MINUTES ON
OFFENCES AFFECTING THE HUMAN BODY
Introduction
The
concept of culpable homicide and murder are arguably the most complicated
provision within the penal code. Both culpable homicide and murder deal with
the killing a person. The question is when death of man is to be treated as
culpable homicide or murder. So firstly I would like to discuss regarding
homicide to explain very clearly culpable homicide and murder. The word
'Homicide' derived from Latin word 'Homa' (Man ) and 'Cide'(Cut). The term 'Homicide'
is used to describe the killing of a human being by a human being. It will be
remember that the code has defined life and death under section 45 and 46 of
the penal code 1860 respectively as meaning the life and death of human being.
So causing the death of an animal is not murder or culpable homicide. However
such a killing may be lawful or it may be unlawful. Lawful homicide may again
be classified under the following heads; namely,
a) Excusable
homicide;
b) Justifiable
homicide;
And
unlawful homicide may be classified as
a) Culpable
homicide not amounting murder;
b) Murder;
c) Suicide;
d) Homicide
by rash and negligent acts not culpable;
Definition of culpable homicide
Culpable
homicide means the killing of a human being by another human being wrongfully
or criminally. Culpable homicide is defined by section 299 of the penal code
1860 as
“Whoever
causes by doing an act with the intention of causing death, or with the
intention of causing such bodily injury as is likely to cause death, or with
the knowledge that he is likely by such act to cause death, commits the offence
of culpable homicide."
The
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 the
intentions and knowledge .If that is caused in any of the aforesaid three circumstances,
the offence of culpable homicide is said to have been committed.
Illustration
(A) A lays sticks and turf over a pit with the
intention of thereby causing or with knowledge that death is likely to be
thereby caused .Z believing the ground to be firm treads on it , falls in and
is killed . A has committed the offence of culpable homicide.
(B) A knows Z to be behind a bush. B does not know
it. A intending to cause or knowing it to be likely to cause the death of Z
induces B to fire at the bush. B fires and kills Z, here B may be guilty of no offence;
But A has committed the offence of culpable homicide.
(C) A,
by shooting at a fowl with intent to kill and steal it, kills B, who is behind
a bush; A not knowing that he was there. Here although a was doing an unlawful
act, he was not guilty of culpable homicide, as he did not intend to kill b or
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 accelerate the death of that other, shall be
deemed to have caused his death.
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 skillful treatment the death might have been prevented.
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 chili any part
of that child has been brought forth, though the child may not have breathed or
been completely born.
So, 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 circumstances of dangerous action.
In the case, “State of AP VS Rayavarapu Punnayya (1976)4 Scc 382’’The court
observed as follows at page 386,in the scheme of the penal code, Culpable
homicide is genus and murder its specie. All murder is culpable homicide but
not vice versa. Speaking generally, Culpable homicide sans “special
circumstances of murder “is culpable homicide not amounting to murder. For the
purpose of fixing punishment, proportionate to the gravity of this generic offence,
the code practically recognizes three degrees of culpable homicide.
The first is what may be called,
“culpable homicide of the first degree”. This is the greatest form of culpable homicide,
which is defined in section 300 as “murder”.
The second may be termed as,
“Culpable homicide of the second degree”. This is punishable under the first
part of section 304.
Then, there is “culpable homicide of
the third degree, this is the lowest type of culpable homicide and the punishment
provided for, it is ,also the lowest among the punishments provided for the
three grades. Culpable homicide of this degree is punishable under the second
part of section 304”.
Essentials of the
offences of culpable homicide
Based upon the above definition, the
followings are the essential elements of culpable homicide:
1. Death of a human
being is caused:-
It is required that the death of a
human being is caused. However, it does not include the death of an unborn
child unless any part of that child forth as stated in explanation 3 of section
299.But the person would not be set free. He would be punishable for causing
miscarriage either under section 312 or 315 of penal code 1860 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 completely born, though the child may not have breathed.
2. By doing an act with
the intention of causing death:-
Death may be caused by any act, such as,
by poisoning, hurting with weapon, drowning, sticking and so on and so forth.
