Kalinga University

Department of Law

Course- BALLB/BBALLB
Sem-IV Subject- Law of Crimes-II
Subject Code: BALLB/BBALLB403

UNIT 1
Offences against the Human Body I
[Link]

What is homicide? What are the various types of Homicide?

Culpable homicide and murder, both of which take away a human life, are the gravest of offences against a
human being. 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. It
is either
(A) lawful, or
(B) unlawful homicide.

(A) Lawful homicide: This is committed where death is caused in one of the following ways: 1. Where death
is caused by accident or misfortune, and without any criminal intention or knowledge in the doing of a lawful
act, in lawful manner, by lawful means, and with proper care and caution (Sec. 80). 2. Where death is caused
justifiably, that is to say,
(i) By a person, who is bound, or by mistake of fact in good faith believes himself bound, by law (Sec. 76)

(ii) By a Judge when acting judicially in the exercise of any power which is, or which in good faith he believes
to be, given to him by law (Sec. 77).
(iii) By a person acting in pursuance of the judgement or order of a Court of Justice (Sec. 78) (iv) By a person
who is justified or who by reason of a mistake of fact, in good faith, believes himself to be justified by law
(Sec. 79)
(v) By a person acting without any criminal intention to cause harm and in good faith for the purpose of
preventing or avoiding other harm to person or property (Sec. 81)
(vi) Where death is caused in the exercise of the right of private defence of person or property (Sections 100,
103) 3. Where death is caused by a child, or a person of unsound mind, or an intoxicated person as will come
under Sections 82, 83, 84, 85 and 86.
4. Where death is caused unintentionally by an act done in good faith for the benefit of the person killed, when
(i) he or, if a minor or lunatic, his guardian, has expressly or impliedly consented to such an act (Sections 87,
88); or
(ii) where it is impossible for the person killed to signify his consent or where he is incapable of giving
consent, and has no guardian from whom it is possible to obtain consent, in time for the thing to be done with
benefit(Sec. 92).

(B) Unlawful homicide: It includes –

1 Culpable homicide (Sec. 299)

2 Murder (Sec. 300)
3 Rash or negligent homicide (Sec. 304 A)
4 Dowry death (Sec. 304 B)

The distinguishing feature of these different categories of unlawful homicides are: the degree of intention,
knowledge, or recklessness with which a particular homicide is committed. If the probability of death resulting
from a bodily injury is of a high degree (i.e. where death is a certainty), it is murder, and if the probability is
not of that order, it is culpable homicide.
For instance, if A attacks B, with a sharp-edged knife in his heart resulting in B‟s death, A would be guilty
of murder. On the other hand, if A causes injury to B with stick, fracturing his skull and causing his death, A
would be liable for culpable homicide. In the first case, it is certain from the nature of injury and the
instrument used for the purpose, that the injury would cause death of the victim, whereas it is not so in the
second case. But before going further, it is important to know what Sec. 299 and Sec. 300 prescribe.
What is Culpable Homicide? What are the essential ingredients of Culpable Homicide? There are two
parts of section 299. First part i.e. “Whoever causes death by doing an act” is an actus reus i.e prohibited act.
There must be cause effect relationship. Second part deals mens rea
i.e. guilty mind. Second part may be divided into three parts namely (a) Intention to cause death or (b)
Intention to cause bodily injury or (c) Knowledge. If either condition is missing, section 299 shall not be
applicable. 1) Cause-effect relationship -
―Whoever causes death (Section 46) by doing an act (Sections 32 &33)
2) Guilty Mind -
(a) Intention to cause death - with the intention (Desire and foresight of consequences) of causing death, or
(b) Intention to cause bodily injury - with the intention of causing such bodily injury as is likely to cause
death (there is no intention to cause death, only intention is to cause bodily injury) or (c) Knowledge -with the
knowledge (foresight of consequences) that he is likely by such act to cause death, commits the offence of
culpable homicide.
The guilty intention in the first two conditions contemplates the intended death of the person harmed or the
intentional causing of an injury likely to cause his death. The knowledge in the third condition contemplates
knowledge of the likelihood of the death of the person.
Illustrations

There are three illustrations. First illustration (a) is related to sticks and turf over a pit. It is not intended to kill
particular person.49 Second illustration (b) is related where A knows Z to be behind a bush but B does not
know it. This illustration denies role of innocent person and victim. 50 Third illustration is related to shooting at
fowl with intent to kill and steal it. He was doing without intention or knowledge to kill human being. He was
not guilty of culpable homicide.

Explanations

There are three explanations clarifies the culpable homicide. First Explanation is related to bodily injury,
disorder & disease and acceleration of death, second Explanation is related to proper remedies and skilful
treatment and third Explanation is related to child who has been brought forth even though he has not taken
breath. These explanations are clarifying that merely acceleration of death, resorting of proper remedies and
skilful treatment and child not born completely cannot be taken defence. Even in these circumstances persons
shall be liable for culpable homicide.

First Condition
1) There must be cause and effect relationship/ Causa causans (Immediate or operating cause) (i) Moti Singh
and Anr. v. State of UP (DOJ. Jan. 23, 1963). (Primary cause and the death should not be too remote. You
have to prove that by act of accused, death of victim has occurred).

Deceased had been injured during the occurrence and had been taken to the hospital where his dying
declaration was recorded. He left the hospital and died 20 days later. Before any postmortem examination
could be held, his body was cremated. Prosecutor could not prove what the reason of cause of death of victim
was whether it was injury caused by accused or negligence in taking medicine after discharge of hospital. Moti
Singh and Jagdamba were acquitted.

