MURDER & CULPABLE HOMICIDE

Murder and Culpable Homicide

Culpable Homicide According to sec-299 of the Penal CodeWhoever causes death by doing an act with the intention of causing death or 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 ant to cause death commits the offence of culpable homicide. Illustrations (a)

(b)

(c)

A 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. Z believing the ground to be firm treads on it falls in and is killed. A has committed the offence of culpable homicide. 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 to fire at the bush. B fires and kills z. here b may be guilty of n offence but a has committed the offence of culpable homicide. 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 ant the was not guilty of culpable homicide as he did not intend to kill b or cause death by doing an act that he knew was likely to cause death. Explanation 1. A person who causes bodily injury to another who is laboring 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 a 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 breathe or been completely born.

Analysis

Culpable homicide is usually "killing someone for a reason", i.e. because someone has done something or tried to do something, another person killed him or her. Culpable homicide is the legal term for the killing of another individual to which blame can be reasonably assigned to the killer. In this definition, the killing of the individual happens as a circumstance of dangerous actions, though some jurisdictions make distinctions between intentions and mental state.

Essential ingredients of this section are: 1.Causing of death of a human being 2.Such death must have been caused by doing an act(a)with the intention of causing death or (b)with the intention of causing such such bodily injury as is likely to cause death or (c)with the knowledge that the doer is likely by such act to cause death The definition of culpable homicide embodies three species of men’s reas. The person in performing some act (a)either expects death to be the consequence thereof or (b)expects an injury which is likely to cause death or (c) knows that the death is the likely consequence thereof.In each case the death must be the result of his act. Intention in first two cases and knowledge in the last case render the person liable for culpable homicide.If none of the three mens rea is present the offence is not culpable homicide merely because death ensures. An act is said to cause death when death results either from the act directly or results from some consequence necessarily or naturally flowing from such act and reasonably contemplated as its result. (AIR 1958 Ker 907) 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 Penal 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, Penal Code But the person would not be set free. He would be punishable for causing miscarriage either under Section 312 or 315 Penal Code 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 hundered and one means, such as by poisioning, drowning, striking, beating and so on and so forth. As explained under Section 32, Penal Code 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, Penal Code 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. g) Consent is not a defence to Manslaughter: The House of Lords in R v Walker held that the respondent a truck driver carrying illegal immigrants will be criminally responsible for involuntary manslaughter, if the act results in death, even if the victim has consented to take such risk engaged in some joint unlawful activity. In this case the defendant, truck driver ( a Dutch national) drove a lorry from Rotterdam (Netherlands) to Zeebrugge (United Kingdom). The lorry had been loaded with a refrigerated container in which 60 Chinese (illegal immigrants) had been hidden to conceal the illegal human cargo behind a load of tomatoes. The container was sealed apart from a small air vent which was closed for 5 hours prior to the ferry crossing to Dover to preserve secrecy. On disembarkation at Dover (in England) the customs officers examined the container and discovered the bodies of 58 immigrants, who had suffocated to death. Walker was charged with 58 offences of manslaughterand conspiracy to facilitate the entry of illegal entrants into United Kingdom. Applying the doctrine of negligence( ex turpi causa non oritur actio) for causing death of the victims the trial convicted and sentenced the respondent to 6 years imprisonment for each the manslaughter charges to run concurrently and eight years imprisonment for the conspiracy to facilitate entry of illegal immigrants with a total of 14 years. This decision was upheld by the House of Lords as well.

Meaning of ‘’likely’’ In the case of R vs Whitehouse, the accused was convicted of an offence of behaving in a manner likely to endanger the safety of an air craft by the President use of his mobile telephone in mid-flight.His appeal against conviction failed because the word ‘’likely’’ was correctly construed in its statutory context as meaning ‘’a real risk not to be ignored.’’

