Lawwatch

Distinction between Culpable Homicide and Murder

The heinous offence of killing of a person by another is termed as
Murder, Culpable Homicide and Non-Culpable Homicide in India or in
degrees such as First Degree Murder, Second Degree Murder and Third
Degree Murder in the United States of America, depending on the gravity
of intention behind the act and the severity of the way of committing
the crime.

In India, the crime of killing of a human being by another human being
is broadly categorized as Culpable Homicide and Murder under the Indian
Penal Code (IPC). They are enlisted as distinct offences. But the
definition and description of both Culpable Homicide under Section 299
IPC and Murder under Section 300 IPC look almost similar in terms of the
terminology used. Therefore making out the distinction between them is
bit difficult. The lack of distinction perplexes even the learned law
professionals also.

The sections relating to Culpable Homicide and Murder are the weakest
provisions in the Code in terms of clarity. The sections are obscure and
may create confusion even in the minds of legal and judicial officers.
Capable Homicide is defined in the code but neither Homicide nor Murder
is, except by explanation.

Ingredients of the Sections 299 and 300 of IPC

The Section 299 of IPC defines
Culpable Homicide as follows:-

Whoever causes death by doing an act with,

  1. Intention of causing death.

  2. Intentionally causing bodily injury which is likely to cause
    death.

  3. Doing act with knowledge that it is likely to cause death.

The Section 300 of IPC describes
Murder as follows:-

Whoever causes death by doing an act with,

  1. Intention of causing death.

  2. Causing such bodily injury as the offender knows it is likely to
    cause death
    of person.

  3. Intentionally causing bodily injury which is sufficient to
    cause death.

  4. Doing act with knowledge that it is so imminently dangerous
    and in all probability causes death.

Culpable Homicide is a genus

Culpable Homicide is a genus whereas the Murder is its species.
Therefore all Culpable Homicides are not Murders but all Murders
are Culpable Homicides.

Culpable Homicide refers to doing a criminal act with the intention of
causing death, or with the intention of causing bodily injury which may
eventually cause death, or doing an act with the knowledge that the act
will result in death of the other. In Culpable Homicide there must be
intention or knowledge on the part of the accused that his act will
cause death or at least injury which would be sufficient to cause death
as a result of the injury.

If a person is causing some injury to another one who is already
suffering from some disease or some bodily infirmity and that injury
accelerates the death of that person the person responsible for causing
injury is liable for punishment for causing Culpable Homicide. If the
person doing the act has no intention to kill the other or has no
knowledge that his act will kill the other person, the person doing the
act is guilty of only a lesser crime than Culpable Homicide, but not
Murder. A killing done without premeditation or on a passion or a sudden
plight in the spur of a moment will not amount to Culpable Homicide
coming under Section 299 of IPC.

In regard to Section 299 the Supreme Court in Jagriti Devi vs State Of
H.P
says, “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 intention and knowledge. If that is caused in any of
the aforesaid three circumstances, the offence of Culpable Homicide is
said to have been committed”.

A husband struck a violent blow on his wife and the wife falls
unconscious. Thinking that the wife is dead, he hung her body soon so as
to create false evidence in regard to the incident. The court said that
the husband had no intention to kill his wife and hence not punishable
for Culpable Homicide as he has no intention to cause her death. He is
punished for his original assault and for creating false evidence only.

Murder under IPC

A Culpable Homicide will turn into a Murder if the criminal act by which
the death is caused, is done squarely with the purpose of causing death.
Similarly, if the offender is causing bodily injury on victim with due
intention or knowledge that it is likely or sufficient to cause death it
will be treated as a case of Murder. An act so imminently dangerous
enough to cause death or bodily injury that may likely to result in
death will also be considered a Murder. Murder is the most heinous
crimes in the criminal calendar.

In Murder, both the intention and knowledge of the offender about the
dire consequences are important. If an act done by a person on the other
is done with the chrystal clear intention or knowledge that the act will
be likely or sufficient to kill a person, it is Murder. The essential
ingredient of Murder is an unlawful act of causing death of a person
through a criminal act or commission by another person with prior
intent, malice or premeditation.

