CENTRAL UNIVERSITY OF SOUTH BIHAR

PANCHANPUR CAMPUS, GAYA

Write Up on: CULPABLE HOMICIDE AMOUNTING TO MURDER

Subject- Criminology and Criminal Justice Administration

(MLLAW1002EO2)

Submitted By: Submitted to:

Shruti Prof.( Dr.) Pawan Mishra
LL.M. Head & Dean
1st Semester School of Law & Governance
CUSB1913131032 CUSB, Gaya

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 INDEX
S.NO. TOPIC PG.NO.

1. Introduction 3
2. Mens Rea 4-5

3. Causation 6

4. Subjective and objective liability 7

5. Criminal liability for homicide 8-11

6. Punishment 12

7. Graph 13

8. Conclusion 14

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 1. Introduction

The killing of a human being is the most serious crime known to mankind. The killing i.e.
homicide may be culpable or sanctioned by law. In a country like India where death penalty
figures in the statute book, the execution of a death convict by the hangman involves killing
but it is lawful – sanctioned by law and hence is out of the culpability zone. 1 Any other
killing not sanctioned by law will amount to culpable homicide/murder, if all the basic
ingredients of the crime are satisfied. The conduct element of the offence is the voluntary act
of killing and the fault elements may be intention or knowledge.

In order to appreciate the nuances of culpable homicide and murder, it is important to first
understand the basic principles of criminal liability since all the elements of crime must be
met to establish culpability in a given case. Therefore, mens rea, actus reus, causation as well
as the principle of concurrence of mens rea and actus reus need to be accounted for in every
enquiry of criminal culpability.

Homicide means the killing of a human being by a human being. Homicide is the highest
order of bodily injury that can be inflicted on a human body. Since it is considered as a most
serious harm which may be inflicted upon another person, it bags maximum punishment.
Under Indian law and US law imposes death penalty and in English law proposes mandatory
life imprisonment. However in every case of homicide the culprit is not culpable. There may
be cases where a law will not punish a man for committing homicide. For example, death
caused in exercise of self defence, by reason of mistake of fact, bonafide execution of law
etc. Likewise, if death is caused without any criminal intent or by an accident or misfortune,
the man will be excused from criminal liability. On the other hand if the killing is not
justified either by law or facts the accused will be prosecuted and punished under law. Hence
homicide may be lawful or unlawful.2

2. Mens Rea/ Fault element

1
Section 78, Indian Penal Code, 1860
2
https://acadpubl.eu/hub/2018-120-5/1/96.pdf

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One of the most important principles of criminal responsibility is encapsulated in the Latin
maxim “actus non facit reum, nisi mens sit rea” i.e. ‘an act does not make a man guilty of a
crime, unless his mind is also guilty.’ Thus, mens rea is the mental element of crime which
must be established in all cases. It refers to the guilty mind of the defendant and it is mens rea
which attributes culpability to the actus reus. Some criminal law scholars use the term ‘fault
element’. That perhaps is a more apt terminology especially in the context of Indian Penal
Code where the fault elements are specified in the offence. Moreover, there may be just
negligence as a fault element for offence and negligence has nothing to do with state of mind
and so the word mens rea may not be appropriate. In cases of homicide, the fault terms that
are generally used are intention, knowledge, recklessness and negligence.

2.1 Intention
Salmond says that “An intention is the purpose or design with which an act is done.This may
consist of an intention to do some further act, an intention to bring about certain
consequences or perhaps merely an intention to do the act itself.”3 In other words, intention is
an act coupled with the free will in the Kantian sense and the actor desires it, aims for it,
engineers it. However, intention must not be confused with motive. Motive corresponds to
the ulterior end. Motive was defined in R v. Steane4 thus:The longing for the object desired
which sets the volition in
motion is motive. The expectation that the desired motions will lead to certain consequences
is the intention… Motive has a dynamical whilst intention has a “telescopic aspect”.
The one impels the act, the other sees beyond it.A man may steal to feed his starving
children. The motive is to feed his children but the intention remains of stealing the property
of another. Criminal law takes note of intention alone and not motive in order to determine
culpability. While motive has no relevance in criminal law for imputing or limiting
culpability, it may be helpful in cases of circumstantial evidence or at the stage of sentencing
(as an aggravating or mitigating factor). Since intention is a mental state one has to infer it
from the act itself and by the surrounding circumstances.