Distinction between knowledge and intention 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 activities 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 .Whether there is such an intention or not is a question of fact. Case References To constitute culpable homicide there must be knowledge that the act is likely to cause death and the knowledge reffered to this section is the personal knowledge of the accused that causes injury(AIR 1930 Bom 483) Culpable homicide is not murder if it is committed without any premeditation, in a sudden fight, in the heat of passion,upon a sudden qurrel and without the offender having taken undue advantage or acted in a cruel or unusual manner. [Bandez Ali vs. State,1986 BLD (AD)] In the case of Gonesh Dooley[(1879) 5 Cal 351], a snake-charmer, to show his own skill, placed a venomous snake,whose fangs had not been extracted,on the head of a spectator, without the intention to cause harm, and the spectator in trying to push off the snake was bitten and died in consequence,it was held that he was guilty under clause 3 of section.299. Intention always connotes a conscious state of mind of a wrong-doer.In deciding questions of intention or knowledge , (a) nature of weapon used, (b) part of body on which blow was given,(c) the force of the blow and (d) the number of blows are some of the factors which assume importance. [Ghashi Ram vs. State,1952 Cr LJ 1366] Abusive language The death of the victim was without any pre-mediation caused in a sudden provocation resulting from use of insulting language.The accused Aynul Hoque Mollah inflicted ‘dao’ blow on the left chest of the victim in the heat of passion and thus such act clearly falls under the category of culpable homicide not amounting to murder.[The state Vs Aynul Hoque Mollah 60DLR(2008) 255].

Murder Sec.-300: murder.- Except in the cases hereinafter excepted, culpable homicide is murder if the act by which the death is caused in dove with the intention of causing death or – Secondly- if it is done with the intention of causing bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, orThirdly.- 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 os 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. Illustrations (a) A shoots Z with the intention of killing him.Z dies in consequence.A commits murder. d) A without any excuse fires a loaded cannon into a crowed of persons and kills one of them.A is guilty of murder,although he may not have had a premediated design to kill any particular individual.

Essential ingredients of this section are: 01.Intentionally causing death 02.Intentionally causing of injury with knowledge of death of the injured.

person

03.Intention and injury sufficient to cause death Here ‘’Death’’ means the death of human beings. But this word does not include the death of an unborn child. It is immaterial if the person whose death has been caused is not the very person whom the accused intended to kill. The offence is complete as soon as any person is killed.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. Analysis of Murder

According to Lord Coke, Murder means such act where a person unlawfully kill any other person with aforethought malice, which may be expressed or implied. In order to constitute the crime of murder,as above defined: 1st. There must be a killing 2nd.The killing must be of a human being 3rd.It must be unlawful 4th.It must be with malice And all these elements must be combined in every case of this offence.For e.g. if there be not the first or only the first,it is no ‘homicide’; if there be the first and second only ,without the others,it is ‘justifiable or exclusable homicide’ ; if there be the first,second and third ,without the fourth , it is ‘manslaughter’ but where all concur,it is ‘murder’. The crime of murder is the willful taking of another person's life. In almost all jurisdictions murder is classified as either first-degree or second-degree. First-degree murder is both the intentional and premeditated killing of a person, or as it is sometimes referred to with malice aforethought, which means the killer deliberately killed out of ill will toward the victim. Second-degree murder is charged when the killing was intentional but not premeditated, but also was not done in the "heat of passion." Second-degree murder can also be charged when someone is killed as a result of reckless conduct without concern for human life.

When culpable homicide is not murder Exception 1.-Culpable homicide is not murder if the offender, whilst deprived

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of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or cause the death of any other person by mistake or accident. The above exception is subject to the following provisos: Firstly.-That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly.-That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public

servant. Thirdly.-That the provocation is not given by anything done in the lawful exercise of the right of private defense. Explanation.- Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Illustrations

(a) A, under the influence of passion excited by a provocation given by Z, intentionally kills Y, Z's child. This is murder, inasmuch as the provocation was not given by the child, and the death of the child was not caused by accident or misfortune in doing an act caused by the provocation. (b) Y gives grave and sudden provocation to A. A, on this provocation fires a pistol at Y, neither intending nor knowing himself to be likely to kill Z, who is near him, but out of sight. A kills Z. Here A has not committed murder, but merely culpable homicide. (c) A is lawfully arrested by Z, a bailiff. A is excited to sudden and violent passion by the arrest, and kills Z. This is murder, inasmuch as the provocation was given by a thing done by a public servant in the exercise of his powers. (d) A appears as a witness before Z, a Magistrate. Z says that he does not believe a word of A's deposition, and that A has perjured himself, A is moved to sudden passion by these words, and kills Z. This is murder. (e) A attempts to pull Z's nose. Z, in exercise of the right of private defense, lays hold of A to prevent him from doing so. A is moved to sudden and violent passion in consequence, and kills Z. This is murder, inasmuch as the provocation was given by a thing done in the exercise of the right of private defense. (f) Z strikes B. B is by this provocation excited to violent rage. A, a by stander, intending to take advantage of B's rage, and to cause him to kill Z, puts a knife into B's hand for that purpose. B kills Z with the knife. Here B may have committed only culpable homicide, but A is guilty of murder. Grave and sudden provocation Grave and sudden provocation means that situation where a reasonable man belonging to the same class of society as the accused, placed in the situation in