Second Condition

(2) There Must Be Guilty Mind

Act must be done with guilty mind. There are three degrees of mens rea- (i) Intention to cause death, or (ii)
Intention to cause such bodily injury as is likely to cause death, or (iii) With the knowledge the he is likely by
such act to cause death. Here “likely” word denotes probability. By aiding some special words, this probability
would be converted into certainty. Then culpable homicide would be converted into murder.

In absence of guilty mind person would not be liable for Culpable Homicide. Example – Dispute was going
between husband and wife. Wife was along with baby. Husband struck a blow on her body rather than vital
part of her body. Accidently that blow struck baby and baby died. Husband was not doing lawful work. So he
would
not get benefit of section 80. He had no intention to cause death of wife or his blow was not sufficient to cause
death of her wife. There is matter of transfer of malice under section 301. So that person would be liable only
for causing voluntarily grievous hurt. Rather than causing of culpable homicide.

Division of Culpable Homicide

Culpable homicide may be divided into two parts –

(1) Culpable homicide not amounting to murder – Section 299, Exceptions of section 300 and
punishment therefore section 304.
(2) Culpable homicide amounting to murder – Section 300 and punishment therefore 302.
 1st Degree 2nd Degree (Middle Degree) 3rd Degree (Lowest Degree)
(Highest Degree) Culpable Homicide Culpable Homicide
Murder (Intention) (Knowledge)

Sec. 299 (a) & (b)and Sec. 299 (c) and

Exceptions of 300 (If it is Exceptions of 300 (If it is
related to Intention) related to knowledge)

Section 302 Section 304 ( Part 1) Section 304 (Part 2)

What is Murder or culpable homicide amounting to murder? How is it different

from culpable homicide not amounting to murder?

HOMICIDE-(1st Stage) Homicide means killing of human being. All homicides are not
punishable, for example, any homicide which comes under chapter IV (Sections 76-106) of IPC.
Here, there is a relation between cause and death but guilty mind is absent. Actus non facit reum,
nisi mens sit rea. It means, the act itself does not make a man guilty, unless his intention was so.
When a homicide is committed with guilty mind, that homicide would be either culpable homicide
or murder. So it is said that all homicide is not culpable homicide, but all culpable homicide is
homicide.
Preparation to commit murder is not punishable offence.

CULPABLE HOMICIDE – (2nd Stage) When homicide is done with guilty intention or
knowledge and degree of intention or knowledge is higher, then it is culpable homicide.

MURDER-3rd Stage When homicide is done with guilty intention or knowledge and degree of
intention or knowledge is highest, then it is murder.
Difference between Culpable Homicide and Murder depends upon degree of intention and
knowledge. So now I am going to search how in case of murder there is more degree of intention
and knowledge than degree of Culpable Homicide. All Murder are CH but all CH are not Murder.
The safest way of approach to the interpretation and application of these provisions seems to be to
keep in focus the key words used in the various clauses of ss. 299 and 300. With the help of
comparative table, distinction was discussed.
1. Intention to cause death Cl. (1) of Section 299 and CI. (1) of Section 300

The first clause of Section 300 enacts that culpable homicide is murder of the act by which the
death is caused is done with the intention of causing death. This clause thus reproduces the first
clause of Section 299. Intention is one of the essential elements of murder. An intention to kill a
person brings the matter so, clearly within the general principle of mens rea as to cause no
difficulty.
The presumption of law is that a man intends the natural and inevitable consequences of his own
acts. It is, therefore, not necessary to take information consideration the accused's state of mind, at
the time of committing the act in questions, for the purpose of determining whether he intended to
cause death or not. What he intends can only be judged by what he does or says, and if he says
nothing, then his act alone must guide the decision. To determine what the intention of the offender
is, each case must be decided on its own merits. Where il is proved that the accused fired a gun
shot at such a close range that it could not have had other than a fatal effect and it is indicative of
the intention of the accused that after firings at one person he reloaded the gun and fired another
person there is a clear indication of his intention to commit murder
The first clause in Section 299 is added only as a technical matter of the intention to cause death
has not been put under section 299, then it would have resulted into something falling under
section 300 via CI. (1) without falling under section 299 that is to say something would have
amounted to the offence of murder without first becoming a culpable homicide. This would have
been violation of the starting words of section 300 and the scheme of the code and also the
principle on which they are based.

2. Intention to cause bodily injury likely to cause death: CI (2) of Section 299 & CI (2) of
Section 300
So, 299 CI (2) has following ingredients:
a) Intention to cause a particular bodily injury.
B) The bodily injury likely to cause death.
c)The offender's knowledge about this likelihood.

Here, the knowledge to be read with respect to the likelihood of the injury causing death. Drawing
clue from the fact that in every murder culpable homicide is implicit, it can be said that whatever
be the requirements for any clause of Section 299, they have to be read as implicit in the
corresponding clauses of Section 300, plus something more has to be read in that clause under.
Section 300, Accordingly, culpable homicide falling under clause (2) of Section 299 may amount
to murder under CI (2) of 300, if two more additional requirements are fulfilled, viz
i) the offender knows of the likelihood of causing death & ii) such likelihood of causing death is to
the person to whom the harm is caused.
The distinguishing feature of the mens rea required under clause (2) is the knowledge possessed by
the offender regarding the particular victim being in such a peculiar condition or the 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 course of nature be sufficient of cause death of the person in normal
health or condition.

3. Intention to cause:bodily injury likely to cause death: Clause (2) of Section 299 & clause
(3) of Section 300

The difference between clause (2) of Section 299 and clause (3) of Section 300 is one of degree of
probability of death resulting from the intended injury. It is the degree of probability of death
which determines whether the culpable homicide is of the gravest, medium or the lowest degree.
The word likely in clause (2) of Section 299 conveys the sense of 'probable' as distinguished from
a mere possibility.