2.2Knowledge

3
PJ Fitzgerald, Salmond on Jurisprudence 368( Indian Economy Reprint 2009).
4
(1947) IKB 997, 1004

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A man has three faculties – emotion, volition and cognition. And knowledge of a particular
thing is to have a mental cognition of it. A person may not intend a particular thing in the
sense of ‘desire’ but there is awareness in the part of the person indicating his mind. 5 In
culpable homicide intention or knowledge suffices for culpability and “in general terms, the
requirement of knowledge is regarded as having the same intensity as that of intention except
that knowledge relates to circumstances forming part of the definition of crime and intention
relates to the consequences specified in the definition of crime.” The dividing line between
intention and knowledge is very thin but nonetheless it is there.6

2.3 Recklessness

A situation may arise where there is neither intention nor knowledge but the actor acted
recklessly in relation to another person. In case of homicide, he was reckless in relation to
another’s death. So it is a wrongful disregard of a foreseen risk. It is the wrongful assumption
of a risk. Glanville William states “a consequence is intended if it is foreseen as certain, even
though not desired.”7Whether an act can be called reckless or not depends on the standard of
duty and care imposed by law. In cases of recklessness the person may not be bothered
whether the consequences occur or not, though he may wish that they don’t. However it is
important to note that “foresight of consequences is not the same as intention but merely
evidence of it”.
2.4 Negligence

Negligence needs to be distinguished from recklessness. Negligence means absence of such

standard of care as was required by law in any particular circumstance. Devlin J. in Roper’s8
case held that negligence which is a case of “constructive knowledge”,where someone
unintentionally fails to make enquiries which a reasonable and prudent man would make, has
no place in criminal law. This observation raised the foundational question of criminalization
of negligence i.e., should negligence be punished at all? It may be important to bear in mind
that criminalization of negligence emerges from the compromise between two conflicting
interests: on the one hand, it is the public interest that demands restraint (even by criminal
law) of all those who
injure or menace the social well being and on the other hand, the individual interest
5
KI Vibhute, PSA Pillai’s Criminal Law 64(2009).
6
Basdev v. State of Pepsu, AIR 1956 SC 488.
7
Glanville L. Williams, The Mental Element in Crime 13 (1965).
8
Roper v. Talor’s Central Garage (Exeler) Ltd. (1951) 2T.L.R. 284, 288.

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that seeks maximum liberty and freedom from interference from the state sanctions.

3. Causation

Causation is an issue in the case of result crimes that is to say crime which have a
consequence spelled out in the definition of offence. Culpable homicide is a prime example
of result crime where death is the consequence specified. Causation in section 299 appears in
the form of “whoever causes death” and in section 300 as “an act by which death is caused”.
So in case of culpable homicide amounting to murder or not amounting to murder the first
relevant enquiry is whether the act or omission by the offender is the cause of death. In
Joginder Singh v. State of Punjab9 the deceased was being chased by the accused persons and
he jumped into the well. As a result he sustained head injury resulting in his becoming
unconscious and he died due to drowning. The apex court held that there was no evidence
that the deceased was left with no option but the jump and hence the accused cannot be said
to have caused death. The act of the accused was not the direct cause of the death.

One of the leading cases of causation is Emperor v. Mushnooru Suryanarayana Murthy.10

The accused gave ‘halva’ in which a poison containing arsenic and mercury had been mixed
to one Appala Narasimhulu who had a portion of it and threw the rest. Another girl
Rajalakshmi ate the ‘halva’ from where it was thrown and eventually died due to poison.
Appalla who was the intended victim was saved. The accused was held guilty of murder of
Rajalakshmi. It was held that the chain of causation was not broken since the consequence
was foreseeable and hence the causal responsibility rested with the accused.