which the accused was placed would be so provoked as to loss his selfcontrol.Words and gestures may also,under certain circumstances,cause grave and sudden provocation.(AIR 1962 SC 605) What amount to grave and sudden provcation depriving the accused of his power of self-control may vary according to circumstances of each case as also according to the general standard of self-control among the people of class involved.(AIR 1972 SC 502) Grave and sudden provocation is a mixed question of law and facts(AIR 1982 SC 31) Where the victim had committed sodomy on the son of the accused,who killed the victim,it was held that there was grave and sudden provocation.(AIR 1977 SC 1801)

Exception 2.- Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defense of person or property, exceeds the powers given to him by law and causes the death of the person against whom he is exercising such right of defense without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defense. Illustration Z attempts to horsewhip A, not in such a manner as to cause grievous hurt to A. A draws out a pistol. Z persists in the assault. A believing in good faith that can by no other means prevent himself from being horsewhipped, shoots Z dead. A has not committed murder, but only culpable homicide. Exception-2 deals with cases where death is caused in the excessive exercise of the right of private defence. Four cardinal conditions must have existed before the taking of the life of a person is justified on the plea of self-defence. Firstly, the accused must be free from thfault in bringing about the encounter Secondly, there must be present an impending peril to life or of great bodily harm,either real or so appearent as to create honest belief of an existing necessity .Thirdly, there must be no safe or reasonable mode of escape by retreat and fourthly, there must have been a necessity for taking life.[(1959)CrLJ 401] Plea of private defence of person is not available against person other than assailant. (PLD 1959 AJ & K 49) A person who exceeds his right of private defence and kills his assailant comes under the exception and is guilty under section304 and not under sec.302 (AIR 1980 SC 660) In a charge of murder, the plea of private defence was not available when accused continued to assault after the deceased had fallen down and rendered harmless(AIR 1983 SC 108)

For the application of this exception it is essential that the person causing hurt in the bonafide exercise of the right of private defence should act without any intention of doing more harm than is necessary for the purpose of such defence. (48 CrLJ 809)

Exception 3.- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. This exception protects a public servant or a person aiding a public servant acting the advancement of public justice.,if either of them exceed the powers given to them by law and cause death. It gives protection so long as the the public servant acts in good faith; but if his act is act is illegal and unauthorized by law or if he glaringly exceeds the powers given to him by law,the exception will not protect him. Where a police officer in the zeal of his duty to trace out an offence commits physical torture on the suspect causing his death,he is guilty of murder and can not claim the benefit of this exception. (1955 CrLJ 1385)

Exception 4.-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. Explanation.- It is immaterial in such cases which party offers the provocation or commits the first assault. Illustration: The word ‘fight’ conveys something more than a verbal quarrel.It is not necessary that weapons should be used in a fight. In order to constitute a fight,it is necessary that blows should be exchanged even if they do not all find their target.The fight must be with the person who is killed and not with another person The words ‘’undue advantage’’ in this exception means ‘’unfair advantage’’

Sudden Quarrel is that which is not pre-arranged. If on any sudden quarrel,blows pass without any intention to kill or injure another materially and in the course of the scuffle, after the parties are heated by the contest,one kills the other with a deadly weapon,it is culpable homicide and not murder.The lapse of time between the quaqrrel and the fight is therefore a very important

consideration.If there intervens a sufficient time for passion to subside and for reason to interpose,the killing will be murder. This exception applies only to those cases where on a sudden quarrel both the parties begin to fight upon an equal footing.In such cases,it is immaterial,which party offers the provocation or commits the first assault because the combat is mutual. Where in course of a sudden fight the deceased inflicted knife injury and run away to be chased by the accused and done to death. It was held that, the case came under this exception. (AIR 1976 SC 1133)