Though the words used in both the Sections of IPC look similar there is
a subtle difference between both terms, in terms of their import. But
the differentiation of both crimes retained in the Code is necessary so
as to separate the most heinous killing from those which are less
serious in nature. The distinction between the imports of the sections
can be made out only by analyzing the differences in illustration
provided and in punishment given for the crime under each Section.

In regard to Section 300 the Supreme Court in Jagriti Devi vs State Of
H.P
says, “Section 300 IPC,
however, deals with Murder although there is no clear definition of
Murder provided in Section 300 IPC.” and “Section 300 IPC further
provides for the exceptions which will constitute Culpable Homicide not
amounting to Murder and punishable under Section 304. When and if there
is intent and knowledge then the same would be a case of Section 304
Part I and if it is only a case of knowledge and not the intention to
cause Murder and bodily injury, then the same would be a case of Section
304 Part II. The aforesaid distinction between an act amounting to
Murder and an act not amounting to Murder has been brought out in the
numerous decisions of this Court”.

The term intention means the state of mind to bring about a desired
result whereas knowledge refers to the state of conscious awareness of
the facts. Intention is different from motive which is hidden or
cannot be unearthed easily. Intention and knowledge have to be
unearthed from the circumstances as both are a state of mind invisible
and subjective.

Inflicting an injury on the vital part of the body, use of sharp edged
weapons, hitting with high force to impair body organs, through
searching for the victim everywhere for acting upon him, uttering
dreadful words in regard to killing immediately after killing, etc are
being treated as circumstances that bring forth the dire intention of
the accused in cases of Murder.

When Culpable Homicide is not Murder

However, some sorts of exceptional homicides do not come within the
ambit of Murder. There are five exceptional circumstances in which a
Culpable Homicide is not Murder, but just manslaughter - a term in
English law.

Manslaughter is the unlawful killing of a person without malice - either
express or implied - as provided under exceptions in Section 300 IPC.
The exceptional circumstances are as follows:-

Provocation: If the offender is deprived of the power of self
control by grave or sudden provocation and he causes death of the
provocateur or any other person, the offender is not punished for
Murder.

Private defence: If the offender is exercising his act in good
faith, without premeditation or intention to do no harm, the right to
private defence will come into play. Then that is not Murder.

Exercise of legal powers: If the offender is a public servant and
doing any act believing to be within his purview and caused death, it
does not amount to Murder.

Absence of premeditation: If a person in a sudden heat of passion of
a quarrel commits a killing without premeditation, it is not Murder.

Consent: When a person who is above 18 years of age and his death
was caused with his voluntary consent, it is a case of Culpable Homicide
but not Murder.

Distinction in probability of death in both crimes

Murder is an aggravated form of Culpable Homicide. The existence of any
of the four clauses in the section 300 turns a killing into a Murder,
while the exception to the section reduces even a heinous killing in the
nature of Murder into one of Culpable Homicide not amounting to
Murder
.

In both Culpable Homicide and Murder, there is mens rea - an intention
to kill the victim. But in Culpable Homicide the accused is not
certain of death of the victim but hopes for it. In Murder there is
definite intention to kill and the offender is certain that the victim
will die. The probability of death is certain in Murder whereas it is
quite uncertain in Culpable Homicide. Murder involves more premeditated
actions than Culpable Homicide.

And in Murder the degree of probability of death is definite in
comparison to Culpable Homicide. To constitute Murder there must be
intention or knowledge that death must be the most probable result of
the criminal act by the accused. To constitute Murder the accused must
have clear knowledge that his act must in all probability cause death
rather than the bare knowledge that his act is likely to cause death.

Even if the intention of the accused was limited to the infliction of a
bodily injury sufficient to cause death in the ordinary course of
nature, and did not extend to the intention of causing death, the rule
laid down in the Virsa Singh
case
(1958 AIR 465) indicates
that the offence would be Murder. The judgment says, “No one has a
licence to run around inflicting injuries that are sufficient to cause
death in the ordinary course of nature and claim that they are not
guilty of Murder. If they inflict injuries of that kind, they must face
the consequences; and they can only escape if it can be shown, or
reasonably deduced that the injury was accidental or otherwise
unintentional”.