In State v. Rayavarapn Punnayya (1977) it was stated that: " The destination is fine but real, and
if overlooked may result in miscarriage of justice". The words, "bodily injury sufficient in the
ordinary course of nature to cause death" mean that death will be the "most probable" result of the
injury having regard to the ordinary cause of nature. The emphases here is on sufficiency of the
injury in the ordinary course of nature to cause death. So, this sufficiency is to be observed
objectively and not subjectively.

It is important to note that in the comparison between CI (2) of Section 299 and CI (3) of Section
300, the difference does not lie in mens rea. Because the difference lies the degree of actus reus
and under clause (3) of Section 300. objectively it has to be proved that a particular injury was
sufficient. In the ordinary course of nature and not likelihood.
It is also very important to note that in Section 3, CI (3), the knowledge should be regarding only
the likelihood of causing death, and not regarding the sufficiency of causing death, because. other
wise, it will amounts to an intention to cause death & will fall under Clause (1) of Section 300.
Intention to cause a bodily injury + known that it is sufficient to cause death = Intention to cause
death This would not have been the intention of the legislature. The legislature would never want
to give the same meaning to two clauses in the same Section and therefore, there has to be a
harmonious constitution between CI (1) and CI (3) of Section 300. CI (1) of Section 300 has got a
purely subjective test and CI (3) of Section 300 has got subjective and objective tests.
Virsa Singh v. State of Punjab (1958 SC, Justice Vivian Bose).

In Virsa Singh v. State of Punjab Supreme Court held that there are two parts of section 300
thirdly. The Court said that these two parts are disjunctive and separate. These parts are namely;
Part1-If it is done with the intention of causing bodily injury to any person (Subjective test), and
Part 2- the bodily injury intended to be inflicted (It is descriptive of part 1) is sufficient in the
ordinary course of nature to cause death (Objective Test).

Only for first part intention of accused is necessary. For second part intention of accused is not
necessary. For first part subjective test is applied while for second part objective test is applied.
Main difference between section 299 (b) which contains “likely to” while section 300 contains
“Sufficient in the ordinary course of nature” which increases probability of

death.

4. Knowledge of probability of death: Cl. (3) of Section 299 & Ct. (4) of

Section 300

CI. (1) of Section 29 and CI (4) of Section 300 both require knowledge of the probability of the act
causing death. CI. (3) of Section 299 takes about the knowledge of likelihood of causing death
irrespective of the fact whether a bodily injury is caused or not.
The requirements of CI. (3) of Section 299 are -
a) some act or illegal omission by the offender &
b) knowledge of the offender that he is likely by his act to cause death
Clause (4) of Section 300, apart from the above two points, the knowledge should require - that the
act is imminently dangerous
i) that in all probability it will cause death or such bodily injury as is likely to cause death, or such
bodily injury as is likely to cause death, and
ii) that the act is done without any excuse for incurring the risk. "Usually it applies to cases in
which there was no intention of causing death or of causing any bodily injury".
As regards Cl. (3) of Section 299, Peacock C. J. observes in Gora Chand Gopee (1866): - "there
are many cases failing within the words of Section 299 with knowledge that he is likely by such
act to cause death that do not fall within the 2nd, 3rd or 4th clauses of Section 300, such for
instance as the offences described in Sections 279, 280, 281, 282, 284, 285, 286, 287, 288 & 289,
If the offender knows that his act or illegal omission is likely to cause death, and if in fact it does
cause death. But, although he may know that the act of illegal omission is so dangerous that it is
likely to cause death, it is not murder, even if death is caused thereby, unless the offender knows
that it must in all probability cause death, or such bodily injury as is likely to cause death, or
unless he intends thereby to cause death or such bodily injury as is described in clause 2 and 3 of
section 300"

Case: Emperor v Ht. Dhiragia in AIR 1940 All 486

Facts - A village women of twenty was ill treated by her husband. There was a quarrel between the
two and the husband had threatened that he would beat her. All night time the woman, taking her
six months old baby in her arms, slipped away from the house After she had gone some distance
she heard somebody coming up behind her and when she turned round and saw her husband was
pursuing her she got a panic and jumped down a well nearby with the baby in her arms. The result
was that the baby died and the woman recovered. She was charged with murder of the child Held:
An intention to cause the death of the child could not be attributed to the accused, though she must
be attributed with the knowledge However, primitive or frightened she might have been that such
an imminently dangerous act as jumping down the well was likely to cause the child's death, but
culpable homicide did not amount to murder because, considering the state of panic she was in
there was "excuse for incurring the risk of causing death within the purview of this clause.

R v. Govinda (1876 Bom.)

Justice Melvill in the case of R v. Govinda analyzed the difference between culpable homicide
 and murder as:

Culpable Homicide Murder

A person commits Culpable Homicide if the act by A person commits Murder if the act by which death is
which death is caused is done – caused is done –

1. with the intention of causing death. 1. with the intention of causing death.

2. with the intention to cause such bodily injury as is 2. with an intention to cause such bodily injury as the
likely to cause death. offender knows to be likely to cause death of the person
to whom the harm is caused.
3. with an intention of causing bodily injury to any
person and the bodily injury intended to be inflicted is
sufficient in ordinary course of nature to cause death.
3. with the knowledge that such an act is likely to cause 4. With the knowledge that the act is so imminently
death. dangerous that it must in all probability cause death.

What is the Doctrine of transferred malice or culpable homicide by causing death of the person other than the
person whose death was intended?

Section 301- Culpable homicide by causing death of person other than person whose death was
intended The doctrine requires following:
If a person by doing anything which he intends/knows to be likely to cause death commits culpable
homicide by causing death of any person Whose death he neither intends nor knows himself to be likely to
cause Culpable homicide committed by offender is of description of which it would have been If he had
caused the death of the person whose death he intended/knew himself to be likely to cause.