Sudden fight is that which is arises out of chance encounter where passions having been ignited slightest blow results in fight and opposing parties assault each other and basic feature is initial absence of premeditation to cause death. Where time span between quarrel and fight was only a few minutes,occurrence can be said to sudden within the meaning of exception 4 of sec-300. (AIR 2002 SC 1168) Sudden fight resulting from an earlier dispute may also come within this exception. (AIR 1978 SC 3 আমমর)

Exception 5.- Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent. Illustration A, by instigation, voluntarily causes Z, a person under eighteen years of age, to commit suicide. Here, on account of Z's youth, he was incapable of giving consent to his own death; A has therefore abetted murder. Voluntarily consenting to take risk: Exception-5 refers to cases where a man consents to submit to the doing of some particular act, either knowing that it will certainly cause death or death will be the likely result; but it does not refer to the running of a risk of death from something which a man intends to avert if he possibly can do so,even by causing the death of the person from whom the danger is to be anticipated. The exception-5 will not apply where there is an agreement to fight between two riotious mobs armed with all sorts of weapons the character of which is left individual choice.Where a person kills another who is more than eighteen years of age and pleads it was done with the consent of the deceased in circumstances in which the court can hold that it is not impossible that the deceased felling desparate and depressed asked to be killed and no motive is to be proved against

the accused for deliberately killing the deceased of his own free will he is entitled to the benefit of this exception. [(1930)54 Mad 504] It must be proved that the person killed had the full knowledge of the situation,was determined to suffer death or take the risk of death, the determination have existed up to the moment of his death.Consent in this section implies not only knowledge of the risk but a judgement in regard to it.

Case References Direct and distinct connection: The test to determine whether the accused has caused death is to see whether the cause of death is directly associated with the act. [1980(82)PUN LR page 8] The connection between the primary cause and death should not be too remote [AIR 1964(SC) page 900] Where a person receives injuries on head but progress well in the hospital and after a month and a half when he had left the hospital, develops pneumonia and dies,it can not be said that the injury cause was the cause of death [AIR 1924 ALL Page441] The accused whom a married women suspected of having affair with her sister, was stopped by the accused on her way.He immediately doused her with some inflammable substance and set her on fire with his lighter. In that state of burning inferno she ran to a nearby water column of the railway station,sat under it and saved herself from further burning. A women covered her body and took her to a hospital. She died after a fortnight. Justifying the conviction of the accused,the Court said that it could not be said,only because of the time gap, that death might have been due to other causes. The cause of death has to be ascertained on the basis of broad probabilities and not on academic possibilities. It could not be said that the accused did not know that the type of burns which he caused were not likely to cause death. [Patel Harilal Joitaram vs.State of Gujrat AIR 2001SC 2944]

In a qurrel between the accused and his father, the accused attacked his father with a dagger causing death and also attacked the intervener who were his step mother and sisters. No injury was caused to the accused because all others were unarmed. The exception was not attracted. He was guilty of murder. [Sikander vs. State(Delhi)Admin.]

The murder having taken place while the accused was living with his wife is the same house , the accused husband under section 106 of the Evidence Act is under obligation is explain how his wife had met with her death. In absence of any explanation coming from his side , none other than the accused husband was responsible for causing such death. [Sudhir kumar Das Vs The State 60 DLR(2008) 261] Devine influence Where the parent of a child threw their child to chrocodiles in the superstitious believe that it would be ultimately save, it was held that it was culpable homicide not amounting to murder. It is submitted that the decision ia not correct, it was found in the case that there was no intention to cause death but they had the knowledge that it would be likely to cause death of the child.The case clearly falls within the section 300 secondly. (AIR 1921 CAL 501)

Differences between Murder and Culpable Homicide The distinction between cuipable homicide and murder has very ably and lucidly been set forth by Melvil J. in Reg v. Govinda. In this case the accused,a young man of 18 years was married to a girl of 15. It appeared that he was habitually illtreting the girl. On the fateful day the accused knocked his wife down , put one knee on her chest,and struck her two or three violent blows on the face with closed fist, producing extravasation of blood on the brain, and she died in consequence, either on the spot,or very shortly afterwards. The accused was held guilty of the offence of murder by the Session Judge.The case came up before a bench of two judges of the Bombay High Court for confirmation of the death sentence.As there was a division of opinion between the learned judges constituting the bench as to whether the facts constituted an offence of murder or an offence of culpable homicide not amounting to murder ,the case was referred for opinion to a third judge,Melvil,J. Observing the circumstances of the case,His

