The Indian Penal Code, 1860 divides the offence of culpable homicide into two broad categories viz. Culpable Homicide not amounting to murder and culpable homicide amounting to murder. While the former is defined under Section 299 of the Indian Penal Code, the latter finds its meaning under Section 300 of the Code. The difference between culpable homicide not amounting to murder and culpable homicide amounting to murder is very technical and blurry because the two provisions seem to be similar to each other. This often leads to a lot of confusion in the application of the provision. However, there is a difference between both the offences in terms of the degree of mens rea involved. It is often said that murder is a species of the wider genus termed as culpable homicide. The difference between the two terms is often denoted by saying that whereas every murder is culpable homicide, it is not every culpable homicide that amounts to murder.
Section 299 of the Indian Penal Code, 1860 lays down the essential ingredients which must be present to convict an accused of the offence of culpable homicide not amounting to murder. The following requirements must be fulfilled in order to convict an accused for the offence under Section 299 of the IPC:
- There must be a death of a person. Mere hurt, howsoever grievous it may be, will not amount to the offence of culpable homicide.
- It is also essential that the death must be caused because of an act performed by another person. If a person, by his own act, kills himself, that will amount to the offence of suicide and not culpable homicide not amounting to murder. It is also essential that there is a direct nexus between the death of the victim and the acts of the accused. Death of the accused because of the happening of any supervising event shall exonerate the accused person from the liability.
- The accused person must either have the intention to cause death or such bodily injury as is likely to cause death. Alternatively, knowledge on the part of an accused person that his act will cause death will also make him liable for the offence of culpable homicide. This essential ingredient fulfils the requirement of mens rea required for holding a person liable for the offence.
Few explanations have also been appended to the present section which enlarges the scope of the offence of culpable homicide. Explanation 1 to Section 299 provides that if an accused person causes a bodily injury to another person and the person to whom such injury is caused is already suffering under a disease, disorder or bodily infirmity which fastened the pace of his death, then, in that case, the accused person shall be held liable for the offence. He shall not be allowed to take the plea that it was the disease of the victim that caused the death.
Explanation 2 provides for a situation in which the injured person did not avail of the medical treatment because of which the death occurred. In that case as well, the accused person shall not be allowed to take the defence that the death occurred because of the inadvertent on the part of the victim to avail the medical treatment.
Explanation 3 provides that the death caused to a child who is not yet born and is still in the mother’s womb shall not amount to culpable homicide. The death of a child in the mother’s womb is dealt with by the provisions of Section 312 to 318. However, causing death to a child who is not fully born shall be culpable homicide even if only some portion of the child’s body has come out of the mother’s womb.
Section 300 of the Penal Code provides for the offence of culpable homicide amounting to murder. As has been stated above, the offence of murder is a species of the offence of culpable homicide. Culpable homicide does not amount to murder unless one of the various special circumstances which are stated in clause 1 to clause 4 of Section 300 is fulfilled. If the act of the accused person fulfils any condition mentioned in clause 1 to clause 4 of Section 300, the offence becomes that of murder. Section 300 of the IPC also provides for five exceptions to the offence of murder. The cumulative effect is that if the act of the victim falls within any of the circumstances mentioned in clause 1 to clause 4 and also in one of the exceptions appended to the provision, the offence shall be that of culpable homicide not amounting to murder.
Culpable homicide shall amount to the offence of the murder in the following circumstances:
- If it is done with the intention of causing death of the victim. The determination of the intention of the accused person shall be done by his actions that he may commit before, during or after the alleged act.
- The second circumstance in which the act of the accused person shall amount to murder is the case where the accused intentionally causes a bodily injury to the victim and he has a subjective knowledge that the injury so caused will cause the death of the accused person. It is called subjective knowledge because of the presence of some kind of special knowledge on the part of the accused person about the situation or health condition of the victim.
- For committing a murder as per the third circumstance, two conditions must be fulfilled by the accused person. Firstly, it must be shown by the victim that the accused person had an intention to cause the bodily injury. Secondly, it must also be proved that the injury that has been inflicted by the accused person was enough in the ordinary course of nature to cause death of the victim. The injury must be sufficient to cause death in the ordinary circumstances.
- The fourth circumstance envisages a situation in which the accused person does an act which is so imminently dangerous that it will cause the death of the victim or such bodily injury as is likely to cause death. There must be a knowledge on the part of the accused regarding the danger that he will create because of the act committed. However, there must be no reason or justification on the part of the accused person to commit the said act.
The section also provides for certain exceptions under which the act committed by the accused person will amount to culpable homicide not amounting to murder even though the same fulfils the conditions specified under Clause 1 to 4. These exceptions are as follows:
- In case the accused person commits the act as a result of a grave and sudden provocation caused to him, the death so caused will not amount to murder. However, to avail the benefit of this exception, the provocation must be of a grave nature and must be sudden and unexpected. Moreover, it is essential that because of the provocation so caused, the offender must be deprived of his power of self-control.
- Another exception under which the act would not amount to that of murder is when the death has been caused in the exercise of the right of private defence by the accused person. Section 99 of the Code provides that only that much harm must be inflicted as is necessary for the purpose of defending oneself. However, seldom it is possible that any person shall weigh the harm to be caused on the golden scales. Therefore, in case a person exceeds his right to private defence and cause the death of any person, then he would be liable for culpable homicide not amounting to murder and not for the offence of murder.
- Exception 3 of Section 300 provides protection to the public servants. In case a public servant or any person aiding the public servant commits an offence while in the discharge of the official duty by exceeding the power provided to him, then such an act would not amount to murder but shall be considered as culpable homicide. However, it is essential that such exceeding of power must be done in good faith for the purpose of discharge of duties.
- In case the death has been committed in a sudden fight between the parties, then the offender shall not be liable for murder but shall be charged for the offence of culpable homicide. However, to avail the benefit of this exception, it is essential to prove that the death was caused without taking any undue advantage or without acting in a cruel or unusual manner.
- Culpable homicide shall not amount to murder in case the death is caused of an individual with his own consent. However, to avail the benefit of this exception, it is essential that the person whose death is caused must be above the age of 18 years. Also, the consent of the individual must be voluntary and must not be obtained by coercion or misrepresentation of facts.
Therefore, as seen above, both the offences deal with the killing of persons. However, there is no radical difference between both these offences. Murder is a special form of the general offence of culpable homicide. The difference between both these offences lies in the degree of mens rea. While in case of murder, the degree of mens rea is high, in case of culpable homicide not amounting to murder, there is a lesser degree of mens rea on the part of the accused person. Therefore it can be said that no strait jacket demarcation can be listed in both the offences. It is just the degree of intention and knowledge on the part of the accused person which actually differentiates the offence of culpable homicide not amounting to murder from the offence of culpable homicide amounting to murder.
(Author: Manik Mahajan, pursuing LLB from Department of Laws, Panjab University, Chandigarh.)
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