Culpable Homicide and Murder

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2019
Culpable homicide & murder

The word homicide has been derived from the Latin word ‘homo’ which means a man and ‘caedere’ which means to cut or kill. Thus, homicide means the killing of a human being. All cases of homicide are not culpable (punishable). Law distinguishes between lawful and unlawful homicide. For instances, killing in self-defense in pursuance of a lawful authority or by reason of mistake of fact is not culpable. Likewise, if death is caused by accident or misfortune or while doing an act in good faith and without any criminal intention for the benefit of the person killed, the man is excused from criminal responsibility for homicide.[1]

Culpable Homicide is defined under section 299 of the Indian Penal Code, 1860. It consist of both physical and mental elements. Where an act is done with the intention of causing death or with such knowledge that the act which he/she is going to undertake will result in death of the person or would cause such bodily or physical injury that would lead to his death would satisfy both the physical and mental requirement.  

Illustrations

1. Yash is diagnosed with terminal illness and needs certain drugs to live from day to day. Aman confines him in a room and denies him his medication. As a result, Yash dies. Aman is guilty of culpable homicide.

2. Ganda mows over a pedestrian deliberately. The pedestrian bleeds on the road and no one helps him and he dies as a result of Ganda’s actions. Ganda cannot take the defence that if the pedestrian had taken medical treatment at the right time, he would have lived.

3. M knows S to be behind a bush. H does not know it. M, intending to cause, or knowing it to be likely to cause S’s death, induces H to fire at the bush. H fires and kills S. Here, H may be guilty of no offence but M has committed the offence of culpable homicide.

4. X lays sticks and turf over a pit, with the intention of thereby causing death, or with the knowledge that death is likely to be thereby caused. A believing the ground to be firm, trends on it falls in and is killed. H has committed the offences of culpable homicide.

Section 299 of Indian Penal Code, 1860 says about Culpable homicide.—“whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide[2]

Culpable homicide can happen by commission or by omission that is by an overt or conscious act or failure to act by which a person is deprived of his or her life.

Ingredients of Culpable Homicide[3]

Acts

The act should be of such a nature that it would put to peril someone’s life or damage someone’s life to such an extent that the person would die. In most cases the act would involve a high degree of violence against the person. For instance, stabbing a person in vital organs, shooting someone at point blank range, or administering poison include instances which would constitute culpable homicide. The section says causing death by doing an act, so given the special circumstances certain acts which may not involve extreme degree of violence but may be sufficient to cause someone’s death. For example starving someone may not require violence in the normal usage of the term, but may cause a person’s death.

Intention

The act committed with the Intention of causing death. Thus where you push someone for a joke and the person falls on his head has a brain injury and dies, there was no intention of causing death but when you pushed the person deliberately with the idea that the person falls and dies, in that case the act is with the intention of causing death.

To prove intention in acts where there is bodily injury is likely to cause death. The act has to be can be of two types

1. Firstly, where bodily injury itself is done in a fashion which cause death. For example bludgeoning someone on the head repeatedly with a blunt instrument.

2. Secondly, in situation where there are injuries and there are investigating events between the injuries and the death provided the delay is not so blatant, one needs to prove that injuries were administered with the intention of causing death.

Knowledge

Knowledge is different from intention to the extent that where a person may not have the intention to commit an act which kills, he knows that the act which he commits will take someone’s life or is likely to take someone’s life will be considered having the knowledge that he is likely by such act to cause death.

Illustrations

A doctor uses an infected syringe knowingly on a patient thereby infecting him with a terminal disease. The act by itself will not cause death, but the doctor has knowledge that his actions will lead to someone’s death.

Culpable Homicide amounting to Murder[4]

Section 300 deals with Culpable Homicide amounting to murder. In others words the section states that culpable homicide is murder in certain situations. This makes us come to two conclusions namely,

1. For an act to be classified as murder it must first meet all the conditions of culpable homicide.

2. All acts of murder are culpable homicide, but all acts of culpable homicides are not murder.

Illustration

Akash shoots priya with the intention of killing him. Priya dies in consequences. Akash commits Murder.