Lordship came to the conclusion that there was no intention to cause death nor was the bodily injury sufficient in the ordinary course of nature to cause death. The accused was accordingly found guilty of the offence of culpable homicide not amounting to murder and sentenced to transportation for seven years. In this case Melvil J compared the provisions of section 299(culpable homicide) and section 300(murder) of the Penal Code followingly:Firstly, Causing death by doing an act with the knowledge that it is likely to cause death is culpable homicide under section 299 and causing death by an act known to be imminently dangerous that in all probability cause death or such bodily injury as is likely to cause death is murder. Secondly, If somebody is caused to death with the intention of killing the person, it is always murder On the otherhand, somebody is caused to death inspite of not having the intention of killing the person,that may be both culpable homicide and murder. Thirdly, Where there is no intention of killing but the victim falls into death,if it is proved there the accused has killed or hurt the victim in such a way that is most probabale to ensure the cause of death of any person,then it is murder. On the otherhand, if it is proved that the accused has killed or hurt the victim in such a way that death is a likely result then it is Culpible Homicide. Fourthly, If it is proved that the victim is like to cause death by the hurt of the accused then it is culpable homicide. On the otherhand if it is proved that the hurt made by the accused is sufficient in the ordinary course of nature to cause death then it is murder. Fifthly, the accused person, if it is proved in a particular circumstance or surrounding , knew that the victim would fall into death naturally then it is murder. On the otherhand if the accused has no knowledge about that circumstances then it is culpable homicide. Sixthly, all culpable homicides are not murder but all murders are culpable homocide. Seventhly, murder is an offence punishable with death or imprisonment for life and fine. On the otherhand culpable homicide is an offence punishable with imprisonment for life and imprisonment which may extend upto 10 years with fine.

Is encounter death culpable homicide or murder ? According to exception 3 of section 300 of the Penal Code- Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused. Where the accused, fearful of being punished if they allowed an outlaw to escape and thinking that they were acting lawfully, killed him while he was endeavoring to escape,it was held that the offence committed came under this exception and amounted to culpable homicide and not amounting to murder.

A suspected thief, who had been arrested by police constable,escaped from a running train.One of the constables pursued him fired at him but in that process he hit the fireman of the engine and killed him. It was held that the act of the constable was covered by this exception. (1955 CrLJ 905) Exclusable homicide is where the party killing is not altogether free from blame but the necessity which renders it exclusable may be said to be partly induced by his own act. Mr.Archbold divides exclusable homicide into 1 st homicide by misadventure and 2nd where a man kills another upon a sudden encounter merely in his own defence or in defence of his wife,child,parent or servant and not from any vindictive feeling,which is termed homicide. Homicide by misadventure is where a man doing a lawful act without any intention of bodily harm and after using proper precautions to prevent danger, unfortunately kills another person.And in above two grounds the accused person should not be treated as murderer. Again, Mr. Roscoe says that, where the proper officer executes a criminal in strict conformity with his sentence or where an officer of justice or other person acting in his aid in the legal exercise of a particular duty kills a person who resists or prevent him from executing it or where the homicide is committed in prevention of a forcible and atrocious crime, as for instance if a man attempt, the slayer shall be acquitted and discharged. In famous Batla House encounter case officially known as Operation Batla House, took place on 19 September 2008, against suspected Indian Mujahideen (IM) terrorists in Batla House locality in Jamia Nagar, Delhi, in which two suspected terrorists, Atif Amin and Mohamed Sajid were killed by a dreadful encounter led by encounter specialist and Delhi Police inspector Mohan Chand Sharma. The