Thus offender must have intention/knowledge to cause death of someone + He kills somebody else whose
death he had not intended/known.

Such offender would still be convicted under same degree of CH, he would have been if he would have
succeeded in killing the person he intended/knows to kill..
Sec 301 merely fixes the liability either under Sec 209 or Sec 300o. What is to be seen is the
intention/knowledge of accused in committing act which would have led to death of someone. The section
underlines that the accused did have the intention/knowledge to commit death, it is only the intended person
did not die. Therefore what is primarily to be ascertained is whether the act of accused falls under Sec 299
or 300.

In case of transfer of motive the most crucial aspect is highlighted by Supreme Court in Shankarlal
Kachrabhai & Ors vs State Of Gujarat (AIR 1965 SC 1260)

"Under the section if A intends to kill B, but kills C whose death he neither intends nor knows himself to be
likely to cause, the intention to kill C is by law attributed to him. If A aims his shot at B, but it misses B
either because B moves out of the range of the shot or because the shot misses the mark and hits some other
person C, whether within sight or out of sight, under S. 301, A is deemed to have hit C with the intention to
kill him. What is to be noticed is that to invoke s. 301 of the Indian Penal Code A shall not have any
intention to cause the death or the knowledge that he is likely to cause the death of C.

Emperor vs Mushnooru Suryanarayana Murthy[ Madras HC 1912]

The Murthy case is considered as leading authority on Sec 301

The accused with intention of killing A gives him some halva mixed with poison. A eats some of halva and
throws the rest. The thrown part is picked up and consumed by Raged 8 or 9. Due to its consumption R dies
but A though severely effected from poison, recovers.

The question before court was whether accused is responsible for death of R. The majority opinion
convicted the accused for causing death of R. and this was in terms of Sec 301 IPC as death was caused and
accused had intention to kill, though not R. An English case of Agnes Gore is cited by Benson J

In that case Agnes Gore mixed poison in some medicine sent by an Apothecary, Martin, to her husband,
which he ate but which did not kill him, but afterwards killed the Apothecary, who to vindicate his
reputation, tasted it himself having first stirred it about. "It was resolved by all the Judges that the said
Agnes was guilty of the murder of the said Martin, for the law conjoins the murderous intention of Agnes in
putting the poison into the electuary to kill her husband, with the event which thence ensued; t.e. the death
of the said Martin, for the putting of the poison into the electuary is the occasion and cause ; and the
poisoning and death of the said Martin is the event, quia eventus est qui ex causa sequitur, et dicuntur
eventus quia ex causis eveniunt and the stirring of the electuary by Martin with his knife without the putting
in of the poison by Agnes could not have been the cause of his death
Though in Murthy court also drew from Sec 299/300 where the actus is causing death' and such 'causing
death is 'with the intention of causing death'.
Since in all facts discussed above death has been caused and accused certainly possessed intention/
knowledge that death of victim would be the natural consequence of his acts, he cannot escape liability but
since the person dead is not the one accused intended to kill his culpability shifts to sec 301.

"It is sufficient if death is actually, even though involuntarily, caused to one person by an act intended to
cause the death of another. It is the criminality of the intention with regard to the latter that makes the act
done and the consequence which follows from it an offence."

What are the exceptions to section 300 of ipc where culpable homicide is not considered as murder ?

Clauses 1-4 of Section 300 provide the essential ingredients, wherein culpable homicide amounts to murder.
Section 300 after laying down the cases in which culpable homicide becomes murder, states certain
exceptional situations under which, if murder is committed, it is reduced to culpable homicide not
amounting to murder punishable under section 304, IPC and not under section 302, IPC.
The exceptions are:
1. Grave and sudden provocation
2. Private defence
3. Exercise of legal power
4. Without premeditation in sudden fight and
5. Consent in case of passive euthanasia

EXCEPTION - 1 SUDDEN AND GRAVE PROVOCATION

If the offender is deprived of the power of self-control due to sudden and grave provocation, and his act
causes the death of the person who provoked or death of any other person by accident or mistake. This
exception is subject to a certain proviso:
• That the provocation is not sought or is voluntarily provoked by the offender to be used as an excuse for
killing or causing any harm to the person.
• That the provocation is not given by anything that is done in obedience to the law, or by a public servant
while exercising the powers lawfully of a public servant.
• That the provocation is not done while doing any lawful exercise of the right of private
defence. ILLUSTRATION
A is given grave and sudden provocation by C. A fires at C as a result of this provocation. A didn't intend or
have knowledge that his act is likely to kill C, who was out of A's sight. A kills C. A is not liable to murder
but is liable to culpable homicide.

K.M. Nanavati v. State of Maharashtra, 1961 (AIR 1962 SC 605):

In this case, the Supreme Court had extensively explained the law relating to provocation in India. It was
observed by the court:
• The test of "sudden and grave provocation" is whether a reasonable man, who belongs to the same society as the
accused, is placed in the situation in which the accused was placed would have been so provoked as to lose his self-
control.
• Under certain circumstances, words and gestures may also lead to sudden and grave provocation to an
accused, so as to bring his act under an exception.
• The mental background of the victim can be taken into consideration, taking account of his previous act to
ascertain whether the subsequent act leads to sudden and grave provocation for committing the offence. •
The fatal blow clearly should trace the influence of passion that arises from the sudden and grave
provocation. It should not be after the provocation has cooled down due to lapse of time, otherwise, it will
give room and scope to the accused for altering the evidence.

