The crime of killing a human being by another human being is categorized as Culpable Homicide under Section 299 and as Murder under Section 300 of the Indian Penal Code (IPC). The Sections separate the most heinous killing from those which are less serious ones in nature.
Both of them are distinct offences. But the definition and description of both Culpable Homicide and Murder look almost similar in grammatic construction. Therefore making out the subtle distinction between them is quite difficult, even for a learned law professional. Capable Homicide is defined in the code. But neither the term Homicide nor Murder is defined, except by some explanations.
Ingredients of Culpable Homicide & Murder
The Section 299 of IPC defines Culpable Homicide as follows:-
Whoever causes death by doing an act with,
- Intention of causing death.
- Intentionally causing bodily injury which is likely to cause death.
- Doing act with knowledge that it is likely to cause death.
The Section 300 of IPC describes Murder as follows:-
Whoever causes death by doing an act with,
- Intention of causing death.
- Causing such bodily injury as the offender knows it is likely to cause death of person.
- Intentionally causing bodily injury which is sufficient to cause death in the ordinary course.
- Doing an act with the knowledge that it is so imminently dangerous and in all probability causes death or such bodily injury which is likely to cause death.
The Section 300 further describes five exceptional circumstances under which Culpable Homicide does not amount to murder. That means under these five exceptional circumstances a killing cannot be treated as Murder. On the other hand it must be treated just as culpable Homicide, punishable under Section 304.
Culpable Homicide is a genus
The term Culpable Homicide refers to doing a criminal act with the intention of causing death, or with the intention of causing bodily injury which may eventually cause death, or doing an act with the knowledge that the act will result in death of the other.
Culpable Homicide is a genus, whereas Murder is its species. So all Culpable Homicides are not Murders but all Murders are Culpable Homicides. A culpable Homicide without having the special characteristics of murder is Culpable Homicide not amounting to murder.
In Culpable Homicide there must be intention or knowledge on the part of the accused that his act will cause death or at least injury which would be sufficient to cause eventual death as a result of his act.
Knowledge makes a difference
If a person is causing some injury on another one, who is suffering from some disease or some bodily infirmity, knowing clearly that his act is so imminently dangerous and that in all probability will cause death and that injury eventually end up in the death of that person, the person responsible for causing injury is liable for punishment for causing Murder.
On the other hand, if the person doing the act has no intention to kill the other or has no knowledge that his act will kill the other person, the person doing the act is guilty of only a lesser crime of Culpable Homicide, but not of Murder.
In regard to Section 299 the Supreme Court in Jagriti Devi vs State Of H.P says, “The bare reading of the section makes it crystal clear that the first and the second clause of the section refer to intention apart from the knowledge and the third clause refers to knowledge alone and not intention. Both the expression "intent" and "knowledge" postulate the existence of a positive mental attitude which is of different degrees. The mental element in Culpable Homicide i.e. mental attitude towards the consequences of conduct is one of intention and knowledge. If that is caused in any of the aforesaid three circumstances, the offence of Culpable Homicide is said to have been committed”. That means intention and knowledge make a killing (homicide) culpable.
Wife died but husband punished for assault
A husband struck a violent blow on his wife and the wife falls unconscious. Thinking that the wife is dead, he hung her body soon so as to create false evidence in regard to the incident.
The court said that the husband had no intention to kill his wife and hence not punishable for Culpable Homicide as he has no intention to cause her death. He is punished for assault and for creating false evidence only. Here absence of both intention and knowledge saved the husband from the charge of murder which he had never thought of.
Kinds of Culpable Homicides
The Supreme Court in State of A.P. v. Rayavarapu Punnayya ( (1976) 4 SCC 38) says that for the purpose of fixing punishment, proportionate to the gravity of the generic offence, the Code practically recognises three degrees of Culpable Homicide. They are as follows: -
- Culpable Homicide of the first degree - Murder. This is the gravest form of killing with malice aforethought and punishable under Section 302 IPC. To render a culpable Homicide a murder, the case must come within the provisions of clauses 1, 2, 3 or 4 of the Section 300.
- Culpable Homicide of the second degree - ordinary killing or manslaughter without malice. This is an act of Culpable Homicide not amounting to Murder and punishable under IPC 304 Para I. If the death is caused with the intention of the accused as described in the first and second phrase of section 299 it will fall under this.
