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All crimes comprise of two components mens rea and actus reus, if any of them is missing then the committed act did not fall under the ambit of crime. In committing an act of actual body harm, the ‘means rea’ may be one of recklessness rather than intention. When we are talking about two most important topics of Indian Penal Code, that are most severe, its mandatory to know their definitions as most of the time they seem to be more similar to each other, but they are not synonymous to each other, we are talking about Culpable homicide and Murder.
Homicide etymologically comes from Latin word “homa” meaning man and “cide” meaning cut. The term means either the act of killing of one human being by another or a person who kills another. The Indian Penal code defines homicide as a killing of human being by a human being, it may be lawful or unlawful.
- Lawful Homicide: it includes the cases falling under Sections 76 to 106 of Indian Penal Code
- Unlawful Homicide: it includes the cases falling under Section 299 to 318 of Indian Penal Code, here we took into account the following cases:
- Culpable homicide: Section 299 IPC
- Murder: Section 300 IPC
- Homicide by Rash and Negligent act: Section 304A IPC
Definition of terms:
Culpable Homicide: It is defined as “Whosoever causes death by doing an act with the intention of causing death or with the intention of causing such bodily injury as it 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 .” under Sec 299 of IPC. The word culpable derived from Latin word ‘culpabills’ which means worthy of blame and homicide means to kill.
Murder: It can be defined as an aggravated form of culpable homicide. Under Sec 300 there is no straight definition for murder which is provided but it is explained in reference with the previous section it reads as:
“Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, or-
Secondly-If it is done with the intention of causing such bodily injury as the offender knows ‘to be likely to cause the death’ of the person to whom the harm is caused, or–
Thirdly-If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or–
Fourthly-If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.”
Murder is commonly understood as an act of killing human being intentionally (with knowledge of act) and unlawfully by another. The term murder is derived from the Germanic word which means ‘secret killing’.
They are two overlapping offences, the relevant provision for the offences listed here below for better understanding:-
|RELEVANT PROVISION FOR CULPABLE HOMICIDE||RELEVANT PROVISIONS FOR MURDER|
|Section 299: Defines offence of culpable homicide||Section 300: Defines offence of Murder , with certain exceptions|
|Section 301: Defines when culpable homicide amounts to murder.||Section 302: Punishment for offence of murder is provided under this section.|
|Section 304: Punishment for offence of culpable homicide not amounting to murder. Section 304 A: Causing death by negligence does not amount to culpable homicide.||Section 303: It makes capital punishment necessary for the person who is convicted for life imprisonment commits murder. Only applicable to the person who is convicted under Section 302 read with Section 34 or Section 149.|
|Section 308: Attempt to commit culpable homicide.||Section 307: Attempt to Murder|
From Section 301 we have an important doctrine called Doctrine of transferred malice. Court used this doctrine in Shankarlal Kachrabhai and Others v. State of Gujarat, AIR 1965 SC 1260 by applying Section 301, if X intends to kill Y but kills Z whose death he neither intends nor knows himself to be likely to cause, the intention to kill Z is, by law attributed to him. When we look into the provisions again, we found that they are similar to each other from the bare reading of provisions we hardly can differentia between two of them, but when we read between the lines we can differentiate between two.
Similarities between the two
When we get to see the two most heinous offences against body of a person, both of them are almost same, there is a thin line difference between them. The IPC itself conveys many similarities between them. Murder is an aggravated form of culpable homicide it’s a type of culpable homicide. Let’s see the ingredients of both, the principle ingredients of Culpable homicide is:
- Causing death of human being.
- The intention of causing death.
- The intention of causing a bodily injury that likely to cause death
- The knowledge of the act which is likely to cause death
Now we look at the principle ingredients of Murder:
- Causing death of human being.
- The Intention of causing death
- Causing such bodily injury as the offender knows it is likely to cause death of a person.
