause death or bodily injury as is likely to cause death without intention to cause death, it shall be punished with imprisonment for a term that may extend to ten years, with a fine, or with both.
Tabular representation of the difference between Section 302 and Section 304 of the IPC
|Section 302||Section 304|
|Punishment for murder has been defined under Section 302 of the Indian Penal Code.||Punishment for culpable homicide not amounting to murder has been defined under Section 304 of the Indian Penal Code.|
|Under Section 302, punishment for murder includes the death penalty or life imprisonment with a fine.||Under Section 304, punishment includes imprisonment for life or imprisonment for a term of ten years and fine or rigorous imprisonment depending on the gravity of the offence.|
|All murders fall under the category of culpable homicide.||Culpable homicide is a broader concept. All culpable homicides are not considered murders.|
|Murder falls under the culpable homicide of 1st degree.||Culpable homicide consists of offences of the 1st, 2nd and 3rd degrees, where the 2nd and 3rd degrees are culpable homicides not amounting to murder.|
|The offences committed under Section 302 include both intention and knowledge.||The offences under Section 304 may include both intention and knowledge or only knowledge without any intention.|
Alternation of conviction under Section 302
In Hardyal and Prem v. State of Rajasthan, 1991, the conclusion of guilt could not be established beyond a reasonable doubt from the facts and circumstances during the prosecution. So the conviction under Section 302 read with Section 34 and under Section 392 had to be quashed.
In Anil Phukan v. State of Assam, 1993, it was held that conviction can be based on the testimony of a single eyewitness provided his testimony is found reliable and supported by evidence. The appellant was entitled to the benefit of doubt and granted him that benefit. The conviction for the offence under Section 302 of the IPC was quashed and he was thereby acquitted.
Alternation of conviction under Section 304
In Asu v. State of Rajasthan, 2000, the accused inflicted a fatal injury on the head of the deceased, which caused his death, without intending to kill him. He was prosecuted under Section 304, and he was sentenced to the period already undergone, which was three years, four months, and twenty-seven days. While the other accused, who inflicted a sword injury, was convicted under Section 324 IPC was maintained but it was reduced from one year to the period already undergone which was nine months.
In Dev Singh v. State of Punjab, 2000, the accused was almost eighty years old at the time of the occurrence and was completely bedridden. In that situation, the court thought it appropriate to reduce the sentence. So the sentence was reduced to uphold justice.
Exception to Section 300 of the IPC where culpable homicide is not considered murder
Section 300 of the IPC deals with the essential elements wherein culpable homicide amounts to murder. This Section also states some circumstances where if murder is committed, it is reduced to culpable homicide not amounting to murder, which is punishable under Section 304 of the IPC instead of Section 302.
The following are the exceptions:
- Grave and sudden provocation,
- Right of private defence,
- Exercising legal power for public justice,
- Without premeditation in a sudden fight, and
- Own consent
Grave and sudden provocation
Culpable homicide is not considered murder if the offender is under grave and sudden provocation, which results in the death of the person who provoked it or if his act causes the death of any other person by mistake or accident.
This exception is subject to the following proviso:
- That the provocation is not sought or voluntarily provoked by the offender to use it as an excuse for killing or inflicting harm on any person.
- That the provocation is given not for any lawful purposes or by a public servant in the lawful exercise of the power that is given to him.
- That the provocation was not given by anything done while lawfully exercising the right of private defence.
Illustration: ‘P’ intentionally provoked ‘Q’ so that he could use it as an excuse to kill him by saying such things that aggravated ‘Q’. This is murder since ‘P’ knowingly provoked him.
Right of private defence
Culpable homicide is not considered murder when the person has good faith while exercising his right of private defence of property or persons and exceeds the power given by law, which results in the death of the person against whom he is exercising his right without any intention of doing more harm than is required for the purpose of his private defence.
Illustration: ‘X’ attempts to horsewhip ‘Y’ in a manner that will not cause grievous hurt to him. ‘Y’ took out a knife while ‘X’ was continuing the assault. ‘Y’ believing in good faith that he cannot save him in any other way from being horsewhipped, stabs ‘X’, which resulted in his death. This was not a murder but only a culpable homicide not amounting to murder.