Mechanism to differentiate Culpable Homicide and Murder

It is quite difficult to differentiate a Culpable Homicide from Murder
if the facts of the case fall on the borderline between the two in terms
of gravity of intention or seriousness of the action. But the apex court
says as follows:-

First, establish that the accused has done an act of causing death of
another. Then, consider whether the act of the accused amounts to
Culpable Homicide. Then, consider whether the ingredients of section 300
have been satisfied. Lastly, consider whether the killing can be brought
down to the lower place of Culpable Homicide not amounting to Murder
by going through the exceptions under Section 300 IPC. If the killing
does not attract the ingredients of the section 300 explicitly or if it
attracts the exceptions under the section, it will be a case of Culpable
Homicide punishable under section 304 and not Murder. The matter to be
considered at this point is whether the facts of the case fit well with
the sections under section 300 - firstly to fourthly – to sustain the
charge of Murder.

The offence would fall under Culpable Homicide if the bodily injury
intended to be inflicted on the victim is likely to cause death; it
would fall under Murder if such injury is sufficient in the ordinary
course of nature
to cause death. The distinction is a question of
degree of probability. When the accused inflicts several injuries on the
person having knowledge of causing death the accused deserves conviction
for Murder.

Stabbing in chest or abdomen with sufficient force to penetrate such
structures prima facie will amount to the offence of Murder. When
injuries are inflicted by a number of persons with the intention of
killing and death ensures as a result of the injuries it is a case of
Murder under the first clause of section 300 IPC. Similarly, giving a
terrific blow on the head with a heavy hammer and thereby smashing the
head bones he intends to cause death under section 300 (2) and (3) of
IPC.

An act done with the knowledge of its consequence of merely causing
death is not prima facie Murder, if it can be affirmed that there was no
definite excuse allowable in the action it is a clear case of Murder.
Only extremely reckless and wholly inexcusable act of homicide will
constitute Murder.

It is the degree of probability of death which determines whether a
Culpable Homicide is of the gravest, medium or lowest degree. The
section 299(2) conveys the sense of probability as distinguished from a
mere possibility. The thirdly of section 300 mean that death will be
the most probable result of the injury in the ordinary course of nature.

Kinds of Culpable Homicides

Culpable Homicides are of three kinds in terms of punishment: -

  • Culpable Homicide of the first degree - Murder. This is the gravest
    form of killing with malice aforethought and punishable under
    Section 302 IPC

  • Culpable Homicide of the second degree - ordinary killing or
    manslaughter without malice. This is an act of Culpable Homicide not
    amounting to Murder and punishable under IPC 304 Para I

  • Culpable Homicide of the third degree. This is the lowest kind of
    killing (voluntary manslaughter) and punishable under IPC 304 Para
    II

The fourth degree Murder is involuntary manslaughter, which is done
without any sort of criminal intention, such as death caused by
negligent driving or such other criminal negligence - for which the
punishment is much lesser, not exceeding two years imprisonment, or
fine, or with both.

If an offence is done with intention and knowledge in regard to causing
death it will be a case for second degree Culpable Homicide but there is
only knowledge alone in regard to causing death, it is a case for third
degree Culpable Homicide.

Punishment for Murder and Culpable Homicide

The punishment IPC prescribes for Murder under section 302 is death or
imprisonment for life and fine, if any. Murder case is tried by the
Court of Session.

There are two sets of punishments for Culpable Homicide not amounting to
Murder under Section 304. One is punishment is imprisonment for life or
for ten years and fine, and the other is imprisonment for 10 years or
fine, or both.

The Supreme Court State of A.P. v. Rayavarapu
Punnayya
( (1976) 4 SCC 38) says,
“For the purpose of fixing punishment, proportionate to the gravity of
this generic offence, the Code practically recognises 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.\”

Conclusion

Even though both provisions relating to Culpable Homicide and Murder
correspond with each other, the difference in both the offences –
Culpable Murder and Murder - lies in the certainty of death in the
latter. In fact the difference is in regard to gravity - the seriousness
of the act of crime.

If the act is so dangerous with no possibility of survival for the
victim, it is an apt case of Murder. If a person dies out of an
intentional act of cutting someone’s head, then there is no chance for
his survival. Then that is nothing but Murder. If an act of crime leaves
the victim with some chance for escaping death it is a case of Culpable
Homicide.

It would have been nice if the IPC had shown the difference between both
crimes in clear terms using distinct set of words.