Culpable homicide is murder in four situations

When an act is done with the intention of causing death

The degree of intention required is very high for murder. There must be intention present and the intention must be to cause the death of the person, not only harm or grievous hurt without the intention to cause death. Instances would include:-

  • Shooting someone at point blank range
  • Stabbing someone in the hurt
  • Hanging someone by the neck till he dies
  • Strapping a bomb on someone
  • Administering poison to someone

Inflicting of bodily injury which the offender knows is likely to cause death

The second situation covers instances where the offender has special knowledge about the victim’s condition and causes harm in such a manner which causes death of the person. It states that the offender knows likely to be the cause of death.

Bodily injury which causes death in the ordinary course of nature

These situations cover such acts where there is bodily injury which in ordinary sequence of events leads to the death of the person. The section actually has two conditions:

1. The bodily injury inflicted is inflicted with the intention of causing death of the person on whom it is inflicted

2. Secondly, the bodily injury caused in the ordinary course of events leads to death of someone.

Commission of an imminently dangerous act without any legitimate reason which would cause death or bodily injury which would cause death.

This head covers the commission of those acts which are so imminently dangerous which when committed would cause death or bodily injury which would result in death of a person and that such an act is done without any lawful excuse.

1. Commission of an inherently dangerous act

2. The knowledge that the act in all probability will cause death or bodily injury which will cause death and

3. The act is done without any excuse

Culpable Homicide not amounting to Murder[5]

When not murder culpable homicide is a crime by itself. As stated above a situation must first become culpable homicide before it becomes murder.

Acts under grave and sudden provocation

When a person losses self-control on account of certain situation and causes the death of some person. The provocation must be grave, it must be sudden that is there must be no scope for pre meditation and thirdly, it must not be self-invited so as to use it as an excuse to deprive a person of his/ her life.

Illustration

A returns from the office and sees his wife, B, in a compromising position with Z in his bedroom. A turn out of the room and kills Z next day. It is case of Murder and not Culpable because A had sufficient time to cool down his anger.

When private Defense is exceeded in good faith

In exercising private defense either with respect to property or person, if person accidently exceeds his or her right in good faith or in wrong judgment and the act causes the death of a person, the act is culpable homicide and not murder.

Illustration

Z attempts to horsewhip A, not in such a manner as to cause a grievous hurt to A. A draw out a pistol. Z persists in the assault. A believing in good faith that he can by no other means prevent himself from being horsewhipped shoots Z dead. A has not committed Murder, but only Culpable homicide.

Exceeding the Ambit of discharging public duties

When an officer or public servant exceeds his or her mandate of duties or authority given to him or an officer or public servant assisting him exceeds the same, it is considered culpable homicide not amounting to murder.

When death is caused in sudden fight or heat of passion upon a sudden quarrel

Culpable homicide is not murder if it is committed without premeditation in a sudden fight, in the heat of passion upon a sudden quarrel and without the offender’s having taken undue advantage or acted in a cruel or unusual manner.

When death is caused of a person above eighteen years of age who voluntarily took the risk of death.

When death is caused in a situation where a person has by his own consent put himself to risk the same would be culpable homicide and not murder.

Illustration

A, by instigation, voluntarily causes Z, a person under eighteen years of age of commit suicide. Here, on account of Z’s youth, he was incapable of giving consent to his own death; A has therefore abetted murder.

Distinguish between Culpable Homicide and Murder

  • The true difference between culpable homicide and murder is only the difference in degrees of intention and knowledge.
  • A greater the degree of intention and knowledge, the case would fall under murder. A lesser degree of intention or knowledge, the case would fall under culpable homicide.
  • However, it is difficult to arrive at any categorical demarcations or strait jacket difference between culpable homicide and murder.[6]

Requirement of Intention

Culpable Homicide requires that the offender should have the intention of causing such bodily injury as is likely to result in death. This means that so long as the person inflicting the injuries is doing so intentionally she/he has the requisite mental element. it is a question for the court to decide if the injuries inflicted on the victim were such that they were likely to result in death. The section does not specify a requirement that the person should that these injuries are such they will result in the death of the person on whom they are inflicted.

