Culpable Homicide

Culpable Homicide Section 299

Tushar Gupta 3rd semester Faculty of Law Jamia Millia Islamia

Acknowledgement Writing the Acknowledgement for the project in the subject of Constitution is a fairly simple undertaking for anyone who has attended even a single class of Prof. Rose Varghese. The clarity, the command and the humour she brings into every class is infectious, making any student believe that there can be no easier subject that the Indian Penal Code and that anyone can master it, provided she gives the subject the respect and recognition that Ma’am herself gives the subject. Furthermore I would like to thank all those people who gave the subject their time and wrote books which I eventually referred. In this matter, I would particularly like to thank Dr. K. D. Gaur, whose book was precise and the largest reference in this work. My father, a professor with large access to books of value has been of great help to me. Without the contribution of the above said people I could have never completed this project. In addition, I would also like to thank Saurabh Mishra, without whose laptop, I could have never typed out this project.

Contents    Introduction    Culpable Homicide in the Indian Penal Code Death caused of person other than intended Murder distinguished from culpable homicide Presumption regarding intention or knowledge Provocation caused by act  Case study  Conclusion

Introduction

To kill another human being is an inexcusable crime, whether done with the intention of achieving the net result or not. 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, by a human being. But then, not all cases of homicide are culpable as all systems of law do distinguish between lawful and unlawful homicide For instance, killing in self defense or in pursuance of a lawful authority or by reason of mistake or 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. Further in some cases the accused may be punished for lesser offences (for e.g. hurt) even though death has resulted, if the injury resulting in death though voluntarily caused was not likely to cause death. For example, A gives B a blow and B, who suffers from an enlarged spleen of which A was not aware, dies as a result. A is not guilty of Culpable Homicide as his intention was merely to cause an injury that was not likely to cause death. It is in connection with with homicide that the maxim ‘actus non facit reum nisi mens sit rea’ has been frequently cited as stating the two fundamental requirements of criminal liability.

Culpable Homicide in the Indian Penal Code

Culpable Homicide is the first kind of unlawful homicide as defined in Section 299, I.P.C it purports to define and explain as to when an act of causing death constitutes Culpable Homicide. The important elements are:1) Causing of death of a human being. 2) Such death must have been caused by an act 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 the doer is likely by such an act to cause death. The fact that the death of a human being is caused is not enough. Unless one of the mental states mentioned in ingredient is present, an act causing death cannot amount to Culpable Homicide. Thus where a constable who had loaded but defective gun with him wanted to arrest an accused who was going on a bullock cart by climbing on the cart and there was a scuffle between him and the accused and in course of which the gun went off and killed the constable, it was held that accused could not be held guilty of Culpable Homicide. Circumstances For Culpable Homicide, a) Causes Death: In order to hold a person liable under the impugned Section there must be causing of death of a human being as defined under Section 46 of the Code. The causing of death of a child in the mother’s womb is not homicide as stated in Explanation 3 appended to Section 299, I.P.C. But the person would not be set free. He would be punishable for causing miscarriage either under Section 312 or 315 I.P.C depending on the gravity of the injury. The act of causing death amounts to Culpable Homicide if any part of that child has been brought forth,

though the child may not have breathed or been completely born. The clause ‘though the child may not have breathed’ suggests that a child may be born alive, though it may not breath (respire) , or it may respire so imperfectly that it may be difficult to obtain clear proof that respiration takes place. Causing of death must be of a living human being which means a living man, woman, child and at least partially an infant under delivery or just delivered. b) By Doing An Act With The Intention Of Causing Death: Death may be caused by a hundred and one means, such as by poisoning, drowning, striking, beating and so on and so forth. As explained under Section 32, I.P.C the word ‘act’ has been given a wider meaning in the Code in as much as it includes not only an act of commission, but illegal omissions as well and the word ‘illegal’ is applicable to everything which is an offence or which is prohibited by law, or which is prohibited by law, or which furnishes ground for civil action (s.43). Therefore death caused by illegal omission will amount to Culpable Homicide. i. Death caused by effect of words on imaginations or passions: The authors of the Code observe : “ The reasonable course, in our opinion , is to consider speaking as an act, and to treat A as guilty of voluntary Culpable Homicide, if by speaking he has voluntarily caused Z’s death, whether his words operated circuitously by inducing Z

to swallow a

poison

or

throwing Z

into convulsions.”

