LAW OF CRIMES

Q1. “After considering the material on record, we are of the considered view that the
Appellant is not liable for conviction under Section 302 IPC. There is no evidence to
show that the murder of Ram Kumar Sahu was a premeditated one. We are convinced
that the Appellant did not have any intention to kill Ram Kumar Sahu. However,
Appellant swung the tangi which hit Ram Kumar Sahu on his head and due to the said
injury Ram Kumar Sahu had died. In conclusion, the Appellant’s conviction under
Section 302 IPC is set aside. The Appellant is, however, convicted under Section 304
(Part II) IPC and sentenced to undergo imprisonment for a period of seven years ” –
Explain.

Answer:

The answer to the above question ought to start from the very basic, i.e. the term Homicide.

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

To further clarify, Culpable means deserving to be blamed or considered to be responsible.

So, Culpable Homicide means blamed or responsible for human death.

The next term we need to analyse is “Murder”.

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.
Culpable Homicide as per Section 299 of the Indian Penal Code

Section 299 of IPC reads as follows:

Culpable homicide — Whoever causes death 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.

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.

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.

Distinction between Culpable Homicide and Murder

Cause of confusion: The thin line is the intention behind the act. 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 & 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.

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

In case of MUTHU V. STATE OF TAMIL NADU,((2007) ILLJ 9 MAD), it was held by the
Supreme Court that constant harassment might deprive the power of self-control, amounting
to sudden and grave provocation.

PRIVATE DEFENSE

Act of private defence can be 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.

EXERCISE OF LEGAL POWER BY 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.

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.

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.

Sec 304 IPC reads as : Whoever commits culpable homicide not amounting to 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 fine, 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 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 it is likely to
cause death, but without any intention to cause death, or to cause such bodily injury as is
likely to cause death.

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".

In the question above, the court observed that there was no evidence to show that the murder
of Ram Kumar Sahu was a premeditated one. Therefore the absence of intent or “Mens Rea”.
The case falls under culpable homicide not amounting to murder and hence the convicting
under Section 304 (Part II) IPC and sentenced to undergo imprisonment for a period of seven
years.
Q2. Write a Note “Offences punishable under Sections 147, 148, 307, 302, 459, 460,
120B, 118, and 176 read with Section 149 of the Indian Penal Code by offenders”

Ans:

Section 147 and 148 of the IPC deals with punishment for Rioting.

Rioting is defined in Section 146 of Indian Penal Code as: Whenever force or violence is
used by an unlawful assembly, or by any member thereof, in prosecution of the common
object of such assembly, every member of such assembly is guilty of the offence of rioting.

Section 147 of Indian Penal Code: "Punishment for Rioting"

Whoever is guilty of rioting, shall be punished with imprisonment of either description for a
term which may extend to two years, or with fine, or with both.

Section 148 of Indian Penal Code: "Rioting armed with deadly weapon"

Whoever is guilty of rioting, being armed with a deadly weapon or with anything which, used
as a weapon of offence, is likely to cause death, shall be punished with imprisonment of
either description for a term which may extend to three years, or with fine, or with both.

Section 149 of Indian Penal Code: “Every member of unlawful assembly guilty of offence
committed in prosecution of common object”

If an offence is committed by any member of an unlawful assembly in prosecution of the

common object of that assembly, or such as the members of that assembly knew to be likely
to be committed in prosecution of that object, every person who, at the time of the
committing of that offence, is a member of the same assembly, is guilty of that offence.

Section 307 of the Indian Penal Code: “attempt to murder”

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 the 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 the hurt is caused, be punished with death.”

Section 302 of the Indian Penal Code: “Punishment for murder”

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

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 and is punishable under Section
302 of Indian Penal Code. If the intention is absent, then the crime is dealt under section 304
of IPC.

Section 459 of The Indian Penal Code: “Causing grievous hurt whilst committing lurking
house trespass or house-breaking.”

Whoever, whilst committing lurking house-trespass or house-breaking, causes grievous hurt

to any person or attempts to cause death or grievous hurt to any person, 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 fine.

Section 460 of The Indian Penal Code: “All persons jointly concerned in lurking house-
trespass or house-breaking by night punishable where death or grievous hurt caused by one of
them.”

If, at the time of the committing of lurking house-trespass by night or house-breaking by

night, any person guilty of such offence shall voluntarily cause or attempt to cause death or
grievous hurt to any person, every person jointly concerned in committing such lurking
house-trespass by night or house-breaking by night, shall be punished with imprisonment for
life, or with imprisonment of either description for a term which may extend to ten years, and
shall also be liable to fine.

Section 120B in The Indian Penal Code: “Punishment of criminal conspiracy”

(1) Whoever is a party to a criminal conspiracy to commit an offence punishable with death,
imprisonment for life or rigorous imprisonment for a term of two years or upwards, shall,
where no express provision is made in this Code for the punishment of such a conspiracy, be
punished in the same manner as if he had abetted such offence.

(2) Whoever is a party to a criminal conspiracy other than a criminal conspiracy to commit an
offence punishable as aforesaid shall be punished with imprisonment of either description for
a term not exceeding six months, or with fine or with both.

Section 118 in The Indian Penal Code: “Concealing design to commit offence punishable
with death or imprisonment for life.”

Whoever intending to facilitate or knowing it to be likely that he will thereby facilitate the
commission of an offence punishable with death or  imprisonment for life voluntarily conceals
by any act or omission or by the use of encryption or any other information hiding tool, the
existence of a design to commit such offence or makes any representation which he knows to
be false respecting such design, If offence be committed — if offence be not committed. —
shall, if that offence be committed, be punished with imprisonment of either description for a
term which may extend to seven years, or, if the offence be not committed, with
imprisonment of either description, for a term which may extend to three years; and in either
case shall also be liable to fine.

Illustration A, knowing that dacoity is about to be committed at B, falsely informs the

Magistrate that a dacoity is about to be committed at C, a place in an opposite direction, and
thereby misleads the Magistrate with intent to facilitate the commission of the offence. The
dacoity is committed at B in pursuance of the design. A is punishable under this section.

Section 176 in The Indian Penal Code: “Omission to give notice or information to public
servant by person legally bound to give it”

Whoever, being legally bound to give any notice or to furnish information on any subject to
any public servant, as such, intentionally omits to give such notice or to furnish such
information in the manner and at the time required by law, shall be punished with simple
imprisonment for a term which may extend to one month, or with fine which may extend to
five hundred rupees, or with both; or, if the notice or information required to be given
respects the commission of an offence, or is required for the purpose of preventing the
commission of an offence, or in order to the apprehension of an offender, with simple
imprisonment for a term which may extend to six months, or with fine which may extend to
one thousand rupees, or with both; or, if the notice or information required to be given is re-
quired by an order passed under sub-section (1) of section 565 of the Code of Criminal
Procedure, 1898 (5 of 1898) with imprisonment of either description for a term which may
extend to six months, or with fine which may extend to one thousand rupees, or with both.