incident took place a week after five serial blasts on 13 September 2008 that hit Delhi in which at least 30 people were killed and over 100 injured. The encounter took place only after seven member police Delhi Police team led by Mohan Chand Sharma Inspector in the Special Cell of Delhi police, stumbled upon IM commander Atif Amin and his comrades in their rented address at L-18, Batla House in the morning of 19 September 2008. The team had received specific information that a suspected person wanted in connection with the serial bomb blasts in Delhi was hiding in a flat in Batla House area of Jamia Nagar. Upon reaching the four-storied house the police’s attempt to storm the flat on the second floor at around 10 30 AM (IST) led to a heavy exchange of fire. Sharma received the first burst of fire from the terrorists holed up inside. After the ensuing exchange of fire two suspected terrorist, Atif Amin and Mohd. Sajid were killed, two other suspects Mohd Saif and Zeeshan were arrested, while one managed to escape. Also two Delhi police personnel were injured, among which, Sharma who led the operation, later succumbed to the injuries. Later, the intelligence team said that the arrested allegedly had links with Dubai and further questioned if they had any link with Dawood Ibrahim.[13] After the incident doubts were allayed various politicians, media and civil society outfits accusing the Delhi Police of carrying out a fake encounter.but the court says that the operation and the encounter activities leading by MC Sharma is valid for the sake of ensure ensure criminal justice in the society . But in many times in many cases we see that the encounter proved as fake. In famous Gonda case, A special CBI court awarded death sentence to three policemen and life term to five others in a 31-year-old fake encounter case in Gonda district in which 13 persons, including a Deputy Superintendent of Police were killed. DSP and circle officer K P Singh and 12 other people were killed in the fake encounter in Madhopur village in March 1982.Police initially claimed that Singh was killed by criminals, but his wife Vibha Singh suspected foul play and moved the Supreme Court, which ordered a CBI inquiry.The CBI filed chargesheet against 19 policemen. In Bangladesh we see that in many operation RAB or the police forces kill many innocent person that was later proved as fake encounter. In Golam Maola case(41DLR 226),we see that the so called accused who was held terrorist by the RAB and died in a cross-fire but later it was clearly proved that he was not the actual culprit. So in the name of ensuring justice or to prevent crime or self-defence encounter death is lawful but if the facts and circumstances prove that it was not the urgent need or fake encounter then it is ofcourse murder as we see from the above discussion. Section 301: Culpable homicide by causing death of person other than person whose death was intended

If a person, by doing anything which he intends or knows to be likely to cause

death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause. Section 301 embodied the principle that where a blow aimed at one person alighs some one another and the offence committed by the asyler is the same as it would have been if the blow had star the intended victim .This is based on the well established principle of Criminal Jurisprudence and known as doctrine of transferred malice. (AIR 1928 Lahore 344) The essential pre-requisite for an offence under this section is the commission of offence of culpable homicide as defined in section-299 with reference to some person .Once that is established and a person dies as a consequence of this act intended for a different offence and there is a culpable homicide with reference to the person whose death was caused. (AIR 1979 ALL 157) Section302: Punishment for murder Whoever commits murder shall be punished with death, or imprisonment for life, and shall also be liable to fine. Analysis: This section only prescribes a sentence for the offence of murder. Motive is the reason for promoting the intention which induces a person to do act which he intends to do. It is relevant and important when dealing with the question of intention.It is an essential ingredient of an offence.In a criminal trial failure to prove a motive does not necessarily means that there was no motive for the crime.Motives exist unknown and innumerable which might prompt the act.Mysterious is the working of human mind. (State vs.Durga Charan Barik ,AIR 1963 Orissa 33) In the case of Amrutal vs.State of Maharastra (AIR1994 SC 2516) ,the act of a domestic servant in killing three members of his master’s family for committing robberywas held by the Supreme Court as coming under the category of rarest of rare cases warranting death sentence.The fact that he otherwise maintained the tradition of respect and loyalty for the master was not considered to be a mitigating factor. Section 303: Punishment for murder by life-convict Whoever, being under sentence of punished with death.

imprisonment for life, commits murder, shall be

Analysis This section prescribes the sentence to be passed on a person convicted of murder while understanding a sentence of imprisonment for life.No other sentence is possible in such a case. (AIR 1994 SC 2516) This section does not apply to person whose sentence has been commuted under section 55 of the Penal Code. In the case of Ghulam Mohammad Wali vs.Emperor(AIR 1943 Sind 114),it was held that when an accused person has beenconvicted of murder and sentenced to imprisonment for life and the remainder of that sentence has been remitted without conditions by the Govt. under sec-401 of CrPC,he can no longer be said to be under a sentence of imprisonment for life .But while the sentence having in effect been served and if he commits asecond murder,the provisions of this section cannot apply. Section 304: Punishment for culpable homicide not amounting to murder Whoever commits culpable homicide not amounting to murder, shall be punished with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act by which the death is caused is done with intention of causing death, or of causing such bodily injury as is likely to cause death; or with imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it is likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death. Analysis:

This section consists of two parts. In part I there is intention while in part II there is only knowledge and intention is expressly excluded. For the application of part I, death must be caused under any of the circumstances mentioned in five exceptions of section 300 (Haji Khuda vs. Emperor,AIR 1939 Sind 57) On the otherhand,Part II applies when the act is done with the knowledge that is likely to cause death but without any intention to cause death. So this clause will not come into operation when there is intention to cause such bodily injury as is likely to cause death. (Ram Khelwan vs.State 1951 ALJ 464) Section-304A: Causing death by negligence Whoever causes the death of any person by doing any rash or negligent act not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to five years, or with fine, or with both.