In Lachhmi Koeri v. State of Bihar, 1959, a case under Sections 380 and 457 of the Indian Penal Code was registered against unknown persons. The investigating officer in this case suspected the appellant and prayed to issue a warrant. When the deceased found the appellant, he took out his chhura and gave a blow on the victim’s arm, who had fallen down in a Nala by the side of the road. But after that, the accused gave several blows continuously, and then he fled away. The victim died shortly afterwards. The Supreme Court held that the accused initially used his right of private defence but afterwards intended to cause more harm than was necessary for his defence. Therefore, the accused did not come under this exception and was held guilty of murder under Section 302 IPC.
Exercising legal power for public justice
Culpable homicide is not considered murder if the offender, in exercising his lawful power as a public servant, takes action for the betterment of public justice and exceeds his power as given by law, which results in the death of a person. As he was discharging his duty as a public servant and, in good faith, believed it to be lawful without intentionally or willingly killing that person.
Illustration: ‘M’, a police inspector, caught ‘N’, a dangerous robber. While taking him to court, ‘N’ tried to flee. When it was impossible to catch him otherwise, the police inspector tries his best to shoot him in the leg but unfortunately hit him in his gut and as a result, ‘N’ dies. ‘M’ is not liable for his murder.
In Dakhi Singh v. State, 1955, the officer exceeded his legal power while arresting the thief. He shot the suspected thief, who died on the spot. Though the officer exceeded his power, he did so for the advancement of public justice and without any ill will. The Allahabad High Court held that the offence committed by him falls under culpable homicide, not amounting to murder, which is punishable under Section 304 and not under Section 302 of the IPC.
Without premeditation in a sudden fight
Culpable homicide is not considered murder when death is caused as a result of a sudden fight in the heat of passion. It should have been unintended by the parties who were involved in that fight. In this case, it does not matter which party started the quarrel or fight. It is immaterial which party offered the provocation. For this exception to work, the death caused needs to be the result of:
- Sudden fight,
- Heat of passion without any pre-planning,
- Offenders take no unfair advantage,
- Offenders are not acting in an unusual or cruel manner, and
- Fight between the accused and the person who is killed.
Illustration: ‘C’ was arguing with ‘D’ for a long time. ‘D’ said something that aggravated ‘C’ more, and in the heat of the moment, ‘C’ suddenly hit him with a stick on his head that was near him. This resulted in the death of ‘D’. This is not a murder but a culpable homicide not amounting to murder.
In Amirthalingam Nadar v. State of Tamil Nadu, 1976, the appellant gave a fatal blow to the victim in a sudden fight that arose out of a sudden quarrel between the appellant and the deceased. The court held that the appellant neither took undue advantage nor acted in an unusual manner. So the conviction was altered from Section 302 to Section 304 of the IPC.
Culpable homicide is not considered murder when the person gives consent to cause his or her death. Then it will not result in murder but in culpable homicide, not amounting to murder. But the age of the person should be above eighteen years, and the consent of the deceased should be free and voluntary.
Illustration: ‘K’ was suffering from cancer. His pain was unbearable. So he asked ‘L’ to give him a high dose of sleeping pills to die peacefully in his sleep. This was not a murder since ‘K’ voluntarily asked ‘L’ without any instigation. This is culpable homicide not amounting to murder.
Procedure of a murder trial in India
There are various phases of the trial, which are as follows:
Complaint filed to the police or the Magistrate
According to Section 154 of the CrPC, the information given must be reduced to writing by the police. The writing must be read over to the complainant. The complaint can also be filed before the Magistrate and he can proceed to record the statement of the complainant and the witness as per Section 200 of the CrPC. The Magistrate may dismiss the complaint under Section 203 of the CrPC if he finds no sufficient ground and he may issue a warrant under Section 204 of the CrPC if there is sufficient ground to proceed.
The police officer records the statement of witnesses, interrogates the accused and collects evidence in the investigation phase.
Arresting the accused
The police can arrest the accused without a warrant as murder is a cognizable offence and the accused must be produced before the Magistrate within 24 hours of arrest.
The police prepare a charge sheet against the accused after a thorough investigation. It includes a complete investigation of the police authorities, the charges against the accused and the lists of facts and statements of the witnesses as per Section 161 of the CrPC, a copy of the First Information Report (FIR), the seizure lists and other documentary evidence. If required, a supplementary charge sheet may be filed later by the police too.
Cognizance of offence by Magistrate
According to Section 190 of the CrPC, the Magistrate may take cognizance of any offence when:
- he receives a complaint of facts that constitutes such offence;
- he receives a police report of such facts;
- he receives such information from any other person other than the police, or upon his own knowledge, that such offence has been committed.