As explained under section 32 of penal code 1860,the word ‘Act’ has been given
a widen meaning ,it includes not only an act of commission but also illegal
omission as well and the word ‘illegal’s applicable to everything which is an
offence or which is prohibited by law, or which furnishes ground for civil
action. Therefore, death caused by illegal omission will amount to culpable
homicide .For example: If a doctor has a required injection in his hand and he
still does not give it to the dying patient and the patient dies, the doctor is
responsible.
Clause (a) of section 299 and clause
(1) of section 300 are identical. If death is caused by an act, which is done with
the intention of causing death, then it is culpable homicide under
section299(a).It also amounts to murder under section 300(1),unless it falls
under any of the exceptions.
The doer of the act must have
intended to cause death. As seen in illustration 1, the doer wanted or expected
someone to die. It is important to note that intention of causing death does
not necessarily mean the intention of causing death of the person who actually died.
For example, if a person does an act with an intention of killing B but A is
killed instead, he is still considered to have the intention.
3.By doing an act with
the intention of causing such bodily injury as is likely to cause death:-
The word ‘Intention ‘in clause (a)of
sectio9n 299 of penal code has been used in ordinary sense i.e. volitional act
done without being able to foresee the consequence with certitude. The
connection between the act and the death caused thereby must be direct and distinct
and though, not immediate but it must not be too remote. If the interval time
between the death and act is too long, the above condition is not fulfilled.
The intention of the offender may not
have been to cause death but only an injury that is likely to cause the death
of the injured. For example, A might intend only to hit on the skull of a
person so as to make him unconscious, but the person dies. In this case, the
intention of the person was only to cause an injury but the injury is such that
it is likely to cause the death of the person. Thus, he is guilty of culpable
homicide.
4. with the knowledge
that he is likely by such act to cause death:-
Knowledge is a strong word and
imports certainty 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. When a person does an act
which he knows that it has a high probability to cause death, he is responsible
for the death which is caused as a result the act. For example, A knows that
loosening the brakes of vehicle has a high probability of causing death of
someone. If B rides such a bike and if he dies, A will be responsible for B’s
death.
In Jamal uddin’s case 1892, the accused while exorcising a sprit from
the body of a girl beat her so much that she is died. They were held guilty of
culpable homicide.
Sometimes even negligence is
considered as knowledge. In kangla case
1898, the accused struck a man whom
he believed was not a human being but something supernatural. However, he did
not take any steps to satisfy himself that the person was not a human being and
was thus grossly negligent and was held guilty of culpable homicide.
However, if A hits B with a broken
glass, A did not know that B was hemophilic. B bleeds to death. A is not guilty
of culpable homicide but only of grievous hurt because he neither had intention
to kill B nor he had any intention to cause any bodily injury as likely to
cause death or the act must have been done with the knowledge that such an act
may cause death.
5. 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 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.
6. Punishment:
under section 304 whoever commit
culpable homicide not amounting 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 find, 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 the 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 is likely to cause death, but without any
intention to cause death or to cause such bodily injury as is likely to cause
death.
SECTION 300
RELATING TO MURDER
Section Analysis:
Murder is the worst of crimes, being
the unlawful taking a human life. It is the killing of a human being by a
sane person, with intent, malice
aforethought and with no legal or authority. Murder has the element of malice
aforethought or premeditation .All murders are homicides, but all homicides are
not murders. When culpable homicide falls under the exceptions of the section
300, it is called culpable homicide not amounting to murder. This is the stage
at which the court within the ambit of any of the four clauses of the
definition of ‘murder ’contained in section 300. If the answer to this question
is in the negative the offence would be culpable homicide not amounting to
murder, punishable under the first or the second part of section 304.
Ingredients:
According to section 300 of the penal
code, 1861the followings are the essential ingredients of murder;
a. Intention of causing death
b. Intention of causing such bodily injury which is likely to cause death
of the person, and this is known to the offender.
c. Intention to cause such bodily injury as is sufficient in ordinary
course of nature
d. Knowledge that the act done is sufficiently dangerous that in all
probabilities it must cause death, or cause
such bodily injury which is likely to cause death, and the act is done
without any excuse to cause death as such bodily injury
Example:
A walks straight to B’s house with
a gun and shoot 10 bullets right in B’s brain.