4. Subjective and Objective Liability

To convict a person both the conduct element and the fault element must be proved by the
prosecution beyond a reasonable doubt and both the elements must be contemporaneous. 11As
far as the conduct element is concerned the principle of causation provides a guiding link and
forensic science which has over the years become advanced helps in proving the occurrence
of events. However, the problem arises in cases of proving the fault elements of a crime. To
prove what was going on in the mind at the relevant time is not possible. Brian C.J. in the
fifteenth century said “The devil himself knoweth not the mind of men”. A person may
9
AIR 1979 SC 1876.
10
(1912) 22 MLJR 333 (Mad.).
11
Emp. v. Khandu 50 Bom 194

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confess as to what was going on in the mind. It may not always be true and in most of the
cases the confession is absent. The fault elements cannot be assumed through conduct
elements.
The conduct elements only impact causal responsibility but the criminal culpability comes
through fault elements. So there has to be a judgment as to the mental direction or state of
mind at the relevant time when the conduct element was present. There are two ways to do it.
One is by way of objective liability and the other is by way of subjective liability. It is
important to recognize that intention is at the end of the day a matter of inference from the
evidence available. A perusal of common law in the era of DPP v. Smith12 reveals that an
objective approach was adopted to infer fault wherein the House of Lords held that a person
is “deemed to intend the natural and probable consequences of his acts.” The House of Lords
brought in a “reasonable person” test whereby if a reasonable person would have foreseen the
consequences as being probable the accused would be presumed to have intended the result.
However, the objective liability to establish ‘fault’ is open to criticism. Murder is a crime of
specific intent, hence a subjective approach is more appropriate to undertake this enquiry. In
later cases like Moloney13 and Hancock &Shankland,14 Nedrick15 the courts seem to haves
given a moral elbow room to deal with cases where the conduct element of murder (i.e.
death) is present but the mental blameworthiness required for the offence of murder is
lacking. The Indian Penal Code need not grapple with these problems as it has has quite a
subjective focus which is clear from a perusal of offences. Macaulay who drafted the Penal
Code was adherent of a subjective liability and so the Code does not follow the felony murder
rule and hence the concept of constructive intention does not find a place in the Code.
Macaulay remarked thus:
To punish as a murderer every man who, while committing a heinous offence, causes death
by pure misadventure, is a course which evidently adds nothing to the security of human
life... For example, hundreds of persons in some great cities are in the habit of picking
pockets. They know that they are guilty of a great offence... Unhappily one of these hundred
attempts to take the purse of a gentleman who has a loaded pistol in his pocket. The thief
touches the trigger, the pistol goes off, the gentleman is shot dead. To treat the case of this
pick pocket differently from that of the numerous pick pockets who steal under exactly the

12
(1961) AC 290.
13
(1985) AC 905.
14
(1986) AC 455.
15
(1986)83 Cr App R 267.

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same circumstances, with exactly the same intentions, with no less risk of causing
death...appears to us an unreasonable course

5 Criminal Liability for Homicide under the IPC

As far as the Indian Penal Code is concerned in most of the cases the definition of the offence
gives an insight into the ingredients of crime and how criminal liability is to be imputed. The
Code specifies not only what the accused must have done but also the state of mind with
regard to the proscribed act. The Code is replete with words like “intentionally’ “Knowingly”
“dishonestly” “fraudulently” etc. When the Code uses words like intentionally, knowingly,
voluntarily a subjective test is mandated. In case of culpable homicide and murder the
predominant thrust of the Penal Code is onsubjective liability.
5.1 Analyzing the offences of culpable homicide and murder