Initiation of a trial
In the case of a murder, where the offender pleads not guilty, the court calls upon the prosecution to fix a date for examining the witnesses. Those witnesses can also be cross-examined with the permission of the court. After an examination of all the evidence presented by the prosecution, the court calls upon the accused for his defence. It is the duty of the court to examine and question the accused in order to let the accused explain any circumstantial evidence appearing in the evidence presented by the prosecution against him. After hearing from both parties, if the judge is satisfied that there is no evidence that implies that the accused has committed the crime, then the judge passes an order of acquittal as given in Section 232 of the CrPC. On the other hand, if, after hearing the evidence, the accused is not acquitted, he is allowed to present his defence or any other evidence that is in his favour. After hearing the conclusion, it goes to the final argument stage.
The judge decides the case after the prosecution and the accused have presented their final arguments. On the basis of the argument, the judge gives his decree on whether to acquit or convict the accused. Each of the parties has to submit a memorandum to the court along with the arguments in support of the case and a copy of it to the opposite party before the party concludes his final oral arguments under Section 314 of the CrPC.
Decree or judgement
In the final stage of the proceeding, the judge gives his decree. He either acquits or convicts the accused after hearing the arguments of both parties. It is referred to as a judgement given by the court.
Procedure for appealing a murder conviction
After hearing the court’s decision, if the accused is not satisfied with the judgement he may make an appeal. The time allotted for giving the notice of appeal differs from state to state. Then the appellant will have to take the time to lodge the record. Appellants have a specific time period to lodge the record, which cannot be extended for a certain period of time. One important factor is how much time is taken by the appellant to make the appeal and fill out other paperwork. In the event that the appeals court sends the case back to the trial court, it takes much more time. This process takes, on average, twenty months to complete. In rare cases, the appeal is completed within weeks.
After a court has convicted and sentenced the accused, the defendant can file an appeal if he is not satisfied with the judgement. With respect to the judgement imposed, either party can file an appeal after a guilty verdict in a criminal case.
It depends on the appellant to show that the trial court made a legal error that affected its judgement of the case. The appellant should prepare a written document or a brief to demonstrate the legal argument, in which he states the reasons why the verdict should be reversed. He can also cite the judgements of previous court cases to support his claim. He should prove that his statement is significant by submitting a brief supporting his claim.
The court of appeals does not hear further evidence or testimony. They give their judgement without receiving any additional evidence, on the basis of the written record of the case in the lower court, the briefs submitted by the parties, and the final oral argument.
In Arun Kumar v. State of U.P., 1989, the Allahabad High Court stated that proof of motive in the absence of proof of the essential elements of the offence would not be used for convicting the accused. The appellants were acquitted by the Sessions Judge of offences punishable under Section 201, Section 302 Section 366, and Section 376 of the Indian Penal Code, 1860.
Things required to be considered when charging under Section 302
When a person is charged under Section 302 CrPC, it means he has committed a grave offence. People facing criminal charges face serious punishments and consequences, such as imprisonment, having a criminal record, losing family bonds, losing future employment opportunities, and many other things.
Criminal cases are such where the advice of legal professionals is needed to protect rights and secure the best possible results of the case. Therefore, any person charged with murder should keep in mind certain essential things, which are as follows:
- Nature of charges filed against him;
- Defences which are available;
- Arguments that can be prepared.
A criminal defence attorney keeps all the points in mind while framing the arguments he will use during the trial.
When an offender is arrested, he gets certain rights as a citizen of India, which are stated in the Constitution of India. The following are to be remembered:
- Under Section 50 of the CrPC, a person has the right to inform his or her family members, relatives or friends.
- According to Article 22(2) of the Constitution of India, read with Section 57 and Section 167(1) of the CrPC, the accused cannot be detained for more than 24 hours without being presented before a Magistrate.
- According to Section 54 of the CrPC, the detained person has the right to be medically examined.
- According to Article 20(3) of the Constitution of India, the person does not have to confess anything to the police against his will. He has the right to be silent.
- According to Article 22 of the Constitution of India, he has a right to have a lawyer present when questioned. If he could not afford a lawyer, then a lawyer will be appointed by the government.
- He has the right to know all the charges that are framed against him as per Section 50 of the CrPC and Article 22(2) of the Constitution of India.
Landmark case laws related to Section 302, IPC
Jagmohan Singh v. State of U.P., 1972
Facts of the case:
In this case, some six or seven years before the present offence, there was an ill-feeling between the appellant and his cousin. The deceased was charged with murder but was eventually acquitted by the Allahabad High Court.