EXCEPTION – 2 WHEN THE PERSON EXCEEDS HIS RIGHT TO PRIVATE DEFENSE Act of
private defence can said to have been exercised, when the act is committed in order to defend oneself from
further harm. If the accused intentionally exceeds his right to private defense, then he is liable to murder. If
it is unintentional, then the accused will be liable to culpable homicide not amounting to murder.
ILLUSTRATION
• X attempts to flog Y, not in a manner to cause grievous hurt to Y. A pistol is drawn out by Y, X persists
the assault. Y believes that he had no way to prevent himself from being flogged by X, Y fires at X. X is
liable to culpable homicide not amounting to murder.

NATHAN V. STATE OF MADRAS, AIR 1973 SC 665

In this case the landlord was trying forcefully to evict the accused. The accused killed the landlord while
 exercising his right to private defense. There was no fear of death to the accused as the deceased was not
holding any deadly weapon that could have caused grievous hurt or death of the accused. The deceased had
no intention to kill the accused, thus, the accused exceeded his right of private defence. The accused was
liable to culpable homicide not amounting to murder.

EXCEPTION – 3 CULPABLE HOMICIDE IN CASE OF PUBLIC SERVANT

The act is done by a public servant who is acting to promote public justice. If the public servant commits an
act which is necessary to discharge his duty as is done in good faith and he believes it to be lawful.
ILLUSTRATION
• If the police officer goes to arrest a person, the person tries to run away and during that incident, if the police
officer shoots the person, the police officer will not be guilty of murder.
DAKHI SINGH V. STATE, 1955
In this case the appellant was the constable of Railway Protection Force, while he was on duty, he killed a
fireman unintentionally, while he was firing bullet shots to catch the thief. The constable was entitled to
benefit under this section.

EXCEPTION – 4 SUDDEN FIGHT/RAGE

The sudden fight is when the fight is unexpected or premeditated. Both the parties don't have any intention
to kill or cause the death of another. The fact that which party had assaulted or offered a provocation first is
not important.

RADHEY SHYAM AND ANR. V. STATE OF UTTAR PRADESH, 2018

In this case the appellant was extremely angry when he got to know that his calf had come to the deceased
place. The appellant started abusing the deceased, when the latter tried to stop him, the appellant fired at the
deceased. The deceased was unarmed at that time, thus, the appellant had an intention to kill the deceased,
hence, he was held liable to murder.
EXCEPTION 5: CONSENT
When the person gives consent to cause his /her death then it will be a culpable homicide not amounting to
murder.
Essential requirements
∙ The age of the person whose death is caused is above the age of 18 years.

∙ Consent is given by the deceased.

∙ Consent needs to be free. it must be voluntary.

Example: Anil, aged 16 years was abetted by A to commit suicide. Here, Anil was incapable to give his
consent because he was immature and was below 18 years of age. A is liable for Murder.
In the case of Vijay V vs the State of M.P on 16 August 2018

The court held that “ exception 5 to Section 300 must have strict interpretation. No liberal interpretation is to
be made and in applying this exception the act which is alleged to be authorized or consented by the victim
must be scrutinized closely.
In the case of Dashrath Paswan vs StaTe of Bihar on 19 January 2012
Facts: The accused was a student of class 10. He failed in his exam. he has a wife aged 19 years. he decided to end
his life and told about his decision to his wife . his wife asked her to kill herself first and then to kill himself. The
accused killed his wife but before he would kill himself he was arrested. Judgement: The court held that deceased
does not give her consent under the misconception of fact or under the feat of injury and therefore he is entitled to
take the benefit of this exception.

Question :

Accused „A‟ doing M.A in Ancient History in the year 2008 was staying at University Hostel. On 31-
12- 2008, „R‟ the Hostel Warden was returning from lunch at about 1:00 p.m. „A‟ reported to him
that „M‟ and ‟N‟ two other inmates of the hostel abused him by using the word “Goonda”. On „R‟
making an enquiry both „M‟ and ‟N‟ replied in the negative, despite „A‟ repeatedly asserting that
they insulted him. „A‟ also informed „R‟ previous night also that there was heated discussion
between „A‟ on the one side and „M‟ and ‟N‟ on the other side. „P‟ the cook after finishing the
work in the mess was relaxing on the cot. At this point of time he saw „A‟ coming towards the door.
„A‟ was wearing half T-Shirt and lungi. The cot of „M‟ was near the door. „A‟ took out a knife
which was hidden in the lungi and stabbed „M‟ on the right side of his chest. On witnessing the
incident, „P‟ was shocked and shouted at „A‟ as to why he was doing it. On hearing the shouts of
„P‟, people came in and apprehend „A‟ on the spot. „M‟ was taken to the hospital where he
succumbed to the injury. As per „D‟ the doctor who conducted the post mortem there was no other
external injury except the stab injury caused by the knife. The injury was opined to be sufficient in
the ordinary course of nature to cause death. After investigation, a chargesheet is filed against „A‟
for offence punishable under Section 302 of the IPC, in view of the ocular evidence of „P‟. A took the
defence of sudden and grave provocation.
Decide.
Answer –
The factual position is not disputed insofar as the accused has admitted that he had inflicted the injury on the
deceased, which later turned fatal and caused his death. His only defence is that he was actuated by „grave
and sudden provocation‟ and that squarely brings his case within Exception I to Section 300 of the IPC and
this extenuates his guilt from murder to culpable homicide.
Hence, the basic question that the court is called upon to answer is – Whether, in the facts of the case, ‟A‟ is
entitled to the defence of grave and sudden provocation, or not ?
Before getting into an examination of this issue, let us briefly recapitulate the legal standard to be satisfied in
order to entitle an accused to this exception.