- Culpable Homicide of the third degree. This is the lowest kind of killing (voluntary manslaughter) and punishable under IPC 304 Para II. If the death is caused by an act with the knowledge, but without intention, of the accused as described in the third phrase of the Section 299, it comes under this.
- The fourth degree killing is involuntary manslaughter, which is done without any sort of criminal intention, such as death caused by negligent driving or such other criminal negligence coming under 304A - for which the punishment is much lesser, not exceeding two years imprisonment, or fine, or with both.
If an offence is done with intention and knowledge in regard to causing death it will be a case for second degree Culpable Homicide punishable under Section 304 Part I. But if there is only knowledge, but no intention, in regard to causing death, it is a case for third degree Culpable Homicide punishable under Section 304 Part II.
Murder under IPC
Murder is a species of Culpable Homicide. A Culpable Homicide will turn into a Murder if the criminal act by which the death is caused, is done squarely with the purpose of causing death.
Similarly, if the offender is causing bodily injury on victim with due intention or knowledge that it is likely or sufficient to cause death it will be treated as a case of Murder.
An act so imminently dangerous enough to cause death or bodily injury that may likely to result in death will also be considered Murder. Murder is the most heinous crime in the criminal calendar.
In Murder, both the intention and knowledge of the offender about the dire consequences are important. If a person is doing an act with the chrystal clear intention or knowledge that the act will be likely or sufficient to kill a person, it is Murder.
The essential ingredient of Murder is an unlawful act of causing death of a person through a criminal act or commission by another person with prior intent, malice or premeditation. The term intention means the state of mind to bring about a desired result whereas knowledge refers to the state of conscious awareness of the facts. Intention is different from motive which is hidden or cannot be unearthed easily. Intention and knowledge have to be unearthed from the circumstances as both are states of mind invisible and subjective.
Inflicting an injury on the vital part of the body, use of sharp edged weapons, hitting with high force to impair body organs, through searching for the victim everywhere for acting upon him, uttering dreadful words in regard to killing immediately after killing, etc are being treated as circumstances that bring forth the dire intention of the accused in cases of Murder.
Murder in exceptional circumstances becomes Culpable Homicide
However, a murder will not come within the ambit of Murder in some sorts of exceptional circumstances. But it will be considered only as a Culpable Homicide, punishable under Section 304 IPC.
There are five exceptional circumstances coming under Section 300 IPC in which a Culpable Homicide is not Murder. The exceptional circumstances are as follows:-
Provocation: If the offender is deprived of the power of self control by grave or sudden provocation and he causes death of the provocateur or any other person, the offender is not punished for Murder.
The test of grave and sudden provocation is whether a reasonable man belonging to the same class of society as the accused is placed in the situation in which the accused was placed would be so provoked as to lose his self control.
Private defence: If the offender is exercising his right to private defence in good faith, without premeditation or intention to do any harm, then the death caused is not Murder but Culpable Homicide only.
Exercise of legal powers: If the offender is a public servant and doing any act believing to be within his purview and causes death, it does not amount to Murder. It will then be a case of Culpable Homicide. If he glaringly exceeds the powers entrusted to him by law then the exception will not protect him.
Absence of premeditation: If a person in a sudden heat of passion of a quarrel causes death without premeditation or cruelty and without taking any undue advantage, it is not Murder. So the punishment will be for Culpable Homicide under Section 304 IPC.
Consent: When a person who is above 18 years of age and his death was caused with his voluntary consent, it is a case of Culpable Homicide but not Murder. The punishment would fall within Section 304IPC.
Probability of death in Murder & Culpable Homicide
Murder, as explained earlier, is an aggravated form of Culpable Homicide. The existence of any of the four clauses in the section 300 IPC turns a killing into a Murder. But the exceptions to the Section 300 reduce even a heinous killing in the nature of Murder into one of Culpable Homicide not amounting to Murder, under Section 304 of the IPC.
In both Culpable Homicide and Murder, there is mens rea - an intention to kill the victim. But in Culpable Homicide the accused is not certain of death of the victim but hopes for it. In Murder there is definite intention to kill and the offender is certain that the victim will die. The probability of death is certain in Murder whereas it is quite uncertain in Culpable Homicide. Murder involves more premeditated actions than Culpable Homicide.