Culpable Homicide is murder if a person intentionally causes some bodily injury to a person, and the bodily injury such that it is sufficient in the ordinary course of nature to cause death.

Requirement of knowledge

Culpable Homicide requires that the offender have the knowledge that the act committed by her/ him is such that it is likely to result in death. On the other hand, Murder requires that the person committing the act have the knowledge that the act committed is so imminently dangerous that it must in all probability cause death.

The position of law related to Culpable Homicide and murder and punishment for the same in other countries like USA, Canada, Australia, China, Australian, Singapore, and South Africa.

Canada:

The term is part of the criminal code of Canada (Section 222[7]), where all killings of persons are classified as culpable or not culpable homicide. In Canada, there are three types of culpable homicide- Murder, manslaughter and infanticide.Murder is a sub-category of Culpable Homicide which is defined as causing the death of a human being, by means of an unlawful act; by criminal negligence; by causing that human being, by threats or fear of violence or by deception, to do anything that causes his death; or by wilfully frightening that human being, in the case of a child or sick person. Killings classified as not culpable are justifiable killings;

Thus, the term is used to define the criminal intent or Mens Rea of a killing. Non-culpable homicide includes those committed in self-defense. Self-defense is only admissible if the assault resulting in murder was unprovoked. (Self-defense against unprovoked Assault Section 34 CCC)

The mandatory sentence for any adult (or youth sentenced as an adult) convicted of murder in Canada is a life sentence, with various time periods before a person may apply for parole[8] and A youth (12 to 17 years) who is not sentenced as an adult does not face a life sentence. Instead, if convicted of first degree murder, they must serve a maximum sentence of 10 years, with a maximum of 6 of those years spent in custody. If convicted of second degree murder, they must serve a maximum of 7 years, with a maximum of 4 of those years spent in custody.[9]

South Africa

In South African law, when you commit an offence, it can occur through intent, negligence, or both. Culpable Homicide has been simply defined as the unlawful and negligent killing of a human beings. It can be differentiated from murder in that murder requires the killing to be intentional and not merely negligent.

The difference is therefore the form of fault required (negligence as opposed to intention). Negligence is usually established by asking whether a reasonable person in the position of the accused would have foreseen the possibility of killing a person and would have taken steps to guard against that occurrence. As a result it’s an objective test. To prove culpable homicide it’s necessary to show that the accused’s conduct fell short of that which would be expected of a reasonable person in the circumstances. Culpable homicide charges most commonly result from car accidents or motor collisions where a motorist’s negligent driving causes the death of other motorists or pedestrians.

Singapore

“Culpable homicide” is defined as whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.[10]

China

The Penalty Law of the People’s Republic of China, as amended in 1997, provides for a penalty of death, or imprisonment for life or no less than 10 years, for “killing with intent.” However, the penalty for “minor killing with intent” is imprisonment for no less than 3 years. In practice, “killing with indignation” (killing someone who is obviously very harmful to the society) and killings committed in excessive defense are considered “minor.”

United States

Murder is the unlawful killing of human being with malice aforethought. Malice can be expressed (intent to kill) or implied. Implied malice is proven by acts that involve reckless indifference to human life or in a death that occurs during the commission of certain felonies (the felony murder rule). The exact terms of the felony murder vary tremendously from jurisdiction to jurisdiction. Life sentencing for murder in the United States has a mean of 349 months (29 years one month) and a median of 480 months (40 years). However, some states’ sentencing contemplate a full life’s confinement, whence the sentence of confinement is not deemed fulfilled while the convicted person lives; and the only way to fulfil the sentence (and thereby obtain release from confinement) is by the individual’s death.