Rash or negligent act: A rash act is primarily an overhasty act and is thus opposed to a deliberate act but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. Negligence means the act or quality of being negligent, want of proper care ,etc. Negligence implies on omission to do something which a reasonable man guided upon those considerations which ordinarily regulate the conduct of human affairs would do or doing something which a prudent and a reasonable man would not do. (AIR 172 SC 685) Criminal negligence is the gross and culpable negligent or failure to exercise the reasonable and proper care and precaution to guard against injury either to the public generally or to an individual in particular which having regard to all the circumstances out of which the charge has arisen,it was the imperative duty of the accused to have adopted. There must be proof that the rash or negligent act of accused was the proximate cause of death. There must be direct nexus between the death of person and the rash or negligent act of the accused. (State vs. Narhari Anant Naik, AIR 1969 Goa 87) Section-304B: Causing death by rash driving or riding on a public way

Whoever causes the death of any person by rash or negligent driving of any vehicle or riding on any public way not amounting to culpable homicide shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Analysis The factor to determine rash and negligent driving are(i)examination of marks of wheels on the road (ii)the state of traffic at the relevant time (iii)the speed of the vehicle (2000 CrLJ 2394) Deceased coming from a side road to main road riding on a motor-cycle. His motor cycle collidiging with the car of the accused which was going on main road. Car not colidigiing with motor cycle mere fact that accused was driving car at a first speed would not make him liable for rashness and negligence if road was clear . Duty of a person coming driving from a side road towards main road to see that main road was clear before entering same. It was held doubtful if death of

deceased was due to any rash and negligence act of the accused . Accused given benefit of doubt and acquitted. (1985 CrLJ 2794) Conviction under sec-304B requires that some rash or negligent act on the part of accused must be conclusively established by direct evidence. It must be established by evidence that at the time of the accident the driver was driving the car at uncontrollable speed and was therefore guilty of a rash or negligent act. (PLD 1969 Kar 30) Driving a car at high speed can not be considered as a rash and negligent act as modern technology provides for reasonable safeguard of stopping the vehicle within known distance and time. In order to prove rashness and negligence by the driver the prosecution had to establish that he failed to take proper care by omitting to take some action through which he could have avoided the accident (1980 P CrLJ 103)

Differences between rashness and negligence As regards the difference between criminal rashness and criminal negligence, a rash act is primarily an overhasty act and is thus opposed to a deliberate act, but it also includes an act which, though it may be said to be deliberate, is yet done without due deliberation and caution. In the case of rashness the actor adverts to the consequences but assumes on insufficient grounds that they will not follow; in the case of negligence there is a culpable carelessness. In cases of negligence he adverts not to the act, which it is his duty to do. In cases of rashness, he adverts to those consequences of the act; but, by reason of some assumption which he examines insufficiently, he concludes that those consequences will not follow the act in the instance before him. Negligence has been defined as breach of a duty caused by the omission to do something which a reasonable man, guided by those considerations which ordinarily regulate the conduct of human affairs, would do, or doing something which a prudent and reasonable man would not do. Austin thus differentiates the two in his inimitable style. In cases of negligence, the party performs not an act to which he is obliged. He breaks a positive duty. In cases of rashness the party does an act from which he is bound to forbear. He breaks a negative duty. Culpable rashness is acting with consciousness that the mischievous and illegal consequences may follow, but with the hope that they will not, and often with the

belief that the actor has taken sufficient precautions to prevent their happening. The immutability arises from acting despite the consciousness. Culpable negligence is acting without the consciousness that the illegal and mischievous effect will follow but in circumstances which show that the actor has not exercised the caution incumbent upon him, and that if he had he would have had the consciousness. The immutability arises from the neglect of the civic duty of circumspection.