Perusal of Exception I to Section 300 of the IPC clearly discloses that „provocation‟ for the purposes of this
exception, has to be both „grave‟ as well as „sudden‟ resulting into a total deprivation of self control. The
locus classicus on this point is the landmark decision in [Link] v. State of Maharashtra, 1962 SC
605, where it was held that : “the test of grave and sudden provocation is whether a reasonable man placed
in the situation in which the accused was placed, would be so provoked, so as to totally lose his self control”
With the legal standard being thus, it is clear that the „provocation‟ in this case was neither grave, nor
sudden. To gauge the „graveness‟ of provocation, the background and surrounding circumstances become
extremely crucial. Court cannot lose sight of the fact that the deceased as well as accused are students in a
University Hostel. One inmate of the hostel calling the other a „Goonda‟, is not so serious a provocation
that should make the other lose control totally. Judicial notice can be taken of the fact that students in
hostels often engage in loose talk and flippancy of speech, which can often turn mean and rude. Indeed,
there was also a previous heated exchange between the deceased, ‟N‟ and the accused the previous night,
but the gravity of these exchanges and the use of word „Goonda‟ is not so serious so as to make the accused
be totally deprived of his self control. The provocation must be of such a magnitude as will upset, not
merely a hasty, hot-tempered, excitable or hypersensitive person but a „reasonable person‟ of ordinary
sense and calmness. A hostel inmate of ordinary sense would not have taken such a big affront to the
remark of „Goonda‟ and not responded violently as the accused in the present case.
Secondly, one more reason that the defence ought not to succeed is the absence of the element of
„suddenness‟ in the provocation. In order for provocation to be sudden, it has to be totally unforeseen and
there should not be any time for the passions to subside.
In this case, the transaction of heated exchange and alleged remark of „Goonda‟ happened much prior in
point of time. P has categorically deposed that he saw „A‟ coming towards the door, took out a knife and
stabbed „M‟. This attack was clearly without any fresh provocation. After complaint to the teacher earlier in
the day, the accused had ample opportunity to cool down and contemplate the situation. It is clear that he
did not deliberate on the situation, but further stoked his passions anew. It is writ large on the case that ‟A‟,
who may have been seething with anger at the earlier perceived insult, killed ‟N‟ in a cold blooded and
deliberate fashion and not on an immediate impulse of provocation.
A, therefore, is clearly liable for murder u/s 302 of the IPC and cannot claim extenuation of guilt by way of
Exception I to Section 300 of the IPC.

DEATH BY RASH OR NEGLIGENT ACT

Section 304 A: Causing death of 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 two
years, or with fine or with both. This section deals with causing of act by rash or negligent act. This section
is provided to cover those cases, which does not fall under Section 299 or Section 300. The object of this
section is to make criminally liable a person, by whose act the death is covered. The cause of death must be
the direct cause of the act and it should not be too remote in causing death Ingredients:
1. Death is caused by an act of the accused.
2. The act was caused or committed rashly or negligently.
3 The death must not be culpable homicide or murder.

1. The death is caused by the act of the accused

Firstly, there should be a death of a human being. The act of the accused must cause the death and not any
other act or any supervening act. The word "act is very important because the actus reus and the mens rea
both have to be examined vis-a-vis this very 'act.

2. The act must be caused negligently or rashly

Rashness - Rashness is hazarding a dangerous or wanton act with the knowledge that it is so that it may
cause injury, but without the intention to cause injury or knowledge that Injury will probably caused, with
positive hope that it will not be caused It is a faint awareness and not a direct knowledge. The positive hope
that if anything unusual happens, then he will definitely manage such a situation Culpability in the matters
of Section 304 A in rashness lies in the fact that one acted despite the consciousness. It is an over hasty act
as opposed to a deliberate act. Section 304 A does not apply to the cases of voluntary commission of an
offence as in that case, either intention or knowledge is involved.
3. The death must not be culpable homicide or murder.
The act must not come under culpable homicide or murder Section 299 states that a person causes the death,
with the knowledge that he is likely by his act to cause death is punishable for culpable homicide not
amounting to murder Section 300 clause (4), states that the culpable homicide is murder if the person causes
,m death with the knowledge. That, it is imminently dangerous and in all probability will cause death.

This, Section 304 A, expressly excludes the cases falling under Section 299 (3) and Section 300 clause (4
So, it is said that, Section 299 involves direct knowledge, whereas Section 84 Address faint awareness of
causing death, of direct knowledge is proved then Section 394 A must give way to Section 299 (3).

One more point that strengthens the fact that the mens rea required in Section 304 A than that of Section 299
clause (3) is punishable under Section 304 Part II, Section 304 A itself provides for punishment Section 304,
Part II provides for maximum 10 years of imprisonment and Section 304 A provides for maximum 2 years
of imprisonment. So, there is 8 years of difference in punishment. This clearly shows, that the mens rea
should be less than that is required for Section 299 clause (2). Because, the purpose of criminal law is to
punish not only
the mens rea but also the degree of mens rea.

Case - Cherubin Gregory vs. State of Bihar (1962) - The accused set live electric naked wire on the
passage to his latrine so that no trespasser should come and use the latrine, there was no warning that the
wire Was lion. The deceased, trespasser, managed to pass into the latring without contracting the Moond
while she was coming out her hand happens to touch the wire and she got a shock a result of which she died
soon after It was held by the Supreme Court that the knowledge was not direct and proximate, and therefore
not liable for culpable homicide but liable under Section 304.

Case- Hussain S. N. vs. State of A. P(1972) - The appellant, a bus driver had tried to pass through a level
crossing on finding the gates open, but before he could clear the crossing, a goods train had come and
dashed against the rear side of the bus with the result that the bus was thrown off causing serious injuries to
passengers, of whom some died. It was held that where a level-crossing was protected by a gate-man os in
this case, and a gate-man had negligent kept the gates open at a time when an unscheduled train was passing
by there was no duty cast upon the driver to stop the vehicle and look out before crossing the level crossing.
The knowledge constituting negligence or rashness was too remote and is not direct cause for death So the
driver was held not liable.
What is Dowry death? What is the liability in case of the offence is committed under section 304 B?