These sentences are termed natural life and/or life without the possibility of parole.In the United States, the law regarding murder varies by jurisdiction. In most U.S. jurisdictions there is a hierarchy of acts, known collectively as homicide, of which first degree murder and felony murder are the most serious, followed by second degree murder, followed by voluntary manslaughter and involuntary manslaughter which are less serious, and ending finally in justifiable homicide, which is not a crime at all. However, because there are at least 52 relevant jurisdictions, each with its own criminal code, this is a considerable simplification.[11]

Sentencing also varies very widely depending upon the specific murder charge. “Life imprisonment” is a common penalty for first and second degree murder, but its meaning varies widely[12]

Australia

Murder is defined in the New South Wales (NSW) Crimes Act 1900 as follows:Murder shall be taken to have been committed where the act of the accused, or thing by him or her omitted to be done, causing the death charged, was done or omitted with reckless indifference to human life, or with intent to kill or inflict grievous bodily harm upon some person, or done in an attempt to commit, or during or immediately after the commission, by the accused, or some accomplice with him or her, of a crime.

Under NSW law, the maximum penalty for murder is life imprisonment with a standard non-parole period of 20 years, or 25 years for the murder of a child under the age of 18 or of a police officer or public official. Attempted murder carries a maximum penalty of 25 years imprisonment. Note that in order to be guilty of murder under the NSW Crimes Act, intent to cause grievous bodily harm is enough to secure a conviction for murder, as is felony murder (constructive murder in Australia).

There is a statutory defence of provocation in NSW law; if provocation is proven and the person would have otherwise been convicted of murder, directs the jury to find the defendant not guilty of murder but guilty of manslaughter.

Case laws 

Kesar Singh v. State of Haryana

The Court held that the distinction between knowledge and intention. Knowledge in the context of Section 299 would, inter alia, mean consciousness or realisation or understanding. The distinction between the terms “knowledge” and “intention” again is a difference of degrees. An inference of knowledge that it is likely to cause death must be arrived at keeping in view the fact situation obtaining in each case. The accused must be aware of the consequences of his act.

Knowledge denotes a bare state of conscious awareness of certain facts in which the human mind might itself remain supine or inactive whereas intention connotes a conscious state in which mental faculties are roused into activity and summed up into action for the deliberate purpose of being directed towards a particular and specific end which the human mind conceives and perceives before itself.[13]

Rampal Singh v. State of U.P.,

The Court held that Sections 299 and 300 of the Code deal with the definition of “culpable homicide” and “murder”, respectively. In terms of Section 299, “culpable homicide” is described as an act of causing death: (i) with the intention of causing death, or (ii) with the intention of causing such bodily injury as is likely to cause death, or (iii) with the knowledge that such an act is likely to cause death.

As is clear from a reading of this provision, the former part of it, emphasizes on the expression “intention” while the latter upon “knowledge”. Both these are positive mental attitudes, however, of different degrees. The mental element in “culpable homicide”, that is, the mental attitude towards the consequences of conduct is one of intention and knowledge. Once an offence is caused in any of the three stated manners noted above, it would be “culpable homicide”. Section 300, however, deals with “murder” although there is no clear definition of “murder” in Section 300 of the Code. As has been repeatedly held by this Court, “culpable homicide” is the genus and “murder” is its species and all “murders” are “culpable homicides” but all “culpable homicides” are not “murders”.[14]

The difference between death Possibility in both these concepts:

1. The aspect of degree of probability of death or it can be said as the seriousness of act of the crime. If the act done by the offender is either a heinous crime or it be a very dangerous act that causes only death to a person, without any other result it would aptly fall under the concept if Murder and not Culpable homicide.

2. If such an act by the offender leaves the victim to be alive with some grievous hurt with chance of escaping death, then it is said to be a Culpable homicide which does not amount to murder

3. Every murder is committed after committing a culpable homicide but every culpable homicide does not amount to Murder. Murder is said to be an aggravated form of a Culpable homicide.

4. The existence of one of the ingredient of Section 300 of IPC turns the crime into a murder where the exceptions to murder turns the crime into a Culpable homicide which does not amount to Murder.