This is murder
Intention-yes
Death- yes
Degree of certainty of death – most certain
So murder deserves to be punished more than culpable homicide even if the
end result is killing of another human being.
Exception to murder i.e culpable
homicide not amounting to murder:
Section 300 of the penal code
also provides five exceptional circumstances under which the offence of
murder is reduced to that of culpable homicide not amounting to murder.These
exceptions are given below
a. Grave and sudden provocation:
Culpable
homicide is not murder if the offender , whilst deprived of the power of self
control by grave and sudden provocation , causes the death of the person who
gave the provocation, or causes the death of any other person by mistake or
accident.
b. Private defense:
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 power given to him by law, causes the death of
the person against whom he is exercising such right of defense.
c. Public servant discharging duty:
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
d. Sudden fight :
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 having taken undue advantage or
acted in a cruel or unusual manner.
e. Consent
To invoke exception 5 to section 300 of penal
code, Culpable homicide is not murder when the person whose death is caused,
being above the age of 18 years, suffers death or takes the risk of death with
his own consent.
Similarities between murder and
culpable homicide:
In both murder
and culpable homicide and murder there is intention to cause death. In both the
cases knowledge and intention are existed. Moreover, in both the cases there is
killing of a human being. If the probability of death resulting from a bodily
injury is of a very high degree, this constitutes murder, and if the
probability is not of that order , it is culpable homicide and if murder is
committed under grave provocation and consent, it is culpable homicide not
amounting to murder.
Distinction between murder and
culpable homicide:
The difference between murder and
culpable homicide has been well set out in one well known leading case Reg vs Govinda I.L.R Bom. 342. MELVIL
J. drew up the distinction between culpable homicide and murder.
The fact was the accused knocked his
wife down, put one knee on her chest, and struck her two or three violent blows
on her face with the closed fist, producing extraversions of blood on her brain
and she died in consequence, the court held that there being no intention to
cause death and the bodily injury not being sufficient in the ordinary course
of nature to cause death, the offence committed was not murder but culpable
homicide. The question is when death of man is to be treated as culpable
homicide or murder. Why the difference is important because the culpable
homicide carries less punishment than that of murder.
Now the main point of distinction are given below:
a.
Culpable
homicide is the genus of which murder is a species.
b.
All
murders are therefore culpable homicide but all homicide are not murders.
c.
The
degree of death in murder is certain where the degree of death in case of
culpable homicide is likely.
d.
If
the person is killed in cold blooded manner or with well planed then it is
murder but if the person is killed without pre planned, in sudden fight because
of provocation , then such death is called the culpable homicide.
Punishment:
According to
section 302 of the penal code,1860 the person who commits murder shall be
punished with death or imprisonment for life and shall also be liable to fine.
Case reference on
murder:
In the case of Gajanan vs State of Karnataka 2001,Cr Lj3592 (Kant.) , a son
demanded a part of the money from his a mother which was sent to him by his
brother. On her refusal to do so he started hitting her with wooden plant, she
freed herself from his clutches and ran away. He chased her, felled her and
beat her to death. It was held that the benefit of the exception 1 of S.300 was
not available to him. He was to be
convicted for murder.
In the case of Sikandar vs State (Delhi) Admin. AIR 1999 SC 1406 in a quarrel
between the accused and his father, the accused attacked his father with a dagger
causing death and also attacked the intervener w with death ho 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.
In the leading case Abdus Sukur Mia
vs State 48 DLR 228, When the victim went to bed with her husband and was found
subsequently dead there, he bears a serious obligation to account for her
death.
Section – 304 A Causing death by
negligence
Whoever causes the death of any person
by dong 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.