Sections 299 and 300 pertain to culpable homicide and murder respectively. The two sections
are not mutually exclusive. Death of a human being that occurs due to “rash or negligent act”
though punishable (under section 304A) does not fall under the category of culpable
homicide or murder. It is important to note at the outset that the mental states that evoke
section 299 and 300 are intention and knowledge. We will now examine the distinction
between culpable homicide and murder. It has been oft repeated that culpable homicide is the
genus and murder is the species. This means that murder is a specific sub-set of culpable
homicide. Differently put, all cases of murder are culpable homicide, but all cases of culpable
homicide are not murder, and therefore, there is a residual category called ‘culpable homicide
not amounting to murder’. Culpable homicide which amounts to murder falls in section 299
and as wellas in section 300 and does not fall under any of the exceptions given in section
300. In the following section, we will contrast section 299 and section 300 to distinguish
between the category of culpable homicides that become murder, from the ones which
fall short of murder.
Section 299 of the Indian Penal Code defines culpable homicide thus:
299. Whoever causes death by doing an act with the intention of causing death or with the
knowledge 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, commit the offence of culpable homicide.
The following elements emerge from the definition:-
(1). Death is the sine qua non for an enquiry for culpable homicide.
(2). Death must be caused by an act of the defendant.

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(3). There must have been:
(a) an intention to cause death, or
(b) intention to cause such bodily injury as it likely to cause death, or
(c) knowledge that he is likely by such act to cause death.
Section 300 defines murder 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. One may read section 299 in terms of (a) (b) and (c) for its 3 breakups and section
300 in terms of firstly, secondly, thirdly and fourthly corresponding to its 4 breakups.
5.1.1 Section 299 (a) and Section 300 firstly
Killing which is done with the intention to kill is a clear cut example of murder. Mahatma
Gandhi’s assassination is a clear case following under this head and its application is not
thought with any difficulty as such.16
5.1.2 Section 299 (b) and Section 300 secondly
This part of the section 299 imposes liability on the defendant where there is an intention to
cause bodily injury and the bodily injury caused is such that it is “likely” to cause death. It
corresponds with section 300 secondly which also deals with liability when the intention is to
cause bodily injury and there is knowledge of likelihood that the body injury so caused would
result in the death of the person on whom the harm is inflicted. It deals with a subjective
liability i.e. the offender had the intention to inflict a particular bodily injury which the
offender knows will lead to the death. So for an enquiry under Section 300 Secondly, section
299(b) needs to be satisfied. However, in section 300 secondly, the offender has specific
knowledge that the injury will result in death. Such specific knowledge is not present in
section 299(b).
5.1.3 Section 299 (b) and Section 300 thirdly

16
Rawalpenta Venkalu v State of Hyderabad, AIR 1956 SC 171.

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Section 300 thirdly talks about an intention to cause bodily injury to any person and the
bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause
death. So there is a subjective liability of the intention to cause bodily injury but objective
liability creeps in when the code refers to “sufficient in the ordinary course of nature to cause
death.” As far as section 299 (b) is concerned it also refers to intention of causing such bodily
injury as is “likely” to cause death. The liability again is subjective as well as objective. In
Virsa Singh v. State of Punjab17 the court held that “the two clauses of section 300 thirdly are
disjunctive and separate. The first is subjective to the offender [and the latter part] is purely
objective and inferential and has nothing to do with the intention of the offender.” The Court
observed inter alia that “it must be proved that there was an intention to inflict that particular
injury, that is to say that it was not accidental or unintentional, or that some other kind of
injury was intended.” Same is true for section 299(b) the first is subjective and for the second
part18 there is an objective enquiry. However, there is a difference of degree between
“sufficient in the ordinary course of nature” and “likely”. Thus, according to the rule laid
down in Virsa Singh case, even if the intention of accused was limited to the infliction of
bodily injury sufficient to cause death in the ordinary course of nature and did not extend to
the intention of causing death, the offence would be murder. Illustration(c) appended to
section 300 clearly brings out this point.19
5.1.4 Section 299 (c) and 300 fourthly
Section 299 (c) and 300 fourthly bring in the fault elements in terms of knowledge. Intention
and knowledge are different mental states though in a practical application they may merge
and the thin dividing line may vanish. But theoretically, knowledge means to have mental
cognition and intention is the desire to achieve a particular consequence. In Jai Prakash v.
State (Delhi Administration)20 it was observed: the ‘knowledge’ as contrasted with ‘intention’
signify a state of conscious awareness of certain facts in which human mind
remains supine or inactive. On the other hand, ‘intention’ is a conscious state in which mental
faculties are aroused intoactivity and summoned into action for the purpose of achieving a
conceived end.
Section 300 fourthly can be broken into two parts. The first part deals with the knowledge of
the offender that the act is so imminently dangerous that it in all probability would cause