5. In both the concepts there is intention which is mens rea involved, to kill a person. But whereas in Certain case the offender will not be certain in death of the victim, in that case the offence done by the offender is a culpable homicide but when the offender has certainty in his act will surely cause death of the victim and this will fit into the definition of murder. Because the degree of probability of death is high in murder whereas in Culpable homicide the degree of death is low.

Conclusion:

‘Culpable homicide’ and ‘Murder’ are two overlapping yet distinct offences. The distinction between the two is in the ‘intention’ and ‘knowledge’ of the culprit in committing the crime.

Though on plain reading of the provisions, it appears that the cases can be conveniently classified into the two categories but when it comes to the actual application of these two sections in a given case, the courts are often confronted with the dilemma of culpable homicide and murder.

Frequently Asked Questions

1. How Killing is different from Murder?

Both killing and murder refer to acts of causing destruction of lives. But though the agency of these acts belongs to humans, in case of killing, action is done upon non-humans, and in the latter, action is done upon humans. Nevertheless both killing and murder agree in the following respects- both killing and murder point towards willful destructions of lives, (b) both killer and murderer are the agents of the concerned acts, and (c) Both the acts of killing and murder are purposive, because there are some visible or invisible purposes lying behind these acts.

2. When culpable homicide is not murder?

Murder is culpable homicide, but each and every culpable homicide is not murder. (a) Culpable homicide is not murder if the offender of the act causes death of a person under grave provocation, (b) It is not murder if the offender causes death of a person in the exercise of the right of private defence of person or property, (c) It is not murder if the offender, being a public servant causes death of a person for the advancement of public justice, (d) It is not murder if the offender causes death of a person in a sudden fight without premeditation, and (e) It is not murder when the offender causes death of a sickly person above the age of 18 years who takes the risk of death and has consented to be killed.[15]

3. Difference b/w murder and culpable homicide?

Difference between Murder and Culpable Homicide is certainty of death.For example – I dig a pit for you so that you fall. In such a situation there is a certainty of death because it is possible that you may not die and just get injured. This is culpable homicide.Whereas I come to you and shoot 3 bullets straight in head in such a situation it is murder because there is no certainty.

Edited by Soma Sarkar

Approved & Published – Sakshi Raje

Reference:

[1]Ratanlal & Dhirajlal, The Indian Penal Code, 1860P. 489 (35th Edition of 2017, LexisNexis, New Delhi

[2]Section 299 of Indian Penal Code,1860

[3] K.D. Gaur “ The Commentary on Indian Penal Code” ( 2nd ed 2013),Universal Law Publishing Co, New Delhi

[4]K D Gaur, Criminal Law (8th Edition of 2015), Universal Law Publishing Co, New Delhi

[5]Ratanlal & Dhirajlal, The Indian Penal Code, 1860 (35th Edition of 2017, LexisNexis, New Delhi

[6] PSA Pillas “ Criminal Law”,p.573 ( 12th edn-2014), Lexis Nexis, New Delhi,

[7]Criminal Code, RSC 1985, c C-46, s 222

[8]Criminal Code, RSC 1985, c C-46, s 235

[9]Youth Criminal Justice Act,2002, c 1, s 42(2)(q),(r)

[10]“Penal Code”. Singapore Statutes Online. Attorney-General’s Chambers of Singapore. Retrieved 3 January 2017.

[11]Statistical Abstract of the United States”. U.S. Census Bureau. Government Printing Office. Retrieved 10 September 2017. Page 187.

[12]Cohen, Thomas H.; Reaves, Bryan A. (1 February 2006). “Felony Defendants in Large Urban Counties, 2002”. Bureau of Justice Statistics. U.S. Department of Justice. Retrieved 10 September 2017.

[13] Kesar Singh v. State of Haryana, (2008) 15 SCC 753.

[14] Rampal Singh v. State of U.P., (2012) 8 SCC 289.

[15] Bhattacharyya, T, Indian Penal Code,332-333 (2nd Edn of 2015), Central Law Agency, Allahabad