Culpable homicide and murder - Bharatiya Nyaya Sanhita

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1. Culpable homicide: section 100
2. When culpable homicide is murder: section 101
3. Govinda and Punnayya: drawing the line
4. Virsa Singh: the clause 3rdly test
5. The five exceptions
6. Transfer of malice: section 102
7. Punishment: sections 103 to 105
How this is examined

Cases checked to exist. Read the judgment before quoting a holding.

Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

Genus and species. Every murder is culpable homicide, but not every culpable homicide is murder. Section 100 BNS (old s.299 IPC) defines the wider offence; section 101 (old s.300) picks out the graver cases and then takes some of them back through five exceptions. The whole topic is a question of degree of intention or knowledge, and an answer that keeps that idea in front will be well organised.

1. Culpable homicide: section 100

Whoever causes death by doing an act (a) with the intention of causing death, (b) with the intention of causing such bodily injury as is likely to cause death, or (c) with the knowledge that he is likely by such act to cause death, commits culpable homicide. The ingredients are therefore an act, the death of a human being caused by it, and one of the three mental states.

Explanation 1: accelerating the death of a person already suffering from a disease or infirmity is causing his death.
Explanation 2: it is no defence that proper treatment might have saved the victim.
Explanation 3: killing a child in the womb is not homicide, but killing a living child any part of which has been brought forth may be.

Illustration (c) is a favourite: A shoots at a fowl to steal it and kills B hidden behind a bush, not knowing he was there. A is not guilty of culpable homicide, because he neither intended nor knew that death was likely.

2. When culpable homicide is murder: section 101

Except in the excepted cases, culpable homicide is murder if the act is done:

(a) with the intention of causing death;
(b) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the particular person harmed (the victim with a known weak heart or enlarged spleen);
(c) with the intention of causing bodily injury, and the injury intended is sufficient in the ordinary course of nature to cause death; or
(d) with knowledge that the act is so imminently dangerous that it must in all probability cause death, and without any excuse for running that risk (firing a cannon into a crowd).

3. Govinda and Punnayya: drawing the line

In Reg. v. Govinda (1876) ILR 1 Bom 342, the accused knocked his young wife down, put a knee on her chest and struck her two or three times on the face with his fist; she died of brain injury. Melvill J reduced the conviction from murder to culpable homicide not amounting to murder, and set out the two sections side by side:

Intention of causing death: culpable homicide, s.299(a); murder, s.300 clause 1.
Intention of causing bodily injury likely to cause death: culpable homicide, s.299(b). Murder if the offender knows the injury is likely to kill the particular victim (clause 2), or the injury is sufficient in the ordinary course of nature to cause death (clause 3).
Knowledge that the act is likely to cause death: culpable homicide, s.299(c). Murder if the act is so imminently dangerous that it must in all probability cause death (clause 4).

The difference, he said, lies between “likely” and “sufficient in the ordinary course of nature”, and between “likely” and “in all probability”. The blows in Govinda were likely to cause death but not sufficient in the ordinary course of nature to do so.

In State of Andhra Pradesh v. Rayavarapu Punnayya, 1976 INSC 221, (1976) 4 SCC 382, the accused beat an elderly man with sticks on his arms and legs, causing many fractures, and he died. The High Court had convicted under s.304 Part II. Sarkaria J restored the murder conviction under clause 3rdly. He described three degrees: murder is culpable homicide of the first degree; s.304 Part I (now the first limb of s.105) is the second degree; s.304 Part II (the second limb) is the third degree. He advised courts to ask three questions in order: did the accused cause death; if so, is it culpable homicide under s.299; if so, does it fall within any clause of s.300 and outside every exception.

4. Virsa Singh: the clause 3rdly test

In Virsa Singh v. State of Punjab, 1958 INSC 18, AIR 1958 SC 465, a single spear thrust penetrated the victim's abdomen and he died. Bose J held that the prosecution must prove: (1) that a bodily injury is present; (2) its nature, objectively; (3) that the accused intended to inflict that particular injury, not an accidental or different one; and (4) that the injury is sufficient in the ordinary course of nature to cause death. The fourth question is purely objective. Once the first three are proved, it does not matter that the accused did not intend to kill or did not know the injury was fatal.

5. The five exceptions

Exception 1, grave and sudden provocation. The offender, deprived of self-control, kills the provoker or another by mistake or accident. The provocation must not be sought as an excuse, nor given by a lawful act of a public servant or by lawful private defence. Gravity and suddenness are questions of fact.
Exception 2, private defence exceeded in good faith, without premeditation and without intending more harm than necessary (read with ss.34 to 44 BNS).
Exception 3, public servant exceeding his powers in good faith, believing the act lawful and necessary, without ill-will.
Exception 4, sudden fight: no premeditation, heat of passion, sudden quarrel, no undue advantage, no cruel or unusual conduct. It does not matter who struck first.
Exception 5, consent of a person above eighteen who suffers death or takes the risk of it.

In K.M. Nanavati v. State of Maharashtra, 1961 INSC 322, AIR 1962 SC 605, a naval officer learnt from his wife that she was having an affair with Prem Ahuja. He took her and the children to a cinema, went to his ship, collected a revolver, and shot Ahuja in his flat some hours later. Subba Rao J held Exception 1 did not apply. The test is whether a reasonable man of the same class of society, placed in the accused's situation, would be so provoked as to lose self-control; in India words and gestures may be enough, and the victim's earlier conduct may be taken into account; but the fatal act must be traced to passion, not done after the passion has had time to cool. The interval and the deliberate preparation showed the passion had cooled. The conviction for murder stood.

Trap. The exceptions are proved by the accused, on the balance of probabilities. Exception 1 protects a killing done while self-control is lost, not one done in revenge after it returns. And Exception 5 cannot help a person who instigates a child to commit suicide: the child cannot consent (illustration to Exception 5).

6. Transfer of malice: section 102

If a person, doing an act he intends or knows to be likely to cause death, causes the death of someone whose death he neither intended nor knew to be likely, the offence is of the same description as if he had killed the intended victim (old s.301 IPC). A shoots at B with intent to murder; the bullet kills C. A has committed murder of C.

7. Punishment: sections 103 to 105

s.103(1) (old s.302): murder, death or imprisonment for life, and fine.
s.103(2): murder by a group of five or more acting in concert on grounds of race, caste or community, sex, place of birth, language, personal belief or similar ground. New; see the note on mob lynching.
s.104 (old s.303): murder by a person under sentence of life imprisonment, death or life imprisonment for the remainder of natural life. Old s.303 made death mandatory and was struck down in Mithu v. State of Punjab, 1983 INSC 34, (1983) 2 SCC 277; the BNS gives the court a choice.
s.105 (old s.304): culpable homicide not amounting to murder. With intention, life imprisonment or 5 to 10 years and fine; with knowledge only, up to 10 years and fine.

How this is examined

The 10-mark question is “Distinguish between culpable homicide and murder” or “When does culpable homicide amount to murder? Explain the exceptions.” Write ss.100 and 101, Melvill J's comparison from Govinda, Punnayya's three degrees, Virsa Singh, then the exceptions with Nanavati. Short notes: grave and sudden provocation; transfer of malice; Virsa Singh. Problems turn on a single blow (is it clause 3rdly?), a sudden quarrel, or a delayed act of revenge after provocation.