c) With The Intention Of Causing Such Bodily Injury as is likely to cause death: . The word ‘intention’ in clause (a) to Section 299, I.P.C has been used in its ordinary sense, i.e., volitional act done without being able to forsee the consequence with certitude. The connection between the ‘act’ and the death caused thereby must be direct and distinct; and though not immediate it must not be too

remote. If the nature of the connection between the act and the death is in itself obscure, or if it is obscured by the action of concurrent causes, or if the connection is broken by the intervention of subsequent causes, or if the interval of time between death and the act is too long, the above condition is not fulfilled. Where a constable fired five shots in succession at another constable resulting in his death, it was held that it would be native to suggest that he had neither intention to kill nor any knowledge that injuries sufficient to kill in ordinary course of nature would not follow. His acts squarely fell in clauses 2,3 and 4 of s.300, I.P.C i.e Culpable Homicide amounting to murder. d) With the knowledge that he is likely by such act to cause death : ‘Knowledge’ is a strong word and imports ceratinity and not merely a probability.If the death is caused under circumstances specified under Section 80, the person causing the death will be exonerated under that Section. But, if it is caused in doing an unlawful act, the question arises whether he should be punished for causing it. The Code says that when a person engaged in the commission of an offence, without any addition on account of such accidental death. The offence of Culpable Homicide supposes an intention, or knowledge of likelihood of causing death. In the absence of such intention or knowledge, the offence committed may be grievous hurt, or simple hurt. It is only where death is attributed to an injury which the offender did not know would endanger life would be likely to cause death and which in normal conditions would not do so notwithstanding death being caused, that the offence will not be Culpable Homicide but grievous or simple hurt. Every such case depends upon the existence of abnormal conditions unkown to the person who inflicts injury. Once it is established that an act was a deliberate acct and not the result of accident or rashness or negligence, it obvious that the offence would be Culpable Homicide.

e) Death Caused of Person Other Than Intended: To attract the provisions of this Section it suffices if the death of a human being is caused whether the person was intended to be killed or not. For instance, B with the intention of killing A in order to obtain the insured amount gave him some sweets mixed with poison. The intended victim ate some of the sweets and threw the rest away which were picked up by two children who ate them and died of poisoning. It was held that B as liable for murder of the children though he intended to kill only A. f) Death Caused Inadvertently without Intention While Doing an Unlawful Act: It has been clearly stated in I.P.C that a person will not be liable for Culpable Homicide, if he causes the death of a person while doing an unlawful act, provided he did not intend to kill or cause death by doing an act that he knew was likely to have that effect. On the other hand, under English law, if a person whilst committing an unlawful act accidently kills another, he would be liable for manslaughter or murder according to whether his act constituted a felony or misdemeanour.

Section 299 of the Indian Penal code states the following, Who ever 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. The Illustrations that follow are as follows, (a) A lays sticks and turf over a pit, with the intention of there by causing death, or with the knowledge that death is likely to be thereby caused. Z believing the

ground to be firm, treads on it, falls in and is killed. A has committed the offence of culpable homicide.

(b) A knows Z to be behind a bush. B does not know it A, intending to cause, or knowing it to be likely to cause Z's death, induces B fires and kills Z. Here B may be guilty of no offence; but A has committed the offence of culpable homicide.

(c) A, by shooting at a fowl with intent to kill and steal it, kills B who is behind a bush; A not knowing that he was there. Here, although A was doing an unlawful act, he was not guilty of culpable homicide, as he did not intend to kill B, or to cause death by doing an act that he knew was likely to cause death. The explanations given thereafter are as follows, Explanation 1 A person who causes bodily injury to another who is labouring under a disorder, disease or bodily infirmity, and thereby accelerates the death of that other, shall be deemed to have caused his death. Explanation 2 Where death is caused by bodily injury, the person who causes such bodily injury shall be deemed to have caused the death, although by resorting to proper remedies and skilful treatment the death might have been prevented. Explanation 3

The causing of the death of child in the mother's womb is not homicide. But it may amount to culpable homicide to cause the death of a living child, if any part of that child has been brought forth, though the child may not have breathed or been completely born. Followed by the comments on the said section, Death caused of person other than intended

The accused, with the intention of killing A or whose life he had taken out considerable insurance without latter’s knowledge, in order to obtain the insured amount gave him some sweets mixed with a well known poison like arsenic. The intended victim ate some of the sweets and threw the rest away which were picked up by two children who ate them and died of poisoning. It was held that the accused was liable for the murder of the children though he intended only to kill A; Public Prosecutor v. Mushunooru Suryanarayana Moorty1.