The points need to be understood are as
follows:-
1. death of a person
2. the accused caused the death
3. death must be caused by the rash and
negligent act
4. it did not amount to culpable homicide
Rash or negligent act:-
Criminal rashness is hazarding a
dangerous or wanton act with the knowledge that it is so, and that it may cause
injury, but without intention to cause injury, or knowledge that it will be
probably be caused. Criminal negligence in the gross and culpable neglect or
failure to exercise 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 circumstances out of which the charge has arisen, it was
the imperative duty of the accused person to have adopted.
Negligence can be the following types:-
1. contributory negligence
2. medical negligence
3. self-speaking negligence
Self-speaking negligence:-
It comes from the term res ipsa
loquitur. where a vehicle driven at a high speed knocked down the deceased who
was walking on the left side of the road and breaking the roadside fencing got
stuck up in a ditch, it was held that the maxim res ipsa loquitur was
applicable and the accused driver could be held guilty of rash and negligent
driving.
Section-304-B
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
The points to determine rash and
negligent are:-
1. examination of marks of wheels on the
road
2. the state of traffic at the relevant
time
3. the speed of the vehicle
It has been established by the glaring
case Nageshwar Krisha Ghobe, AIR 1973 SC 165
Section- 305 : Abetment of
suicide of child or insane person-
If any
person under eighteen years of age, any insane person, any delirious person,
any idiot, or any person in a state of intoxication commits suicide, whoever
abets the commission of such suicide shall be punished with death or
imprisonment for life, or imprisonment for a term not exceeding ten years, and
shall also be liable to fine.
Elements of this section:
1.
Any
person under 18 years of age.
2.
Any
insane person, any delirious person, any idiot, or any person in a state
of intoxication.
Example:
Mr. X is a
minor who is under 18 years of age. Mr. Z abets him to commit suicide and Mr. X
does so. Here Mr. Z is liable for abetment of suicide of a child.
Punishment:
The person who abets the
commission of such suicide shall be punished with death or imprisonment for
life, or imprisonment for a term not exceeding ten years, and shall also be
liable to fine.
Comment:
This section
has been inserted because the ordinary law of abetment is inapplicable. They apply
when suicide is in fact committed.
Section- 306: Abetment of suicide-
If any
person commits suicide, whoever abets the commission of such suicide, shall be
punished with imprisonment of either description for a term which may extend to
ten years, and shall also be liable to fine.
Elements:
1. The person who commits suicide is
above 18 years of age.
2. The person who commits suicide is an
ordinary prudent person not an insane.
Example:
A newly wedded
wife unable to bear the harassment from her husband to bring money from her
parents, set herself ablaze and the accused husband stand nearby not trying to
save her, it is held that the accused is guilty of offence u/s 306.
Punishment:
Any person,
who abets the commission of suicide, shall be punished with imprisonment of
either description for a term which may extend to ten years, and shall also be
liable to fine.
Comment:
Abetment of
suicide is punishable under this section. Abetment of suicide is confined to
the case of persons who aid and abet the commission of suicide by the hand of
the person himself who commits the suicide, when another person, at the request
of or with the consent of the person who wants to commit suicide, has killed
that person, he is guilty of homicide by consent, which is one of the forms of
culpable homicide.
Case reference:
Ram Dayal (1913) 36 All 26 -
Persons
actually assisting a Hindu widow in becoming sati (self-immolation in the same
pyre with the dead body of her husband) are guilty of abatement of suicide.
Sonti Rama Krishna v. Sonti Shanti Sree(2009) 1 SCC 554: AIR 2009 SC
923-
Words
uttered in a fit of anger or emotion without any intention could not be
regarded as an instigation.
Shiv Prasad Pandey v. State of U.P. 2003-
The wife of the accused tried to
commit suicide by jumping into river but was saved. Her attempt was due to the
cruelty of her husband. The court said that an abatement or attempt at abetment
is made out only when the offence abetted is actually commited.
Section-307: Attempt to murder Attempts by life-convicts -
Whoever does
any act with such intention or knowledge, and under such circumstances that, if
he by that act caused death, he would be guilty of murder, shall be punished
with imprisonment of either description for a term which may extend to ten
years, and shall also be liable to fine; and, if hurt is caused to any person
by such act, the offender shall be liable either to imprisonment for life, or
to such punishment as is hereinbefore mentioned.
