MURDER

The term “Murder” traces its origin form the Germanic
word “morth” which means secret killing. Murder means
when one person is killed by another person or a group of persons
who have a pre-determined intention to end life of the former. An
offence will not amount to ‘Murder’ unless it includes an
offence which falls under the definition of culpable homicide as
per the definition of ‘Murder’ under IPC. All murders are
culpable homicide but all homicides are not murders. Section 299
and Section 300 of Indian Penal Code deal with murder.

HOMICIDE

The word homicide is supposedly derived from Latin where
“homo” means man and “cida” means killing.
Thus, homicide means the killing of a man by a man. Homicide can be
lawful or unlawful. Culpable homicide is punishable by law and is
further divided into two categories:

• Culpable homicide amounting to murder




• Culpable homicide not amounting to murder

MURDER AS PER SECTION 300 OF THE INDIAN PENAL CODE

Section 300 of the IPC reads as follows: 300. Murder.
—Except in the cases hereinafter excepted, culpable homicide
is murder, if the act by which the death is caused is done with the
intention of causing death, or—

(Secondly) —If it is done with the intention of causing
such bodily injury as the offender knows to be likely to cause the
death of the person to whom the harm is caused, or—

(Thirdly) —If it is done with the intention of causing
bodily injury to any person and the bodily injury intended to be
inflicted is sufficient in the ordinary course of nature to cause
death, or—

(Fourthly) —If the person committing the act knows that it
is so imminently dangerous that it must, in all probability, cause
death or such bodily injury as is likely to cause death, and
commits such act without any excuse for incurring the risk of
causing death or such injury as aforesaid.

If we analyse the definition under Section 300 of the IPC,
culpable homicide is considered as murder if:

• The act is committed with an intention to
  cause death.




• The act is done with the intention of causing
  such bodily injury for which the offender has
  knowledge that it would result in
  death.




• The person has the knowledge that his act is
  dangerous and would cause death
  or bodily injury but still commits the act, this would amount to
  murder.

INGREDIENTS OF MURDER

• Causing death: There should be an intention of
  causing death




• Doing an act: There should be an intention to
  cause such bodily injury that is likely to cause death or




• The act must be done with the knowledge that
  the act is likely to cause the death of another.

ILLUSTRATIONS

• A shoots B with an intention of killing him. As a result, B
  dies, murder is committed by A.




• D intentionally gives a sword-cut to C that is sufficient to
  cause death of anyone in the ordinary course of nature. As a
  consequence, C dies. Here, D is guilty of murder though he did not
  intend to cause C’s death.

CULPABLE HOMICIDE AS PER SECTION 299 OF THE INDIAN PENAL
CODE

Section 299 of IPC reads as follows:

In the case of Reg. v. Govinda ( 1877) ILR 1 Bom
342), the accused had knocked down his wife, kept a knee on her
chest and gave two to three violent blows with the closed fist on
her face. This act produced extraversion of blood on her brain and
afterwards, the wife died due to this. The act was not committed
with the intention of causing death and the bodily injury was not
sufficient to cause death in the ordinary course of nature. The
accused was liable to culpable homicide not amounting to
murder.

The difference between murder and culpable homicide is
intention. If the intention is present the crime is said to be
committed under Section 300 of IPC. If the intention is absent,
then the crime is dealt under section 304 of IPC.

DISTINCTION BETWEEN CULPABLE HOMICIDE AND MURDER

Cause of confusion: The thin line is the
intention behind the act. All murders are culpable
homicide but the vice-versa is not true. Ever since the IPC was
enacted, this distinction as to which case will fall under which
category is a perennial question with which courts are often
confronted. On a plain reading of the relevant provisions of the
Code, it appears that the given cases can be conveniently
classified into two categories but when it comes to actual
application, the courts are often confronted with this dilemma.
This confusion often emerges when it is difficult to interpret from
the evidence whether the intention was to cause merely bodily
injury which would not make out an offence of murder or there was a
clear intention to kill the victim making out a clear case of an
offence of murder. The most confusing aspect is
‘intention‘ as in both the provisions the
intention is to cause death. Hence, you have to consider the degree
of intention of offenders. If the person is killed in cold-blood or
with planning then it is murder because the intention to kill is in
high degree and not out of sudden rage or provocation. On other
hand, if the victim is killed without pre-planning, in sudden fight
or in sudden anger because of somebody’s provocation or
instigation, then such a death is called culpable homicide. Hence,
whether the act done is culpable homicide or murder is a question
of fact.

Distinguishing between the two: The distinction
between the two was aptly set forth by Sarkaria J., in State of
A.P. v. R. Punnayya,((1976) 4 SCC 382) “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 characteristics of murder’ is
culpable homicide not amounting to murder. For the purpose of
fixing punishment, proportionate to the gravity of this generic
offence, the IPC practically recognises three degrees of culpable
homicide. The first is what may be called, culpable homicide of
first degree, this is the gravest 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 1st 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, punishable under Part II of Section 304.”

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

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.

CASES/JUDGMENTS FOR DISCUSSION

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.

MUTHU V. STATE OF TAMIL NADU,((2007) ILLJ 9
MAD)

In this case, it was held by the Supreme Court that constant
harassment might deprive the power of self-control, amounting to
sudden and grave provocation.

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.

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.

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.

PUNISHMENT

PUNISHMENT FOR MURDER – SECTION 302, IPC

Whoever commits murder shall be punishable with death, or
imprisonment for life and shall also be liable to fine.

PUNISHMENT FOR CULPABLE HOMICIDE – SECTION 304,
IPC

Culpable homicide is not murder if it falls under any one of the
five exceptions given under Section 300. For culpable homicide not
amounting to murder, Section 304 of IPC describes the punishments
as:

• Imprisonment for life or




• Imprisonment for either description of a term extending up to
  ten years and/or




• Fine.

MEANING OF EXPRESSION “BEYOND REASONABLE DOUBT”

For a doubt to stand in the way of conviction of guilt it must
be a real doubt and a reasonable doubt. If the data leaves the mind
of the trial judge in doubt, the decision must be against the party
having the burden of persuasion. If the mind of the adjudication
tribunal is evenly balanced as to whether or not the accused is
guilty, it is its duty to acquit the accused.

EXAMINING RAREST OF THE RARE CASE IN IMPOSING DEATH
PENALTY

Rarest of the rare case is the principle enshrined in Bachan
Singh v. State of Punjab (1980) (2 SCC 684) which limits the
vast discretion of the court in imposing death penalty. Death as a
highest punishment was removed from being a general rule to being
awarded only in exceptional circumstances and that too after
recording the special reason for imposing the highest punishment
which cannot be reverted under any circumstance after its
execution. The phrase “rarest of the rare” case still
remains to be defined while the concern for human life, the norms
of a civilised society and the need to reform the criminal has
engaged the attention of the courts. The sentence of death has to
be based on the action of the criminal rather than the crime
committed. The doctrine of proportionality of sentence vis-a-vis
the crime, the victim and the offender has been the greatest
concern of the courts.

CONCLUSION

As discussed above, there is a thin line between Murder and
Culpable Homicide. The courts have time and again taken efforts to
differentiate between the two offences the end result of the two
being same, intention behind the offence being the important factor
of consideration. The entire case of the prosecution can be based
on a single point i.e. “intention” and in the same way
the entire case of the prosecution can be destroyed by the defence
by proving “no intention”.

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guide to the subject matter. Specialist advice should be sought
about your specific circumstances.