17
(1991) 2 SCC 32
18
Bhagwan Dass v. state 2011 6 SCC 396

19
State of A.P. v. Rayavarapu Punnayya, AIR 1977 SC 45.
20
Emperor v. Mt. Dhirajia, AIR 1940 AII 486

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death and the second part deals with the knowledge of the offender that the act is so
imminently dangerous that it must in all probability cause a bodily injury that was likely to
cause death. These two clauses are qualified by the words “and commits such act without any
excuse for incurring the risk of causing death or injury as aforesaid. 21 Section 299 (c) also
talks about an act with the knowledge that he is “likely” by such act to cause death, commits
the offence of culpable homicide. The second part of 300 fourthly talks about a bodily injury
likely to cause death and section 299 (c) talks about “likely by such act to cause death.”
However both the sections contemplate knowledge of the likelihood of death. The knowledge
part is a subjective criterion and expression “knows” in section 300 fourthly is the operative
part for it. Section 300 fourthly further qualifies the fault element by putting in a rider of
‘excuse’. If there is evidence that there was an excuse to do so the offender comes out of the
culpability zone of murder. For instance, in Dhirajia’s case,22 the court held that panic-
stricken Dhirajia cannot be held liable for murder since she was escaping from her husband
and thus her act was not “without any excuse”. In contrast in Gyarsibai’s case,23the court
rejected the contention that family fights amounted to an acceptable excuse for Gyarsibai to
jump into the well with her children which led to their death. The court in this case held the
words “without any excuse for incurring the risk of causing death or such injury as aforesaid”
indicate that the imminently dangerous act is not murder if it is done to prevent a greater evil.
If the evil can be avoided without doing the act then there can be no valid justification for
doing the act which is so imminently dangerous that it must in all probability cause death.
5.2 Explanations to section 299
The Indian Penal Code is unique in the sense that the core sections are accompanied by
Explanations and illustrations which are a guide to understand the true import of the
provisions.
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 that other, shall be
declared to have caused the death. There are two ways of interpreting the explanation. One
way of reading is explanation is to equate it to the “thin skull principle” employed in certain
jurisdictions.27 But some authors have argues that the word ‘accelerated’ accords a different
meaning to the explanation. They argue that the explanation is limited to those cases where
the deceased had a condition because of which his health was deteriorating and the injury

21
State of Madhya Pradesh v. Ram Prasad, AIR 1968 SC 881.
22
AIR 1940 AII 486.
23
AIR 1953 M.B.61.

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accelerated the death. In this interpretation those cases where the deceased had a dormant
pre-existing condition but death has taken place, it would not amount to culpable homicide.
This view gets reinforced for culpable homicide amounting to murder as illustration (b) to
section 300 negates the “thin skull “principle.
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. This explanation takes care of the
treatment being not appropriate which may be taken to break the chain of causation. The
intervening treatment or the doctor’s role is taken as de minimis and not a novus actus
interveniens which can break the chain of causation.
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 breathed or been completely
born. This Explanation specifies the point at which life for human beings is assumed to come
into existence for the purpose of homicide offences.

Punishment for culpable homicide not amounting to murder

Whoever commits culpable homicide not amounting to murder shall be punished with
104[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 the 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.24

24
https://acadpubl.eu/hub/2018-120-5/1/96.pdf

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Overview:

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Conclusion

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.

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