When any person offending under this section
is under sentence of imprisonment for life, he may, if hurt is caused, be
punished with death.
Illustration:
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.
(a) A shoots at Z with intention to kill him, under such circumstances that, if death ensued, A would be guilty of murder. A is liable to punishment under this section.
(b) A with
the intention of causing the death of a child of tender years exposes it in a
desert place. A has committed the offence defined by this section, though the
death of the child does not ensue.
(c) 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, he is liable to the punishment provided by the latter part of the first
paragraph of this section.
(d) 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 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.
Elements:
To attract
the provisions of section 307 of penal code, 1860, all the ingredients of
murder short of death must exist, viz-
a)
The act must be done with the intention of causing
death, or it be done with the intention ofcausing such bodily injury.
b)
The accused
must have made the attempt.
c)
The death of ahuman being must be attempted.
d)
The accused attempted to cause such death by doing
an act known to him, to be so imminently dangerous that it must in all
probability cause death, or such bodily injury as is likely to cause death.
Example:
Mr. X aims a
blow with a dagger at Mr. Z’s head who raises his hand to ward it off and gets
his hand severed from the wrist. The severity of the blow itself spells out his
murderous intent. His conviction under section 307 is held to be proper.
Punishment:
Under this
section a person, shall be punished with imprisonment which may extend to ten
years, and shall also be liable to fine; and, if hurt is caused to any person
by such act, the offender shall be liable either to imprisonment for life, in
another part of this section it has been said that when a person is sentenced
of life imprisonment under this section and at this time caused hurt to another
person, may be punished with death.
Comment:
To justify a conviction under section
307 of the penal code it is not essential that bodily injury capable of causing
death should have been inflicted. This section will apply even if no hurt is
caused, if the circumstances disclose that the intention of the assailant was
to cause the death of his victim. Intention or Knowledge and the nature of the
circumstances are the chief factors to be looked into in determining whether a
particular case comes within the mischief of section 307.
Relevant Case Reference:
Arjun Talukdar v. State of Orissa 1994 Cr lj 3526-
To bring a case with in the ambit of
s.307, the Prosecution has to make out the fact and circumstances envisaged by
s.300. If the ingredient of s300 are wholly lacking, there can be no conviction
under section 307.
Bir Singh v. State
of HP, 2006 Cr lj 2454-
It is not necessary to constitute the
offence that the attack should result in an injury. An attempt is itself
sufficient if there is requisite intention. An intention to murder can be
gathered from circumstances other than the existence or nature of the injury.
Sarjug Turi v. State
of Bihar, 2003Cr lj 2864-
Intention is an essential ingredient
of the offence of attempt to murder. Where the injury is simple in nature and
also not in vital part of the body, the Court said that the intention for
attempt to murder could not be inferred. The Court held that no offence under
section 324 was made out because injuries were caused with a sharp cutting
weapon.
Thugs, its elements and
punishment for thug:
According to section 310 of the penal
code, whoever at any time after the passing of this Act shall have been
habitually associated with any other or others for the purpose of committing
robbery or child stealing by means of or accompanied with murder is a thug.
There are some elements of thug
.These are-
a. Some persons must be habitually
associated with others.
b. Their object is to commit offence
of robbery or child stealing
c. The commission of murder by a
means to carry out their object.
This is special type of crime. It has
not yet disappeared from society. Generally thugs are robbers, dacoits or
kidnappers and murderers.
Punishment:
According to section 311 of the penal
code whoever is a thug sine. Hall be punished with imprisonment for life and
shall also liable to fine.
Prepared By
1.
Md. Kamrul Islam Roll – 12109079
2.
Mahbub Alam Roll – 11059070
3.
Foizul Kabir Roll – 12019053
4.
Md. Sagor Ali Roll – 12019026
5. Md.
Mosarrouf Hossain Roll – 12049030