In Murder the degree of probability of death is definite in comparison to Culpable Homicide. To constitute Murder there must be intention or knowledge that death must be the most probable result of the criminal act by the accused. To constitute Murder the accused must have clear knowledge that his act must in all probability cause death but not a bare knowledge that his act is likely to cause death.
Even if the intention of the accused was limited to the infliction of bodily injury sufficient to cause death in the ordinary course of nature, and was not extended to the intention of causing death, the rule laid down in the Virsa Singh case (1958 AIR 465) indicates that the offence would be Murder. The judgment says: No one has a licence to run around inflicting injuries that are sufficient to cause death in the ordinary course of nature and claim that they are not guilty of Murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.
Mechanism to differentiate Culpable Homicide and Murder
It is quite difficult to differentiate a Culpable Homicide from Murder if the facts of the case fall on the borderline between the two in terms of gravity of intention or seriousness of the action.
But the apex court says as follows:-
- First, establish that the accused has done an act of causing death of another.
- Then, consider whether the act of the accused amounts to Culpable Homicide.
- Then, consider whether the ingredients of section 300 have been satisfied.
- Lastly, consider whether the killing can be brought down to the lower place of Culpable Homicide not amounting to Murder by going through the exceptions given under Section 300 IPC.
To sustain the charge of Murder, the matter to be considered is whether the facts of the case fit well with the sections under section 300 - firstly to fourthly.
If the killing does not attract the ingredients of the section 300 explicitly or if it attracts the exceptions under the section, it will be a case of Culpable Homicide not amounting to murder, punishable under section 304 and not Murder.
The offence would fall under Culpable Homicide if the bodily injury intended to be inflicted on the victim is likely to cause death. It would fall under Murder if such injury is sufficient in the ordinary course of nature to cause death. The distinction is a question of degree of probability. When the accused inflicts several injuries on the person having knowledge of causing death, the accused deserves conviction for Murder.
Stabbing in chest or abdomen with sufficient force to penetrate such structures prima facie will amount to the offence of Murder. When injuries are inflicted by a number of persons with the intention of killing and death ensures as a result of the injuries it is a case of Murder under the first clause of section 300 IPC. Similarly, giving a terrific blow on the head with a heavy hammer and thereby smashing the head bones he intends to cause death, under Section 300 secondly and thirdly of IPC. Extremely reckless and wholly inexcusable acts of homicide will constitute Murder. It is the degree of probability of death which determines whether a Culpable Homicide is of the gravest, medium or lowest degree.
Let us see two equally worded phrases in the Section 299 & Section 300 IPC to elicit the difference. The second clause of Section 299 conveys the sense of probability as distinguished from a mere possibility. The equivalent part thirdly of Section 300 means that death will be the most probable result of the injury in the ordinary course of nature, thereby stressing the probability and possibility of death.
Lawful or Simple Homicide
Homicide is of two kinds: lawful or unlawful. Murder and Culpable Homicide are unlawful homicides.
The lawful homicides include several cases falling under the General exceptions in Chapter IV (Sections 76 to 106) of IPC. The death caused by accident or misfortune, by mistake of fact, by a judge acting judicially, by a person in pursuance of the judgment, by a person under justifiable belief, by a person without any criminal intention and to avoid any harm, by a person exercising his private defence, by a child and by a person believing the death is for the good of the victim or by a child / lunatic/ mentally unsound person come under lawful homicides, for which there would be no punishment.
Even though both provisions relating to Culpable Homicide and Murder correspond with each other, the difference in both the offences – Culpable Homicide and Murder - lies in the certainty of death in the latter. In fact the difference is in regard to gravity - the seriousness of the act of crime.
If the act of the accused is so dangerous with no possibility of survival for the victim, it is an apt case of Murder. If a person dies out of an intentional act of cutting someone’s head, then there is no chance for his survival. Then that is nothing but Murder. On the other hand, if an act of crime leaves the victim with some chance for escaping death it is a case of Culpable Homicide.
It would have been better for the users of the penal code if the IPC had shown the difference between both crimes in clear terms using distinct set of words.
The author is a practising advocate at Thrissur, Kerala State. He can also be reached at firstname.lastname@example.org
Tags :criminal law