In 1986 a new offence known as dowry death was inserted in the Indian Penal ode by the Virtue of Section
304- B. The provisions Under Section 304B of Indian Penal Code are more stringent than provided under
Section 498A of Indian Penal code. The offence under Section 304-B is cognizable, non-bailable, non-
compoundable and triable by Court of Session.
Dowry Death (Section 304-B)
(1) Where the death of a woman is caused by any burns or bodily injury or occurs otherwise than under
normal circumstances within seven years of her marriage and it is shown that soon before her death she was
subjected to cruelty or harassment by her husband or any relative of her husband for, or in connection with,
any demand for dowry, such death shall be called "dowry death", and such husband or relative shall be
deemed to have caused her death.
Explanation -
For the purposes of this sub-section, "dowry" shall have the same meaning as in section 2 of the Dowry
Prohibition Act,1961 (28 of 1961).

Ingredients
Essential Ingredients of Dowry Death are as follows :
(i) Death of woman should be caused by burns or bodily injured or otherwise than under normal
circumstances. (ii) Death should have occurred within Seven years of her marriage
(iii) The woman must have been subjected to cruelty or harassment by her husband or relatives of her
husband (iv) Such Cruelty or harassment should be for or in connection with the demand for dowry. (v)
Such cruelty or harassment should have been subjected soon before her death

If death of woman caused under the above circumstances , the husband and husband's relatives will be
presumed to have caused a 'dowry death' and be liable for the offence, unless it is proved otherwise.
Punishment.
Under Section 304-B (2) of Indian Penal Code Whoever commits dowry death shall be punished with
imprisonment for a term which shall not be less than seven years but which may extend to imprisonment for
life.
Procedure
The offence under Section 304-B is cognizable, non-bailable, non-compoundable and triable by Court of
Session.

Relevant Case Law

a) Hans Raj Vs State of Punjab
In this case Supreme Court held that the term normal circumstances apparently means not the natural
death. b) Rameshwar Das Vs. State of Punjab (2008 Cri. L. J. 14000 SC)
In this Supreme Court held that, Pregnant woman would not commit suicide unless relationship with her
husband comes to such a pass that she would be compelled to do so. Accused is liable to be convicted on
failure to prove his defence.

SECTION 306, IPC: ABETMENT OF SUICIDE

Section 306 of IPC talks about the abetment of suicide if any person commits the suicide whoever abets the
commission of the suicide shall be punished with the imprisonment which may extend upto 10 years and
shall also be liable to fine.
Section 107 talks about what amounts to abetment.
A person is said to abet the commission of a thing:

1. Instigates any person to do that thing;

2. Engages in with one or more than one person to do the conspiracy t which is illegal and anything happens in
pursuance of that conspiracy, or in order in doing of that thing;
3. Intentionally aids, and in commission or illegal omission of that thing.

Explanation 1- a person by willful misrepresentation or willful concealment of the material fact which he is
bound to disclose voluntarily causes, procure or attempts to procure aid to doing that thing is said to instigate
that thing.

Explanation 2- Whoever prior to or at the time of the commission of the act facilitates or does anything
towards the commission of the act is said to doing of that thing in the act.

Section 108 talks about the abettor; he is the person who abets either the commission of the offence or the
commission of an act which is an offence and committed by a person capable of committing the offence and
not having similar intention as that of the person who abetted the offence.
 Explanation 1- the abetment of an illegal omission of an act may amount to an offence although may not be
bound to do that act.

Explanation 2- to constitute the offence of abetment it is not necessary that the act abetted is constituted or
the effect requisite to constitute the offence is caused.

Essentials for invoking Section 306 of the IPC

 Suicide is must

In case there is no proof that the death has occurred due to suicide then this section cannot be involved. The
necessary ingredient in this section is that death must happen because of suicide.

 Active assistance and participation

The active assistance and participation of the abettor at a point of time, prior to the commission of the
offence is a must for making him liable under this section.

 Direct nexus or implied nexus

There should be direct nexus between the alleged accused and the death of the accused under Section 306 of
IPC. there must be direct nexus between the effect of abetment and the abetment itself.

 Abetment to be judged in the context of the entire evidence

In Brij Lal vs. Prem Chand & Ors., the Apex Court observed that what would constitute the instigation of the
offence would depend upon the facts of each case.

While deciding that the liability of the abettor should not be seen in isolation the court has to consider the
entire facts and circumstances of the case.

In Gurbachan Singh vs. Satpal Singh & Ors., the evidence of witnesses testified to the lusty and greedy
nature of man they taunted the deceased and torture her. They also alleged that she is carrying an illegitimate
child. All these factors drove her to take the extreme step and she burnt herself by sprinkling kerosene oil on
her body. All the accused were held guilty by the Supreme Court.

 Presumption of abetment of suicide

The necessary condition to establish under Section 113 A of the Indian Evidence Act:
 1. It is required to prove that suicide has been committed by women.
2. There should be allegation on her husband and any other relative to instigate her to commit suicide.
3. The commission of suicide must be within 7 years.
4. She has been subjected to cruelty by her husband or any other relative.

 Husband inciting wife to pour kerosene oil amounts to abetment of suicide

In Arjun Kushwaha vs. State of Madhya Pradesh, the question whether the accused had abetted the suicide of
the deceased. The dying declaration showed that the deceased was asked to take the child to the 1st floor to
which she replied she just came on the ground floor. The husband intervened in between and told her wife
why she was replying to her mother in law. The accused did not stop, he started beating her wife with
fisticuffs and despite many warnings, he continued his acts. Wife went into the kitchen and sprinkled
kerosene oil while the accused continued beating her. She burnt herself. The court considered the act of the
husband an abetment and convicted him for the same.