Murder distinguished from culpable homicide 1 (1942) 2 MWN 136: (1912) 13 Cr LJ 145

“Culpable homicide” is genus, and “murder” is the specie. All “murder” are culpable homicide but not vice-versa; Narasingh Challan v. State of Orissa2.

Presumption regarding intention or knowledge The accused struck his wife a violent blow on the head with the plougshare which rendered her unconscious and hanged his wife soon afterwards under the impression that she was already dead intending to create false evidence as to the cause of the death and to conceal his own crime. It was held that the intention of the accused must be judged not in the light of the actual circumstances, but in the light of what he supposed to be the circumstances. Hence, the accused cannot be convicted either of murder or culpable homicide, he could of course be punished both for his original assault on his wife and for his attempt to create fake evidence by hanging her; Palani Gaindan v. Emperor, (1919) 42 Mad 547.

Provocation caused by act 2 (1997) 2 Crimes 78 (Ori)

The assault for murder cannot be said to be sudden and without meditation as the deceased was not armed; State of Maharashtra v. Krishna Murti Lazmipatti Naidu3.

Homicide is the killing of a Human being by a Human being 4. It may either be lawful or unlawful. Lawful Homicide include several cases falling under Chapter IV of the Indian Penal Code dealing with the general exceptions. Unlawful Homicide is of the following kind;    

Murder5 Culpable Homicide not amounting to Murder6 Causing death by negligence7 Suicide8

The essentials of culpable homicide are as follows,    1.

Causing of death of a Human being; Such death must have been caused by doing an Act; The Act must have been done, With the intention of causing death of a Human being;

3 AIR 1981 SC 617: (1981) SC Cr R 398: (1981) Cr LJ 9: (1981) SCC (Cr) 354 4 Stephen, Digest of Criminal Law 5 Section 302 6 Section 304 7 Section 304A 8 Sections 305 & section 306

2. With the intention of causing such bodily injury as is likely to cause death; or 3. With the knowledge that the doer is likely, by such act, to cause death.

It is imperative to understand the section of the IPC better, it is imperative on my part to look at this section in phrases,  Whoever causes Death – Death means the death of a Human being. It does not include the death of an unborn child. But in view of Explanation 3 given in the said section, it may amount to culpable homicide to cause death of a living child if any part of the child has been brought forth, though the child may not have breathed or been completely born. However, it is not necessary that the person whose death has been caused must be the very person accused intended to kill9. The offence of Culpable Homicide is complete as soon as any person is killed by the accused whose intention is to either cause death or with the knowledge that he was likely, by such act, to cause death.  By doing an act – This includes the acts mentioned earlier and also includes omission. An omission is illegal if it be an offence, if it be a breach of some direction of law, or if it be such a wrong as would be a good ground for a civil action. Therefore, death caused by illegal omission will also amount to culpable homicide.  Intention to cause death – Intention means the expectation of the consequence in question. When a man is charged with doing the act, of which the probable consequences may be highly injurious, the intention is an inference of law resulting from doing an Act 10. Intention is to be inferred 9 Section 301 10 As per Lord Ellenbourgh, C.J. in Dixon (1814) 3 M. & S. 11, 15

from the acts of the accused and the circumstances of the case 11. Thus, deliberately firing by a loaded gun at one leads to interference that the intention was to cause death.  With intention of causing such bodily injury as is likely to cause death – The intention of the offender may not be to cause death, it would be sufficient if he intended to cause such bodily injury which was likely to cause death. The connection between the act and the death caused should be direct and distinct; and though not immediate, it must not be too remote. If the connection is too obscure with many intervening factors in the matter, or if the time gap between the act and the death is too long, the above connection is not fulfilled. An intention also inclides foresight of certainity. A consequence is deemed to be intended though it is not desired when it is foreseen as substantially certain.