- Knowledge that the act done is sufficiently dangerous that in all probabilities it must cause death,
From the principle ingredients of both the offences it is evident that there are many similarities like in both the death of a person is must and also in both the offences intention of causing death is present with sufficient knowledge and most important both of them are offences against body. One of the integral similarities between the section as aforementioned is actus rea and mens rea i.e. the act and the intention to do it. The exceptions in Chapter 4 of IPC which includes death by accident or death caused justifiably sheds more light on the similarities. In murder and culpable homicide, there is a clear intention of the accused to take the life or do such harm or bodily injuries that will cause the death.
The reason why we call Sec 299 (Culpable Homicide) and Sec 300 (Murder) overlapping offence is due to the difficulty in differentiating them, as from the provision it is difficult to understand the difference between two as there is a thin border line difference.
Culpable homicide is the genus of which murder is species. All murders are culpable homicide but all culpable homicide is not murder. The most confusing aspect is ‘intention’ as in both the provisions the intention is to cause death. Hence, you have to consider the degree of intention of offenders. If the person is killed in cold-blood or with well-planned then it is murder because the intention to kill is in high degree. On other hand, person is killed without pre-planned, in sudden fight or in sudden anger because of somebody’s provocation or instigation, then such death is called the culpable homicide. Hence, whether the act done is culpable homicide or murder is a question of fact. The distinction between the two was aptly set forth by Melvill, J., in Reg v. Govinda and by Sarkaria J., in State of A.P. v. R. Punnayya Speaking generally ‘culpable homicide’ sans ‘special characteristics of murder’ is culpable homicide not amounting to murder. For the purpose of fixing punishment, proportionate to the gravity of this generic offence, the IPC practically recognises three degrees of culpable homicide.
There are certain mechanism to differentiate the concepts of murder and culpable homicide, the difference is latent with the term of seriousness of intention, the major difference is in the degree of culpability and in section 299 the word likely is used which denotes one of the probability which amounts to culpable homicide but in section300 the word sufficient is used which denotes most probably. From it the gist is the other point of difference that we have is degree of probability of death or gravity of culpability, when degree of probability of death is high it falls under ambit of murder and when degree is less it falls under ambit of culpable homicide.
The other major difference is that, ‘Knowledge’ and ‘Intention’ must not be confused, ‘Knowledge’ is an indication of a bare state of conscious awareness of some facts in which 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. Intention need not necessarily involve premeditation. Existence of such an intention or not is a question of fact the existence of one of prime ingredient of Section 300 turns the crime into murder where the exceptions to murder turns the crime into a Culpable homicide which does not amount to Murder. The main difference is about mens rea in both the cases as in both the offences it is involved with a difference of degree between them. These are the some key differences between two offences, lets revisit them quickly:
- Likely v. Sufficiently
- Knowledge v. Intention
- Degree of probability of death
- Mens Rea involved.
We have to take note of both the things while deciding the offence of murder, intention in not only criteria to look into but it must be accompanied with necessary knowledge that such act will cause death of person.
Methodology adopted by court
The courts have prepared a system around which they decide which section the case falls. The courts follow a three-stage process to determine the section. Firstly, the court considers the question that whether the accused has done an act by doing which he caused the life of another. If the answer to this is affirmative, then the second stage is followed where t is considered if the act falls under Section 299 of IPC. If the answer to this question is prima facie found in the affirmative, the stage for considering the operation of section 300 of IPC is reached. This is the stage at which the Court should determine whether the facts proved by the prosecution bring the case within the ambit of any of the four clauses of the definition of ‘murder’ contained in Section 300. If the answer to this question is in the negative the offence would be ‘culpable homicide not amounting to murder’, punishable under the first or the second part of section 304, depending, respectively, on whether the second or the third clause of section 299 is applicable.
