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.

(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