Judgement of the Court:
This case was decided in 1973, before the enactment of the Criminal Procedure Code, 1973. The five-judge panel of the Supreme Court upheld the constitutional validity of the death penalty, and the appellant was sentenced to death under Section 302 of the Indian Penal Code, 1860. The Judges stated that capital punishment was not violative of Articles 14,19 and 21 of the Indian Constitution of 1950 when the defendant argued that capital punishment was unconstitutional. The defendants argued that the judges were given too much authority with no limitations. The petitioner argued that it violated the accused’s Right to Equality, Right to Freedom of Expression and Right to Life.
The Supreme Court stated that it was not violative of Article 21 of the Constitution as long as the death penalty is awarded as per the procedure established by law. Since the death penalty was not unreasonable, it did not contravene Article 19, and the Court also has the right to impose the death penalty where crimes are of a hideous nature, so it was also not violative of Article 14. It was observed that the judges, on the basis of the facts, nature of the offence, and circumstances, exercised discretion on whether to award a death sentence or life imprisonment based on what was brought to light during the trial.
Bachan Singh v. State of Punjab, 1980
Facts of the case:
In this case, Bachan Singh was tried and convicted for the murders he had committed. He was sentenced to death under Section 302 of the Indian Penal Code by the Sessions Judge. The question regarding the constitutional validity of the death penalty for murder under Section 302 was raised in this case.
Issues involved in the case:
In this case, a five-bench judge of the Supreme Court upheld the constitutional validity of the death penalty as an alternative punishment for murder under Section 302 IPC as not unreasonable and, hence, not violative of Articles 14, 19, and 21 of the Constitution. The doctrine of the rarest of rare cases was established in this case. The Supreme Court observed that it was essential to take into consideration not only the circumstances of the case but also the circumstances of the offender. Similar situations in different cases should be taken into account at the time of trial. The judgement is to be given only after referring to all those similar cases.
Judgement of the Court:
The Ratio Decidendi of the Bacchan Singh case is that life imprisonment was to be considered the rule and the death penalty the exception. The death sentence has to be based on the action of the offender rather than the offence committed. This means that the death penalty can only be awarded in the “rarest of the rare” cases. Justice Bhagwati, in his dissenting statement, observed that the death penalty is not only unconstitutional but also violative of Articles 14 and 21. Under Section 302 of the IPC, the Court is not vested with unfettered discretion in choosing between life imprisonment and the death penalty.
The Indian Penal Code gives a detailed provision of punishment for murder under Section 302. A person who is charged with the offence of murder shall be punished after taking all the circumstances and facts of the case into account. So the main difficulty faced by the court is whether to award life imprisonment or a death sentence. Murder is a non-bailable, non-compoundable, and cognizable offence, so bail applications are not accepted in most situations. Therefore, it is the legal obligation of the courts to examine the facts and circumstances of the case comprehensively.
Frequently asked questions (FAQs)
What is the time limit for bail when charged under Section 302?
The accused can file a bail application when charged under Section 302. But if the facts and circumstances are going against him, then bail may not be granted. Since a crime committed under Section 302 is of a grievous nature, it is not at all easy for the accused to get bail. If the bail application is rejected, he can file a review petition before the judge to review the application. Section 437 of the CrPC deals with bail in the case of non-bailable offences. Section 439 of the CrPC gives special powers to the Sessions Court or High Court regarding bail. The murder accused needs to apply for bail under either of these provisions.
The period of investigation and filing charge sheet needs to be within 90 days if the offence is punishable by death. If the charge sheet is not filed within 90 days, the murder accused has the right to be freed on bail under Section 167(2) of CrPC.
What should one do if a bail application is rejected by the court under Section 302 IPC?
Murder is, in most cases, a non-bailable offence. So there may be occasions where the bail application gets rejected. In that situation, one has the option of filing a review petition before the judge to review the order of dismissal of the bail application. Later, the person can challenge the order before the High Court or file a second bail application.
What is the punishment under Section 302 for surrendering after killing?
Section 302 of the Indian Penal Code states that a person committing murder shall be punished with a death sentence or imprisonment for life and shall also be liable to pay a fine. It is a non-bailable and non-compoundable offence, i.e., the matter cannot be settled outside the court. If the offender surrenders before the court or other concerned authority with appropriate reasons for committing the murder, then the court may or may not be a bit lenient while awarding the punishment.
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