 Husband beating wife immediately before commission of suicide by her

The prosecution in Syeed Miya vs. State of Madhya Pradesh, accused the appellant of being used to maltreat
and beat her wife. She used to complain to her parents. Prior to the commission of the suicide, the husband
had beaten because of the frustration she committed suicide. She committed suicide within two years of the
marriage and it was also proved that the accused used to beat her. In the post mortem report, it was stated that
there was a contusion found on the head of the deceased which made it clear that she was subjected to
physical cruelty before her death.

How an attempt to commit suicide is punishable under Indian Penal Code?

SECTION 309: ATTEMPT TO COMMIT SUICIDE: Whoever attempts to commit suicide and does any
act towards the commission of such offence, shall be punished with simple imprisonment for a term which
may extend to one year or with fine, or with both.
Suicide as such is no crime under the Code. It is only attempt to commit suicide that is punishable under this
section. In other words, it is only when a person fails to succeed in committing suicide that the Code is
attracted. If the person succeeds, there would be no offender who could be brought within the purview of the
law. The section is based on the principle that the lives of men are not only valuable to them but also to the
State which protects them.
The State is under an obligation to prevent persons from taking their lives as it prevents them from taking
the lives of others.
An attempt to commit Suicide – An attempt under Sec. 309 I.P.C. implies at least an act towards the
commission of suicide, such as drowning or poisoning or shooting oneself. If A, with an object to commit
suicide, throws himself into a well, he is guilty of an attempt and is punishable under this section, if rescued
or fails in his attempt.

Attempt must be intentional: The essence of suicide is an intentional self-destruction of life. Thus if a
person takes an overdose of poison by mistake or in a state of intoxication, or in order to evade capture by
his pursuers he throws himself into a well, he is not guilty under this section.

Is Hunger Strike an Attempt to Commit Suicide? Announcement of hunger strikes is a common scenario
in India. Very often, these hunger strikes are resorted to as a means to pressurize some authority to concede
demands of the hunger strikers. These cases present difficulty in determining whether the intention of the
hunger striker is to kill himself or simply to force the authorities to fulfil his demands. If the answer is
affirmative for killing himself, the
accused is liable for attempt to suicide, and if the answer is negative he does not fall within the purview of
Sec. 309 I.P.C. If a person openly declares that he will fast unto death and then proceeds to refuse all
nourishment until the stage is reached when he may collapse any moment, then there is imminent danger of
death ensuing and he would be guilty of an attempted suicide.

Constitutional Validity of Section 309: The constitutional validity of sec 309 was initially struck down as a
cruel and irrational provision and violative of Article 21 of the Constitution, in the case of P Rathinam vs.
Union of India AIR 1994 SC 1844. However, in Gian Kaur vs. State of Punjab AIR 1996 SC 946, and in
case of P. Rathinam vs. Union of India was reversed and a Constitutional Bench of the Supreme Court
upheld the constitutional validity of Sec. 309, by indicating that it does not violate articles 14, 19 and 21 of
the Constitution.

ATTEMPT TO MURDER

Section 307- Attempt to Murder

The offence of attempt to murder is considered almost as serious as committing murder, however, the only
dissimilarity that exists between the two is the fact that murder takes place where the act of the accused has
caused the death of the victim, whereas, attempt to murder is a failed attempt to cause the death of the
victim.

Illustrations of Section 307 in the Indian Penal Code

1. A shoots at Z with the intention to kill him, under such circumstances that, if death ensues, A would be guilty
of murder. A is liable to punishment under this Section.
2. A, with the intention of causing the death of a child of tender years, exposes him in a desert place. A has
committed the offence defined by this section, even though the death of the child does not ensue.
3. A, intending to murder Z, buys a gun and loads it. A has not yet committed the offence, A fires the gun at Z.
He has committed the offence defined in this section, and if by such firing he wounds Z, he is liable to the
punishment provided by the latter part of the first paragraph of this Section.
4. A, intending to murder Z by poison, purchases poison and mixes the same with food which remains in A’s
keeping ; A has not yet committed the offence defined in this Section. A places the food on Z’s table or delivers
it to Z’s servants to place it on Z’s table. A has committed the offence defined in this section.

Essential Ingredients for Attempt to Murder under Section 307

The essentials to prove an offence under Section 307 (Attempt to Murder) of the Indian Penal Code are:
1. Nature of the Act: The act attempted should be of such a nature that if not prevented or intercepted,
it would lead to the death of the victim.
2. Intention or knowledge of committing the offence: The intention to kill is needed to be proved clearly
beyond reasonable doubt. To prove this, the prosecution can make use of the circumstances like an
attack by dangerous weapons on vital body parts of the victim, however, the intention to kill cannot
be measured simply by the seriousness of the injury caused to the victim.
3. Performance or execution of offence: The intention and the knowledge resulting in the attempt to
murder by the accused is also needed to be proved for conviction under the section.
4. The act by the offender would cause death in its ordinary course.

The essentials to prove an offence of Murder under Section 302 of the Indian Penal Code are:
1. An Intention to cause death.
2. The said act must be done with the knowledge that the act is likely to cause death of the other person.
3. There should be an intention to cause such bodily injury that is likely to cause death.
‘Attempt’ in Indian Penal Code
Section 511 of the IPC is a specific section which states the punishments for an “attempt” to commit
an offence (as per the Indian Penal Code). If an act is a crime under the Indian Penal code, an attempt
to do that criminal act is also a crime and punishable under Section 511 of the Indian Penal Code.