11 Ghufar, (1887) P. R. No. 62 of 1882

Case study  Attra v. State12 In this case, the accused detected a theft being carried out in his house; he apprehended the thief and beat him so severely that later, upon detailed investigation there were discovered One Hundred and forty-one marks of separate blows on the body of the victim. Several of his ribs were broken and he died. As the death that was caused was a direct consequence of the act of the accused, he was convicted under sec. 304 of the Indian Penal code. His actions were also seen to be in conformation with the ideals laid down in sec. 299 as while beating up another person so brutally, he must have known that his act was likely to cause death.  Md. Isak Md. v. State13 The act that caused death was a direct outcome of a heated conversation between the accused and the deceased and there was no evidence that the accused was the one who delivered the first blow in the following struggle, thus it was held that this act would only amount to Culpable Homicide and not murder. Murder and Culpable Homicide distinguished The distinction between Murder (defined under Section 300) and culpable homicide (defined under Section 299) are two offences under the Indian Penal Code the distinction between which has always been perplexing to the law students. For their benefit, we are referring to a recently reported decision of the

12 (1891) PR No. 9 of 1891 13 AIR 1979 SC 1434

Supreme Court wherein these principles have been explained in extension as under; Section 299 and Section 300 IPC deals with the definition of culpable homicide and murder respectively. Section 299 defines culpable homicide as the act of causing death; (i) (ii)

with the intention of causing death or with the intention of causing such bodily injury as is likely to cause death

(iii)

or with the knowledge that such act is likely to cause death.

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. Section 300 IPC, however, deals with murder although there is no clear definition of murder provided in Section 300 IPC. It has been repeatedly held by this Court that culpable homicide is the genus and murder is species and that all murders are culpable homicide but not vice versa. Section 300 IPC further provides for the exceptions which will constitute culpable homicide not amounting to murder and punishable under Section 304. When and if there is intent and knowledge then the same would be a case of Section 304 Part I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part

II. The aforesaid distinction between an act amounting to murder and an act not amounting to murder has been brought out in the numerous decisions of this Court.    State of A.P. v. Rayavarapu Punnayya14 The Court observed as follows at page 386:"12. In the scheme of the Penal Code, "culpable homicides" is genus and "murder"its specie. All "murder" is "culpable homicide" but not vice-versa. 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 Code practically recognises three degrees of culpable homicide. The first is, what may be called, "culpable homicide of the first degree". This is the greatest form of culpable homicide, which is defined in Section 300 as "murder". The second may be termed as "culpable homicide of the second degree". This is punishable under the first part ofSection 304. Then, there is "culpable homicide of the third degree". This is thelowest type of culpable homicide and the punishment provided for it is, also, the lowest among the punishments provided for the three grades. Culpable homicideof this degree is punishable under the second part of Section 304.

   Abdul Waheed Khan v. State of A.P.15

14 , (1976) 4 SCC 382 15 (2002) 7 SCC 175

Clause (b) of Section 299 corresponds with clauses (2) and (3) of Section 300. The distinguishing feature of the mens rea requisite under clause (2) is the knowledge possessed by the offender regarding the particular victim being in such a peculiar condition or state of health that the internal harm caused to him is likely to be fatal, notwithstanding the fact that such harm would not in the ordinary way of nature be sufficient to cause death of a person in normal health or condition. It is noteworthy that the "intention to cause death" is not an essential requirement of clause (2). Only the intention of causing the bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim is sufficient to bring the killing within the ambit of this clause. This aspect of clause (2) is borne out by Illustration (b) appended to Section 300.14. Clause (b) of Section 299 does not postulate any such knowledge on the part of the offender. Instances of cases falling under clause (2) of Section 300 can be where the assailant causes death by a fist-blow intentionally given knowing that the victim is suffering from an enlarged liver, or enlarged spleen or diseased heart and such blow is likely to cause death of that particular person as a result of the rupture of the liver, or spleen or the failure of the heart, as the case may be.    Augustine Saldanha v. State of Karnataka16, The deceased were attacked by the accused while returning from a movie. This incident left the one of the person dead and another severely injured. This situation was then reported and gave rise to a case of culpable homicide as the assailants were armed with only sticks and had struck in only those parts of the body wich could have caused hurt but not death. The one person who died met his demise because of a health condition that he suffered from. 16 (2003) 10 SCC 472

Conclusion The idea of Culpable Homicide is important to be incorporated in the IPC as it is imperative for the recognition to be given to those who might have caused the death of another by their act, but might not have intended the same. There is a difference between those who commit such acts with existent knowledge of what they are doing and those who don’t. In recognizing this, the IPC provides for much better justice.

Bibliography        

Textbook on the Indian Penal Code – K. D. Gaur The Indian Penal Code – Ratanlal & Dhirajlal Commentary on the Indian Penal Code – K.D. Gaur Commentary on the Indian Penal Code – Ratanlal and Dhirajlal www.legalservicesindia.com www.indiankannon.com www.vakilno1.com www.lawctopus.com