Often there is a confusion regarding the applicability of the sections. The sections are not properly worded. Sr. James Stephen stated in his analysis of the sections that “the definitions of culpable homicide and murder are the weakest definition in the code”. They further elaborated saying that the definition seems obscure and it also seemed as if much thought hasn’t been put into the definition. One of the flaws is that even though culpable homicide is mentioned there is no mention of the word ‘homicide’. The courts often quote that Culpable Homicide is genus and murder is species but the terms so closely resemble each other that it is difficult to interpret and distinguish the terms.
But the 42nd Law Commission Report which came in the year 1971 stated that this analysis by Stephen that the sections were obscure dates back to a century. The courts have taken active role in interpreting the sections and have laid down certain condition as has been elucidated above. He criticised the section saying that there was certain repetition. But the repetition only occurs in the first limb of both the sections which speaks about intention of causing death with a slight variation. The variation according to law commission indicates that if the same act or offence is done with similar intention then the act falls under murder but it will be culpable homicide if it falls within the 5 exceptions set out in section 300. Other sections have clear distinction as highlighted above in the table. The word ‘likely’ plays a huge role in the interpretation of the section.
The criticism that the sections are not well defined and there’s repetition is laid down by Stephan can be solved by rephrasing the sections. But at the same time the court has been actively playing the role of easing the section and has given the interpretation. Murder being the crux of the section should be defined first without adding any graver modification of culpable homicide. It should be explained in a self-contained manner. Then it would be appropriate to explain culpable homicide not amounting to murder. But even when redrafting, it should be kept in mind that the main idea behind the section and the initial formulation of ideas should not be changed and kept intact as judicial interpretation in the course of a century has invested the phrases with well understood significance.
‘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.
In such situations, the role played by the judge increases. One cannot expect him or her to be precise all the time as a human is meant to err but a judge deciding such a sensitive case must leave no stone unturned in analysing all the nuances of the case and then come to any conclusion.
Hence, this are the most important ingredient of murder. Since, there is no common line difference between them it will depend from case to case, it’s the judge who play’s most crucial role in such cases.
The offence of murder and culpable homicide is overlapping offences and a layman cannot understand it from the bare reading of provisions of Indian Penal Code 1860. They only differs in the degree of probability of death also there are exceptions laid in Section of Murder which turns out as culpable homicide and in case of culpable homicide murder is defined as an aggravated form of it also an offence cannot amount to murder unless it falls under ambit of ‘culpable homicide’. When we come to the point of differentiation between culpable homicide and murder it is difficult to arrive at any categorical demarcations or strait jacket differences between both of them. The important point in these concept would be as how the law or code dealing with the crimes regards the two offences as distinct and what the criterion for distinguishing them is.
As law cannot remain static as it needs to get evolved with changing time to cater the needs of society, the confusion regarding this two concepts needs to be addressed now and there is need of a clear line of distinction between them, also as aforementioned here that the provisions of one section works as an category of offence for other this creates an ambiguity, there is need to address this perspective also.
To conclude, the major criticism in both the offences is that they are not properly defined under IPC. The Fifth Law Commission proposed to redefine Section 299 and 300, also other two recommendation were proposed by commission in report: (1) the punishment of life imprisonment, as it has never been awarded, be deleted from the provision and (ii) only one maximum punishment( of punishment for a term upto ten years with fine) should be provided for culpable homicide not amounting to murder. But these proposals are not taken into account by the fourteenth Law Commission in its 156th report of IPC. Now, its need of hour to redefine the sections and also taken the judicial precedents into account for reforming these two sections of IPC.
They need to be reformed to get in consonance with present time and also in present its completely depend on the discretion or scrutiny of judiciary to name the offence in cases where there is not proper evidence is provided by counsel to prove the act in either of the offences, we follow rule of check and balances so no organ can misuse it power here in rarest of rare case it may be violated sometimes.
Authors: Shelal Lodhi Rajput from Symbiosis Law School, Pune and Kessia E. Kuriakose from NALSAR University of Law.
Editor: Muskaan Garg from Jindal Global Law School, O.P. Jindal Global University, Sonipat, Haryana.